Myers v. Board of Commissioners for Carroll County, MD., et al., No. 2305, September
Term, 2017. Opinion by Wright, Alexander.




SUBJECT MATTER JURISDICTION – ALTERING COUNTY BORDERS




Article 13, Section 1 of the Maryland Constitution grants to the General Assembly the
exclusive authority to create new counties and to alter boundary lines between existing
counties. The courts have no authority to alter the boundary lines that separate the State’s
counties. Accordingly, the circuit court did not err in granting appellees’ motion to
dismiss where appellant requested that the circuit court alter the boundary line between
Carroll County and Baltimore County.
Circuit Court for Carroll County
Case No. 06-C-17-073432
                                                                                                  REPORTED

                                                                                     IN THE COURT OF SPECIAL APPEALS

                                                                                               OF MARYLAND

                                                                                                    No. 2305

                                                                                             September Term, 2017
                                                                                   ______________________________________

                                                                                             DOUGLAS C. MYERS

                                                                                                       v.

                                                                                         BOARD OF COMMISSIONERS
                                                                                        FOR CARROLL COUNTY, ET AL.
                                                                                   ______________________________________

                                                                                        Wright,
                                                                                        Kehoe,
                                                                                        Raker, Irma S.,
                                                                                         (Senior Judge, Specially Assigned),

                                                                                                     JJ.
                                                                                   ______________________________________

                                                                                             Opinion by Wright, J.
                                                                                   ______________________________________

                                                                                        Filed: February 27, 2019




 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.




                            2019-02-28
                            09:39-05:00



Suzanne C. Johnson, Clerk
       This dispute arises out of a challenge to the location of the border between

Baltimore County and Carroll County. On April 26, 2017, Douglas Myers, appellant,

filed an action for declaratory relief in the Circuit Court for Carroll County against the

appellees, Board of Commissioners for Carroll County, Maryland, and Baltimore County,

Maryland. Myers specifically requested that the circuit court change the line between the

counties from its current location to one that he alleged was consistent with the General

Assembly’s intent at the time Carroll County was created. In response, appellees filed a

motion to dismiss Myers’s claim. Upon determining that it did not have jurisdiction over

Myers’s claim, the circuit court granted appellees’ motion to dismiss.

       Myers now challenges the circuit court’s order and presents the following question

for our review, which we have reworded and consolidated for clarity:1

       1.     Whether the circuit court erred in dismissing Myers’s action for
       declaratory relief for lack of jurisdiction?




       1
           Myers presented his questions to the Court as follows:

       1.     Was the Appellant prejudiced by the Court treating the Motion to
       Dismiss as a Motion for Summary Judgment and considering matters
       outside the pleading without giving Plaintiff the opportunity to present
       material that may be pertinent to the Court’s decision?

       2.    Was the Appellant prejudiced by not being provided a jury trial on
       the merits of the case?

       3.     Has the jurisdictional line between Baltimore and Carroll counties
       been changed and/or altered from its original location as described in the
       Acts of the General Assembly, December Session of 1835, Chapter 256?
       For the reasons provided below, we answer this question in the negative and

affirm the circuit court’s judgment.

                                       BACKGROUND

       Myers’s challenge to the location of the border between Carroll County and

Baltimore County arose from his ownership of land located at the border.2 This case

represents the third time that Myers has pursued litigation against appellees regarding the

proper location of the border.

       A. 2006 Lawsuit

       On December 16, 2002, Allender Property, LLC (“Allender”),3 received a

Concurrency Management Certificate (“CMC”) from Carroll County. The CMC

permitted Allender to build a residential community on the land at issue in the instant

dispute. But on June 10, 2003, Carroll County adopted an ordinance suspending the

approval of “all residential development plans which had not yet received formal

approval from the Carroll County Planning Commission.” Allender’s development plan

had not received approval from the County and was therefore suspended.

       About three years later, Allender filed a lawsuit against Carroll County in the

Circuit Court for Carroll County. In its complaint, Allender alleged that it suffered



       2
         The property at issue was sold in a foreclosure sale in 2010, and Myers is no
longer the owner of the property. Appellees contend that since Myers is no longer the
owner of the property, he did not have standing to bring his latest suit against them.
Since this case will be resolved on jurisdictional grounds, we need not address this
contention.
       3
           Myers held a 50% ownership stake in Allender Property, LLC.
                                             2
financial injuries because of Carroll County’s refusal to honor its CMC. On March 11,

2009, Allender and the Board of County Commissioners of Carroll County entered into a

Settlement Agreement and Mutual Release to resolve the lawsuit. Therein, Allender

agreed to “dismiss with prejudice all claims and controversies at issue in the litigation in

exchange for payment in the amount of [$1 million], less amounts that [Myers and

Allender] owed to the County.”4

       B. 2007 Lawsuit

       In 2007, Allender filed a lawsuit against appellees in the Circuit Court for

Baltimore County. In its “Complaint for Declaratory Judgment, Injunctive Relief, and

Writ of Survey,” Allender sought “a declaration from [the circuit court] regarding the

legal location of the political boundary . . . between Baltimore County and Carroll

County . . . .”

       Allender alleged that the original boundary was established by the General

Assembly in 1835 and was intended to be a straight line. See 1835 Md. Laws, Chapter

256; confirmed by 1836 Md. Laws, Chapter 19 (Jan. 19, 1937). Allender then pointed out

that the General Assembly commissioned a survey to mark the boundary in 1840, see



       4
          In their brief, appellees assert that “[o]ne of the defenses asserted by [Carroll
County] in the 2006 lawsuit was lack of proximate cause.” Specifically, the County
argued that the “proximate cause of [Myers’s] failed attempts to develop the property,
which continued well after the [d]eferral period was over, was his continual insistence
that his position regarding the ‘true’ location of the boundary line was correct.”
Appellees therefore argue that the “issue of the boundary line’s location was actually
litigation on the merits” in the 2006 lawsuit. Since this case will be resolved on
jurisdictional grounds, we need not address appellees’ contention that the boundary issue
had been litigated previously.
                                              3
1840 Md. Laws, Chapter 10 (Jan. 8, 1841), and that this survey was completed by Amon

Richards in 1841. Allender argued that the results of Amon Richards’s survey were “not

accurate.”5 Though the land in dispute was being “regulated and taxed by Baltimore

County,” Allender asserted that the land should have been under the jurisdiction of

Carroll County. Allender therefore requested that the circuit court “declare that . . . the

correct, legal [b]oundary between Baltimore County and Carroll County is the line

[established in] 1835[.]”

       The 2007 lawsuit concluded on August 24, 2007, when the parties agreed to file a

voluntary dismissal of the complaint without prejudice. In response to Allender’s

contentions regarding Amon Richards’s survey, appellees jointly prepared a

“Retracement of the Survey enacted by the Maryland General Assembly in Chapter 10 of

the Acts of 1840,” (“Retracement Survey”) in 2008. To conduct the Retracement Survey,

“surveyors interpreted the General Assembly’s intent and provided a conclusion

regarding the boundary line.” Appellees state that they have relied on the survey since its

completion.

       C. The Instant Lawsuit

       The instant action began on April 26, 2017, when Myers, in his personal capacity,6

filed a Complaint for Declaratory Judgment and Injunctive Relief against appellees in the


       5
         Allender averred that since the boundary line established by the 1841 survey
consisted of nine distinct lines, it was contrary to the legislature’s original intention to
create a single, straight-line boundary.
       6
         At the time that the 2017 complaint was filed, the property at issue had most
recently been owned by Allender Property I, LLC (“API”), of which Myers was the sole
                                               4
Circuit Court for Carroll County. Myers brought three counts against the appellees:

Count I - Action for Declaratory Judgment and Injunctive Relief; Count II - Additional

Action for Declaratory Relief; and Count III - Other Action Including Costs. As to Count

I, Myers asserted that “[a]ll parties [were] bound by administrative collateral estoppel” to

follow a decision on the boundary made by a Zoning Commissioner in Baltimore County.

As to Count II, Myers alleged that appellees illegally and erroneously changed the

boundary line established by the General Assembly in 1835. Finally, as to Count III,

Myers demanded the “full balance of compensatory damages due [to him] from the

[2006] claim” in the amount of $700,000.00. Myers sought the following relief from the

circuit court:

       Count I: “declare that Carroll County has, and must exercise, jurisdiction”
       over the property at issue.

       Count II: (A) declare that the 1841 Amon Richards’s survey was ineffective
       to change the location of the boundary line from that created by the General
       Assembly in 1835; (B) declare that the 2008 Retracement Survey was
       ineffective to change the location of the boundary line; (C) declare that the
       location of the boundary line was in the same position as established by the
       General Assembly in 1835; and (D) declare that appellees have, and must
       continue to exercise, jurisdiction over the property within their jurisdictions
       as established by the General Assembly in 1835.

       Count III: (A) award to [Myers] the unpaid balance of compensatory
       damages from the 2006 lawsuit, $700,000, as well as costs arising from the
       instant suit; (B) order a speedy hearing of the suit; and (C) award to
       [Myers] any other relief the court deemed appropriate.




owner. However, as stated above, the property had been previously sold in a foreclosure
sale in 2010. See supra n.2.
                                             5
       On June 16, 2017, appellees filed motions to dismiss Myers’s complaint7 and, in

their supporting memorandum, provided several arguments as to why the circuit court

should grant their motions.8 Myers responded to the motions to dismiss on June 30,

2017,9 and appellees filed their reply on September 13, 2017.

       The circuit court held a motions hearing on September 26, 2017. At the hearing,

in addition to making the arguments set out in their supporting memorandum, counsel for

Carroll County averred that the circuit court did not have jurisdiction over Myers’s

claims. On December 5, 2017, the circuit court granted appellees’ motions and dismissed

the complaint without prejudice. In its opinion, the circuit court explained its ruling as

follows:

       In the Plaintiff’s prayers for relief, he seeks that the Court declare that
       Carroll County shall exercise jurisdiction over a portion of property located
       in Baltimore County. Because this relief, effectively, requires that the
       Court relocate, in some manner, the Carroll County and Baltimore County
       boundary line, the Court has no jurisdiction to grant this relief as such
       relief must be granted by the General Assembly.



       7
        The motion to dismiss was originally filed by the Board of County
Commissioners for Carroll County. Baltimore County later moved to dismiss and
adopted the memorandum submitted by the Board of County Commissioners for Carroll
County.
       8
         Appellees provided four reasons that the claims should be dismissed: (1) that
Myers lacked standing to assert his claims; (2) that Myers’s claims were barred by the
statute of limitations or laches; (3) that Myers’s claims were barred by accord/satisfaction
payment and release; and (4) that Myers’s claims for damages were barred because he did
not allege a tort claim, did not provide notice of the claim, and because he settled and
released the claims at the conclusion of the 2006 lawsuit.
       9
         In his response, Myers attempted to dismiss Count III of his complaint by filing a
“notice to dismiss count III of the complaint without prejudice.”
                                              6
       As to Count Two of the Plaintiff’s Complaint, all of his prayers seek that
       the Court declare that the Amon Richards’s Survey, the Retracement
       Survey and the precise location of the boundary line . . . between the
       Counties be at a location other than that which was recorded in the Amon
       Richards’s Survey, authorized by the legislature. The Court has no
       jurisdiction and, effectively, no power under the Maryland Constitution to
       move a county boundary. Therefore, the Court cannot grant the relief the
       Plaintiff seeks in this regard.

       The Court agrees that some legal action should occur to definitively resolve
       the precise location of the northeastern boundary. This is especially true
       when considered with the fact that the original legislation creating Carroll
       County calls for a straight line and the surveyor who marked the line some
       few years later leaves posterity with monuments, and the benefit of modern
       technology are nine separate segments with slightly different bearings and
       calls. Therefore, the legislature may, on its own initiative, take some
       action, if to do nothing more than to adopt the Retracement Survey as has
       been followed by both Carroll County and Baltimore County since it was
       performed. The Court, however, does not have the authority to order the
       legislature to consider the matter nor take any other action which
       effectively requires the Court to consider possibly defining or relocating
       county boundaries.

       Count Three of the Complaint seeks a whole host of relief for past issues
       between the Plaintiff and the respective Counties, and as set forth in the
       pending Motions to Dismiss, the relief sought has been subsequently
       dismissed by the Plaintiff, and the Court will dismiss these claims without
       prejudice but will comment that the Court believes that all of the defenses
       raised by both Counties in this action in their respective pleadings are fully
       supported as to all allegations raised therein. All of the matters have been
       previously litigated . . . .

       Myers filed a motion for reconsideration on December 15, 2017, where he argued

that the circuit court dismissed his complaint “for reasons not contained in [appellees’

pleading],” and that the circuit court’s opinion was “biased.” The circuit court denied

Myers’s motion on January 3, 2018.

       Additional facts will be included as they become relevant to our discussion below.



                                             7
                               STANDARD OF REVIEW

       “Where a controversy is appropriate for resolution by declaratory judgment . . . the

trial court must render a declaratory judgment.” Christ by Christ v. Dept. of Natural

Resources, 335 Md. 427, 435 (1994). The Court of Appeals has “emphasized, time after

time, that dismissal ‘is rarely appropriate in a declaratory judgment action.’” Id. (quoting

Popham v. State Farm, 333 Md. 136, 140 n.2 (1993). In Christ by Christ, 335 Md. at

435, the Court of Appeals went on to explain, however, that “[i]t is proper to dismiss a

declaratory judgment action only where there is a lack of jurisdiction or where a

declaratory action is not an available or appropriate type of remedy.” See also Sprenger

v. Public Service Com’n of Maryland, 400 Md. 1, 20-21 (explaining that “when a

declaratory judgment action is brought and the controversy is not appropriate for

resolution by declaratory judgment, the trial court is neither compelled, nor expected, to

enter a declaratory judgment”). Therefore, our task here is to determine whether the

controversy was appropriate for resolution by declaratory judgment.

                                      DISCUSSION

       In his brief, Myers makes several arguments related to the validity of the various

surveys that set out to establish the boundary line between Carroll County and Baltimore

County. Our only task here, however, is to consider whether the circuit court erred in

determining that it did not have jurisdiction over Myers’s complaint.

       On this point Myers asserts that he does not seek “to have the [circuit court]

change the county line,” but instead requests a determination “that the county line has not

been changed and the county line remains as originally described” in 1835. Appellees

                                             8
respond that the circuit court properly concluded “that it could not grant the relief

requested by [Myers] . . . without effectively relocating the boundary line, which it could

not do because such relief can only be granted by the General Assembly.” We agree with

appellees and hold that the circuit court did not err when it concluded that it did not have

jurisdiction over Myers’s complaint.

       Article 13 of the Maryland Constitution grants the General Assembly the exclusive

authority to create new counties and to alter boundary lines between existing counties:

       The General Assembly may provide, by Law, for organizing new Counties,
       locating and removing county seats, and changing county lines; . . . nor
       shall the lines of any county nor of Baltimore City be changed without the
       consent of a majority of the legal voters residing within the district, which
       under said proposed change, would form a part of a county or of Baltimore
       City different from that to which it belonged prior to said change . . . . No
       county lines heretofore validly established shall be changed except in
       accordance with this section.

Md. Const. Art. 13, § 1.

       Under that exclusive authority, the General Assembly passed an Act to create

Carroll County in 1835. See 1835 Md. Laws, Chapter 256 (March 25, 1836). In that Act,

the General Assembly described the boundary line between Carroll County and

Baltimore County as follows:

       Be it enacted by the General Assembly of Maryland, [t]hat . . . such parts of
       the aforesaid counties of Baltimore and Frederick, as are contained within
       the bounds and limits following, to wit: . . . thence with the Northern
       Branch of said Falls to the bridge erected over said falls on the Turnpike
       Road, leading from Reisterstown to Westminster, thence with a straight
       course to the Pennsylvania line, running North seventeen degrees East,
       thence with the Pennsylvania line to the place of beginning, shall be erected
       into a new county, by the name of Carroll County . . . .

Id. (emphasis added).

                                              9
       About five years later, the legislature authorized a survey to locate the boundary

between Baltimore and Carroll counties. The Act stated, in pertinent part:

       Section 1. Be it enacted by the General Assembly if Maryland, [t]hat John
       Williams of Carroll [C]ounty, and William Wooden of Baltimore [C]ounty,
       be and they are hereby appointed commissioners to survey and locate the
       north-east line between Baltimore and Carroll [C]ounties, commencing at
       the bridge designated in the act creating Carroll County, erected over the
       Patapsco Falls on the turnpike road leading from Westminster to Baltimore,
       and running thence with a straight line north seventeen degrees east to the
       intersection of said line with the line dividing Maryland from Pennsylvania.

       Sec. 2. And be it enacted, [t]hat the said commissioners shall set up stones
       on said lands at such equal distances as they may deem proper and
       necessary, and mark them number one, two, and so on progressively
       through the whole line; and that the line thus surveyed, located and marked,
       shall be forever the proper divisional line between Baltimore and Carroll
       [C]ounties.

1840 Md. Laws, Chapter 10 (Jan. 9, 1841) (emphasis added). The General Assembly

directed the commissioners to establish the boundary line “to the best of their skill and

judgment” and “as nearly as may be . . . to the intent and meaning” of the 1835 Act

establishing Carroll County. Id. at § 3. Under the authority of the 1840 Act, Amon

Richards completed his survey of the boundary line in 1841, and the line he surveyed has

remained the effective boundary between the two counties.

       In its 1840 Act, the General Assembly unequivocally expressed its intention that

the boundary line surveyed by Amon Richards “shall be forever the proper divisional line

between Baltimore and Carroll Counties.” See 1840 Md. Laws, Chapter 10 § 2. And as

appellees point out in their brief, the legislature directed the survey to be completed “to

the best of [the surveyors’] skill and judgment” and knew that the limits of “19th century

surveying technology” may prevent the surveyors from tracing a boundary that was

                                             10
exactly what the legislature intended. Therefore, as required by the Act, the boundary

line surveyed by Amon Richards became, and remains, the proper boundary line between

the counties.10 This is so despite any earlier legislation that attempted to set out the

boundary, as the 1840 Act supersedes any legislation that came before it.

       Though we recognize, as did the circuit court, that “some legal action should occur

to definitively resolve the precise location of the northeastern boundary,” any such action

cannot come from the courts. If the boundary between Baltimore County and Carroll

County is to change, the State’s Constitution commands that such a change be enacted

only by the General Assembly. See Md. Const. Art. 13, § 1.11

       For the reasons stated above, we hold that the circuit court properly determined

that it did not have jurisdiction over Myers’s claims. Therefore, the court did not err in

dismissing Myers’s action for declaratory judgment. See Christ by Christ, 335 Md. at 435

(“It is proper to dismiss a declaratory judgment action . . . where there is a lack of

jurisdiction[.]”)


       10
         The 2008 Retracement Survey does not alter the Court’s analysis. Despite
Myers’s contention that the Retracement Survey changed the boundary between the
counties, the survey did nothing more than “retrace” the survey that Amon Richards
completed in 1841.
       11
          In his brief, Myers argues that in dismissing the complaint for lack of
jurisdiction, the circuit court considered matters outside of the appellees’ motions to
dismiss. To make this argument Myers points out that appellees did not include a
jurisdictional argument in their original motions to dismiss. See supra n.8. This argument
is unavailing. As appellees stated in their brief, “[a] court is obligated to inquire at the
outset whether it has jurisdiction over a matter, regardless of whether it is argued by the
parties.” Miseveth v. Aelion, 235 Md. App. 250, 256 (The issue of subject matter
jurisdiction need not be raised by any party, but may be raised by a court, sua sponte, at
any time.).
                                              11
JUDGMENT OF THE CIRCUIT COURT
FOR CARROLL COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.




 12
