Appellants, Betty A. Appiah, as personal representative of the Estate of Stephen A. Appiah, deceased, and Veronica Agyarko, appeal from the grant of summary judgment in favor of the Maryland Port Administration (MPA) and P & O Ports of Baltimore, Inc. (P & O), appellees, by the Circuit Court for Baltimore City, dated December 14, 2007. Appellants present two questions for our review, which we have rephrased as follows:
Appellees present the following two questions for our review:
For the reasons that follow, appellants' appeal was not filed prematurely and we answer both of appellants' questions in the negative. Because of the manner of the circuit court's disposition of appellees' claim that suit was barred by limitations, we are constrained to comment upon the procedure employed. We shall, in the final analysis, affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
The case arises from an accident at Seagirt Marine Terminal (Seagirt) on September 30, 2003, in which a longshoreman-mechanic, Stephen Appiah (Mr. Appiah), was struck and fatally injured by a truck owned by Den-El Transfer, Inc. (Den-El) and driven by Bruce Hall. At the time of the accident, Mr. Appiah was working for his employer, Marine Repair Services, Inc. (Marine Repair), who, in turn, was working for Mediterranean Shipping.
Seagirt is owned by MPA, which is a State agency established by the legislature to own, promote and develop Maryland's port facilities. Md.Code, Transp. §§ 2-107; 6-202 (2006 Repl. Vol., 2008 Supp.). Although the State of Maryland owns Seagirt, MPA does not conduct stevedoring (vessel loading and unloading) or terminal operations there. Instead, MPA contracts that work out to private entities.
On October 25, 2001, MPA entered into an operating agreement (the Seagirt Agreement) with P & O. Under the terms of the agreement, P & O, as an independent contractor, was to provide stevedoring services, operate an entry gate and perform other related terminal work for the MPA on 190 acres of the total 284 acres comprising Seagirt, including the Reefer Row area. At the time of the accident, P & O acted as "terminal operator" at Seagirt pursuant to the Seagirt Agreement. P & O has been the operator of Seagirt since the facility opened in 1990.
A few days prior to the date of the accident, P & O unloaded a refrigerated container, or "reefer," of Bailey's Irish Creme from a vessel owned by Mediterranean Shipping and brought that reefer to a slot in Reefer Row. On the day of the accident, the reefer in question was to be delivered to Washington Wholesale Liquors (WWL) in Washington, D.C. After a customs broker notified WWL that the reefer had arrived in Baltimore and was available for pick up, WWL hired Den-El to transport the reefer from Seagirt to WWL's D.C. warehouse.
On the afternoon of September 30, 2003, Den-El's driver, Hall, showed up at Seagirt to pick up the reefer and was directed by P & O to proceed to the Marine Repair office trailer. When Hall arrived at the office trailer, he was met by a Marine Repair mechanic supervisor, Pat Ciociola, who had hooked up another reefer for Hall earlier that same day. Ciociola instructed Hall to find Mr. Appiah to hook up the reefer for him.
Hall drove his truck over to the location in Reefer Row where, from having made an earlier trip, he knew the reefer of Bailey's was located and backed his truck up close to the reefer. Hall then found Mr. Appiah and gave him some paperwork. Mr. Appiah retrieved a forklift, ladder and generator (genset), parked the forklift behind Hall's truck and proceeded to install the genset on the reefer and disconnect the shore power. As Hall waited in his truck for some time, Ciociola arrived on the scene, removed the forklift parked between the truck and the reefer and drove away with the ladder.
Hall saw Ciociola driving the forklift away with the ladder on board and thought he saw Ciociola giving him an "all clear wave." Hall then drove his truck in reverse in order to latch onto the reefer, unaware that Mr. Appiah was still rolling up the power cord from the shore power source. In the process of backing up, the truck that Hall was driving struck Mr. Appiah, severely injuring him. Mr. Appiah died four days later.
On June 23, 2005, Mr. Appiah's surviving spouse and personal representative, Betty Appiah (Ms. Appiah), filed a wrongful death and survivorship action in the Circuit Court for Baltimore City. Ms. Appiah sued four defendants: (1) Hall, the truck driver who struck Mr. Appiah; (2) Den-El, Hall's employer; (3) P & O, the stevedoring and terminal operations company of the site where the accident occurred and; (4) MPA. Ms. Appiah filed two amended complaints and, on September 28, 2006, Mr. Appiah's mother, Veronica Agyarko, filed her own complaint in the Circuit Court for Baltimore City. She sued
Appellees moved for summary judgment at the close of discovery. A hearing was held on December 14, 2007, in which the circuit court granted appellees' motions for summary judgment.
As to the other two defendants, Hall and Den-El, in May 2007, appellants agreed to settle all claims they had against them. On October 12, 2007, however, appellants filed a Motion to Enforce Settlement Agreement against Hall and Den-El. On November 28, 2007, the circuit court issued an Order granting the Motion to Enforce Settlement Agreement. On December 7, 2007, appellants filed a Motion to Vacate Order Enforcing Settlement Agreement
Ms. Appiah timely filed a Notice of Appeal on January 16, 2008, which stated:
Agyarko timely filed a Notice of Appeal on January 25, 2008. On August 14, 2008, appellants dismissed Den-El and Hall as defendants in the suit.
Additional facts will be discussed infra as warranted.
STANDARD OF REVIEW
A trial court may grant summary judgment where the motion and response show there is no dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. See Md. Rule 2-501(f). We review the grant of a motion for summary judgment de novo. Stanley v. American Fed'n of State and Mun. Employees Local No. 553, 165 Md.App. 1, 13, 884 A.2d 724 (2005) (citing Coroneos v. Montgomery County, 161 Md.App. 411, 422, 869 A.2d 410 (2005)). Where there is no dispute as to a material fact we determine if the trial court's decision was legally correct. Id. (citing Rockwood Cas. Ins. Co. v. Uninsured Employers' Fund, 385 Md. 99, 106, 867 A.2d 1026 (2005); Faith v. Keefer, 127 Md.App. 706, 734, 736 A.2d 422 (1999)). A material fact is one that will alter the outcome of the case, depending upon the factfinder's resolution of the dispute. Faith, 127 Md.App. at 734, 736 A.2d 422 (citing King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985)). "To generate a material factual dispute, the evidence adduced by the non-moving party must be more than `mere general allegations which do not show facts in detail and with precision.'" Id. (quoting Beatty v. Trailmaster
Appellees contend that the circuit court's December 14, 2007 Order was not a final appealable judgment. Specifically, they argue that, in its December 14 order, the trial court adjudicated "the rights and liabilities of fewer than all of the parties to the action" by granting appellees, two of the four remaining defendants, summary judgment; consequently, the court's order does not constitute a final judgment. See Md. Rule 2-602. Pursuant to § 12-301 of Md.Code Ann., Courts and Judicial Proceedings Article (C.J.) (2006 Repl. Vol., 2008 Supp.),
The crux of appellees' argument is that appellants' claims against Hall and Den-El were not settled until August 14, 2008, which was the date when appellants filed a Stipulation of Dismissal. Consequently, there could be no final judgment prior to that date. Appellees are correct in their assertion that, as of December 14, 2007, the trial court had adjudicated "the rights and liabilities of fewer than all of the parties to the action." At that time, appellants' Motion to Vacate the Order Enforcing Settlement Agreement with Hall and Den-El, and appellees' opposition thereto, were still pending; however, on January 7, 2008, the circuit court determined that the settlement agreement should be enforced and, on January 16, 2008, Ms. Appiah appealed "all judgments entered in the above-captioned action and as to the Order of November 28, 2007 granting [Ms. Appiah's] Motion to Enforce Settlement and the Order of January 7, 2008," denying Ms. Appiah's motion to vacate.
As of January 7, 2008, there were no remaining rights or liabilities of any parties that the circuit court could adjudicate.
We have discretion under Md. Rule 8-602(e) to enter a final judgment. The Rule provides, in pertinent part:
Prior to the December 14, 2007 grant of summary judgment, appellees had filed cross claims and amended cross claims against Hall and Den-El, primarily seeking indemnification and contribution for any liability arising out of the death of Mr. Appiah. These cross claims were stricken on August 3, 2007 and November 28, 2007. Appellees concede that we have discretion under Rule 8-202(e) and our decision in Crowder v. Master Financial, Inc., 176 Md.App. 631, 644-45, 933 A.2d 905 (2007), to retroactively enter a final judgment to avoid imposing hardship on the parties or based on a finding that the parties had no intent to circumvent the final judgment rule.
In Crowder, the plaintiffs dismissed several defendants, who had yet to enter an appearance in the matter, in order to obtain a final judgment and perfect their appeal. Id. at 644, 933 A.2d 905. We held that,
Id. at 645, 933 A.2d 905.
Appellees argue that, unlike the dismissed defendants in Crowder, they would suffer prejudice from a retroactive entry of final judgment because, pursuant to Md. Rule 8-202(e), they would be prevented from filing cross appeals against
Appellees' attempt to distinguish Crowder is unpersuasive. They do not contend, nor does the record indicate, that appellants, in violation of our holding in Crowder, were attempting in any way to circumvent the final judgment rule, secure an advisory opinion or re-file the same claims against Hall or Den-El. Furthermore, nothing prevented appellees from filing cross appeals against Hall and Den-El within ten days of appellants' appeal. If appellees believed that the appeals were premature, they could have timely filed their cross appeals and simultaneously requested dismissals.
The objective of requiring that an appeal be from a final judgment is to avoid piecemeal appeals which are burdensome on the judicial system and create financial hardship for litigants. There is no question that the Motions to Enforce Settlement Agreement, to Vacate the Settlement Agreement and in Opposition to Motion to Vacate the Settlement Agreement are now all resolved. There is no other basis upon which P & O and the MPA can assert that the instant appeal is not from a final judgment and we see no valid basis which would preclude our exercise of discretion under 8-602(e) to enter a final judgment.
Restatement (Second) of Torts § 414
Appellants contend that the circuit court erred in finding that MPA and P & O retained insufficient control to subject them to liability under Restatement (Second) of Torts § 414. We disagree.
(Emphasis added). Comment c to Restatement § 414 provides the most finely-honed explicative statement of the "control" intended in order to subject an independent contractor to liability for physical harm to others:
We need look no further than Comment c for the framework of our analysis, infra, in a determination of whether appellees were subject to the requisite control. Within that framework, we are guided ineluctably to the conclusion that appellees were not. Under Maryland law, as the circuit court iterated, liability is imposed in cases where the control is over the specific type of work being performed. See Brady v. Ralph M. Parsons Co., 327 Md. 275, 283, 609 A.2d 297 (1992). The principle is intended to apply where there is retention of control over the operative detail of the work. Parker v. Neighborhood Theatres, Inc., 76 Md.App. 590, 601, 547 A.2d 1080 (1988). "A determination of liability under the retention of control doctrine requires a showing that the owner `had the right to control the details of his [contractors'] movements during his performance of the business agreed upon.'" Id. (citing Cutlip v. Lucky Stores, Inc., 22 Md.App. 673, 678, 325 A.2d 432 (1974)). "The key element of control, or right to control, `must exist in respect to the very thing from which the injury arose.'" Id. (quoting Gallagher's Estate v. Battle, 209 Md. 592, 602, 122 A.2d 93 (1956)).
The "thing out of which the injury arose" was the act of connecting a container to a truck at reefer row. Consequently, in order to impose liability on appellees, the critical issue is whether appellees retained sufficient control over the act of connecting shipping containers to trucks to impose liability under Restatement (Second) of Torts § 414.
The § 414 element of "control" over the work retained by appellees is at the crux of the parties' contentions and we here recount the relevant evidence adduced at the summary judgment hearing.
Appellants assert that appellees' liability arises out of the Seagirt Agreement. The Seagirt Agreement provides, inter alia, that
As further indicia of appellees' control over the operations and activities over the Seagirt area, appellants point to deposition testimony of Mark Montgomery, corporate designee of P & O, who stated
Appellants finally assert that, pursuant to the Lease Agreement, Marine Repair could not post their post-accident safety protocol without first obtaining permissions from appellees and that this limitation evidences a retention of control with regard to the very situation that caused Mr. Appiah's death. See Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330, 341 (1965) (evidence of precautions taken after an accident tends to show right of control over the safety program).
Appellees counter, setting forth Montgomery's deposition testimony that, although he conceded that appellees could revoke a truck driver's right to enter Seagirt, this authority was very limited in scope:
Montgomery continued, stating that, although P & O could make recommendations to Marine Repair about behavior and safety, "ultimately it is still up to [Marine Repair] to operate safely in their areas" and that "in order for [Marine Repair] to create a safe practice for their employees, they don't need a blessing from us." Furthermore, even if P & O saw a truck driver running a stop sign, P & O is not "able to go in to one of the reefer vendors and tell them to stop doing something [and] that it's within their control. They are going to tell me to bug off." Montgomery recounted an instance when P & O saw a Marine Repair employee coming off a vessel without the appropriate Personal Protective Equipment (PPE). P & O attempted to counsel the man about the value of the PPE, but the man refused the advice and stated, "I don't work for you."
Appellees further argue that they had no control or authority over Marine Repair's operations and cite the deposition testimony of Shawn Olshefski, Marine Repair's corporate designee, to the effect that Marine Repair worked independently:
Olshefski further conceded that, once P & O drops off a container in the reefer area, P & O is "out of the picture" and Marine Repair takes over all of the work.
Additionally, according to deposition testimony of David Thomas, corporate designee of MPA, "The vendor has responsibility over his safety program, not the MPA," and although MPA may enact rules as to traffic flow and "general things," they do not control any "specific[s] as to how they operate ... [because] we are not the expert." Furthermore, Thomas stated that "if [P & O] had discussions with Marine Repair about their specific operations, Marine Repair would tell him ... it's none of your business."
Finally, in response to appellants' contention that they could not post signs without approval, appellees posit that, although approval was required to post signs, such a restriction was general and not specifically confined to safety measures. The relevant lease provision that restricted signage stated:
Appellees argue that appellants rely on a "blatant misreading" of the lease provision and transpose a strict meaning and interpretation that was never intended. Although Marine Repair was prevented from putting up signs without approval from P & O, the primary purpose of the lease provision was to restrict the posting of "advertising" material and, even if the provision prevented Marine Repair from posting a safety protocol, appellants have failed to indicate how the provision related to control over that which caused the injury-the connecting of a shipping container to a truck.
Appellants next argue that appellees' retention of control over safe operating procedures at Seagirt subjects MPA and P & O to liability under Restatement (Second) of Torts § 414. P & O's duty was imposed on it by the terms of its contract with MPA and MPA's duty emanated from its status as landowner and proprietor of Seagirt; therefore, the risk of non-performance of MPA's duty to its business invitee Mr. Appiah, under § 414, was non-delegable. In support of this proposition, appellants cite to Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 505 A.2d 494 (1986):
Id. at 466, 505 A.2d 494 (internal citations omitted).
Although appellants briefly cite to a section of the Court of Appeals' holding in Rowley, they make no further argument as to the relevance of the decision and they fail to take into account the applicability of the Rowley holding. MPA argues that, because appellants rely on § 414, the Rowley holding is inapposite to the case sub judice. In Rowley, the Court of Appeals further opined that
Id. at 462-63, 505 A.2d 494 (emphasis added).
In the case sub judice, appellants initially asserted § 343 as the basis for their cause of action in their complaint and first and second amended complaints; however, appellants asserted § 414 as the basis for appellees' liability in their third amended complaint and, at the hearing on the motion for summary judgment, conceded that their cause of action was under § 414 and not § 343.
We agree with MPA's assertion that Rowley is inapplicable. The non-delegation of duties discussed by the Rowley Court apply to duties that arise under § 343, id. at 497, 505 A.2d 494, which apply, as the title to § 343 states, to "Dangerous Conditions Known To Or Discoverable By Possessor." Conversely, § 414 presumes the delegation of duties because it imposes liability only when "[o]ne who entrusts work ... retains the control of any part of the work." Presumably, one who does not retain control of the work is free to delegate without liability.
Accordingly, any argument that MPA could not delegate their duty of care is without merit
The trial court granted summary judgment to appellees and opined that appellants failed "to produce any more evidence of control by [appellees] here than was produced as to the defendants in Wajer v. Baltimore Gas & Elec. Co., 157 Md.App. 228, 850 A.2d 394 (2004), in which the Court of Special Appeals affirmed the granting of summary judgment." The trial court summarized the factual backdrop in Wajer:
See id. at 241-43, 850 A.2d 394 (internal citations omitted) (emphasis added).
In affirming the trial court's grant of summary judgment in Wajer, we opined that,
Id. at 243, 850 A.2d 394 (emphasis added).
In the case sub judice, the trial court further drew a parallel to Wajer, indicating that, similar to the Seagirt Agreement, in Wajer,
See Id. at 244, 850 A.2d 394 (emphasis added).
The trial court further opined that appellants failed to offer any evidence that appellees had control over the methods, techniques, or sequences of the specific work performed by Marine Repair Services
The trial court asserted that, even if appellees exercised control over safety, there must be control over the methods of performing the specific injurious act for liability to attach. The court then recited our holding in Wajer:
Id. at 245, 850 A.2d 394 (emphasis added).
The trial court concluded as follows:
Appellants argue that the trial court, in applying Wajer, incorrectly characterized BGE's retained authority over safety issues as greater than it was, first, by implying that Wajer involved only one plant (the one staffed by BGE's Mr. Sweeney) and second, by characterizing Sweeney's limited authority regarding safety issues as greater than it was. Appellants assert that the trial court, in Wajer, determined that "[BGE's supervisor] Sweeney . . . had the authority to stop anyone who was not working safe[ly]." However, appellants argue that the Wajer opinion actually stated:
Id. at 233, 243, 850 A.2d 394 (emphasis added).
Appellants argue that, by allegedly misconstruing BGE's retained authority over safety issues in Wajer as greater than it was, the court below set the "retained authority" bar for appellees' liability too high for appellants. However, we are not persuaded by appellants' argument. The ability to recommend or impose safety requirements is one limited aspect of the overarching requirement that appellees must have retained "control over the very thing that caused the injury." Similar to Wajer, appellees retained some control over the operations at Seagirt; however, it was not the type of control contemplated by § 414. Id. at 244, 850 A.2d 394. Here,
Appellants additionally argue that the evidence of a post-accident consultation between Marine Repair officials and appellees concerning the approval of safety protocol, in addition to all the other evidence of control, supra, imposes the type of control that warrants the imposition of liability under § 414. In support of that assertion, appellants cite to Welker, 403 P.2d at 341, in which the Court of Appeals of Arizona applied § 414, holding:
(Emphasis added) (internal citation omitted).
Contrary to appellants' assertion, there was far more evidence of control in Welker than in the case sub judice that justified the imposition of liability.
Id. at 340-41.
There are no such similar factors with respect to appellees. Considering the degree of control exercised by the owner, Welker is fully consistent with our holding in Wajer and the requirements of § 414.
"To generate a material factual dispute, the evidence adduced by the nonmoving party must be more than `mere general allegations which do not show facts in detail and with precision.'" Faith, 127 Md. App. at 734, 736 A.2d 422 (quoting Beatty, 330 Md. at 738, 625 A.2d 1005). Appellants have provided assertions of the general responsibilities of appellees, none of which relate to the act of attaching a shipping container to a truck.
As indicated supra, it is not enough that appellees had the right to inspect and recommend changes. Furthermore, control must have existed "in respect to the very thing from which the injury arose" and the retention must be to such a degree "that the contractor is not entirely free to do the work in his [or her] own way." Other than appellants' contention that they were unable to post signs without approval, they provided no evidence that they were otherwise restricted or precluded from "doing work in their own way."
Appellants fail to raise any dispute of material fact arising under § 414. Accordingly, the trial court did not err in finding that appellees retained insufficient control to subject them to liability under Restatement (Second) of Torts § 414.
Appellants next argued that a dispute of material fact exists as to whether Marine Repair had a pre-accident safety protocol in place. Appellees dispute that they had any such protocol in place and offered the testimony of one truck driver and the affidavit of another, both of whom indicated that they knew of no existing safety protocol prior to Mr. Appiah's death.
Additionally, appellants refer to a letter sent to OSHA after the accident, indicating that, in response to the accident, Marine Repair "formulated and put into place" a safety protocol to be followed. Appellants assert that the factual dispute over whether a pre-accident safety protocol existed is material to whether appellees retained control over safety because (1) if Marine Repair formulated a pre-accident safety protocol, that would show that Marine Repair exercised control over safety, (2) if a pre-accident protocol was in place, that would tend to exculpate appellees by shifting blame to the workers who failed to follow the extant protocol and (3) if no pre-accident protocol was in place, the blame rests squarely on the shoulders of appellees for failing to create and enforce a protocol. Appellants assert that the issue should be submitted to a jury to resolve.
In response, appellees contend that Marine Repair had a pre-accident protocol in place and merely formalized the protocol in writing after the accident took place. In support thereof, appellees offer the testimony of Olshefski, Marine Repair's own corporate designee, who had authored the letter to OSHA, admitted that Marine Repair did in fact have a safety protocol in place prior to the accident.
The trial court determined that,
The trial court's determination was legally correct. Whether Marine Repair had an established protocol prior to the accident had little to do with whether appellees retained and exercised control over the connecting of shipping containers to trucks. Notwithstanding the fact that Marine Repairs' own corporate designee admitted that Marine Repair had a safety protocol in place prior to Mr. Appiah's death, the examples that appellants only offered to establish that appellees retained control over the safety of operations at Seagirt, such as responsibilities for stop signs, speeding and post-accident investigations, were non specific as to the right to direct the performance of the duties of Marine Repair's employees. Appellants provided no sworn testimony or instances whereby P & O dictated to Marine Repair how to conduct its operations and appellants have failed to establish any nexus between the issue of the safety protocol and the requisite "control" necessary to impose liability under § 414. Appellants' general allegations regarding the relevancy of the safety protocol are insufficient, without more, to establish a material factual dispute. See Faith, 127 Md.App. at 734, 736 A.2d 422 (quoting Beatty, 330 Md. at 738, 625 A.2d 1005) ("To generate a material factual dispute, the evidence adduced by the nonmoving party must be more than `mere general allegations which do not show facts in detail and with precision.'").
Appellees contend that, in order to be liable under § 414, one must (1) "entrust[ ] work to an independent contractor" and (2) "retain[ ] the control of any part of the work." Restatement § 414. Other than the Lease Agreement, neither MPA nor P & O were in a contractual relationship with Marine Repair and, therefore, there could not have been an "independent contractor" relationship for which they could have entrusted any type of work;
Id. at 638-39.
We review "only the grounds upon which the trial court relied in granting summary judgment." See Property & Casualty Ins. Guar. Corp. v. Yanni, 397 Md. 474, 480-81, 919 A.2d 1 (2007) (quoting Standard Fire Ins. Co. v. Berrett, 395 Md. 439, 450, 910 A.2d 1072 (2006)). As we indicated supra, the trial court granted summary judgment to appellees on the basis that appellants offered no evidence that appellees controlled the very thing which caused injury to Mr. Appiah. The trial court did not base its decision on the theory of an entrustment, vel non, arising out of an independent contractor relationship between the parties. We, therefore, decline to address the issue of entrustment on its merits.
STATUTE OF LIMITATIONS
Appellees contend that, as an alternative ground for affirming the trial court's grant of summary judgment, appellants' third amended complaint is time-barred because it asserted new facts that did not "relate back" to the filing of the original complaint.
The accident occurred on September 30, 2003 and appellants filed their initial complaints well within the three-year statutory period. See C.J. § 5-101. Appellants' third amended complaint, however, was not filed until October 26, 2007, over four years after the accident; consequently, the question of whether the third amended complaint was filed after the statute of
Id. at 169-70, 567 A.2d 154 (internal citations omitted). Notably, in Crowe v. Houseworth, 272 Md. 481, 485, 325 A.2d 592 (1974), the Court of Appeals adopted the view expressed by Justice Holmes in New York Central & H.R.R. Co. v. Kinney, 260 U.S. 340, 346, 43 S.Ct. 122, 67 L.Ed. 294 (1922):
Appellees assert that, in appellants' first three iterations of their complaint, the general basis of their argument for imposing liability on MPA and P & O was under Restatement (Second) of Torts § 343. Appellants argued that MPA was liable as owner of land and liability for the unsafe conditions therein and that P & O was liable because it was a lessee
A change in "operative facts" or alleged "specific conduct" renders a complaint time-barred as a matter of law. See Kirgan v. Parks, 60 Md.App. 1, 18, 478 A.2d 713
Appellants, for their part, contend that a proper application of the foregoing principles of Crowe and Priddy, discussed supra, indicate that their suit is not time-barred because the only change was the legal theory under which they asserted liability of appellees and that the operative facts were unchanged. Appellants postulate that their original complaint alleged, inter alia,
The focus of the original complaint alleged that appellees controlled the property and failed in their performance of safety responsibilities.
Trial Court's Ruling
The trial court ruled that appellants "have failed to offer any evidence that [appellees] had any control over the methods, techniques, or sequences of the specific work performed [by Hall or Mr. Appiah]" and that appellants "have offered no evidence that [appellants] controlled the very thing which caused the injury to Mr. Appiah." The trial court then concluded that, "[b]ased on this ruling, the question of whether [appellants'] Third Amended Complaint is time-barred is moot."
"A question is moot if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide." Attorney Gen. v. Anne Arundel
Appellants argue that, although the trial court did not rule on the question of limitations, "If the alternative ground [for summary judgment] is one upon which the circuit court would have had no discretion to deny summary judgment, summary judgment may be granted for a reason not relied upon by the trial court." Ragin v. Porter Hayden Co., 133 Md.App. 116, 134, 754 A.2d 503 (2000). See Lovell Land, Inc. v. State Highway Admin., 180 Md.App. 725, 746, 952 A.2d 414 (2008) (citing Vogel v. Touhey, 151 Md.App. 682, 706, 828 A.2d 268 (2003)) ("Ordinarily, appellate courts review the grant of summary judgment only on the grounds relied upon by the trial court, but if the alternative ground is one upon which the circuit court would have no discretion to deny, summary judgment may be granted for a reason not relied upon by the trial court."). It is only when "a motion for summary judgment is based upon a pure issue of law that could not be properly submitted to a trier of fact, that we will affirm on an alternative ground." Presbyterian Univ. Hosp. v. Wilson, 99 Md.App. 305, 313-14, 637 A.2d 486 (1994), aff'd, 337 Md. 541, 654 A.2d 1324 (1995).
Adopting our pronouncement in Lovell Land, Inc., "[h]ere, there is no need for this Court to declare that the trial court would have no discretion to deny summary judgment because we are affirming the grounds relied upon by the trial court."