                 REPORTED

  IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                  No. 1904

          September Term, 2013
_______________________________________

  BALTIMORE COUNTY, MARYLAND

                        v.

   BALTIMORE COUNTY FRATERNAL
    ORDER OF POLICE, LODGE NO. 4


                  No. 099

          September Term, 2014
_______________________________________

  BALTIMORE COUNTY, MARYLAND

                        v.

   BALTIMORE COUNTY FRATERNAL
    ORDER OF POLICE, LODGE NO. 4


     Meredith,
     Wright,
     Hotten,
                  JJ.


          Opinion by Meredith, J.


         Filed: December 17, 2014
       Baltimore County, appellant, mounts a variety of challenges to an arbitration award

regarding retirement benefits that was issued in 2008, affirmed in 2010 by the Circuit Court

for Baltimore County, and ultimately affirmed again in 2012 by the Court of Appeals in FOP

Lodge No. 4 v. Baltimore Co., 429 Md. 533 (2012), reconsideration denied, 429 Md. 533

(2013). Although the County contends that it is not appealing the arbitration award itself,

but rather its enforceability, that contention is undermined by the arguments the County

makes. In the rulings which led to the present consolidated appeals, the Circuit Court for

Baltimore County held that, in accordance with the law of the case doctrine, the County was

required to comply with the previously confirmed arbitration award. Under protest, the

County did pay the amount due as a result of the arbitration award, but continues to challenge

the enforceability of the award.

                                QUESTIONS PRESENTED

       The County presented nine questions for our review, the majority of which had

already been raised in proceedings prior to the previous appeal. The primary focus of the

current appeal is:

       Did the trial court correctly apply the law of the case doctrine? 1



       1
           The following are the County’s questions presented:

       1.       Whether the arbitration award was unenforceable because there has
                never been an appropriation by the County Council to pay for the reset
                of the rates or for the ‘make whole’ relief granted in that award?

       2.       Whether the arbitration award was unenforceable because the County
                Council never enacted a budget containing funds for a reset or for make
                whole relief; instead it enacted FY 2008-2015 budgets which contained
       For the reasons that follow, we affirm the judgments of the Circuit Court for

Baltimore County.



              the reduced subsidies negotiated by the Health Care Review
              Committee, and the Circuit Court was bound to respect those
              enactments as the only contract between FOP and the County?

       3.     Whether public policy, as clearly expressed in the Baltimore County
              Charter, the Baltimore County Code, and controlling Maryland case
              law, provides an exception to the enforcement of the arbitration award
              in this case?

       4.     Whether the Show Cause Order threatening incarceration was an
              unconstitutional exercise of judicial power calculated to coerce an
              appropriation or illegal payments in violation of the separation of
              powers doctrine?

       5.     Whether the arbitration award is unenforceable because the original
              grievance was not timely filed and the issue of the effect of that lack of
              timeliness on the arbitration award has never been resolved?

       6.     Whether the arbitration award is unenforceable as FOP’s grievance was
              invalid on its face, because under the MOU ‘retirees’ are not
              ‘employees’ entitled to bring any kind of grievance?

       7.     Whether the Circuit Court’s award of injunctive relief and damages to
              FOP was clearly erroneous, because FOP did not sustain any harm or
              damages as a result of the reduced subsidy rates?

       8.     Whether the Circuit Court’s refusal to allow the County’s witnesses to
              give any substantive testimony was clearly erroneous?

       9.     Whether FOP was entitled to prejudgment interest?

As will be explained in this opinion, five of these questions (1, 2, 3, 5, and 6) have already
been decided against the County in earlier decisions. We answer questions 7 and 8 in the
negative, and we answer question 9 in the affirmative. Because question 4 is now moot, we
decline to rule on the question.

                                              2
                       FACTS AND PROCEDURAL HISTORY

       This case has its roots in a grievance filed in 2007, although the backdrop to that

grievance extends back to 1991. Appellee, FOP Lodge No. 4 (“appellee” or “FOP”), is the

exclusive bargaining agent for the Baltimore County Police Department. Periodically, the

FOP and the County negotiate a Memorandum of Understanding (“MOU”) setting forth each

party’s rights and obligations. In 1991, owing to what the County has characterized as a bad

economic climate, the County offered its eligible employees a retirement incentive program;

among the County employees to whom it applied were FOP members. The retirement

incentive program provided that eligible officers who retired on or before January 31, 1992,

were guaranteed a 90/10 health-insurance subsidy split; that is, it was guaranteed to those

retirees that the County would pay 90% of their health-insurance premium, and the retiree

would pay 10%.

       The County notified those employees who did not take advantage of that incentive

program that the health insurance split would be as follows: “An individual who retires on

or after February 1, 1992, with 30 or more years of creditable service will receive the same

subsidy as an active employee and that subsidy may go up or down as a result of labor

negotiations[.]” But, as part of the negotiations for the 1996 MOU, which took effect on July

1, 1995, the FOP and the County agreed that an 85/15 split would apply retroactively to those

officers who retired between February 1, 1992, and July 1, 1995; they were, at that time,

“locked in.” The specific language that “locked in” this split stated: “The health insurance



                                              3
subsidy in place at the time of retirement shall remain in effect until the retiree becomes

eligible for Medicare.” It was the FOP’s position that the practical effect of this provision

was to guarantee an 85/15 subsidy split to those retirees.

       This arrangement was repeated in subsequent MOUs without dispute until the “2008

MOU” that would become effective July 1, 2007, and run through June 30, 2008. During

negotiations about that MOU, the County, citing runaway health-care costs, informed the

FOP that it intended eventually to move to an 80/20 split, with a one-percent decrease in the

County’s contribution to take effect each year in five successive years. The County proposed

to change the benefit to an 84/16 split in 2008, followed by an 83/17 split in 2009, and so on.

The FOP voted against this change, but it was nevertheless accepted by the Health Care

Review Committee, the official bargaining agent as to healthcare issues for several unions

for County employees, including the FOP. The County applied the less favorable split to all

retirees, including those who had retired when there were MOUs in effect which included

language the FOP considered a lock in of benefits.

       Pursuant to the procedures outlined in the relevant MOU, FOP filed a grievance

against the County, alleging that the proposed downward adjustment of the health-care

subsidy violated Section 7.3(a) and (c) of the 2007 MOU.2 The grievance was denied by the


       2
        Section 7.3 of the July 1, 2006-June 30, 2007 MOU (“2007 MOU”) provided, in
relevant part:

       “Section 7.3(a)-Health Care Coverage
       Medical Plans. The County shall provide employees and retirees not eligible
       for Medicare with a Triple Option Medical Plan. Effective September 1, 2003,

                                               4
Baltimore County will convert prior HCP and POS plans into the said Triple
Option plan. The plan design shall be as follows. . . [chart omitted].


The Triple Option Plan shall be available as an option to all active employees,
all retirees not eligible for Medicare, and their eligible dependents.

The County shall provide at least two (2) Health Maintenance Organization
Plans (HMOs). These plans will also be available as an option to all active
employees, all retirees not eligible for Medicare, and their eligible dependents.
Subsidy. The County shall contribute 85% of the premium cost for the Triple
Option Plan. Active Employees will pay 15% of the premium cost. Retirees
not eligible for Medicare will receive a subsidy based on the amount of
creditable service and consistent with County policy in force at the time of
retirement.

                                      ***

Section 7.3(c)-Retiree Health Insurance
The County shall provide the same health insurance benefit plans offered to
active employees for retirees not eligible for Medicare who attain sufficient
creditable service for a full retirement within their bargaining unit, or retirees
who qualify for disability retirement. The County will contribute toward the
premiums for available benefit plans consistent with County policy in force at
the time of retirement. The health insurance subsidy in place at the time of
retirement shall remain in effect until the retiree becomes eligible for
Medicare. Upon reaching eligibility for Medicare, County retirees are
required to enroll in both part A and part B of Medicare in order to enroll in
the County’s Medicare Supplemental Plan. The County subsidy for the
Medicare Supplemental Plan is 75% of the plan premium.

County retirees who would otherwise reach Medicare eligibility age, but who
do not qualify on their own or through a spouse for Medicare coverage, will
be allowed to remain in the County health plans offered to non-Medicare
retirees. Upon reaching Medicare eligibility age, the County subsidy will be
75% of the premium cost for the medical plan. Continuation of managed
dental and vision coverage after reaching Medicare eligibility age is available
only under the terms and conditions of Federal COBRA laws.”


                                        5
Labor Commissioner on November 6, 2007; the Labor Commissioner concluded that,

because FOP was complaining about a violation of Section 7.3 of the 2007 MOU, and that

MOU expired on June 30, 2007, those sections were “no longer controlling,” and the County

could not have violated them.

       FOP then demanded arbitration pursuant to the dispute-resolution provision of the

MOU. On May 9, 2008, Arbitrator Richard Bloch, Esquire, conducted a hearing. One of the

arguments made by the County was that the grievance had not been timely filed because it

was not filed within ten workdays after the 2007 MOU’s expiration on July 1, 2007. Rather,

the grievance was filed on September 14, 2007, which was within ten workdays of

September 1, 2007, the date on which the County’s new 84/16 split began to be reflected in

the retirees’ health-insurance premiums. The main argument made by the County, however,

was that there was nothing left to either grieve or arbitrate relating to the now-expired 2007

MOU. In his decision, Arbitrator Bloch rejected both of these contentions. Because the

arbitrator’s findings have been affirmed in subsequent proceedings, and, we will hold, remain

binding, we will quote from them extensively:

               During 1995 negotiations for a new collective bargaining agreement,
       the Union successfully negotiated a health insurance provision that locked in
       the subsidy in effect at the time of retirement until the retiree reached age 65.
       Moreover, the parties agreed to apply that benefit retroactively to officers who
       retired between February 1, 1992 and July 1, 1995, the effective date of the
       new Memorandum of Agreement (hereinafter “MOU”). Section 7.13 of the
       MOU stated, in relevant part:



       (Emphasis added.)

                                              6
       Section 7.13: Retiree Health Insurance-The County shall provide
       the same health insurance benefits (programs and contributions)
       for retirees under the age of sixty-five (65) as it does for active
       employees, at the time the employees retires (sic). The health
       insurance subsidy at the time of retirement will remain in effect
       until the retiree or the retiree’s surviving beneficiary reaches age
       sixty-five (65).

              Effective July 1, 1995, retirees who retired on or after
       February 1, 1992 shall receive the County contribution for
       health insurance as set forth above.[FN 3 OMITTED]

As structured, this language had a two-fold impact. The first paragraph
provided the “lock” for the subsidy in effect at the time of an officer’s
retirement. The second paragraph ensured that officers who retired between
February 1, 1992 and July 1, 1995 would receive the same guarantee with
respect to the rate existing at their times of retirement. The language remained
in subsequent MOUs until 2003-2004. [FN 4 OMITTED] The sole change at
that time, however, related to removal of the sentence providing that
“Effective July 1, 1995, retirees who retired on or after February 1, 1992 shall
receive the County contribution for health insurance as set forth above.” (The
parties did not then see that as a substantive change and do not claim here that
it has any impact on the current dispute.) The critical lock-in language —
“The health insurance subsidy in place at the time of retirement shall remain
in effect until the retiree becomes eligible for Medicare” remained unchanged
in the MOUs effective in 2004-2005, 200[ ]5-2006 and 2006-2007. [FN 5:
“During those periods of time, the contribution split remained at 85/15.”]

      The dispute in this case centers on changes applicable to the July 1,
2007 - June 30, 2008 MOU. In negotiations preceding the agreement, the
County proposed the following language:

       E.     Retiree Health Insurance. The County shall provide the
              same health insurance benefit plans offered to active
              employees for retirees not eligible for Medicare who
              attain sufficient creditable service for a retirement within
              their bargaining unit, or retirees who qualify for
              disability retirement. The County will contribute toward
              the premium for available benefit plans in accordance
              with the Administrative Officer’s Policy, on Insurance


                                        7
              Benefits for Baltimore County retirees. Employees who
              retire from county service shall have the subsidy
              provided for in Exhibit (I). [FN 6 OMITTED]

       For all negotiations after 1995, the FOP, and other County unions, as
well as a non-Union employee group, were represented (for health care issues)
by a group known as the Health[care] Review Committee (“HRC”). [FN 7
OMITTED] That Committee initially objected to the County’s proposed
revised language, specifically the removal of the “lock-in” terms. [FN 8
OMITTED] Nevertheless, the HRC agreed to the modified health insurance
package. Ultimately, the final proposal from the County on retiree health
insurance read as follows:

       E. Retire[e] Health Insurance
       “The County shall provide the same health insurance benefit
       plans offered to active employees for retirees not eligible for
       Medicare who attain sufficient creditable service for a
       retirement within their bargaining unit, or retirees who qualify
       for disability retirement: Individuals who retired prior to July 1,
       2007 who are Medicare eligible the County Subsidy for the
       Medicare Supplemental Plan is 75% of the plan premium. The
       County will contribute toward the premium for available benefit
       plans in accordance with the County Policy, on Insurance
       Benefits for Baltimore County retirees. Employees who retiree
       (sic) from county service shall have the subsidy provided for in
       Exhibit I.”

        Pursuant to the existing process, each union brought the health
insurance package to its membership for separate votes. The FOP
membership, for its part, rejected the health insurance package. On September
7, 2007, the County moved to increase the retiree health insurance premium
split. [FN 9 OMITTED]

        The FOP claims, in this arbitration, that the rejected portion of the
health benefits package is not effective, as a result of its not having been
ratified. Moreover, it contends the promises made during prior MOUs to
retirees were in the nature of vested benefits and not only were not removed
by the 2007 negotiations, but could not have been removed. Members covered
by that language, it says, must continue to have health benefit subsidies remain
at the level in effect at their retirement until they reach 65.


                                       8
Issue

       Do officers who retired on or after February 1, 1992 and before
July 1, 2007 have a vested right to retain the health insurance premium
split applicable to active officers as of the time of their retirement? [FN 10
OMITTED]

FOP Position

        The FOP claims the promises made beginning in 1995 continue to be
fully binding on the County. The right to lock in benefit splits at the levels in
effect upon retirement is vested, says the FOP, and cannot be changed with
respect to those employees. It requests the County be directed to: (1)
rescind the modification to the premium split for such retirees, (2) reset
the contribution split to the 85/15 level and (3) direct that the County shall
not implement other scheduled changes to the premium split. It also
requests that the County be ordered to make retirees whole for the
increased premium amounts improperly charged to them since September
1, 2007.

County Position

       The County claims the grievance is not arbitrable. The grievance itself
was filed September 14, 2007, based on language in the FY 2007 MOU. But,
says the County, the previous MOU expired June 30, 2007. Any rights
existing thereunder were thereby extinguished. Moreover, says the County, the
MOU makes the grievance procedure applicable to “all employees.” The
MOU defines an “employee” as “all sworn personnel up to and including the
rank of lieutenant of the police department.” Since retirees are not
“employees”, the FOP has no contractual right to grieve on their behalf. It
requests that the grievance be denied.

Analysis

       For the reasons that follow, the finding is this grievance has merit.
Central to the County’s rebuttal to the grievance, and its claim that the
grievance is not arbitrable, is its contention that the 2007 MOU, on which the
FOP’s grievance is premised, has expired. In the absence of any statutory
foundation for healthcare benefits [FN 11 OMITTED] since the grievance was
filed some three months after expiration of the 2007 agreement, says the


                                       9
County, the benefit expired and, with it, the arbitrator’s authority to enforce the
labor agreement.

       The end of a labor contract, however, does not always signal the death
of negotiated rights thereunder, including the right to have a dispute over that
matter resolved through arbitration. That principle was decided by the United
States Supreme Court in Nolde Brothers, Inc. v. AFL-CIO [(430 U.S. 243
(1977) (FN 12 OMITTED)]. . . .

 . . . [T]he Supreme Court held the grievance in that case did, in fact, survive
the contract termination. . . . Concluding, finally, that national labor policy has
established a strong presumption in favor of arbitrability [FN 16 OMITTED]
the Court affirmed the arbitrability of the matter.

       In Litton v. National Labor Relations Board, et al. [Litton Financial
Printing Division, a Division of Litton Business Systems, Inc., Petitioner v.
National Labor Relations Board, et al., 501 U.S. 190 (1991)][FN 17
OMITTED], the Supreme Court took the opportunity to expand on the Nolde
principles. It reiterated that the obligation to arbitrate disputes over post-
expiration contract terms is by no means unlimited. An expired collective
bargaining agreement, noted the Court, is no longer a legally enforceable
document. [FN 18 OMITTED] But the Court highlighted an exception,
significant here, in cases involving “obligations already fixed under the
contract but as yet unsatisfied.” [(501 U.S. 190 at 197) (FN 19 OMITTED)]

       The Nolde Brothers presumption is limited to disputes arising
       under the contract. A postexpiration grievance can be said to
       arise under the contract only where it involves facts and
       occurrences that arose before expiration, where an action taken
       after expiration infringes a right that accrued or vested under the
       agreement, or where, under normal principles of contract
       interpretation, the disputed contractual right survives expiration
       of the remainder of the agreement.

[(501 U.S. 190 at 205-06.)]

                                      ***

      In this case, the ultimate question is whether the retiree rights at issue
may be considered vested and thus capable of continuing enforcement. There


                                        10
is, in this case, a companion issue, however, that raises the question of whether
the retiree rights were terminated through bargaining by the FOP’s designated
bargaining agent, the Health[care] Review Committee. This opinion turns now
to both those issues.

        As noted earlier, the HRC, while initially protesting the removal of the
“lock-in” language, ultimately agreed to management’s proposed change. But
this, one concludes, did not result in the FOP’s forfeiting the rights at issue.
[FN 21 OMITTED] According to the record, the FOP rejected the health
insurance package proposed by the County. [FN 22 OMITTED] The County
directs the arbitrator’s attention to the decision of Arbitrator M. David
Vaughan, who concluded, in January of 2008, that the County did not engage
in an unfair labor practice by refusing to negotiate further with the FOP after
it rejected the County’s proposed language changes. Vaughan concluded,
among other things, that the Health[care] Review Committee was the
authorized representative of the Unions, including the FOP, and that there was
no provision, contractually or statutorily, for a dissenting unit to demand
additional negotiations. This, however, does not set to rest the status of the
retiree language. Arbitrator Vaughan held, in his decision, that the rejected
proposal would not be made part of the FOP MOU:

      There is no “next step” in bargaining health care issues
      following rejection. The rejected proposal is not incorporated
      into the MOU, but through the County’s budget process, it can
      be funded and implemented as a Management initiative, outside
      of collective bargaining.
[FN 23 OMITTED]

The arbitrator’s conclusion that the FOP MOU would not contain the revised
language is consistent with the language in each Union MOU, including the
FOP’s, in which “tentative agreements are subject to ratification by the
membership of each employee organization.” [FN 24 OMITTED]
Significantly, the jurisdiction of the unfair labor practice arbitrator was
confined solely to the question of whether the FOP could demand additional
bargaining with the County over the issue. Mr. Vaughan was clear, in his
decision, that the contract question here at issue was not before him:

       There is apparently a contractual grievance, not before me, in
       the instant ULP claim, with regard to existing retirees and the
       County contribution for health Insurance. [FN 25 OMITTED]


                                       11
              The remaining question — whether retirees had a vested right to the
      benefit here sought is answered directly by the unequivocal language of
      the MOUs: The statement that “the health Insurance subsidy in place at
      the time of retirement shall remain in effect until the retiree becomes
      eligible for Medicare” is subject to no interpretation other than that here
      proposed by the FOP. When the parties bargained this language, they made
      a binding promise to retirees that the subsidy would remain at whatever
      level existed at their retirement. That is a vested right, and it was not, and
      could not be, changed by the negotiations discussed in this Opinion. For
      these reasons, the finding is that the grievance is timely and that it should be,
      and is, granted.

                                         AWARD

              The grievance is granted. Officers who retired on or after February
      1, 1992 and before July 1, 2007 have a vested right to retain the health
      insurance split applicable to them as active officers at the time of their
      retirement. The County is directed to rescind its modification, to reset the
      contribution split applicable to these officers to 85/15, to continue that
      split so long as, by the terms of the language, these officers remain eligible
      and to make whole affected retirees for increased premium amounts
      improperly charged to them since September 1, 2007.

(Emphasis added.)

      As noted, the Arbitrator’s decision that the grievance was timely and that it should be

granted — and the accompanying “award” — was entered on July 15, 2008.

      On August 14, 2008, the County filed a complaint in the Circuit Court for Baltimore

County, seeking to vacate the arbitration award. In its complaint, the County made the

following contentions:

•            “the Arbitrator exceeded his power, in that he did not have jurisdiction
             over the Grievance, which was filed on September 14, 2007 after the
             expiration of the Memorandum of Understanding (MOU) between the
             Baltimore County Administration and the Fraternal Order of Police,



                                             12
            Lodge No. 4 which was in effect from July 1, 2006 through June 30,
            2007”;

•           “the Arbitrator had no authority to provide the relief requested by the
            FOP [because] the Arbitrator’s Award rewrote the healthcare subsidy
            provisions of the FY 2008 MOU which had been negotiated by the
            Healthcare Review Committee, FOP Lodge 4's health insurance
            bargaining agent”;

•           “[the] Grievance was moot, because the FY 2007 MOU had expired at
            the time the Grievance was filed on September 14, 2007”;

•           “[b]ecause the FY 2007 MOU had expired on June 30, 2007, there was
            no agreement to arbitrate healthcare subsidy language contained in the
            expired FY 2007 MOU. Accordingly, there was no arbitration
            agreement as described in Section 3-206 of the Courts and Judicial
            Proceedings Article, the issue was not adversely determined in
            proceedings under Section 3-208 of the Courts and Judicial
            Proceedings Article, and Baltimore County raised its objection in the
            Arbitration Hearing and in its Post-Hearing Brief”;

•           “[t]he Arbitrator’s Award usurps the power of the Baltimore
            County Executive and the Baltimore County Council to enact a
            budget which provides for health insurance and health insurance
            subsidies pursuant to the terms negotiated by the Healthcare
            Review Committee, FOP Lodge 4's bargaining agent”;

•           “[there] is no vested future right to the specific benefits prescribed in
            the expired FY 2007 MOU, as established by long-standing practice
            and applicable law”; and

•           “[t]he Arbitration Award is contrary to the very clear public
            policy, as stated in the Baltimore County Charter and Code, that
            the Baltimore County Council appropriates the funds needed to
            provide healthcare subsidies for retirees. The Arbitrator has no
            power or authority to order the Baltimore County Council to
            appropriate funds as stated in his Award.”

(Emphasis added.)



                                           13
       The County further argued that “retirees” are not “employees,” and therefore FOP was

not empowered to file a class grievance on behalf of retirees. The County asserted:

       Section 1.2 of the FY 2007 MOU states that “the term ‘employee’ shall mean
       all sworn personnel up to and including the rank of Lieutenant of the Police
       Department.” The award on its face relates to the rights of retirees. Since
       retirees by definition are not “employees” covered by the MOU, FOP did not
       have the contractual right to file a class grievance on behalf of retirees as set
       forth in Section 8.4 of the MOU, . . . .

       The County also contended that the “Award involves mistakes so gross as to constitute

manifest injustice,” and that the award “contains mistakes of law and fact which are apparent

on the face of the Award.” The County requested that the circuit court vacate the arbitration

award and remand the matter back to the Arbitrator with instructions to deny the FOP’s

grievance. On March 13, 2009, the County filed a Motion for Summary Judgment in which

it presented arguments asserting the above points.

       On April 3, 2009, FOP filed an opposition to the County’s motion for summary

judgment, along with FOP’s own cross-motion for summary judgment.

       On August 28, 2009, the Circuit Court for Baltimore County denied both the County’s

motion for summary judgment and FOP’s cross-motion, and the motions judge explained that

“[t]here are too many questions that need to be asked for summary judgment to be granted

in this case.” Both parties filed motions for reconsideration, and by order of court filed

October 21, 2009, the motions for reconsideration were denied.

       On May 24, 2010, motions for summary judgment were again heard by the Circuit

Court for Baltimore County. On August 17, 2010, the court filed a memorandum opinion


                                              14
and order denying the County’s motion for summary judgment and granting the motion for

summary judgment filed by FOP. Because several of the issues addressed in the circuit

court’s grant of summary judgment to FOP have been argued in this Court once again in the

County’s present appeal, we will reproduce here portions of the circuit court’s August 17,

2010, opinion and order in favor of FOP, which, as noted above, has been previously

affirmed by the Court of Appeals.

       First, the circuit court found that the grievance was timely and the award was

arbitrable. The circuit court stated: “Here, unlike the facts presented in [Barclay Townhouse

Associates v. Stephen L. Messersmith, Inc., 67 Md. App. 493 (1986), a case cited by the

County in support of its argument that the determination of the existence of an agreement to

arbitrate is made by the court rather than the arbitrator], there was a written agreement

between the County and the FOP to arbitrate any grievance filed under the MOU. [FN 24

OMITTED]” Accordingly, the court found the FOP’s claim properly subject to binding

arbitration:

               Applying the principles established in Nolde and Litton, the Court finds
       that the grievance was arbitrable, despite the fact that the MOU had expired
       prior to its filing. The FY 2007 MOU clearly stated: “The health insurance
       subsidy in place at the time of retirement shall remain in effect until the retiree
       becomes eligible for Medicare.” [FN 41 OMITTED] The clear, unambiguous
       language of the agreement creates a promise to retirees that the subsidy in
       place when they retire will remain the same until they become eligible for
       Medicare. As such, the retirees at issue have a vested right to the maintenance
       of that subsidy until they become Medicare eligible. As the Court noted
       above, each MOU since FY 1996 has contained similar language.
       Additionally, the FY 1996 agreement retroactively included those officers that
       had retired between 1992 and 1995. Consequently, the officers that retired


                                               15
       while these agreements were in place obtained the vested right. Therefore, the
       FOP’s grievance, alleging that the County’s action of increasing the subsidy
       splits after the agreement had terminated infringed on the vested right to
       maintain the prior split, arose under the contract as defined by Litton. As a
       result, Arbitrator Bloch had proper jurisdiction to arbitrate the grievance.

(Emphasis in circuit court’s opinion.)

       As noted, the circuit court specifically addressed, and rejected, the County’s assertion

that the grievance was not timely filed:

              The County contends that Arbitrator Bloch should have dismissed the
       grievance for being untimely. The FOP’s grievance was related to the FY 2007
       MOU, which expired on June 30, 2007. Section 8.2 of the MOU required a
       grievance to be filed “within ten (10) workdays of the event giving rise to the
       grievance, or within ten (10) workdays following the time when the employee
       should have reasonably gained knowledge of its occurrence.” [FN 42
       OMITTED] Here, the County contends that the event giving rise to the
       grievance occurred on March 12, 2007 when the FOP rejected the terms
       negotiated by the HCRC for the FY 2008 MOU. The County further argues
       that because the FOP was claiming a vested right in the FY 2007 MOU, the
       grievance had to arise, at the latest, on the date the MOU expired — June 30,
       2007. The FOP didn’t file its grievance until September 14, 2007, which was
       more than ten workdays after the MOU had expired. As a result, argues the
       County, Arbitrator Bloch should have dismissed the grievance as untimely.
       The Court disagrees.

               The question of whether a grievance is timely filed is for the arbitrator.
       [FN 43 OMITTED] The Court finds no error with Arbitrator Bloch’s award
       in relation to the timeliness of the grievance. Even though the FY 2007 MOU
       expired on June 30, 2007, the actual infringement of the vested right contained
       within the agreement, and [which] was the subject of the grievance, did not
       occur until the County implemented changes to the health insurance subsidy
       splits on September 1, 2007. It was at that point the effected [sic] retirees
       became subject to increased subsidy splits, which gave rise to the grievance.
       The FOP filed its grievance on September 14th, which was within ten
       workdays of the event giving rise to the grievance, as required under the MOU.
       Therefore, Arbitrator Bloch did not err by not dismissing the grievance as
       untimely.


                                              16
      The court also rejected the County’s argument that retirees are not “employees”

entitled to bring a grievance — an argument that the County has renewed in this appeal:

              The County contends that the FOP’s filing does not constitute a
      grievance because, under the terms of the MOU, the FOP may only file a
      grievance on behalf of employees. [FN 44 OMITTED] Section 1.2 of the
      MOU defines employees to “mean all sworn personnel up to an[d] including
      the rank of Lieutenant of the Police Department.” The County argues that
      since the FOP’s grievance was filed on behalf of retirees who, by the terms of
      the MOU, are not employees, the FOP did not have a contractual right to file
      a class grievance on their behalf.

             The County cites to Allied Chemical and Alkali Workers v. Pittsburgh
      Plate Glass Co. [(404 U.S. 157 (1971)] to support its contention. [FN 45
      OMITTED] In Allied, the Supreme Court held that retirees are not employees
      within the meaning of § 8(a)(5) of [the] National Labor Relations Act and
      could not be included in the collective bargaining unit. [FN 46 OMITTED]
      At issue in the case was whether the employer had committed an unfair labor
      practice by making unilateral changes to retiree benefits instead of bargaining
      for those changes with the union. This is very different from the issue
      presented by the County in this present case.

              In United Steelworkers of America v. Canron, Inc. [(580 F.2d 77 (3rd
      Cir. 1978)], the Court of Appeals for the Third Circuit was presented with a
      situation similar to this Court. In Canron, the union argued that the collective
      bargaining agreement obligated the employer to arbitrate a dispute over retiree
      benefits. [FNs 47 & 48 OMITTED] The employer countered that under Allied,
      the union lacked standing to sue on behalf of retirees. [FN 49 OMITTED] The
      Third Circuit rejected the employer’s contentions, reasoning that if the
      employer had contractually agreed to continue making premium payments for
      retirees, “then under accepted contract principles the union has a legitimate
      interest in protecting the rights of the retirees and is entitled to seek
      enforcement of the applicable contract provisions.” [FN 50 OMITTED]
      Specifically addressing the holding in Allied, the Third Circuit stated:

             Even though retirement benefits of former employees already
             retired are not a mandatory subject of collective bargaining, “it
             does not naturally follow, as the company implies, that a union
             loses all interest in the fate of its members once they retire.” We


                                             17
              therefore hold that the plaintiff union has standing to represent
              the retirees in seeking arbitration under its labor contract with
              Canron. [FN 51 OMITTED]

              The Third Circuit’s reasoning with regard to Allied is reinforced by the
       Eighth Circuit’s decision in Anderson v. Alpha Portland Industries, Inc. [(752
       F.2d 1293 (8th Cir. 1985)] [FN 52 OMITTED] In Anderson, retired employees
       sued their former employer in federal district court after the employer
       announced it was terminating insurance benefits for retirees. [FN 53
       OMITTED] The District Court entered summary judgment in favor of the
       employer on the basis that the retirees had not exhausted the grievance
       procedures referenced in the insurance agreement and contained in the
       collective bargaining agreement. [FN 54 OMITTED] In reversing the District
       Court, the Eighth Circuit rejected the employer’s contentions that case law,
       including Canron, required retirees to proceed through the union in order to
       pursue their disputes. [FN 55 OMITTED] However, the Court noted, Canron
       does provide “that a union has standing to assert retirees’ rights under a
       collective bargaining agreement to which it is a party if it chooses and that an
       employer may not refuse to arbitrate its contractual obligations with the
       union.” [FN 56 OMITTED] [(Emphasis in original.)]

               Here, it is clear that the FOP is a party to the FY 2007 MOU and that
       it has chosen to assert the rights of its retired members. As a result, the County
       may not refuse to arbitrate with the FOP over its contractual obligations to
       retirees. Based on the foregoing law, this Court finds that Arbitrator Bloch did
       not err in arbitrating the grievance made on behalf of retirees.

       The County also maintained that the arbitrator’s finding that the retirees’ rights to the

subsidy split in place at the time of their retirement was vested was manifest error requiring

vacation of the arbitration award, but the circuit court rejected this argument and explained:

              The County stridently maintains that Arbitrator Bloch’s finding of a
       vested right to the health insurance subsidy in place at the time of an officer’s
       retirement was an error so gross as to work a manifest injustice. The County
       contends that the letter of [the] County Administrator [] regarding the
       Retirement Incentive Program in 1991 made clear the County’s intention that
       health care subsidies for retirees could go up or down depending on future
       labor negotiations. [FN 57 OMITTED] In light of this fact, the County argues,


                                              18
       retiree health insurance subsidies are not vested rights and the language in
       Section 7.3(c) of the 1997 MOU can in no way be interpreted as providing
       such.

                                            ***

              Here, Arbitrator Bloch concluded that the language contained in Section
       7.3(c) was unequivocal and subject to only one interpretation — that the
       County made a binding promise to retirees that the subsidy split in effect at the
       time of their retirement would remain unchanged. Arbitrator Bloch’s
       conclusion is awarded a great deal of deference by this Court. [FN 60
       OMITTED] . . . Based on the foregoing facts and applicable law, the Court
       finds that Arbitrator Bloch did not commit manifest error, as alleged by the
       County, in concluding that the MOU created a vested right.

       Finally, the County made arguments related to its contentions that the arbitration

award disregarded the negotiations of the Healthcare Review Committee, and that the award

otherwise contravenes County budget procedures. These arguments are renewed in the

present appeal. We will quote here the circuit court’s ruling relative to these arguments:

              Lastly, the County contends that Arbitrator Bloch exceeded his
       authority by effectively rewriting the health care subsidy provisions negotiated
       by the HCRC on behalf of the FOP for the FY 2008 MOU and by ordering the
       County to maintain the 85/15 subsidy split for officers that retired after
       February 1, 1992 and before July 1, 2007.

              Specifically, the County argues that Arbitrator Bloch exceeded his
       authority as set forth [at] Section 8.3, Step 4 of the FY 2007 MOU. That
       section provides:

              The arbitrator shall have no authority to add to, detract from,
              alter, amend or modify any provision of this Memorandum of
              Understanding or any rules or regulations of any agency of the
              County, or establish or alter any wage rate or wage structure.
              [FN 62 OMITTED]




                                              19
      The County further asserts that the Award was contrary to the Budgetary
      and Fiscal Procedures set forth in the Baltimore County Charter and the
      Baltimore County Code, which state the County Executive and County
      Council are responsible for enacting a budget and appropriating funds
      needed to run the County, including health care subsidies. Arbitrator
      Bloch’s Award, the County argues, usurped these powers by ordering the
      County to maintain and fund the 85/15 subsidy split.

              The FOP counters that Arbitrator Bloch’s Award concerned only the
      interpretation and enforcement of compensation terms that were previously set,
      and as such, does not usurp either the legislative or executive power of the
      County. The FOP points to the distinction between grievance arbitration,
      which uses a neutral third party to resolve a dispute over the interpretation of
      an existing contract, and interest arbitration, which uses a neutral third party
      to set the terms of a new contract. Under the prevailing case law, argues the
      FOP, grievance arbitration does not involve the delegation of legislative
      authority because the arbitrator is acting in [a] judicial capacity rather than a
      legislative one. [FN 63 OMITTED] “The authority to interpret an existing
      contract, therefore, does not constitute legislative authority, and the
      nondelegation principle is not implicated in grievance arbitration.” [FN 64
      OMITTED]

              The Court agrees with the FOP’s position. The County and the FOP
      agreed to submit “any dispute concerning the application or interpretation of
      the terms of [the FY 2007] Memorandum of Understanding” to binding
      arbitration. [FN 65 OMITTED] The grievance submitted to Arbitrator Bloch
      concerned the interpretation of Section 7.3(c), a contract term that had already
      existed and had been bargained for by the parties. In resolving the grievance,
      Arbitrator Bloch did no more than what was required of him – to interpret the
      disputed contract language in accordance with the facts presented and
      applicable law. Therefore, the Court finds that Arbitrator Bloch did not exceed
      his authority i[n] reaching his Award.

(Emphasis added.)

      On August 19, 2010, the County noted its appeal of the circuit court’s grant of

summary judgment in favor of FOP and the denial of the County’s own motion for summary

judgment. In an unreported opinion filed on December 8, 2011, this Court reversed the


                                             20
circuit court. We held that FOP had not been entitled to summary judgment in its favor as

a matter of law, and that the County had demonstrated its entitlement to summary judgment.

Baltimore County, Maryland v. Baltimore County Fraternal Order of Police, Lodge No. 4

(No. 1428, September Term, 2010). In our opinion, we noted that, in the County’s brief, it

had presented us with nine questions (which are strikingly similar to five of the questions

raised by the County in the present appeal):

       1.     Whether the arbitrator lacked jurisdiction to arbitrate the grievance and
              whether the grievance was arbitrable, because the FY 2007 MOU had
              expired?

       2.     Whether the grievance was moot due to the expiration of the FY 2007
              MOU?

       3.     Whether the grievance was timely filed?

       4.     Whether the FOP’s late filing constituted a valid grievance since by
              definition “retirees” are not “employees” entitled to bring a class
              grievance?

       5.     Whether the Arbitrator had the authority to rescind and rewrite the
              language negotiated by the Health Care Review Committee, FOP’s
              health care benefit bargaining agent?

       6.     Whether there was a “vested right” to future health insurance benefits
              and subsidies prescribed in the expired FY 2007 MOU, based on the
              evidence, long-standing practice and applicable law, and whether it was
              manifest error for the Arbitrator to conclude so by relying on cases that
              interpret the NLRA?

       7.     Whether the Arbitrator’s own comments demonstrated the manifestly
              unjust and grossly mistaken nature of his award?

       8.     Whether the County clearly intended that health care subsidies would
              be negotiated annually and could “go up and down”?


                                               21
       9.     Whether, contrary to law and public policy, the Arbitrator’s Award
              usurped the power of the Baltimore County Executive and the
              Baltimore County Council to enact a budget which provides for health
              insurance and health insurance subsidies pursuant to the terms
              negotiated by the HCRC, FOP Lodge’s bargaining agent?

       In the footnote in which this Court recited the County’s nine questions presented in

that previous appeal, we said: “For the reasons stated in our opinion, we cannot provide a

certain answer to the County’s first question. Instead, we hold that the circuit court erred

when it upheld the arbitration award and we leave the remaining questions to be resolved in

a future arbitration or civil proceeding, if this litigation continues.” The mandate of this

Court was: “Judgments Reversed. Case remanded to the Circuit Court for Baltimore County

with instructions to enter judgment in favor of [the County]. Costs to be paid by [FOP].”

       But FOP’s petition for writ of certiorari was granted by the Court of Appeals. It

appears that no cross-petition or conditional cross-petition was filed by the County. On

November 19, 2012, the Court of Appeals reversed this Court’s judgment in favor of the

County, and reinstated the judgment of the circuit court. The Court of Appeals ruled:

               We agree with the Circuit Court’s decision to leave undisturbed the
       arbitrator’s findings in this case. The fact that the MOU has expired does
       not mean the County had no duty to arbitrate disputes arising out of that MOU.
       A dispute may be arbitrable after the expiration of the underlying agreement,
       if the agreement contained a broad arbitration clause and the rights that are the
       subject of the dispute accrued or vested during the life of the agreement.

              The MOU’s arbitration clause was broad. It did not exclude grievances
       arising after the expiration of the MOU but pertained to “[a]ny dispute
       concerning the application or interpretation” of the MOU. The arbitrator
       found that FOP’s grievance was arbitrable even after the MOU’s expiration
       because — based on the arbitrator’s reading of the MOU’s health-insurance


                                              22
       clause — retirees’ rights to an 85/15 health-insurance premium split had vested
       at the time of their retirement. The Circuit Court was legally correct in
       granting summary judgment in FOP’s favor after subjecting the arbitrator’s
       findings to a deferential standard of review. Thus, we reverse the judgment of
       the Court of Special Appeals.

FOP Lodge No. 4, supra, 429 Md. at 564-65 (emphasis added). The mandate of the Court

of Appeals was not to remand to this Court so that all nine questions presented by the County

in its 2011 appeal to this Court could be answered; instead, the mandate ordered a remand

to this Court “with directions to affirm the judgment of the Circuit Court for Baltimore

County” (emphasis added), with costs in both this Court and the Court of Appeals to be paid

by the County.

       The County filed a motion for reconsideration in the Court of Appeals on December

7, 2012. In that motion, the County asserted: 1) the FOP was bound by the negotiations of

the Healthcare Review Committee (HCRC), which agreed to the reduction in the subsidy

split (a reduction to which FOP expressly did not agree); and 2) “[c]onsistent with many prior

decisions of this Court, this case should be remanded to the Court of Special Appeals for

consideration of all undecided appellate issues.” As to this last point, the County specifically

asserted the following:

              Of great practical consequence to the County, there has been no
       review of the following issue which was raised by the County in its Brief
       in the CSA:

              Contrary to law and public policy, the arbitrator’s award usurps
              the power of the Baltimore County Executive and the Baltimore
              County Council to enact a budget which provides for health



                                              23
              insurance and health insurance subsidies pursuant to the terms
              negotiated by the HCRC, FOP Lodge 4's bargaining agent.

       (Baltimore County’s CSA Brief at 34).

             The Arbitrator in this case had no power or authority to order the
       County Executive and the County Council to fund a split different from
       the negotiated split enacted into law as part of the FY 2008, 2009, 2010,
       2011 and 2012 budgets, to order the County Executive and County
       Council to reset the split at 85/15 in any future budgets, or to “make
       whole” affected retirees for increased premium amounts not budgeted by
       the County Executive and County Council.

              If this Court’s decision is allowed to stand, and this matter is remanded
       to the CSA with directions to affirm the judgment of the Circuit Court for
       Baltimore County, the Arbitrator’s affirmed award will be unenforceable, since
       there have been no funds appropriated through the executive budget process
       to afford the relief capriciously dictated by the Arbitrator.

(Emphasis added.)

       On January 18, 2013, the Court of Appeals denied the County’s motion for

reconsideration. 429 Md. 533. The mandate of the Court of Appeals issued the same day,

and, as noted above, it directed this Court to affirm the judgment of the Circuit Court for

Baltimore County. It did not direct this Court to consider further any other “undecided

appellate issues.”

       On March 5, 2013, FOP filed in the circuit court a petition for award of costs and

disbursements, seeking $130,691.90 in costs and disbursements, including attorneys’ fees.

The petition was supported by billing records and an affidavit of trial counsel.

       On April 5, 2013, FOP filed in the circuit court a “motion to enforce this court’s

judgment and for an order to show cause.” The motion asserted that the County “refuses to


                                             24
comply with this Court’s judgment by providing the required relief.” FOP further asserted

that the County’s refusal was “without any justification and accomplishes nothing other than

to further delay resolution of this matter and gratuitously increase the parties’ expenses by

unnecessarily prolonging litigation.” In support of the requested relief, the motion stated:

       . . . Notwithstanding the issuance of the mandate by the Maryland Court of
       Appeals and the order by the Court of Special Appeals vacating its earlier
       decision, the County refuses to provide the required relief.

              First, the County has refused to rescind its reduction of the retiree health
       care subsidy in effect at the time of each officer’s retirement. Stated
       differently, the County continues to overcharge retirees for health insurance.

               Second, the County refuses to make those retirees whole for the
       amounts that the County improperly charged to them. In this regard, the
       County has previously provided the FOP with a chart showing the amounts by
       which the County had charged each retiree above the rates in effect at the time
       of retirement. That chart, which is attached as Exhibit 3, shows that for
       overcharges through May of 2011, the County owes the retirees collectively
       $572,887.10, plus appropriate interest. The County has also refused to provide
       the data to calculate the amounts by which the County has overcharged retirees
       from May 2011 through the present.

       . . . In an effort to bring this longstanding litigation to a close without further
       delay or expense to either party, since the issuance of the Court of Appeals
       decision in November of 2012, FOP’s counsel has made many attempts to
       discuss with the County the County’s provision of the required relief to the
       affected retirees. On each occasion, the attorney for the County has stated
       simply that the County is continuing to consider its options. At no point,
       however, has the County offered any explanation as to why it was not
       providing the relief required by this Court’s order and judgment, as affirmed
       by the Maryland Court of Appeals, or a timeline by which it would provide the
       required relief.

              Accordingly, in order to resolve this matter without further litigation,
       on March 20, 2013, the FOP sent the County Attorney correspondence
       requesting that the County promptly take the following steps:


                                               25
               1.    Effective April 1, 2013, the County must provide each
                     affected retiree with the retiree health subsidy in place at
                     the time of his or her retirement.

               2.    The County must issue payment to the affected retirees
                     in the amounts identified in [Exhibit 3] by Friday, March
                     29, 2013.

               3.    In order to determine the additional amount that the
                     County owes the affected retirees, by March 26, 2013,
                     the County must update the attached chart [Exhibit 3]
                     through March 31, 2013 (or later if the County fails to
                     change the retiree health subsidy provided to the affected
                     officers by that date) and provide the FOP with a copy of
                     the entire chart in Microsoft Excel format.

               4.    The County agrees that it is required to pay pre- and post-
                     judgment interest at the legal rate.

       . . . The County simply ignored this correspondence and continues to refuse
       to provide any of the relief required by this Court’s judgment. [FN 1
       OMITTED] . . .

       On April 23, 2013, the County filed a response to FOP’s motion to enforce the

judgment. In its response, the County failed to refute FOP’s contention that the County was

refusing to comply with the court’s order which confirmed the arbitration award. Instead,

the County continued to dispute the validity of the arbitration award, and asserted once again

that it was “contrary to the very clear requirements as stated in the Budgetary and Fiscal

Procedures set forth in Article VII of the Baltimore County Charter and in § 10-1-113 of the

Baltimore County Code.” The County argued that — despite the circuit court’s previous

ruling which was affirmed by the Court of Appeals — under the Baltimore County Code,

Charter, and


                                              26
       controlling case law, the Arbitrator had no power or authority to order the
       County Executive and County Council to fund a split different from the
       negotiated split enacted into law as part of the FY 2008, 2009, 2010, 2011,
       2012, and 2013 budgets, to order the County Executive and County Council
       to reset the split at 85/15 in any future budgets, or to “make whole” affected
       retirees for increased premium amounts not budgeted by the County Executive
       and County Council.

       The County further argued that the circuit court lacked the “power or authority” to

enforce the arbitration award. The County also asserted: that “any rescission and resetting

of the health care subsidy split would violate the agreement FOP’s bargaining agent, the

Health Care Review Committee, made with the County”; that the circuit court’s August 10,

2010, order granting summary judgment in favor of FOP did not constitute “an enforceable

judgment against the County for a sum certain”; that the arbitrator lacked the authority “to

rescind and rewrite the language negotiated by the Health Care Review Committee, FOP’s

bargaining agent”; that “FOP never proved and the Arbitrator never determined the amount

which would ‘make whole affected retirees’ or any liquidated sum that could be reduced to

a judgment against the County”; that the “separation of powers doctrine prohibits this Court

from ordering the County Executive and the County Council to appropriate funds, long after

the Budgets for FY 2008-2013 have been enacted”; and finally, that “[e]nforcement of the

Award at this stage of the proceedings would violate the County’s statutory right to have the

[nine] issues it raised in the Court of Special Appeals [in the 2011 appeal] adjudicated.”

       On May 17, 2013, the circuit court held a hearing on FOP’s motion to enforce. At the

hearing, counsel for the County indicated that the County was still pressing the arguments



                                             27
it had raised in the first appeal. The application of the law of the case doctrine to the

County’s public-policy argument is supported by the following colloquy:

      [BY THE COUNTY]:            Thank you, Your Honor. Before I discuss the
                                  seven arguments I presented in our response to
                                  the Motion to Enforce, I would like to
                                  characterize those seven arguments as essentially
                                  one argument which I did not articulate in specific
                                  terms but it is the public policy exception to the
                                  enforcement of an arbitration award and, in effect,
                                  our arguments, our seven arguments are asking
                                  this Court to find that as a matter of public
                                  policy as expressed in the Batimore County
                                  Charter and the Baltimore County Code, this
                                  matter is not enforceable. Now, there’s two
                                  parts to this procedure. One is our Complaint to
                                  Vacate the Award. [FOP’s counsel] has
                                  conveniently ignored the fact that the Court of
                                  Special Appeals reversed this Court and said that
                                  your decision was wrong. Now, is it wrong for us
                                  to believe an arbitrator’s award is beyond his
                                  powers to then file a Complaint to vacate that
                                  award with this Court. This Court agreed with the
                                  arbitrator, then file an appeal to the Court of
                                  Special Appeals, which agreed with us. So there
                                  is at least some debate here about the issues, legal
                                  issues. So up to the point where the Court of
                                  Special Appeals affirmed us, the case would have
                                  been in our favor. Of course, then I had to go
                                  through the Court of Appeals and, unfortunately,
                                  the Court of Special Appeals did not address the
                                  nine legal issues we raised, which we’re entitled
                                  to have addressed under the Court[s] and Judicial
                                  Proceedings Article in a direct appeal to that
                                  Court and if the Court will recall ----

      [BY THE COURT]:             But you made, you made that argument to the
                                  high, to the highest Court of this, of this State.



                                           28
[BY THE COUNTY]:   I did, I argue, I did make the argument, I said
                   —

[BY THE COURT]:    And they rejected it, right?

[BY THE COUNTY]:   Well, they did but the legal issues have not been
                   decided, Your Honor. Where does that leave us?

[BY THE COURT]:    It leaves you with a Court of Appeals opinion.

[BY THE COUNTY]:   And the Court of Appeals opinion, to be quite
                   frank with you, was rendered to, to that Court, to
                   uphold a princip[le] concerning vesting. That’s
                   all they were interested in. That was their agenda.
                   Why? I don’t know. They didn’t want to hear
                   anything else. They didn’t want to hear the fact
                   that the bargaining agent for FOP and all of the
                   unions sat down, negotiated with the County and
                   agreed to this reduction. Simple contract law.
                   They’re your agent, you agreed to it, the principal
                   is bound. So if there’s any bad faith in this case,
                   it’s the bad faith of the FOP. To sit, to agree that
                   the health care agent is bargaining for them, they
                   reach an agreement with the County and then FOP
                   wants to pull the rug out from under the whole
                   thing.

[BY THE COURT]:    Well, that’s why the whole thing was litigated.

[BY THE COUNTY]:   That’s correct.

[BY THE COURT]:    And you have a Court of Appeals opinion.

[BY THE COUNTY]:   But my, my point of bringing it up is we sat
                   across the table with them and bargained with the
                   health care bargaining agent and reached an
                   agreement which now they want, they have
                   nullified.




                            29
[BY THE COURT]:    Well, I mean, you don’t suggest that this whole
                   issue has to be re-litigated?

[BY THE COUNTY]:   No, I’m saying at this point, well, as far as I’m
                   concerned, the nine issues remain unaddressed.
                   The Court of Special Appeals said that the
                   arbitrator did not address the County’s argument
                   that the arbitration clause itself had expired. The
                   Court [of Special Appeals] determined that this
                   omission was a palpable mistake and the award
                   should have been vacated. According to the
                   Court of Special Appeals reversed the judgments
                   of the Circuit Court granting FOP’s Motion for
                   Summary Judgment and denying the County’s
                   Motion for Summary Judgment which should
                   have been granted. And the Court [of Special
                   Appeals], in its footnote, first footnote in the case,
                   listed the nine issues.

[BY THE COURT]:    All right.

[BY THE COUNTY]:   And indicated that those are, would only be
                   addressed necessarily in any future litigation.

[BY THE COURT]:    Well, that’s the Court of Special Appeals.

[BY THE COUNTY]:   That’s correct.

[BY THE COURT]:    The Court of Appeals is saying something
                   different.

[BY THE COUNTY]:   Well, the Court of Appeals never ruled on this
                   issue. All they did was —

[BY THE COURT]:    And the Court of Appeals is saying the Court of
                   Special Appeals doesn’t need to.

[BY THE COUNTY]:   They reversed the Court of Special Appeals and
                   remanded it directly back to this Court for entry of
                   judgment.


                                30
      [BY THE COURT]:             Well, no, they remanded it to the Court of Special
                                  Appeals.

      [BY THE COUNTY]:            To have it remanded back here.

      [BY THE COURT]:             Right.

      [BY THE COUNTY]:            For entry of judgment —

      [BY THE COURT]:             They didn’t tell the Court of Special Appeals to
                                  address those issues.

      [BY THE COUNTY]:            No, they did not.     That was what we were
                                  requesting —

      [BY THE COURT]:             So what right do I have, what power do I have to
                                  do that?

      [BY THE COUNTY]:            You do not have that power. I’m just bringing
                                  it up as a matter of fairness. We had been denied
                                  the opportunity in a direct appeal to have our
                                  issues decided. . . .

(Emphasis added.)

      In a later colloquy, the County attempted to explain why its current arguments about

the unenforceability of the award were not exhausted:

      [BY THE COURT]:             So if, if, I guess I’m confused because if the, if
                                  the issue is that because there’s no
                                  appropriation made, tough luck, I guess
                                  basically, why did the County ever file to
                                  vacate the arbitration award? Why did you
                                  just, why didn’t you just say it’s not
                                  appropriated, we don’t need to worry about it.

      [BY THE COUNTY]:            Because we felt that there were very sound
                                  legal arguments to be made as to why that



                                           31
                   arbitration award was erroneous. And, again
                   —

[BY THE COURT]:    But if it’s not appropriated, why waste five years?
                   Why not just say, it’s not appropriated, we don’t
                   have to pay it?

[BY THE COUNTY]:   Well, as the matter moved forward, because there
                   was no appropriation, because the health care
                   agent, the health care review committee, the
                   bargaining agent, had reached an agreement and
                   under the budgetary process, that was the number
                   that then became part of the budget submission
                   that was passed by the Council and that has
                   occurred each successive year. Now, why was it
                   done? Because we felt like the, why did we
                   appeal, why did we seek to vacate? Because we,
                   we —

[BY THE COURT]:    Yeah, I mean, if it’s not appropriated.

[BY THE COUNTY]:   — thought it was wrong. We thought it was
                   wrong and, it was legally wrong and we felt
                   like we would win on that basis.

[BY THE COURT]:    So win or lose, this was another argument you
                   were, the County had that it was going to pull
                   out of its back pocket at some time?

[BY THE COUNTY]:   No, this was not pulled out of the back pocket,
                   Your Honor. It was, it was —

[BY THE COURT]:    Well, you’re, you’re saying it wasn’t appropriated
                   so we don’t have to pay it. Why not just say,
                   okay, the award is the award and we just don’t
                   have to pay it because it’s not appropriated?

[BY THE COUNTY]:   That’s what we’re saying now.

[BY THE COURT]:    I know you’re saying that now.


                            32
       [BY THE COUNTY]:             Now that they’re trying to enforce it.

       [BY THE COURT]:              So why’d you wait five years?

       [BY THE COUNTY]:             Because it was not at the position where it would
                                    be enforced. Now, it’s trying to, that’s point.

       [BY THE COURT]:              Okay.

       [BY THE COUNTY]:             The public policy does not allow its enforcement.
                                    We were trying to attack the legal basis, that, we
                                    were trying to attack the award as legally
                                    unsound for the reasons which have never been
                                    decided by any Court. Now that it’s being
                                    enforced or attempted to be enforced, we’re
                                    saying public policy bars its enforcement.

(Emphasis added.)

       The circuit court took the matter under advisement, and allowed the County to file a

supplemental memorandum in support of its public policy argument. On August 14, 2013,

the circuit court issued a memorandum opinion and order granting FOP’s motion to enforce.

This order was docketed on August 28, 2013.

       The circuit court’s opinion took note of all the arguments presented by the County,

and concluded that the law of the case doctrine barred any further consideration of the

arguments about the enforceability of the award. The circuit court ordered the County to take

the following actions within twenty days: 1) “provide each affected retiree with the retiree

health subsidy in place at the time of his or her retirement”; 2) “issue payment in the amount

of” $572,887.10, “plus appropriate interest, which is the amount referenced in the chart

previously prepared by [the County] and provided to [FOP] in May of 2011, attached as


                                             33
Exhibit 3 to [FOP’s] Motion to Enforce,” and “issue payments directly to each affected

retiree in the proportions set forth in the chart prepared by [the County]”; and 3) update the

previously-referenced damages chart with “information sufficient for [FOP] to calculate a

sum certain judgment to which it is entitled, including any appropriate pre[-] and post[-

]judgment interest,” and provide FOP with a copy of the updated damages chart.

       On September 6, 2013, the County filed a motion to alter or amend the judgment

pursuant to Maryland Rule 2-534. On October 9, 2013, FOP filed its response. On October

15, 2013, the court conducted a hearing on the County’s motion. At the hearing, the County

continued to raise issues regarding the timeliness of the initial grievance and whether or not

retirees were entitled to pursue a grievance. The County again pointed to the nine issues it

had previously raised in its first appeal to this Court, and the County also renewed its public

policy arguments about the County’s failure to make an appropriation to pay the amounts

ordered by the Arbitrator. At one point during the hearing, counsel for the County seemed

to disavow the reliability of the damages chart which had been previously provided by the

County:

       [BY THE COURT]:              Does the, does the County dispute the numbers on
                                    this chart?

       [BY THE COUNTY]:             To be honest with you, I don’t know what the
                                    numbers really mean and I haven’t sorted through
                                    them. I don’t know, at this point, who prepared
                                    them. I haven’t been able to track it down. So,
                                    no, I don’t agree with, and I think I need to, I,
                                    there has to be an opportunity for us —



                                              34
[BY THE COURT]:    This is, this is the document, as I recall, that the
                   County supplied to the FOP?

[BY THE COUNTY]:   As part of a global settlement discussion of all
                   cases.

[BY THE COURT]:    I understand that, but is there any, is there any
                   dispute as to anything on that chart?

[BY THE COUNTY]:   I dispute it because I don’t know what it says and
                   I don’t know how it was arrived at.

[BY THE COURT]:    Have you, have you had a chance to review it?

[BY THE COUNTY]:   I have reviewed it.

[BY THE COURT]:    You have?

[BY THE COUNTY]:   Yes.

[BY THE COURT]:    So having reviewed it, is there anything that you
                   dispute on it?

[BY THE COUNTY]:   Excuse us, Your Honor. Basically, there, the
                   numbers are unsubstantiated in any manner which
                   would, could relate to evidence that a judgment
                   could be based on, Your Honor.

[BY THE COURT]:    I’m just asking if you dispute anything on it?

[BY THE COUNTY]:   I dispute them, yes, I do.

[BY THE COURT]:    You dispute, you don’t know how the County
                   created it, prepared it and transferred it to the
                   opposing party in good faith negotiations for a
                   global settlement, you dispute what’s on there, is
                   that what you’re telling this Court?

[BY THE COUNTY]:   I personally don’t know what it says or who
                   prepared it, therefore, I have to dispute it.


                            35
[BY THE COURT]:    Okay. All right.

[BY THE COUNTY]:   And it’s not substantiated in terms of a piece of
                   evidence that you put somebody on the stand and
                   say, Mr. Jones —

[BY THE COURT]:    I, I, I understand your evidentiary point. My
                   question is, this document that the County
                   prepared and presented to the FOP, does the
                   County dispute what’s on the County’s
                   document?

[BY THE COUNTY]:   I can’t speak for the County because I can only
                   speak for myself.

[BY THE COURT]:    You’re, you’re representing the County.

[BY THE COUNTY]:   My investigation of it revealed that I couldn’t
                   identify who had prepared it. Without that,
                   talking to that person, I have to dispute it.

[BY THE COURT]:    Okay. But as of this point in time, which has
                   been, I don’t know when you turned the document
                   over, it’s been several years though, right? Two
                   thousand eleven?

[BY THE COUNTY]:   Yes, it’s been a while.

[BY THE COURT]:    All right. So it’s been about two, over two years.
                   Has anything come to your attention, to the
                   County’s attention, to, to bring into dispute
                   anything on that document?

[BY THE COUNTY]:   No, because it never came up. The settlement
                   negotiations ended and that was the end of that.
                   There was not a settlement reached and, therefore,
                   the document became irrelevant.

[BY THE COURT]:    All right. Have you reviewed it since the Court’s
                   Order back in, several months ago?


                            36
[BY THE COUNTY]:   Your Honor’s Order?

[BY THE COURT]:    Um hm. Have you reviewed the document?

[BY THE COUNTY]:   No, I haven’t really, I’ve looked at it but I
                   haven’t reviewed it. I’m not —

[BY THE COURT]:    Has anything, is there anything to dispute now
                   about that document?

[BY THE COUNTY]:   Yes, the whole thing.

[BY THE COURT]:    Okay.

[BY THE COUNTY]:   On both substantive, it’s unsubstantiated and on
                   evidentiary grounds. I think Your Honor —

[BY THE COURT]:    What substantively is incorrect on it?

[BY THE COUNTY]:   It has, the document hasn’t been substantiated by
                   the testimony of a witness who can say ----

[BY THE COURT]:    What, what facts on the document are in dispute?

[BY THE COUNTY]:   Well, I wouldn’t know that until I have a witness
                   on the witness stand to know what’s in dispute
                   and be able to either not prove it or prove it.

[BY THE COURT]:    All right.

[BY THE COUNTY]:   I’m not trying to play a game, Your Honor. I, I
                   just, you know, this is a document that was
                   prepared for settlement discussion. Now, it’s
                   providing the basis for a, I guess, a half million or
                   a million and a half dollar judgment.

[BY THE COURT]:    Well, I guess I can understand if there’s a dispute
                   as to the amount or the, or the facts on that
                   document, there’s a bona fide dispute about that,
                   then you need an evidentiary hearing.


                                37
       [BY THE COUNTY]:             I can’t, I can’t, as I stand here say —

       [BY THE COURT]:              But if there’s no, if there’s no dispute, then
                                    there’s no need for a hearing.

       [BY THE COUNTY]:             There’s –

       [BY THE COURT]:              If you’re disputing —

       [BY THE COUNTY]:             Yes, I’m disputing —

       [BY THE COURT]:              If you, as the representative for the County, is
                                    disputing the document that the County prepared,
                                    I’d like to know what, what is it about that
                                    document that the County prepared that the
                                    County disputes.

       [BY THE COUNTY]:             I’m not sure if the numbers are accurate.

       [BY THE COURT]:              Okay.

       [BY THE COUNTY]:             But either way, I don’t think it’s a document that
                                    Your Honor can use because it’s part of a
                                    settlement discussion under the Rules of
                                    Evidence. In any event, and, and it shows that
                                    rather than using a document that was part of a
                                    settlement discussion, there needs to be a hearing
                                    where somebody proves something.

       [BY THE COURT]:              So, so you’re saying the County entered into a
                                    settlement discussion without vetting the
                                    document that’s being used as the basis for that
                                    negotiation?

       [BY THE COUNTY];             I have no idea. I wasn’t part of that.

       In response to the County’s refusal to admit the reliability of the document that it had

previously prepared and provided to the FOP, the court permitted a brief period of discovery



                                              38
for the purpose of ascertaining the damages amount, and the court scheduled a damages

hearing for January 28, 2014. As part of its order of November 5, 2013, the court stayed

paragraphs 3 and 4 of its order of August 28, 2013; in other words, it stayed the part of the

order requiring the County to pay $572,887.10, “plus appropriate interest,” and to update the

damages chart within 20 days.

       On November 8, 2013, the County noted an appeal to this Court of the November 5,

2013, order. It also filed a motion for a stay pending appeal, which was denied by the circuit

court in a memorandum opinion and order filed on December 15, 2013. The County then

made application to this Court for a stay pending appeal, and that was denied on December

26, 2013.

       A damages hearing was held on February 6, 2014. Admitted in evidence as FOP’s

Exhibit 1 was an updated chart, provided by the County, showing that the updated damages

amount through the end of January 2014 was $1,413,120.81. That balance was growing by

approximately $28,000 per month for every month the County refused to comply with the

court’s previous orders to reset the subsidies and “make whole” the retirees. FOP produced

an expert economist who testified as to pre- and post-judgment interest, which, at the time

of the damages hearing, was “a little over $219,000 in total” and growing by “approximately

$7,000 to $8,000 of interest each month.” FOP also produced evidence showing that its total

attorneys fees were up to $240,412.80.




                                             39
       At the damages hearing, the County again argued that FOP was entitled to no damages

whatsoever. FOP called as its first witness Becky Ellis, a health-insurance administrator for

the County and the individual who prepared the damages spreadsheet at issue that reflected

that the County owed the affected retirees in excess of $1.4 million. The County objected

to the admission of the document prepared by its employee at its direction on the basis that,

“although it’s authentically what she prepared, what [it] is being presented for is not

proper[.]” The objection was overruled.

       When it came time to cross-examine Ms. Ellis, the County asked its employee, “[d]oes

the County owe the retirees [ ] damages?” The question drew an objection that was sustained.

The County explained that the question “relates to our argument that these retirees are

entitled to zero damages.” The County then proffered that Ms. Ellis’s “answer would be that

there are no damages because the Health Care Review Committee agreed to the change in

the subsidy rate.”

       FOP then called its expert economist, Dr. Amy McCarthy, to testify regarding her

interest calculations, which showed that the amount of interest that accrued between

September 1, 2007, and December 31, 2013, was $219,175.22.

       The County was then permitted to call a witness, Fred Homan, out of turn. Mr.

Homan testified that he was the County administrative officer, “responsible for the day-to-

day operation of the county.” Prior to holding his then-current position, Mr. Homan had been

the Director of Budget and Finance for the County from November 1989 until July 2007.



                                             40
The County’s repeated attempts to have Mr. Homan testify that it was his opinion that the

retirees were not due any compensatory damages drew objections that were sustained, but

the County was permitted to proffer what Mr. Homan’s testimony would be. Among the

contentions appellant makes on this appeal is a claim that the court, in sustaining “virtually

every objection by FOP to every substantive question posed to the County’s witnesses,”

committed legal error in “refus[ing] to allow the County’s witnesses to give any substantive

testimony” at the February 6, 2014 damages hearing. The following colloquy reflects the

proffered testimony that was excluded.

       [BY THE COUNTY]:             Mr. Homan, in your capacity as the County’s
                                    administrative officer and being the director of
                                    Budget and Finance, you’re familiar with the
                                    County’s executive budget system —

       [BY FOP’S COUNSEL]:          Your Honor, I object to the relevance of what I
                                    am now imagining this entire line of questioning
                                    to be, to not be about ascertaining the amount of
                                    damages which is the sole purpose of this hearing,
                                    but instead to relitigate for countless time the
                                    merits of this litigation.

       [BY THE COURT]:              Mr. [County’s counsel]?

       [BY THE COUNTY]:             Your Honor, again, this goes back to our
                                    contention that with respect to this damages
                                    hearing there are no damages, and Mr. Homan
                                    will explain why.

       [BY THE COURT]:              Okay. I’ll sustain the objection.

       [BY THE COUNTY]:             Then I would like to make a proffer.

                                            ***


                                             41
                      Mr. Homan will testify that under the County’s
                      Executive Budget System as set forth in the
                      Baltimore County Charter and Code, specifically
                      Section 715 of the Charter and Section 10-1-113
                      of the Baltimore County Code, which if he were
                      allowed to testify I would offer as exhibits in
                      support of his testimony. The Executive Budget
                      System entered into and formed a part of the FY
                      2007 MOU as if expressly referred to and
                      incorporated into the MOU, and that’s under
                      Maryland case law.

                      Under that system any agreements [a]ffecting
                      appropriations are fully subject to the County’s
                      annual budget process. This principle embraces
                      unlike those provisions which [a]ffect the validity,
                      construction, discharge, and enforcement of a
                      contract. Even if the retirees had a vested right to
                      certain rates, that vested right was fully subject to
                      the Executive Budget System and the agreement
                      negotiated by the Health Care Review Committee.

                      I’d then ask Mr. Homan the following question —
                      well, I will ask him and if there’s an objection I’ll
                      proffer the answer.

[BY THE COURT]:       All right.

[BY THE COUNTY]:      Do you agree or disagree with the following
                      statement, Mr. Homan? If the final enacted
                      ledger contains the agreed upon appropriations
                      from which health care subsidies should have
                      been paid, then is the County obligated to pay —

[BY FOP’S COUNSEL]:   I’m gonna object on two —

[BY THE COURT]:       All right. Sustained.

[BY FOP’S COUNSEL]:   I don’t even believe a proffer is appropriate
                      because you’re the judge and he’s asking now Mr.


                                   42
                      Homan. That question is improper, period,
                      because —

[BY THE COURT]:       I sustained the objection, and you may proffer.

[BY THE COUNTY]:      The answer — the proffer would be as follows: If
                      the final enacted budget contains the agreed upon
                      appropriations from which health care subsidies
                      should have been paid, then the County is
                      obligated to pay, but if the final enacted budget
                      contains less appropriations than were previously
                      agreed upon, then the budget controls and the
                      County is only liable up to the amount actually
                      appropriated.

                      Next question, Mr. Homan, do you agree with the
                      following statement? If the final enacted budgets
                      for FY 2008 to 2014 contain the health care
                      subsidy reductions agreed to by the Health Care
                      Review Committee, then the County is under no
                      obligation to pay any other subsidy —

[BY FOP’S COUNSEL]:   Objection, Your Honor.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer would be that if the final enacted
                      budgets —

[BY THE COURT]:       This is a proffer.

[BY THE COUNTY]:      This is a proffer, correct. If the final enacted
                      budgets for FY 2008 to 2014 contain the health
                      care subsidy reductions agreed to by the Health
                      Care Review Committee, then the County is not
                      under any obligation to pay any other subsidy.

                      Next question, Mr. Homan, under the C[h]arter
                      and the Code can the County comply with any
                      order of the Court to “issue payment” of alleged


                                43
                      excess contributions to affect[ed] retirees “plus
                      appropriate interest” ---

[BY FOP’S COUNSEL]:   Objection, Your Honor.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      And the answer would be —

[BY THE COURT]:       Proffer.

[BY THE COUNTY]:      The proffer would be no. The next question
                      would be why not, and the answer would be —

[BY FOP’S COUNSEL]:   Your Honor, if you want me to object to —

[BY THE COURT]:       I think you should object.

[BY FOP’S COUNSEL]:   Objection.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The proffer would be because there has never
                      been an appropriation ordinance by the county
                      coun[ci]l for such payments.

                      Next question, Mr. Homan, under the Charter and
                      Code can the County comply with any order by
                      this Court that the County “shall provide each
                      effective [sic] retiree with [the] health care
                      subsidy in place at the time of his or her
                      retirement” ---

[BY FOP’S COUNSEL]:   Objection.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer would be no. The next question to
                      Mr. Homan, why not —



                                 44
       [BY FOP’S COUNSEL]:         Objection.

       [BY THE COURT]:             Sustained.

       [BY THE COUNTY]:            The answer would be —

       [BY THE COURT]:             It’s a proffer. They’re all proffers.

       [BY THE COUNTY]:            The proffer would be because there’s never been
                                   an appropriation ordinance by the county
                                   coun[ci]l for such reset or such repayments —
                                   such payments, pardon me. That would be Mr.
                                   Homan’s testimony.

       A similar pattern of proffers was used during the examination of the County’s two

other witnesses at the damages hearing, Keith Dorsey and George Gay. Mr. Dorsey testified

that, since July 2007, he has been the Director of Budget and Finance for Baltimore County.

The following colloquy is pertinent:

       [BY THE COUNTY]:            Now, pursuant to the budget bearing physical [sic]
                                   proceedings of the County Charter and the County
                                   Code, was the County Council in its budgetary
                                   enactments for FY 2008 and 2014 appropriated
                                   the funds to pay for the health care subsidy split
                                   negotiated by the Health Care Review Committee
                                   in 2007?

       [BY MR. DORSEY]:            Yes, I did —

       [BY FOP’S COUNSEL]:         Objection, your Honor. This is outside the scope
                                   of today’s hearing.

       [BY THE COURT]:             All right. Sustained. Strike the question and the
                                   answer.

       [BY THE COUNTY]:            Well, observe the same —



                                            45
[BY THE COURT]:       You can make a proffer.

[BY THE COUNTY]:      — process. I will proffer that the answer will be
                      the County has appropriated the funds to pay for
                      the health care subsidy split negotiated by the
                      Health Care Review Committee in 2007.

                      Next question, Mr. Dorsey, has the County
                      Council in its budgetary enactments fiscal year
                      2008 to 2014 appropriated the funds to pay for
                      health care subsidy split in effect prior to July 1,
                      2007 —

[BY FOP’S COUNSEL]:   Objection.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      I’ll proffer, your Honor. The answer would be
                      no.

                      Next question, Mr. Dorsey, has the County
                      Council appropriated the funds for any alleged
                      damages claimed in this case —

[BY FOP’S COUNSEL]:   Objection.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The proffer would be that the County Coun[ci]l
                      has not appropriated any funds to pay for any
                      alleged damages claimed in this case.

                      Mr. Dorsey, the next question is has the County
                      Council appropriated the funds to pay for any
                      retroactive reset of the retiree health care subsidy
                      splits to their pre-July 1, 2007 level –

[BY FOP’S COUNSEL]:   Objection.

[BY THE COURT]:       Sustained.


                               46
      [BY THE COUNTY]:           The proffer is that the County Council has not
                                 appropriated the funds for any retroactive reset of
                                 the health care retiree subsequent to their pre-July
                                 1, 2007 level.

                                 Mr. Dorsey, has the County Council appropriated
                                 the funds to pay for any award of interest,
                                 attorney fees or litigation expenses in connection
                                 with this case —

      [BY FOP’S COUNSEL]:        Objection.

      [BY THE COURT]:            Sustained.

      [BY THE COUNTY]:           The proffer would be the answer is no, the County
                                 Council has not appropriated the funds to pay for
                                 any award of interest, attorney fees or litigation
                                 expenses. That would be the testimony of — the
                                 proffered testimony of Mr. Dorsey.

      George Gay testified next on behalf of the County. At the time of the damages

hearing, Mr. Gay was the County’s Director of Human Resources, but in his previous

position as Labor Commissioner, he denied the FOP’s initial grievance in this matter

following a hearing on November 6, 2007. Mr. Gay’s testimony, in part, was as follows:

      [BY THE COUNTY]:           Let me show you what has been marked as
                                 Plaintiff’s Exhibit 5. Do you recognize that?

      [BY MR. GAY]:              It appears to be the grievance filed by the FOP
                                 concerning the health care subsidy split.

      [BY THE COUNTY]:           Is this the grievance that resulted in a hearing that
                                 you conducted?




                                           47
      [BY MR. GAY]:              I didn’t.[3]

      [BY THE COUNTY]:           What was your finding in connection with that
                                 hearing —

      [BY FOP’S COUNSEL]:        Objection, your Honor. It’s outside the scope of
                                 today’s hearing.

      [BY THE COURT]:            Sustained.

      [BY THE COUNTY]:           I will proffer that the result was the grievance was
                                 denied.

                                 Mr. Gay, do you see where in the box where it
                                 says [“]employee’s name[”], the [“]Baltimore
                                 County FOP Lodge 4[”] appears?

      [BY MR. GAY]:              Yes.

      [BY THE COUNTY]:           Is FOP Lodge 4 an employee —

      [BY FOP’S COUNSEL]:        I object, your Honor. Same objection.

      [BY THE COURT]:            Sustained.

      [BY THE COUNTY]:           The answer would be as I proffer it, your Honor,
                                 no.

                                 Do you see down where it says “Box 2 What do
                                 you think should be done about it?” You see
                                 that?

      [BY MR. GAY]:              Yes, uh-huh.

      [BY THE COUNTY]:           You see anywhere in that box where the FOP
                                 requested, “Make whole relief” ---


      3
       We assume this is a transcription error; Mr. Gay did conduct a hearing on FOP’s
grievance on November 6, 2007, and denied the grievance in an opinion he issued on
November 19, 2007.

                                            48
[BY FOP’S COUNSEL]:   Objection, your Honor. It’s outside the scope.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer would be no, that’s the proffer. If I
                      could have Exhibit Number 2, please.

                      I’m showing you what’s been previously marked
                      and admitted into evidence as Exhibit Number 2,
                      which is the complaint filed in this case.

                      I want to direct your attention to Exhibit 2
                      attached to that complaint, which is the FY 2000
                      MOU between Baltimore County and FOP Lodge
                      4. Do you recognize that?

[BY MR. GAY]:         Yes.

[BY THE COUNTY]:      In looking at that can you explain what the health
                      care subsidy split was as it existed as of the
                      effective date and up to the time it became
                      expired of that MOU?

[BY MR. GAY]:         It varies based on the levels of coverage, because
                      there’s an HCP, there’s also a triple option plan.

[BY THE COUNTY]:      You said what is it, an HCP?

[BY MR. GAY]:         Yes.

[BY THE COUNTY]:      What does that mean?

[BY MR. GAY]:         Health care preferred, and a PLS plan into said
                      triple option plan.

[BY THE COUNTY]:      Okay. Is it accurate to say that the amount of the
                      subsidy is various subsidies for the different
                      health plans in this MOU are different from what
                      was negotiated by the Health Care Review
                      Committee in 2007 —


                               49
[BY FOP’S COUNSEL]:   Objection, your Honor.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer as proffered would be yes, these are
                      different.

                      Let me show you what has been marked as the
                      next County Exhibit, which is Number 6. Do you
                      recognize that document?

[BY MR. GAY]:         Yes.

[BY THE COUNTY]:      What is it?

[BY MR. GAY]:         It’s   p o rtio n s of th e m e m o ra n d u m o f
                      understanding between the County and the
                      American Federation of State, County and
                      Municipal Employees.

[BY THE COUNTY]:      What fiscal year is this MOU effective?

[BY MR. GAY]:         July 1st of 2007 through June 30 of ‘08.

[BY THE COUNTY]:      So, could we call that one the FY 2008 MOU with
                      A[FS]CME?

[BY MR. GAY]:         Correct.

[BY THE COUNTY]:      Does that MOU incorporate the changes that were
                      negotiated by the Health Care Review Committee
                      during negotiations with that committee regarding
                      the health care subsidies —

[BY FOP’S COUNSEL]:   Your Honor, I object to the question and I also
                      object to the admission of the document, both are
                      outside the scope.

[BY THE COURT]:       Care to be heard, Mr. [County’s counsel]?



                                 50
[BY THE COUNTY]:      Just trying to establish that the A[FS]CME — this
                      is an illustrative MOU. The Health Care Review
                      Committee negotiated the changes on behalf of all
                      the unions, and they voted in favor of the changes,
                      and FOP was the only one who would not go
                      along with the changes. That’s why they filed a
                      grievance. All the other unions as illustrated by
                      this MOU of A[FS]CME agreed to the changes
                      and have abided by them ever since then. This
                      MOU does contain the changes negotiated by the
                      Health Care Review Committee.

[BY THE COURT]:       All right. Sustained.

[BY THE COUNTY]:      I think my explanation, I ask that be considered
                      the proffer.

[BY THE COURT]:       It is.

[BY THE COUNTY]:      Just to be clear I offer it into evidence at this time,
                      that is the MOU.

[BY THE COURT]:       Any objection?

[BY FOP’S COUNSEL]:   Yes, I object to the admission of the document.

[BY THE COURT]:       Sustained. It will not be admitted.

[BY THE COUNTY]:      Mr. Gay, going back to Exhibit 2 attached to the
                      complaint you have in front of you, which is the
                      FY FOP —

[BY MR. GAY]:         FOP, yes. Exhibit 2, I have that.

[BY THE COUNTY]:      Do you see under Section 1.2 which appears, the
                      page designated E22, the definition of employee
                      —

[BY FOP’S COUNSEL]:   Objection, your Honor. It’s outside the scope.



                                51
[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer would be yes, he does see that. I
                      would ask him then to read the definition, and it
                      would be read as follows: “Employee defined.
                      Whenever used in this memorandum of
                      understanding, the term ‘Employee’ shall mean all
                      sworn personnel up to and including the rank of
                      lieutenant of the police department.”

                      Mr. Gay, the meaning of employee there, does
                      that include retirees —

[BY FOP’S COUNSEL]:   Objection, your Honor.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The proffer would be that the term employee as
                      defined herein does not include retirees.

                      Does a person who is not an employee have the
                      right to bring a grievance?

[BY FOP’S COUNSEL]:   Objection, your Honor.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer would be no, they do not have a right
                      to bring a grievance.

                      Turning to page E35 of the document, Mr. Gay,
                      do you see Section 8.4, Class Grievance?

[BY MR. GAY]:         Yes.

[BY THE COUNTY]:      Could you read that, please —

[BY FOP’S COUNSEL]:   Objection, your Honor.

[BY THE COURT]:       Sustained.


                               52
[BY THE COUNTY]:      The reading would be if the grievance —

[BY FOP’S COUNSEL]:   Your Honor, it’s already in the record. It doesn’t
                      need to be read into the record.

[BY THE COURT]:       Okay. It’s in the record.

[BY THE COUNTY]:      Okay.

                      Are retirees employees entitled to bring a chance
                      [sic] grievance?

[BY FOP’S COUNSEL]:   Objection.

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      The answer would be no.

                      Take a look, if you would, at Section 7.2(d), page
                      E29. Do you see that first sentence?

[BY MR. GAY]:         Say that again, please.

[BY THE COUNTY]:      Page E29, Section 7.2(d), Health Care Bargaining
                      Agent. Do you see that?

[BY MR. GAY]:         Yes.

[BY THE COUNTY]:      The first sentence?

[BY MR. GAY]:         Yes.

[BY THE COUNTY]:      What does that state?

[BY FOP’S COUNSEL]:   Objection, your Honor. It’s already in the —

[BY THE COURT]:       Sustained.

[BY THE COUNTY]:      Mr. Gay, in your experience have you ever seen a
                      claim for award of attorney’s fees in connection


                               53
                                      with a grievance, an arbitration or a complaint to
                                      vacate an arbitration award?

       [BY MR. GAY]:                  No, I haven’t.

       [BY THE COUNTY]:               Is there any provision in the MOU to support such
                                      a claim with such an award —

       [BY FOP’S COUNSEL]:            Objection, your Honor.

       [BY THE COURT]:                Sustained.

       [BY THE COUNTY]:               The answer as proffered would be no. That’s all
                                      the questions I have of Mr. Gay.

       On March 6, 2014, the court filed an order reflecting its partial grant of FOP’s motion

to enforce. The March 6 order awarded FOP, “pursuant to the ‘make whole’ provision of the

Arbitrator’s Award,” damages of $1,413,120.81, but declined to award any attorney’s fees

or pre-judgment interest. In a footnote, the court explained:

       [FOP] is not entitled to compound pre-judgment interest. Med. Mut. Liab. Ins.
       Soc. of Maryland v. Davis, 389 Md. 95, 112 (2005), Walker v. Acting Dir.,
       Dep’t of Forests & Parks, 284 Md. 357, 367 (1979). The Court is unable to
       determine an amount for simple pre-judgment interest because [FOP’s] Exhibit
       4 computes pre-judgment interest compounded monthly. Accordingly, the
       Court cannot award pre-judgment interest to [FOP].

       Both the County and FOP noted appeals to this Court following entry of the March

6 order.4

       On February 18, 2014, FOP filed a motion “to clarify amount of prejudgment

interest.” FOP informed the court that it agreed that, to the extent FOP was owed any



       4
           FOP filed a Line in this Court on July 31, 2014, dismissing its cross-appeal.

                                               54
prejudgment interest, it was owed only simple interest, not interest compounded in any

manner. FOP attached to the motion an affidavit of its expert economist, Dr. Amy McCarthy,

in which Dr. McCarthy averred that she had “recalculated the interest owed to the affected

retirees based on the amounts reflected in the spreadsheet provided by the County to the

FOP,” and that, using the annual rate of 6% simple interest, the retirees were owed

$213,446.47 in prejudgment interest. A spreadsheet showing the supporting calculations was

attached to Dr. McCarthy’s affidavit.

      On February 26, 2014, the County filed its opposition to the motion. On March 14,

2014, FOP filed a motion to reconsider the March 6 order, pointing to the simple-interest

calculations of Dr. McCarthy as sufficient evidence of the amount, and asking the court to

perform the “ministerial task” of awarding the properly-computed pre-judgment interest

which FOP claimed. FOP additionally noted that it would not object to the County deposing

or otherwise questioning Dr. McCarthy. The County filed its supplemental opposition on

March 28, 2014. On April 28, 2014, the court granted FOP’s motion for reconsideration, and

entered an amended judgment awarding FOP the original judgment amount of $1,413,120.81,

plus pre-judgment interest of $213,446.47, for a total judgment of $1,626,567.28. On April

25, 2014, the County noted its appeal of the amended judgment order.5


      5
        The amended order was signed on April 17, 2014, but not docketed until April 28,
2014. However, counsel were copied on the order once it was signed, which may explain
how the County was able to note an appeal to this Court on April 25, 2014. See Maryland
Rule 8-602(d), which deems a notice of appeal filed after the rendering of a judgment, but
before the judgment is docketed, as being filed on the same day as the docket entry of the
judgment.

                                           55
       Meanwhile, on April 15, 2014, FOP filed a petition for an order of constructive civil

contempt against the County, County Executive Kevin Kaminetz, Director of the Office of

Budget & Finance Keith Dorsey, and County Administrative Officer Fred Homan.6 In its

contempt petition, FOP noted that it had been several months since the County’s liability had

been determined; the County’s attempts to have the matter stayed by the circuit court and

this Court had failed; and the County’s refusal to make payment in accordance with the

court’s orders left FOP with no other option than to ask that the officials who were refusing

to pay be held in contempt. On April 15, the circuit court issued a show cause order,

directing the County and the named officials to appear at a hearing on June 26, 2014, and

“show cause why the Court should not hold each in contempt and/or impose sanctions,

including incarceration.”

       On April 14, 2014, the County filed a response to the petition for an order of

constructive civil contempt.7     It also filed an answer to the petition for an order of


       6
        This was FOP’s second petition for order of constructive civil contempt. On October
4, 2013, it filed a petition for order of constructive civil contempt against the County and
Messrs. Kamenetz and Dorsey. The County filed an opposition that was docketed on
October 2, 2013 — before FOP’s petition was even docketed. It appears that FOP’s petition
had been transmitted to the County’s counsel on September 20, 2013, which may explain
why the opposition was docketed before the petition it opposed was docketed. Nevertheless,
FOP voluntarily withdrew that first petition for order of constructive civil contempt in open
court on February 6, 2014.
       7
         The docket entries reflect that FOP filed its second petition for order of constructive
civil contempt against the County and Messrs. Kamenetz, Dorsey, and Homan on April 15,
2014, but the County filed its opposition to that petition on April 14, 2014. The date on the
signature page of FOP’s petition is March 28, 2014, as is the date on the letter from FOP to
the Clerk of the Circuit Court for Baltimore County that accompanied the petition. We

                                              56
constructive civil contempt on April 28, 2014, incorporating by reference its earlier-filed

response to that petition. On April 28, 2014, the County also filed a motion to quash the

show cause order, and asked the court to exempt the individual County officials from having

to personally appear on June 26.

       On May 16, 2014, FOP filed an opposition to the motion to quash, and on May 28,

2014, the court denied the County’s motion to quash.

       On May 30, 2014, the County filed a certification of compliance with outstanding

court orders, representing that it had, under protest, paid the judgment amount of

$1,413,120.81; $213,446.47 in pre-judgment interest; $55,348.68, representing the subsidy

for the months of April and May of 2014; $14,260.32 in post-judgment interest at 10% per

annum, accounting from the docketing of the court’s amended judgment on April 28, 2014,

through May 30, 2014; and $227.70 in post-judgment interest for the April 2014 subsidy, for

a grand total of $1,696,403.98. Additionally, the certification contained an affirmation of

Keith Dorsey that the subsidy rates had been reset as ordered by the court in its November

5, 2013, order. The rest of the certification made clear that the County made these payments

“solely as a result of the coercion and duress imposed upon it,” and that it reserved all of its

appeal rights. A second supplemental certification followed on June 10, 2014, representing




surmise that the County’s April 14 opposition to FOP’s yet-to-be-docketed petition was
triggered by the County’s receipt of FOP’s petition sometime between March 28 and April
14.

                                              57
that another payment of $20,209.56 had been made by the County to account for prejudgment

interest from February 1, 2014, through April 28, 2014.

       In the present appeal, the County challenges the circuit court’s orders of November

5, 2013 (ordering the County to reset the retiree health insurance split to the rate in effect at

the time of retirement); March 6, 2014 (entering judgment in favor of FOP for

$1,413,120.81); and April 28, 2014 (entering an amended judgment in favor of FOP for

$1,626,576.28).

                                        DISCUSSION

       I.     The Law of the Case doctrine

       The law of the case doctrine provides generally that, “[o]nce an appellate court has

answered a question of law in a given case, the issue is settled for all future proceedings”

between the litigants. Stokes v. American Airlines, Inc., 142 Md. App. 440, 446 (2002). The

doctrine “prevents trial courts from dismissing appellate judgment and re-litigating matters

already resolved by the appellate court.” Id. “The function of this doctrine is to prevent

piecemeal litigation.” Fid.-Balt. Nat’l Bank & Trust Co. v. John Hancock Mut. Life Ins. Co.,

217 Md. 367, 371-72 (1958).

       In Reier v. State Dept. of Assessments and Taxation, 397 Md. 2, 21 (2007), the Court

of Appeals described the doctrine by quoting the following passage from Fid.-Balt Nat’l

Bank & Trust Co.:

              It is the well-established law of this state that litigants cannot try their
       cases piecemeal. They cannot prosecute successive appeals in a case that raises


                                               58
       the same questions that have been previously decided by this Court in a former
       appeal of that same case; and, furthermore, they cannot, on the subsequent
       appeal of the same case raise any question that could have been presented
       in the previous appeal on the then state of the record, as it existed in the
       court of original jurisdiction. If this were not so, any party to a suit could
       institute as many successive appeals as the fiction of his imagination could
       produce new reasons to assign as to why his side of the case should
       prevail, and the litigation would never terminate. Once this Court has
       ruled upon a question properly presented on an appeal, or, if the ruling
       be contrary to a question that could have been raised and argued in that
       appeal on the then state of the record, as aforesaid, such a ruling becomes
       the ‘law of the case’ and is binding on the litigants and courts alike, unless
       changed or modified after reargument, and neither the questions decided
       nor the ones that could have been raised and decided are available to be
       raised in a subsequent appeal.

217 Md. at 371-72 (emphasis added).

       In this appeal, the County argues that the law of the case doctrine does not apply

because it is now challenging the “enforceability of the recent orders,” not the “legally

distinct issue[ ] . . . of the legal validity of the award itself.” The County contends that the

Court of Appeals never decided any issue related to enforceability. The County again

contends that the nine questions it presented to this Court in its 2011 appeal “were never

addressed by the Court of Special Appeals or the Court of Appeals.” It claims the Court of

Appeals’s refusal to grant the County’s request to remand the case to this Court for

consideration of the nine questions it raised in its previous appeal “effectively denied the

County’s right of appeal which is guaranteed by Courts & Judicial Proceedings Article, § 12-

301.”8 The County contends that the circuit court’s application of the law of the case


       8
       Md. Code, Courts & Judicial Proceedings Article (1973, 2013 Repl. Vol.) (“CJP”),
§ 12-301 provides:

                                              59
doctrine was “patently erroneous in light of the Court of Appeals holding in Garner v.

Archers Glen Partners, Inc., 405 Md. 43 (2008).” The County is incorrect, and its reliance

on Garner is misplaced.

       In Garner, a group of citizens filed a petition for judicial review in the Circuit Court

for Prince George’s County, contesting the approval, by the Prince George’s County

Planning Board, of a preliminary plan. The circuit court affirmed the Planning Board, and

the citizens appealed to this Court. In an unreported opinion (“Archers Glen I”), this Court

held that the Planning Board “failed to articulate sufficiently the findings in support of its

conclusion that the Preliminary Plan conformed to the recommendations of the Master Plan.”

405 Md. at 49. This Court vacated the circuit court’s affirmance of the Planning Board and

directed that the case be remanded to the Planning Board for further proceedings, but first,

“[i]n an attempt to avoid the expense and delay of additional appeals,” we offered for

guidance dicta “discussing the potential legal effect to be accorded the General Plan in the

subdivision process[.]” Id. at 52. On remand, the Planning Board again approved the

Preliminary Plan, and the citizens again contested that approval by filing a petition for

judicial review. When the circuit court considered the second petition for judicial review,


               Except as provided in § 12-302 of this subtitle, a party may appeal from
       a final judgment entered in a civil or criminal case by a circuit court. The right
       of appeal exists from a final judgment entered by a court in the exercise of
       original, special, limited, statutory jurisdiction, unless in a particular case the
       right of appeal is expressly denied by law. In a criminal case, the defendant
       may appeal even though imposition or execution of sentence has been
       suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-
       appeal from the final judgment.

                                               60
it ordered the case remanded to the Planning Board for further fact-finding. The developer

and the Planning Board appealed to this Court.

       In this second appeal, we reversed the circuit court’s remand order, and we filed a

reported opinion.    Archers Glen Partners, Inc. v. Garner, 176 Md. App. 292 (2007)

(“Archers Glen II”.) One of the arguments the citizens made in Archers Glen II was that this

Court’s discussion, in dicta, in Archers Glen I was “the law of the case,” and therefore, “the

recommendations of the General Plan were binding on the Planning Board in considering and

acting on the Preliminary Plan.” 405 Md. at 52. We held in Archers Glen II that the dicta

in our earlier opinion was merely dicta that did not constitute the law of the case. The

citizens appealed our decision in Archers Glen II, and the Court of Appeals affirmed, noting:

“[I]t is clear that, in Maryland, dicta not adopted as a final determination may not serve as

the binding law of the case.” Id. at 57.

       By contrast, in the instant case, the Court of Appeals’s decision affirming the circuit

court’s grant of summary judgment in favor of FOP was not mere dicta. It was a final

determination that FOP was entitled, as a matter of law, to the judgment to enforce the

arbitration award. That decision necessarily embraced and resolved all of the issues that the

County raised, as well as any other issues that were then available to raise, challenging the

validity of the arbitration award.

       In the previous appeal of this case, in its opinion ruling that the circuit court’s order

to enforce the arbitration award was affirmed, the Court of Appeals stated:



                                              61
             Thus, the Circuit Court would be legally correct in granting
      summary judgment in FOP's favor, if (1) it reviewed the arbitrator's findings
      under a proper standard of review and (2) if FOP was entitled to judgment
      as a matter of law.

              As the arbitrability of FOP's grievance was a decision to be initially
      made by the arbitrator, that decision was subject to the same deferential
      standard of review as the arbitrator's findings on the merits. Thus, the Circuit
      Court needed to make sure that both the arbitrator's findings (1) that FOP's
      grievance was arbitrable and (2) that FOP was entitled to relief did not
      constitute a “palpable mistake of law or fact apparent on the face of the award
      or a mistake so gross as to work manifest injustice.” Prince George's Cnty.
      Educators' Ass'n, 309 Md. at 105, 522 A.2d at 941 (quotation marks omitted).
      Because the Circuit Court was unsure what standard to apply in reviewing the
      arbitrator's arbitrability finding, the Circuit Court subjected that finding to both
      a deferential and non-deferential standard of review. As for the award itself,
      the court “awarded great deference” to the arbitrator's findings. Accordingly,
      the Circuit Court applied a proper standard of review in both instances.

              We now look to the arbitrator's findings to determine whether the
      Circuit Court was legally correct in granting summary judgment in FOP's
      favor. The arbitrator began his opinion by acknowledging the County's
      argument about the supposedly preclusive effect of the MOU's expiration on
      the arbitrability of FOP's grievance. Relying on Nolde[9] and Litton [10] , the
      arbitrator responded to the County's challenge by stating that “[t]he end of a
      labor contract, however, does not always signal the death of negotiated rights
      thereunder, including the right to have a dispute over that matter resolved
      through arbitration.” The arbitrator then discussed Nolde and Litton for their
      vesting principles and concluded that “the ultimate question is whether the
      retiree rights at issue may be considered vested and thus capable of continuing
      enforcement.”

            In the arbitrator's view, the question of vesting “is answered directly by
      the unequivocal language of the MOUs: The statement that ‘the health


      9
       Nolde Bros. v. Bakery & Confectionary Workers Union, 430 U.S. 243, 97 S.Ct. 1067,
51 L.Ed.2d 300 (1977).
      10
           Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177
(1991).

                                              62
insurance subsidy in place at the time of retirement shall remain in effect until
the retiree becomes eligible for Medicare’ is subject to no interpretation other
than that here proposed by the FOP.” He continued, “[w]hen the parties
bargained this language, they made a binding promise to retirees that the
subsidy would remain at whatever level existed at their retirement. That is a
vested right, and it was not, and could not be, changed by the [subsequent]
negotiations....” The arbitrator concluded: “[o]fficers who retired on or after
February 1, 1992 and before July 1, 2007 have a vested right to retain the
health insurance split applicable to them as active officers at the time of their
retirement.”

       The County attacks the arbitrator's findings on several fronts. In
addition to arguing against the application of Nolde and Litton to this case, the
County suggests that the “Arbitrator acknowledged, but did not address, the
County's argument that all obligations under the Agreement expired, including
both the healthcare obligations and the independent obligation to arbitrate.”
According to the County, this alleged failure to consider whether the
arbitration clause had expired gives basis to vacate the arbitration award not
only for a palpable mistake in law, but also for failure “to consider all matters
submitted.”

        The County also argues that the healthcare subsidy was not a vested
right. Here, the County asserts that “[t]here is no ‘vested right’ to future health
insurance benefits and subsidies in the expired FY 2007 MOU, based on
evidence, long-standing practice, and applicable law.” In support of this
statement, the County mentions the Labor Commissioner's testimony, where
he stated that “there is no vested right to health insurance benefits and there
never has been such a right in Baltimore County.” The County also points out
that “there is no statutory requirement that County employees be provided with
health care benefits.”

       The County's arguments are unavailing. First, we agree with FOP
that “as a corollary to his express findings that the right had vested, and as a
necessary precondition to his granting the grievance, the arbitrator necessarily
determined that the arbitration clause was enforceable and that the grievance
was arbitrable.” The arbitrator's consideration of the arbitrability of the dispute
and the merits of the case illustrates the interconnectedness of these two issues
in cases where arbitrability depends on the interpretation of the underlying
agreement. Having found that the retirees were entitled to the health-insurance
premium split in effect at the time of their retirement, the arbitrator necessarily


                                        63
      also found, by implication, that the arbitration clause survived the MOU's
      expiration, and the dispute was arbitrable. See Nolde, 430 U.S. at 249, 97 S.Ct.
      at 1071 (“[I]n determining the arbitrability of the dispute, the merits of the
      underlying claim for severance pay are not before us. However, it is clear that,
      whatever the outcome, the resolution of that claim hinges on the interpretation
      ultimately given the contract clause providing for severance pay.”); Litton, 501
      U.S. at 205–06, 111 S.Ct. at 2225 (“A postexpiration grievance can be said to
      arise under the contract only where it involves facts and occurrences that arose
      before expiration, where an action taken after expiration infringes a right that
      accrued or vested under the agreement, or where, under normal principles of
      contract interpretation, the disputed contractual right survives expiration of the
      remainder of the agreement.”).

              Second, like the Circuit Court, we see no reason to disturb the
      arbitrator's finding of vesting. The County's arguments on the lack of county
      employees' statutory entitlement to health care based on Commissioner Gay's
      testimony simply miss the point. The arbitrator found that the rights had
      vested based on his interpretation of the underlying MOU, which stated
      that “the health insurance subsidy in place at the time of retirement shall
      remain in effect until the retiree becomes eligible for Medicare.” We do not
      think that the arbitrator's reading of this clause as a “binding promise”
      constituted a “manifest disregard of the law” or resulted in “manifest
      injustice.” Prince George's Cnty. Educators' Ass'n, 309 Md. at 105, 522 A.2d
      at 941. On the contrary, we agree with the Circuit Court that the
      arbitrator's interpretation of this language was consistent with the
      objective theory of contract interpretation that Maryland adheres to,
      under which courts give primary effect to the terms of the agreement.
      Cochran v. Norkunas, 398 Md. 1, 16, 919 A.2d 700, 709 (2007).

             In any event, the arbitrator's findings are awarded a great deal of
      deference and should not be disturbed, unless the arbitrator demonstrates
      a “manifest disregard of the law ... beyond and different from a mere
      error in the law or failure on the part of the arbitrator[ ] to understand
      or apply the law.” Prince George's Cnty. Educators' Ass'n, 309 Md. at 102,
      522 A.2d at 939. Since we see no such mistakes here, we conclude that the
      Circuit Court correctly determined that FOP was entitled to judgment as
      a matter of law. Thus, we reverse the judgment of the Court of Special
      Appeals.

429 Md. at 561-64 (emphasis added).


                                             64
       Plainly, the Court of Appeals affirmed the circuit court’s conclusion that the grievance

was arbitrable, which means that it necessarily agreed that the grievance was properly

pursued by FOP on behalf of the retirees — despite the County’s insistence that retirees are

not employees entitled to bring a grievance — and that the grievance was timely. Summary

judgment would not have been properly granted to FOP if it were otherwise.

       Similarly, the Court of Appeals could have remanded, but did not remand, the case

to this Court for further consideration of the “nine questions” the County raised in the 2011

appeal. In a motion for reconsideration, the County expressly asked the Court of Appeals to

remand for further consideration, and made the following arguments — a portion of which

we quoted above — in support of the remand requests:

              Compounding its error in nullifying a negotiated agreement, the Court
       [of Appeals] either mistakenly or intentionally refused the County’s request to
       remand this case to the [Court of Special Appeals] for consideration of the
       issues which the County had raised, but which were not addressed by that
       Court. (See the issues listed in the [Court of Special Appeals’s] Unreported
       Opinion at note 1, reproduced at Petitioner’s App. 217-218). Thus, the County
       has been denied the right of appeal which is guaranteed by Courts & Judicial
       Proceedings Article, § 12-301 from the final judgment entered by the Circuit
       Court for Baltimore County.

              The Court’s decision to remand to the [Court of Special Appeals] “with
       directions to affirm the judgment of the Circuit Court for Baltimore County”
       is inconsistent with its many prior decisions remanding “to the intermediate
       appellate court for consideration of undecided issues.”

                                            ***

               Of great practical consequence to the County, there has been no review
       of the following issue which was raised by the County in its Brief in the [Court
       of Special Appeals]:


                                              65
                     Contrary to law and public policy, the arbitrator’s award
              usurps the power of the Baltimore County Executive and the
              Baltimore County Council to enact a budget which provides for
              health insurance and health insurance subsidies pursuant to the
              terms negotiated by the HCRC, FOP Lodge 4's bargaining agent.

              The Arbitrator in this case had no power or authority to order the
       County Executive and County Council to fund a split different from the
       negotiated split enacted into law as part of the FY 2008, 2009, 2010, 2011
       and 2012 budgets, to order the County Executive and County Council to
       reset the split at 85/15 in any future budgets, or to “make whole” affected
       retirees for increased premium amounts not budgeted by the County
       Executive and County Council.

               If this Court’s decision is allowed to stand, and this matter is remanded
       to the [Court of Special Appeals] with directions to affirm the judgment of the
       Circuit Court for Baltimore County, the Arbitrator’s affirmed award will be
       unenforceable, since there have been no funds appropriated through the
       executive budget process to afford the relief capriciously dictated by the
       Arbitrator.

(Emphasis added.)

       Notwithstanding these arguments, the Court of Appeals denied the County’s motion

for reconsideration, and left in place its order to affirm the judgment of the circuit court.

“[O]nce an appellate court rules upon a question presented on appeal, litigants and lower

courts become bound by the ruling, which is considered to be the law of the case.” Scott v.

State, 379 Md. 170, 183-84 (2004). As the Court of Appeals made plain in Fid. Balt. Nat’l.

Bank, supra, 217 Md. at 372, “neither the questions decided [by the appellate courts] nor the

ones that could have been raised and decided are available to be raised in a subsequent

appeal.” (Emphasis added.)




                                              66
       In the Court of Appeals’s opinion in Garner v. Archers Glen Partners, Inc., supra,

405 Md. at 56, it quoted the following from Turner v. Housing Auth. of Balt., 364 Md. 24,

34 (2001):

       It is well settled that the law of the case doctrine does not apply when one of
       three exceptional circumstances exists: the evidence on a subsequent trial was
       substantially different, controlling authority has since made a contrary decision
       on the law applicable to such issues, or the decision was clearly erroneous and
       would work a manifest injustice.

But none of those “exceptional circumstances” is present here.

       Moreover, the public policy arguments about enforceability that the County complains

have never been addressed were, in fact, presented to and ruled on by the circuit court before

the first round of appeals. In the circuit court’s memorandum opinion and order granting

summary judgment in favor of FOP, the court noted that one of the County’s arguments was

that “the Arbitrator had no authority to rewrite the FY 2008 MOU and order the County to

reset the previous 85/15 split for the retirees in question.” As noted above, the circuit court

addressed the County’s public policy arguments as follows:

              Lastly, the County contends that [the Arbitrator] exceeded his authority
       by effectively rewriting the health care subsidy provisions negotiated by the
       HCRC on behalf of the FOP for the FY 2008 MOU and by ordering the
       County to maintain the 85/15 subsidy split for officers that retired after
       February 1, 1992 and before July 1, 2007.

              Specifically, the County argues that [the Arbitrator] exceeded his
       authority as set forth [in] Section 8.3, Step 4 of the FY 2007 MOU. That
       section provides:

              The arbitrator shall have no authority to add to, detract from,
              alter, amend or modify any provision of this Memorandum of


                                              67
             Understanding or any rules or regulations of any agency of the
             County, or establish or alter any wage rate or wage structure.

      The County further asserts that the Award was contrary to the Budgetary and
      Fiscal Procedures set forth in the Baltimore County Charter and the Baltimore
      County Code, which state the County Executive and County Council are
      responsible for enacting a budget and appropriating funds needed to run the
      County, including health care subsidies. [The Arbitrator’s] Award, the County
      argues, usurped these powers by ordering the County to maintain and fund the
      85/15 subsidy split.

              The FOP counters that [the Arbitrator’s] Award concerned only the
      interpretation and enforcement of compensation terms that were previously set,
      and as such, does not usurp either the legislative or executive power of the
      County. The FOP points to the distinction between grievance arbitration,
      which uses a neutral third party to resolve a dispute over the interpretation of
      an existing contract, and interest arbitration, which uses a neutral third party
      to set the terms of a new contract. Under the prevailing case law, argues the
      FOP, grievance arbitration does not involve the delegation of legislative
      authority because the arbitrator is acting in [a] judicial capacity rather than a
      legislative one. “The authority to interpret an existing contract, therefore, does
      not constitute legislative authority, and the nondelegation principle is not
      implicated in grievance arbitration.” [City & County of Denver v. Denver
      Firefighters Local No. 858, 664 P.2d 1032, 1038 (Colo. 1983).]

              The Court agrees with the FOP’s position. The County and the FOP
      agreed to submit “any dispute concerning the application or interpretation of
      the terms of [the FY 2007] Memorandum of Understanding” to binding
      arbitration. The grievance submitted to [the Arbitrator] concerned the
      interpretation of Section 7.3(c), a contract term that had already existed and
      had been bargained for by the parties. In resolving the grievance, [the
      Arbitrator] did no more than what was required of him – to interpret the
      disputed contract language in accordance with the facts presented and
      applicable law. Therefore, the Court finds that [the Arbitrator] did not exceed
      his authority i[n] reaching his Award.

(Footnotes omitted.)




                                             68
       We are not persuaded by the County’s argument that the law of the case doctrine

should not apply because the public policy arguments it made previously went to the merits

of the award, whereas the present arguments attack the enforceability of the award. The

arbitrator’s award expressly directed the County to take the actions the FOP asked the circuit

court to compel in the motion to enforce. The award stated:

       The County is directed to rescind its modification, to reset the contribution
       split applicable to these officers to 85/15, to continue that split so long as, by
       the terms of the language, these officers remain eligible and to make whole
       affected retirees for increased premium amounts improperly charged to them
       since September 1, 2007.

       The County was obligated to assert all of its arguments that might support vacating

the award, including all of its arguments against enforcement of the award, during the first

round of circuit court proceedings. When the Court of Appeals confirmed in 2012 that FOP

was entitled to the grant of summary judgment in its favor, all of the public policy arguments

the County had made, or could have made, about enforceability of the arbitration award were

resolved against the County. Consequently, the arguments that the County makes on this

appeal related to enforceability — including its questions presented 1, 2, and 3 — have

already been conclusively resolved by the Court of Appeals’s prior ruling in favor of FOP.

We will not consider these questions further.

       Similarly, the County’s arguments about the timeliness of the initial grievance and the

right of the retirees to file a grievance — appellant’s questions presented 5 and 6 — have

also already been conclusively resolved. The circuit court determined, as a predicate to its



                                              69
August 17, 2010, grant of summary judgment in favor of FOP, that the grievance was timely

filed and that the retirees had standing to pursue it. This finding was necessarily affirmed

by the Court of Appeals’s 2012 ruling affirming the grant of summary judgment in FOP’s

favor.

         II. The balance of the County’s contentions on this appeal

         Having held that the County’s questions presented 1, 2, 3, 5, and 6 are not before us

for review due to the law of the case doctrine, we turn now to the County’s remaining

contentions, which raise issues that arose for the first time after the remand.

         First, in question 4, the County asks whether the show cause order’s threat of

incarceration was “an unconstitutional exercise of judicial power calculated to coerce an

appropriation or illegal payments in violation of the separation of powers doctrine.” Because

the circuit court never ordered the incarceration of any County official, this issue is moot.

Suter v. Stuckey, 402 Md. 211, 219 (2007) (“A case is moot when there is . . . no longer an

effective remedy the Court could grant.”). We decline to render an advisory opinion on the

constitutional question.

         Next, in question 7, the County asks whether the circuit court’s “award of injunctive

relief and damages to FOP was clearly erroneous, because FOP did not sustain any harm or

damages as a result of the reduced subsidy rates.” In support of its claim that the court erred,

the County cites one case: L.W. Wolfe Enterprises, Inc. v. Maryland National Golf, L.P., 165

Md. App. 339, 343 (2005). But L.W. Wolfe is a case about a mechanic’s lien that a



                                              70
subcontractor wanted to obtain against an entire golf course as a remedy for unpaid work the

subcontractor did on certain cart paths at the golf course. The trial court found that the

subcontractor was not entitled to the mechanic’s lien on the entire property because the work

it did on the cart paths was repair, not new construction. L.W. Wolfe’s applicability to the

issues presented in the instant case is not readily apparent.

       The circuit court action in this case began when the County filed a motion to vacate

the arbitrator’s award. That motion recited the basic facts, including that FOP filed a class

grievance on September 14, 2007, complaining, on behalf of its affected members, about the

altered subsidy split. The motion to vacate made numerous arguments, but never asserted

that FOP lacked standing to pursue a grievance on behalf of its members. Moreover, the

FOP’s motion to enforce the arbitration award provided an adequate basis for the court to

enter the order for payment of compensation contemplated by the arbitrator’s ruling.

       The County asks in question 8 whether the circuit court erred in refusing to allow its

witnesses to testify, at the damages hearing, about their thoughts regarding whether there was

any merit to the underlying grievance in the first instance, or whether certain appropriations

had been made. The court sustained FOP’s objections to these questions, and the County was

allowed to proffer what its witnesses’ answers would be, which were generally that the

grievance was improper and the retirees FOP represents were not entitled to any relief. But

a damages hearing was not an appropriate forum to relitigate the validity of the underlying

award. Consequently, we perceive no error in the refusal of the court to permit the County’s



                                              71
witnesses to give irrelevant testimony. See Maryland Rule 5-402 (“Evidence that is not

relevant is not admissible.”)

       Finally, in question 9, the County asks whether FOP was entitled to pre-judgment

interest. The County argues that the circuit court erred in relying on the affidavit of Dr. Amy

McCarthy, FOP’s economist expert, and in entering an amended judgment that awarded pre-

judgment interest. The County complains that Dr. McCarthy’s affidavit was hearsay not

within any exception, and that the court’s post-hearing reliance on it prevented the County

from cross-examining Dr. McCarthy. The County complains further that, in any event, FOP

was not entitled to pre-judgment interest because “there is no entitlement to prejudgment

interest on unliquidated claims.” The County’s arguments fail.

       An unliquidated claim is “one, the amount of which has not been fixed by agreement

or cannot be exactly determined by the application of rules of arithmetic or of law.” 3

S AMUEL W ILLISTON & R ICHARD A. L ORD, A T REATISE ON THE L AW OF C ONTRACTS § 7:34

(4th ed. 2008). The County complains that the amount it owed the retirees in damages was

unliquidated. But the County’s own evidence proved otherwise. At issue was the County’s

liability, vel non, for its decision to discontinue the 85/15 subsidy split it had paid for retirees

between 1992 and 2007.          The higher amounts charged the retirees were specifically

ascertainable amounts. Although the total amounts were not known by FOP, these amounts

were readily quantifiable, and were not unliquidated. The arbitrator, the circuit court, and

the Court of Appeals all found that the County had made a vested benefit agreement to



                                                72
maintain an 85/15 subsidy split for a specifically identifiable group of retirees until each

became eligible for Medicare. Once liability was determined, the amount of damages was

readily ascertainable from the County’s own records. It depended on four fixed, known

numbers: the total premium cost of the insurance, the amount the County should have been

charging the retirees (15%), the amount the County had charged the retirees post-September

1, 2007, and the difference between what the County should have been charging and what

it had actually collected from those retirees. The County provided the spreadsheet showing

all these numbers, and FOP’s expert witness, Dr. McCarthy, explained the numbers to the

court at the damages hearing. The court had previously determined that FOP was entitled

to prejudgment interest; the principal amount on which that interest was to be calculated was

ascertainable (but growing each month); and therefore the court was permitted to perform

the ministerial task of determining the amount of prejudgment interest due without convening

another hearing. In the absence of any suggestion — either in the circuit court or on appeal

— that Dr. McCarthy’s arithmetic was incorrect, we perceive no error in the circuit court’s

reliance upon her computations.

       In Blue Cross & Blue Shield of Maryland, Inc. v. Chestnut Lodge, Inc., 81 Md. App.

149 (1989), this Court quoted with approval from Affiliated Distillers Brands Corp. v. R.W.L.

Wine & Liquor Co., Inc., 213 Md. 509, 516 (1957) (citations omitted):

       The law in Maryland with reference to interest is well settled. The general rule
       is that interest should be left to the discretion of the jury, or the Court when
       sitting as a jury. However, this general rule is subject to certain exceptions that
       are as well established as the rule itself. Among the exceptions are cases on


                                               73
       bonds, or on contracts, to pay money on a day certain, and cases where the
       money has been used. If the contractual obligation be unilateral and is to pay
       a liquidated sum of money at a certain time, interest is almost universally
       allowed from the time when its payment was due.

       Here, FOP’s entitlement to prejudgment interest was clear. All that remained to be

done was the math. In Ali v. CIT Technology Financing Services, Inc., 188 Md. App. 269

(2009), we remanded a case because we could not discern, from the record, how the trial

court arrived at its prejudgment interest award. We noted, however, that “we are unaware

of any case requiring the trial judge to disclose its method of calculating prejudgment

interest.” Id. at 298. That is not an issue here. In this case, the County provided

spreadsheets showing the subsidy amount being paid, the subsidy amount that should have

been paid, what the retirees were actually charged, and the difference. Dr. McCarthy

performed the arithmetic and testified at the damages hearing. The County cross-examined

her at the hearing and questioned her at her deposition.

       FOP points to a case from the United States Court of Appeals for the Fourth Circuit,

Kosnoski v. Howley, 33 F.3d 376 (4th Cir. 1994), in support of its contention that the circuit

court in this instance was permitted, without holding another hearing, to perform the task of

computing the amount of already-awarded prejudgment interest, as such a computation

would involve only plugging numbers into a formula, not revisiting the merits of the award

itself. In its reply brief, the County cited no cases in opposition to this notion. We find the

reasoning of the 4th Circuit in Kosnoski persuasive. There, Kosnoski, the owner of two

companies, agreed with Howley that, if Howley found a buyer for his companies, Kosnoski


                                              74
would pay Howley a finder’s fee of 5%. Howley found a buyer, and Kosnoski paid the 5%

finder’s fee as to one of the companies he sold, but refused to pay Howley his finder’s fee

relative to the other company. Kosnoski sued Howley and sought to have their arrangement

declared unenforceable under West Virginia law. Howley counterclaimed, seeking his 5%

finder’s fee on the second company. The United States District Court for the Southern

District of West Virginia sided with Howley, and ordered Kosnoski to pay Howley the 5%

finder’s fee he was due, “plus any appropriate pre-judgment and post-judgment interest at

the legal rate.” Id. at 377.

       Kosnoski appealed to the 4th Circuit, and lost. He then filed a motion for rehearing

or rehearing en banc, which was denied. Kosnoski still refused to pay, and asserted that the

District Court had not set the start date from which the interest would accrue. Howley filed

a motion to fix interest, which Kosnoski argued was really a motion to alter or amend under

Federal Rule of Civil Procedure 59(e). Because the motion had been filed more than ten days

after the entry of judgment, Kosnoski argued it was untimely and had to be denied. Howley

argued that it was not a motion to alter or amend because the District Court had already

determined that he was entitled to prejudgment interest, and his motion merely asked the

judge to do the math and set the amount. The District Court agreed with Howley.

       Kosnoski again appealed, and the 4th Circuit again ordered him to pay Howley the

prejudgment interest that was due. Pointing out that it had already been determined that




                                            75
Howley was entitled to prejudgment interest, the 4th Circuit held that the District Court was

permitted to fill in the blanks as to the precise amount due:

       [S]uch a court does not revisit the merits of the question [regarding entitlement
       vel non to prejudgment interest] and certainly does nothing that can be called
       “reconsidering” the matter. Instead, the court is asked to perform a completely
       ministerial task by plugging the time period, the interest rate and the judgment
       amount into a preset formula and announcing the result.

               The facts of this case demonstrate the ministerial nature of the court’s
       responsibility: both parties understood that interest had been awarded; both
       parties understood that West Virginia law set the rate of prejudgment interest
       at ten percent; and both parties understood the time frame for computation.
       The court’s only task was to do the calculation and make the amount official.
       We simply do not believe that by performing this function the court altered or
       amended the judgment. Rather, we are persuaded that the court, in
       undertaking such a task, merely supplies a figure to the judgment, the amount
       of which had already been fixed at the time of the entry of judgment. This
       omission is the type of error that is properly within the scope of [Fed.] Rule
       [Civ. Pro.] 60(a).[11]

                                             ***

              The task required of the court was completely ministerial, and involved
       the mere application of a series of facts previously determined to a set formula
       in order to elucidate a part of the judgment order that, while providing notice
       to all as to their positions, was sufficiently inexact to allow Kosnoski to
       attempt not to comply.

Id. at 379.



       11
            Federal Rule of Civil Procedure 60(a) states:

       (a) Corrections Based on Clerical Mistakes; Oversights and Omissions.
       The court may correct a clerical mistake or a mistake arising from oversight
       or omission whenever one is found in a judgment, order, or other part of the
       record. The court may do so on motion or on its own, with or without notice.
       ...

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      The reasoning in Kosnoski applies with equal force here. A calculation of simple

interest at the rate of 6% for pre-judgment interest — or 10% for post-judgment interest —

on a fixed sum is a ministerial task and one for which the court did not need to convene a

new hearing.

                                                 JUDGMENTS OF THE CIRCUIT
                                                 COURT FOR BALTIMORE COUNTY
                                                 AFFIRMED. COSTS TO BE PAID BY
                                                 APPELLANT.




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