Baltimore County v. RTKL Assoc.

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In the Circu it Court for B altimore C ounty Case No. 03-C-01-008522 IN THE COURT OF APPEALS OF MARYLAND No. 77 September Term, 2003 ______________________________________ BALTIMORE COUNTY, MARYLAND v. RTKL ASSOCIATES INC., ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: April 9, 2004 Two issues are be fore us in this appeal: (1 ) what, if an y, statute of limitations applies to an action filed by a county for breach of a written contract; and (2) whether a plaintiff who sues a corporate engineering or a rchitectural firm for breach of contrac t or negligen ce is required to file a certifica te of merit pursuant to Maryland Code, §3-2C-02 of the Cts. & Jud. Proc. Article (CJP). W e shall hold that the three-year statute of limitations set forth in CJP §5-101, applicable generally to civil actions, applies to the county s action, and that the certificate of merit req uirement o f CJP §3 -2C-02 is limited to actions against licensed individuals and is not ap plicable to suits agains t corporate firms. The result of these holdings will be a r ever sal of the judg men t ente red b y the C ircuit Co urt for Baltim ore C ounty. BACKGROUND In April,1996, Baltimore County and RTKL Associates, Inc. (RTKL) entered into a written contract under which RTKL agreed to provide design development, construction documents, and bid assistan ce for P hase I o f the D undee -Saltpe ter Env ironme ntal Par k, a proposed education center to be located in the northeastern part of the county. At some point, RTKL engaged Andrews, Miller & Associates (AMA ) as a subcontractor to perf orm engineering services asso ciated with the grad ing of th e prope rty. Although the record is not entirely clear on th is point, it appea rs that work under the c ontract wa s complete d in 1998. In June, 1999, a county survey crew discovered that benchmarks set by AMA were off by .092 feet and that all grading of dirt was done .092 f eet too low. As a resu lt, more dirt had to be broug ht to the site to correct the grading and foundation walls already installed had to be changed. That, in turn, required the disassembly of wall panels, additional concrete and chang es to the slab of the grad e. In August, 2001, the county sued both contractors, charging them with breach of contract and negligence. The defendants initially moved to dismiss the action on two grounds that the dispute was subject to arbitration an d that the actio n was no t filed within the one-year time perio d allowed by Maryland C ode, Art. 25 A, §1A (c). The m otion to dismiss in favo r of arb itration w as acco mpan ied by a p etition to comp el arbitra tion. The court denie d that petition a nd the mo tion to dismis s in favor o f arbitration b ut did not expressly rule on the limitations issue . RTKL and AM A filed an interlocutory ap peal, asking the Court o f Special A ppeals to rule on both issues. The appellate court declined that invitation. Holding that an immediate appeal was permissible from an order denying a petition to compel arbitration, the court considered the defendants argument on that issue, but, finding no merit in it, affirm ed the ruling of the Circuit Court. Concluding that no interlocutory appeal lay from any implied ruling on the limitations issue, however, the co urt refused to cons ider that matter. RTKL v. Baltimo re Coun ty, 147 Md. App. 647, 810 A.2d 512 (2002 ). When the case returned to the Circuit Court, RTKL and AM A filed join t motions to dismiss on the grounds of the one-year statute of limitations in Art. 25A, §1A(c) and the county s failure to file a certificate of merit in acco rdance w ith CJP §3 -2C-02. T he county argued in response to the limitations argument that Art. 25A , §1A(c) a pplied only to persons -2- suing a county on a written contract, not to the situation where the county was the plaintiff, and that, indeed, the county was not subject to any statute of limitations when acting as a plaintiff in a breach of con tract action. In May, 2003, the court denied the motion founded on the lack of a certificate of merit, holding that the requirement applied only to suits against licensed professionals individuals and not to suits against corporations. It granted the motion based on limitations, however, concluding, largely on the ground of parity, that the one-year statute should apply to both parties to the contract, and not just o ne of th em. Both sides appealed, and we granted certiorari on our own initiative, before proceedings in the Court of Special Appeals, to consider the two issues. DISCUSSION Statute of Limitations Art. 25A, §1A(c) CJP §5-101 provides that [a] civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced. Everyone agrees that the county s action was filed within that th ree year period , but neither sid e believes that §5-10 1 is the applic able provision. The def endants co ntend that th e applicable statute of limitations is the one-year provision contained in Art. 25A, §1A(c). The county, asserting the ancient common law doctrine of nullum tempus occurrit regi (time does not run agains t the King), a rgues that, -3- when acting as a p laintiff, it is not subject to any statute of limitations. We sha ll begin with the statute. Art. 25A, §1A was part of a law first enacted in 1976 (1976 Md. Laws, ch. 450) that, subject to certain conditions and limitations, waived the sovereign immunity of the State and purported to waive sove reign immun ity of the coun ties and mu nicipalities of th e State in actions against them for breach of a written contract. Until the enactment of that law, the State and its agencies enjoyed a common law sovereign immunity from suits in both contract and tort: neither a contract nor a tort action [could] be maintained against the State unless specific legislative consent has been given and funds (or the means to raise them) are available to satisfy the judgment. Dep t of Natural Resources v. Welsh, 308 Md. 54, 58-59, 521 A .2d 313 , 315 (1 986). Although the immu nity enjoyed by the State, in both contract and tort actions, was a general one that had long been recognized, we noted in American Structures v. City of Balto., 278 Md. 356, 359, 364 A.2d 55, 57 (1976), that [a]s regards counties and municipalities, however, the rule is different. Municipalities and counties enjoyed a limited immunity in tort actions. As we confirmed in DiPino v . Davis, 354 Md. 18, 47, 729 A.2d 354, 369-70 (1999), [a] local governmen tal entity is liable for its torts if the tortious conduct occurs while the entity is acting in a private or proprietary capa city, but, unless its imm unity is legislatively waived, it is im mune fro m liability for tortious conduct committed while the entity is acting in a governm ental capac ity. We recou nted in American Structures, however, -4- that counties and municipalities have been regularly subject to suit in contract actions, whether the contracts were made in performance of a governmental or proprietary function, as long as the execution of the contract was within the power of the governmental unit. Id. at 359-60, 3 64 A.2d at 57, citing ca ses dating back to 1862 (Emp hasis added). In Montgomery County v. Revere, 341 Md. 366, 671 A.2d 1 (1996), we confirmed that under Maryland law counties and municipalities are normally bound by their contracts to the same extent as private entities and that Maryland law has never recognized the defense of governmental immunity in contract actions against counties and municipalities. Id. at 384, 671 A.2d a t 10. See also Harford Co. v. Bel Air, 348 Md. 363, 372, 704 A.2d 421, 425 (1998); Fraternal Order of Police v. Balto. Co., 340 Md. 157, 173, 665 A.2d 1029, 1037 (1995). That distinction that the immunity from contract actions enjoyed by the State did not apply to the coun ties and mu nicipalities appears to have been missed by the General Assemb ly when it enacted ch. 450 in 1976, for, in one of the Whereas clauses that introduced the bill, the Legislature stated that this Court had held that, as a result of the common law doctrin e of sove reign imm unity, a suit cannot be maintained against the State or its political subdivisions, unless auth orized by the L egislature, and funds are available to satisfy any judgme nt rendered . (Emph asis added). Under that assumption, and desiring to modify the effect o f this comm on law d octrine in the b elief that there exis ts a moral obligation on the part of any contracting p arty, including the State or its political -5- subdivisions, to fulfill the ob ligations of a contract, the Legislature proceede d, subject to certain con ditions and lim itations, to waive the immunity it knew was enjoyed by the State and the im mun ity it ap pare ntly th oug ht was en joyed by the counties and mu nicipalities in actions for b reach of a written con tract. The Legislature achieved that result by ena cting, in the on e bill, five sets of nearly identical provisions: one, now found in §§12-201 through 12-204 of the State Government Article, applicable to actions against the State or units of the State government; a second, codified in Art. 23A, §1A, applicable to actions against incorporated municipalities; a third, codified in Art. 25, §1A , applicable to actions aga inst non-ch artered, non -code cou nties; a fourth, codified in Art. 25A, §1A, applicable to actions against chartered counties, such as Baltimore County; and the fifth, codified in Art. 25B, §13A, applicable to actions against code counties. Each set contained four subsections . The most relevant set here Art. 25A, §1A began in subsection (a) with the statement that, unless otherwise specifically provided by the Laws of Ma ryland, neither a c hartered co unty nor its units o r officials could raise the defense of sovereign immunity in the courts of this State in an action based on a written contract executed on behalf of the cou nty or a unit of th e county by an o fficial or em ployee acting within the scope of his/her authority. Subsection (b) provided that, in any such action, neither the county nor its units or officials were liable for punitive damages. That, too, was unneces sary, as this Court had made clear well before 1976 and has consistently maintained -6- since then, that pun itive damag es are not rec overable b y anyone in a bre ach of co ntract action. See St. Paul at Chase v. Mfrs. Life Insur., 262 Md. 192, 236, 278 A.2d 12, 33, cert. denied, 404 U.S. 857, 92 S. Ct. 104, 30 L. Ed .2d 98 (1971); Siegman v. Equitable Trust Co., 267 Md. 309, 313 , 297 A.2d 758 , 760 (1972) ( It is well settled in this State that there can be no award of punitive damages in a pure action for brea ch of con tract. ); Bowden v. Caldor, 350 Md. 4, 22, 710 A.2d 267, 276 (1998) ( Under Maryland law, punitive damages are allowable only in tort actions. ). Subsection (c), which is the one at issue here, provides that [a] claim is barred unless the claimant files suit within one year from the date on which the claim arose or within one year after completion of the contract giving rise to the claim, whichever is later. Subsection (d), intending to address o ne of the p ractical supp orts for the so vereign im munity defense, requires the c ounty, [i]n order to provide fo r the implem entation of this section, to make available adequate funds for the satisfaction of any final judgment . . . which has been rendered against the c ounty . . . in an action in contract as provided in this section. The remaining subsections, added after 1976, place certain conditions and limitations on mandated alternative dispute resolution provisions in construction contracts; they are not presen tly at issue in this case . The defendants con tend, and the Circuit Co urt found, that the words claim and claim ant, as used in subsection (c), include the county when it seeks recovery as a plaintiff, and that, as a result, the county in this case is sub ject to the one-year statute of limitations. -7- The county, of course, r eads thos e wo rds a s app lying only to tho se w ho su e the county. 1 The issue is one of statutory construction, and, as we have often said, our predominant goal, when c onstruing sta tutes, is to ascertain and implement the legis lative inte nt. See MVA v. Lytle, 374 M d. 37, 57, 82 1 A.2d 6 2, 74 (200 3); Toler v. MVA, 373 Md. 214, 220, 817 A.2d 229, 233 (2003). In doing so, we look first to the words of the statute, but if the true legislative intent cannot readily be determined from the statutory language alone, we look to other indicia of that intent, including the title to the bill, the structure of the statute, the interrelationship of its various provisio ns, its legislative history, its general purpose, and the relative rationality and legal effect of various comp eting co nstructio ns. Id. See also W itte v. Azarian, 369 Md. 518 , 525, 801 A.2d 1 60, 165 (2002). The language of subsec tion (c), if read in isolation and divorced from the rest of the section, is, indeed, ambiguous. As a stand -alone statute , it could be rea d, on its face , to apply to any claim , by any person, on any contract, including those between private persons, and thus to replace entirely, as to breach of contract actions, the three-year statute of limitations in CJP §5- 101. The re is no sugg estion anyw here that that could hav e been the legislative intent. The sub section can take its prope r meaning only by reference to other releva nt indicia of legislative intent, the clearest and most pertine nt evidenc e of wh ich lies in the o ther 1 The issue of whether Art. 25A, § 1A(c) and its counterparts applicable to actions against the State and other political subdivisions of the State are true statutes of limitations or conditions on the right to sue has not been raised in this case and is not relevant to this case. That issue is before us in another case. We refer to those provisions as statutes of limitations for convenience and because the parties have done so. -8- provisions of the statute and in the title to the Act, in which the subject of the Act is required to be de scribed . See Marylan d Con stitution, A rt. III, § 29 . The title to ch. 450 sta tes that it is for the purpose of providing that the State an d its counties and municipalities may not raise the defense of sovereign immunity in th e courts of this State in an action in contract based upon certain written contracts a nd setting f orth certain exclusions and limitations applicable to such actions . . . (Emphasis added). The only situation in which sovereign immunity could be raised as a defense is when a claim is being made against the governmental entity; sovereign immunity as a defense has no meaning in the context of a claim by a governmental entity against someone else. Thus, the title alone, which necessarily limits the scope of the statute, makes clear that the limitations applicable to such actions must mean actions against the gov ernme ntal entity. That meaning flows indisputably fro m the othe r provisions of the statute itself. For the reasons noted, subsection (a), precluding the governmental entities from raising of the defense, can apply only to claims against the entity. Subsection (b), stating that [i]n any such actio n th e ent ity is not lia ble f or pu nitiv e dam ages , also can a pply o nly to claims against the entity; even if the law otherwise allowed punitive damages in a breach of contract action, the entity obviously could not be subject to liab ility for such dam ages wh en it is the claimant. Similarly, subsec tion (d), requirin g the coun ty, [i]n order to provide for the implementation of this section, to provide funds for the satisfaction of any final judgment which has been rendered agai nst th e cou nty can have reference only to actions against the -9- county. The requ irement w ould be unnecessary when the county is acting as a claimant and thus would not be needed in that situation to provide for the implementation of this sectio n. The whole structure of the statute its text and its title militates against the construction urged by the d efendan ts and ado pted by the C ircuit Court. So, indeed , does its legis lativ e history. That history begins, for our purposes, with House Joint Resolution 65, adopted by the General Assem bly in 196 8. See 1968 Md. Laws, Joint Resolution No. 49. In that Joint Resolution, the Legisla ture expres sed the view that [t]he present judicial doctrine of sovereign immunity of ten operate s capricious ly and unjustly to preclude recovery on many meritorious claims against state and local governments and noted the then-recent holding of this Court in Weisner v. Bd. of Education, 237 Md. 391, 206 A.2d 560 (1965) that the doctrine was so firmly established in Maryland law that any change would have to come from the Leg islature. The clear focu s of the Join t Resolutio n was on immunity in tort actions, which was the subject of the Weisner case. The resolution called attention to the recent adoption of a Tort Claims A ct in Californ ia and stated that [t]he delineation of those areas where justice dictates that state and local governments be liable in tort and be responsible for providing compensation to injured persons can best be accomplished through detailed legislation in the nature of a Sta te Tort C laims A ct. It continued that the liability of the State and its officers in tort required a comprehensive study, and, to that end, requested the Governor to appoint -10- a Comm ission to ma ke a com prehensiv e study on the extent to w hich state and local governm ents and their of ficers shou ld be liable in tort and on how best to insure that funds are ava ilable to . . . m eet such claims. Such a Commission was appointed, but due, apparently, to a lack of funding, it never conducted the study or issued a report. In 1969, the Legislative Council considered the matter, but too k no ac tion. See Minutes of Judiciary Committee of Legislative C ouncil, Meeting of M ay 6-7, 1969, Item 64. A proposed Constitution al Amen dment (S enate Bill 651), to provide th at sovereign immunity could not be pleaded as a defense in a suit against the State or any unit of local government except to the extent prescribed by law, was introdu ced into the 196 9 sessio n of the Gene ral Ass embly, bu t did no t pass. The Legislative C ouncil con sidered the iss ue again in 1972 in co nnection w ith its study of a State ins urance progra m. See Maryland Legislative Council Senate Finance Committee, House Committee on Appropriations, House Comm ittee on Ways and Means, Joint Budget Subcommittees 1972 Report, Item 266 (Study of State Insurance Program and Self-Insurance Alternatives). The Co uncil noted that, although sov ereign immunity was generally available, legislative exceptions had been ma de to that doctrine and a number of State and local agencies ha d obtained com prehensive insurance or had established selfinsurance programs. The Council expressed the view that, the State, having made the basic decision to waive sovereign immunity in so me cases, s hould m ake the w aiver unifo rm in all cases by legislative act. Id. at 101. -11- In 1973, House Bill 1119 was introduced to make the State, the counties, and the municipalities liable in any action of contract and to preclude them from raising the sovereign immunity de fense in tho se actions. T he bill passed the House of Delegates but died in the Senate. A similar bill (House Bill 5) did pass in the 1974 session but was vetoed by the Governor, who expressed a number of concerns, including the lack of any provision for making funds available to pay any judgmen ts and whether, as worded, it might include actions sounding in negligence that arose from contracts or from governmental services that might be construed as contractual in nature. The Governor expressed the belief that further study was necessary and committed himself to reconstituting the Com mission cre ated in 1968. See Veto Message of Governor, May 31, 1974, 1974 Md. Laws at 3087-89. Deciding not to await a report from that Commission, the L egislature enacted House Bill 1672 in 1975, which again would have made the State and its political subdivisions liable in an action of contract and preclude them from raising sovereign immunity in such actions. In an attempt to address one of the Governor s concerns, the bill required the Governor to include in the State budget adequate funds for the satisfaction of any judgment rendered against the S tate and req uired the go verning b odies of the political subd ivisions to make available adequate funds for the payment of such judgments. That bill, too, was vetoed. The Go vernor no ted that, although th e bill required the Gov ernor to include funds in the budget to satisfy judgments, it did not preclude the General Assembly from cutting or eliminating those funds and thu s still left th e matte r uncer tain. He again exp ressed his desire -12- that the Leg islature a wait a re port fro m the C omm ission. See Veto Mes sage of Gov ernor, May 15, 1975, 1975 Md. Laws at 4067-69. As part of its investigation into the waiver of immunity in contract claims, the Commission prepared a questionn aire, which it sent to bar ass ociations an d a variety of other interested organi zations . Among the questions asked was whether there should be a special statute of limitations for contract claims against the State or other sov ereign? ( Empha sis added). In a Decemb er, 1975, response, the Maryland State Bar Association Committee on Claims Against the State, in a letter to the Chairman of the Commission, advised that, in principle, it favored a llowance of actions a gainst the go vernmen t on written contracts, if preceded by fulfillment of a notice requ irement an d if within a prescribed special period of limitations. In an interim report to the Governor in February, 1976, the Commission recommended that sovereign immunity be waived in contract actions, subject to certain conditions and limitations. In that regard, the Commission noted that responses from other States indicated that abrogation of sovere ign immu nity in contract actions had produced negligible fiscal impact, because (1) the State had already appropriated the money needed to fulfill the contractual obligation, (2) the contract itself could provide conditions to liability, and (3) when the states abrogate sovereign immunity, they do so subject to a number of exceptions and limitations which act to further minimize the fiscal impact. The bill that became ch. 450, introduced immedia tely on the heels o f the Com mission s inte rim report, made sp ecific -13- referen ce to tha t report. There is nothing in this legislative history even to suggest an intent to shorten the statute of limitations applicable to an action by the State or one of its political subdivisions for breach of contract. The only concern on the part of the Governor, who had vetoed two earlier bills, on the part of the State Bar Association, and on the part of the Commission was a mechanism to limit the exposure of governmental units in actions against them. Along with the preclusion of punitive damages and making the waiver applicable only to written contracts, the special statute of limitations applicable to claims against the governmental entities was inserted to address that concern. For all of these reasons, we hold that Art. 25A, §1A(c), and its counterparts applicable to the other governmental e ntities, applies on ly to claims against the e ntity. Nullum Tempus We turn now to the county s contention that it is clothed with the mantle of nullum tempus occurrit regi (or, as one author suggested may be more a ppropriate in our republican form of gov ernme nt, nullum tempus occurrit reipublicae)2 and is subject to no statute of limitations when acting as a plaintiff. We reject that approach in breach of contract actions brought by counties and municipalities and, because those issues are not now before us, 2 See Sigmu nd D. S chutz, Time to Reconsider Nullum Tempus Occurrit Regi The Applicability of Statutes of Limitations Against the State of Maine in Civil Actions, 55 Me. L. Rev. 373, 375 (2003). -14- reserve on whe ther we sh ould contin ue to recognize it in actions brought by the State or its agencies or in tort actions brought by counties and municipalities. The doctrine that statutes of limitations and laches do not run against the Sovereign lies deep in English common law, having been traced back even to the time of Bracton in the 13 th Centu ry. See United States v. Hoar, 26 F.Cas . 329 (C.C .D.Mas s. 1821); United States v. Thompson, 98 U.S . 486, 48 9, 25 L . Ed. 19 4, 195 ( 1879) ; Joseph Chitty, A T REATISE ON THE L AW OF THE P REROGATIVES OF THE C ROWN 379 (1820). Several somewhat related rationales have been asserted for the doctrine, at least in its English formulation. Blackstone tied it not only to the sovereignty of the King but to the legal (though hardly justifiable) notion of his absolu te perfe ction. 1 William Black stone, C OMMENTARIES ON THE L AWS OF E NGLAND *246 (Lewis Ed. 1902). Blackstone observed: Besides the attribute of sovereignty, the law also ascribes to the king, in his political capacity, absolute perfection. The king can do no wrong: which an cient and f undame ntal maxim is not to be understood, as if every thing transacted by the government was of course just and lawful, but mean s only two things. First, that whatever is exceptionable in the conduct of public affairs, is not to be impute d to the king , nor is he ans werable f or it persona lly to his people; for this doctrine would totally destroy that constitutional independ ence of th e crown , which is necessary for the balance of power in our free and active, and therefore compounded, constitution. And, secondly, it means that the prerogative of the crown extends not to any injury: it is created for the benefit of the people, and therefore cannot be exerted to their pre judice. 3 3 Blackstone adds that [t]he king, moreover, is not only incapable of doing wrong, (contin ued...) -15- Blackstone continued that [i]n further pursuance of this principle, the law also determines that in the king can be no negligence, or laches, and therefore no delay will bar his right. Id. at 247. Thus, [n]ullum tempus occurrit regi has been the standing maxim upon all occasions; for the law intends that the king is always busied for the public good, and therefore has no leisu re to assert his right within the times limited to subjects. Id. See also 4 Matth ew B acon, A N EW A BRIDGMENT OF THE L AW, 6 th ed. at 200-01 (1793). Chitty adds, as an additional rationale, that the King should [not] suffer by the negligence of his officers, or by their comp acts or c ombin ation w ith the ad verse p arty. Ch itty, supra, at 379. After the American Revolution, the States, and ultimately the Federal G overnm ent, adopted the common law doctrine as an incident of their new , transfe rred sov ereignty. See United States v. Thompson, supra, 98 U.S. 486, 489- 90, 25 L. Ed. 19 4, 195; Colorado 3 (...continued) but even of thinking wrong: h e can nev er mean to do an imp roper thing : in him is no f olly or weakness. Id. Perhaps th e most apt re sponse to th is entire fiction o f royal infallibility came fro m the hum orist A. P. H erbert wh o, through the opinion of the Lo rd Chan cellor in the fictional case of Bold v. The Attorney General, noted: One of the first actions of a loyal young Englishman who begins to study the law of the land is to read carefully the pages which are concerned with the King; and he learns with some surprise . . . that the King can do no w rong. He is surprised f or this reason ; that the wh ole course o f his historical studies at school has led him to believe that at the material dates of English history the Kin g was alw ays doing w rong. . . It is not too much to s ay that the wh ole Constitution has been erected upon the assumption that the King not only is capable of doing wrong but is more likely to do wrong than other men if he is given the chance. See A. P. H erbert, U NCOMMON L AW, Bold v. The Attorney General, at 292 ( 1977 e d.). The power to remove the President and the Governor through the Constitutional impeachment process necessarily belies any notion that they are incapable of doing wron g. See La ngford v. Unite d States , 101 U.S. 341, 34 3, 25 L. Ed. 1010 , 1011 (1879). -16- Springs v. Timberlane Assoc., 824 P.2d 776, 778 (Colo. 199 2). Most S tates continu e to recognize the doctrine to some extent and in some fashion, no longer, of course, as a royal prerogative but as a matter of public polic y, to preserv[e] the public rights, revenues, and property from injury and loss, by the negligence of public officers. Guaranty Trust Co. of New York v. United States, 304 U.S. 126, 132, 58 S. Ct. 785, 788, 82 L. Ed. 1224, 1228 (1938). Maryland seems to have gone both ways on whether the doctrine applied in this State. In three early cases, this Court h eld that the nullum tempus doctrine was personal to the King, that it had not been transferred to the Proprietor of the Maryland colony, and that the Proprietor was therefo re boun d by statute s of lim itations. See Lord Proprietary v. Bond, 1 H. & M cH. 210 (176 0) (P ropr ietar y barred by limitations in suit on sheriff s bond). In Kelly s Lessee v. Greenfie ld, 2 H. & McH. 121, 138 (1785), the C ourt expounded even more directly: [T]he maxim, nullum tem pus occu rrit regi, has never been applied, that we can find, to a ny but the king himself . . . It never was in the Proprietor . . . and there could have been no very good pretext for the Judges to adopt it here, because he never busied himself extremely in the affairs of Maryland, which was the ground of its being at first established in the case of the king; i.e., his constant attention to the public w eal and the p ublic concerns, to the neglect of his private affairs. Besides, it is an unjust, injurious and inconvenient rule, with respect to the citizens, and as such not being expressly given, it ought not to be perm itted to o perate. See also Russell s Lessee v. Baker, 1 H. & J. 71 (18 00). -17- In Swearingen v. United States, 11 G. & J. 373 (1841), the Court took a different position. The question was whether, in a suit in State court, the United States was subject to the State 12-year statute of limitations for specialties. The case could, of course, have been easily decided on the basis of independent Federal sovereignty and supremacy, but the Court decided to take a different approach. Without mentioning the three earlier cases, the Court concluded that the State succeeded to the sovereignty of the King an d that [t]o all claims springing out of the exercise of every sovereign power by the State, and which w ere due to the State, by express legislation, the doctrine of nullum tempus, &c., w as appl ied . . . 4 Having afforded the State this exemption from limitations, the Court added that, when portions of that sovereign power were conferred on the United States, presumably through the adoption of the Federal Constitution, it assumed that privilege as well. 5 In Am. Bonding Co. v. Mechanics Bank, 97 Md. 598, 55 A . 395 (1903), this Court ex tended tha t view to ho ld that a surety, wh ich had pa id a judgment owing to the State and thereafter sued a debtor as 4 Although the Court made no effort to distinguish the three earlier cases, an implicit distinction does exist. The earlier cases were based on the view that the nullum tempus doctrine was personal to the King and had not devolved on the Proprietor through the Charter granted by the King. In Swearingen, the Court held that the State, upon Independence, assumed the sovereignty of the King, with which came the nullum tempus doctrin e. 5 That approach se emed to assum e that the Federal Gov ernment derived its pow ers by grant from the States, rather than through direct delegation by the People, a position that, as ea rly as 181 9, had b een reje cted by th e Supr eme C ourt. See M Culloch v. Maryland, 17 U.S . 316, 40 2-05, 4 L. Ed. 5 79, 600 -01 (18 19). See also U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 821-22, 115 S. Ct. 1842, 1863-64, 131 L. Ed. 2d 881, 911-12 (1995 ). -18- subrogee of the State, is entitled to stand in the State s position in reference to its claim against the appelle e and enjoy its exemption from the operation of the Statute of Limitations. Id. at 607, 5 5 A. at 3 98. In Goldberg v. Howard Co. Welfare Bd., 260 Md. 351, 272 A.2d 397 (1971), we addressed for the first time the extent to which this doctrine applied to a county agenc y. A county welfare b oard had paid bene fits to a man whose wife owned a piece of real p rope rty. When the wife died, he inherited the property and eventually sold it, taking back a purchase money deed of trust. At some point, the county welfare board sued the trustees under the deed of trust to recoup the benefits it had paid, and the trustees raised limitations as a defense. Without ever citing the three old cases, or even Swearingen or Am. Bonding Co., and relying on unquo ted state ments in 53 C.J .S., Limitations of Actions, §17c., this Court rejected that defense and held when [an] action brought by a governmental agency or political subdivision or municipality has arisen out of its exercise of a strictly governmental function, such as rendering assistance to the aged , infirm, indige nt and me ntally incompe tent, that the defen se of limitation s will not prevail against it. Id. at 358, 2 72 A.2 d at 400 -01. In Central Coll. Unit v. Atl. Con. Line, 277 Md. 626, 627, 356 A.2d 55 5, 556 (1976), the Court addressed the issue of whether the doctrine of sovereign immunity precludes a defendant s asse rtion of lim itatio ns as a def ense to an actio n bro ught by the State in its sovereign capacity. The action was to re cover for dama ge done to State prop erty. In rejecting a limitations defense, the Court relied on Am. Bond ing Co . for the proposition that -19- limitations may not b e ass erted agai nst th e Sta te when, in its sove reign cap acity, it sues in its own courts. Central C oll. Unit, at 628, 356 A.2d at 557. That view has become the modern standard. In Wash. Sub. San. Comm n v. Pride Homes, 291 Md. 537, 544, 435 A.2d 796, 801 (1981), we iterated that the d octrine that lim itations do no t run agains t the State stems f rom the theory of sovere ign imm unity. Goldberg limited the application of that doctrine to the counties by subjecting it to the governmental/prop rietary function test. That distinction was confirmed, with respect to tort actions, in Anne Arundel Coun ty v. McCormick, 323 M d. 688, 5 94 A.2 d 1138 (1991 ). A county employee w as injured in an automobile accident during the course of his employm ent. The county paid w orkers com pensation b enefits and then, as subrogee of the employee, sued the person allegedly at fault in the accide nt, who raised lim itations a s a defe nse. The Court credited that defense on the ground that, as the county was suing as a subrogee, it was subject to all defenses applicable against the employee, including limitations. That could have ended the matter, but the Court w ent on to discuss nullum tempus. Though confirming that the doctrine exempts the State and its agencies from the bar of a statute of limitations such as §5-101 of the Courts and Judicia l Proce edings Article, the Court, citing Central C oll. Unit and Goldberg, noted that the doctrine has more limited effect when the suitor is one of the State s political subdivisions or municipalities. Anne A rundel C ounty, 323 Md. at 695, 594 A.2d at 1141 . The counties and municipalities, we repeated, can only avoid the bar of such a statute of limitations if the action asserted arises from the exercise of a governmental as -20- distinguished from a proprietary or corporate function. Id. Neither Goldberg nor Anne A rundel C ounty involved a breach of contract actio n. Indeed, this Court has yet to consider whether the counties and municipalities enjoy or have ever enjoyed the b enefit of nullum tempus in a contrac t action. It is an open question, which we now answer in the negative. One thing that is clear, at least in Maryland, is that the nullum tempus doctrine is an aspect of the more general sovereign immunity enjoyed by the King of England and, after Independence, by the State. The Central C oll. Unit case established that it was the doctrine of sovereign immunity tha t precluded the assertion o f limitations against the State in a contract action. Centra l Coll. U nit, supr a, 277 M d. at 628 , 356 A .2d at 55 6-57. See also Wash. Sub. San. Comm n v. Pride H omes, supra, 291 Md. at 544, 435 A.2d at 801 ( [T]he doctrine that limitations do not run against the State stems from the theory of sovereign immunity. ). The cou nties and m unicipalities, w e have m ade clear, do not enjoy common law sovereign immu nity in contract cases, and, to the extent there ever could have been any doubt about it, ch. 450 erases that doubt, at least as to authorized written contracts. The entire underpinning of nullum tempus is therefore absent with respect to the counties and munic ipalities in contrac t actions . Although we shall not in this case disturb the g overnmental/proprietary function test applied with respect to non-contract actions, we find no good basis to exten d that test to contract actions. Many of the decisions regarding whether a function is governmental or -21- proprietary in nature are confusing and almost impossible to reconcile . See Baltimore v. State, 168 Md. 619, 625, 179 A. 169, 171 (1935) ( [T]he line of demarcation between private, corporate, a nd ministeria l, and gove rnmental, political, and discretionary activities or functions of mu nicipalities is difficult to discern, and more difficu lt to define. ); E. Eyring Co. v. City of Baltimore, 253 Md. 380, 382, 252 A.2d 824, 825 (1969) ( [T]he distinction between governm ental and p roprietary func tions is some times illusory in pra ctice. ); also Austin v. City of Baltimore, 286 Md. 51, 58-59, 405 A.2d 255, 259 (1979). We will not impose that mish-mash regime on contract actions.6 Acc ordingly, we hold that the county does not enjoy the benefit of nullum tempus, and that its action for breach of contract is governed by the three-year statute of limitations set forth in CJP §5-101. As the action was undisputedly filed within that period, the Circuit Court erred in dismissing the action. Certificate of Mer it CJP §3-2C-0 2, read in co njunction w ith §3-2C -01, requires that a claim f iled in Circuit Court against a licensed professional that is based o n the licensed profession al s alleged negligent act or omission in rendering professional services, within the scope of the professional s license be dism issed un less, within 90 days after the claim is filed, the 6 It is not at all clear, even if we did apply a gove rnmental/p roprietary func tion test, that t he co ntract at issue here wou ld fa ll within the g overnmenta l fun ction cate gory. -22- claimant files a certificate from a qualified expert attesting that the licensed professional failed to meet an applica ble stan dard of profes sional c are. RTKL and AM A conten d that those s ections app ly to the action against them and that, as the county neglected to file the required certificate, its action should have been dismissed. They rely largely on an unpublished decision of the U.S. District Court for the District of Maryland concluding that the statute applies to an action against a partnership of architects. See Ferrell v. American Property Const. Co., Unpublished Mem orandum Opinion , Civil Action No. WMN-02-1131 (D.Md. 2003). With great respect for our Federal colleague, the author of th at memo randum opinion, w e disagree. In deed, in a published opinion, another judge of the District Court concluded that the requirement did not apply to actions against a profes sional a ssociatio n. See Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 716 (D.Md. 2001). The requirement, as noted, applies only to an action for professional malpractice against a licensed professional. Section 3-2C-01(c) defines a licensed professional, for our purpo ses, as [a]n architect licensed under Title 3 of the Business Occupations and Professions Article and [a] professional engineer licensed under Title 14 of the Business Occupations and Prof essions A rticle. Section 3-303(a) o f the Bus iness Occ upations A rticle makes clear that only an individual may be licensed as an architect. ( [T]o qualify for a license, an applican t shall be an in dividual w ho meets th e requirem ents of this se ction. ). Section 14-304(a ) contains the same requirem ent for licensure as a profe ssional engineer. -23- The restriction is a necessary one, as both laws require, as a qualification of obtaining a license, certain educational experience and successful completion of an examination, which, obvious ly, only individuals are capable of satisf ying. Thus, altho ugh both laws perm it a corporate practice of a rchitecture an d enginee ring, under c ertain cond itions, only individ uals may be licensed. The Circuit Court was correct in denying the motion to dismiss on this ground. JUDGMENT OF CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROC EEDIN GS; COSTS TO BE PAID BY APPELLEES. Baltimor e Co. v. RT KL Asso c., Inc., et al., No. 77, Sept. Term 2003 STATUTE OF LIMITATIONS APPLICABLE TO BREACH OF CONTRACT ACTION BY COUN TY IS THREE YEAR STATUTE SET FORTH IN MD. ANN. CODE, COURTS AND JUD ICIA L PR OCE EDIN GS A RTIC LE, § 5 -101. -24-

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