GAIL B. LITZ
MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.,
November 9, 2015.
Certiorari to the Court of Special Appeals (Circuit Court for
Caroline County). Case No. 05-C-10-013616. David B. Mitchell,
Nelson (Law Office of G. Macy Nelson, LLC of Towson, MD;
Philip W. Hoon, Hoon & Associates, LLC of Chestertown,
MD) on brief FOR PETITIONER.
R. Johnson, Assistant Attorney General (Brian E. Frosh,
Attorney General of Maryland of Baltimore, MD) on brief FOR
Nichole Nesbitt (Goodell, DeVries, Leech & Dann, LLP of
Baltimore, MD) on brief FOR RESPONDENTS.
BEFORE: Barbera, C.J., Battaglia, Greene, Adkins, McDonald,
Watts, Harrell, Glenn T., Jr. (Retired, Specially Assigned),
JJ. Battaglia, McDonald and Watts, JJ., concur and dissent.
Md. 257] Harrell, J.
" The nine most terrifying words in the English language
are, 'I'm from the government and I'm here to
-Ronald Reagan, 40th President of the United States,
News Conference (12 August 1986).
Petitioner, Gail B. Litz, might have welcomed hearing those
nine words spoken to her, but, according to her Third Amended
Complaint, they were not forthcoming. In this litigation, Ms.
Litz makes a second appearance before this Court regarding a
parcel of real property (containing a lake) in Caroline
County, Maryland, that was contaminated allegedly by run-off
from failed septic systems serving homes and businesses in
the Town of Goldsboro. The human sewage seeped out of the
septic fields into ground and surface water flowing into
drainage swales, which drained into streams flowing into Ms.
Litz's lake. Ms. Litz operated a popular lake-front
recreational campground on her property in Goldsboro. Unable
to operate the campground because of the pollution to her
lake, Ms. Litz lost the property through foreclosure by the
bank holding the mortgage.
filed a complaint in the Circuit Court for Caroline County.
After two prior trips to the Court of Special Appeals and one
to this Court, Ms. Litz's remaining claims against
Respondents, the State of Maryland, the Maryland Department
[446 Md. 258] of the Environment (" MDE" ), the
Department of Health and Mental Hygiene (in the guise of the
Caroline County Health Department) (collectively referred to
in this opinion sometimes as the " State" or the
" State Respondents" ), and the Town of Goldsboro,
the case reaches us for the second time regarding her claims
of inverse condemnation against all Respondents and trespass
against the Town. We issued a writ of certiorari to consider
questions regarding Ms. Litz's relative success in
stating these claims and the applicability of the Local
Government Tort Claims Act and the Maryland Tort Claims Act.
After determining in our first encounter with this litigation
that Ms. Litz filed suit within applicable statutes of
limitations, we hold now that, at the preliminary motion
stage of the litigation, Ms. Litz provided sufficient factual
averments to state claims for inverse condemnation against
IN THE THIRD AMENDED COMPLAINT
acre Litz property is located in the Town of Goldsboro in
Caroline County, Maryland. When Ms. Litz's parents
purchased the property in 1948, it contained a pond and grist
mill. The Litz family constructed a dam in the mid-1950s to
create originally a 28-acre lake, known as " Lake
Bonnie," to assist with irrigation of the fields. The
Litz family opened also a recreational campground business on
the property, which had campsites, swimming, fishing, and
boating -- centered around Lake Bonnie. Ms. Litz inherited
the property in 2001 and became the owner of the campground
business. It was her " intention and expectation that
she would continue [446 Md. 259] to own and operate the
Campground as her primary occupation and source of
Bonnie " receives its water from two local streams, the
Oldtown Branch and the Broadway Branch, and [the lake]
discharges a constant overflow of water [through a spillway]
directly into the Choptank River," a tributary of the
Chesapeake Bay. Because Goldsboro was a small
town, there was no public water or sewer
service available. The residents and businesses in the Town
relied on individual wells and septic systems. Both of the
local streams receive groundwater and surface water from
roads maintained by the Maryland State Highway Administration
and flow into Lake Bonnie. Two local drainage
associations were created along these streams. The
municipal surface water open drainage collection system flows
also into the streams and ultimately into Lake Bonnie.
passed, the septic systems within the Town began to fail, the
septic fields overflowed into the open drainage system, and
contaminated the two streams, which led to the contamination
of Lake Bonnie. Following failed attempts to fix the problem
in the 1970s, the Caroline County Health Department conducted
studies in the 1980s. A study conducted in 1985 by Lester A.
Coble, Jr., then Director of the Caroline County Department
of Health, " found that between 70% and 80% of the Town
had at least one of the three following problems: (1)
confirmed sewage pits; (2) raw sewage or waste water; or (3)
shallow wells less than one hundred [446 Md. 260] feet or
deep wells less than fifty feet from a source of
1988, the Caroline County Health Department reported to the
Maryland Department of the Environment that the shallow wells
tested in Goldsboro contained " elevated levels of fecal
coliform," i.e., pathogens found in human bodily waste.
On 18 September 1995, the Caroline County Health Department
concluded that the " use of the stormwater management
system in the Town as a sewage system has gotten to crisis
proportions." A 1 December 1995 letter from the Maryland
Department of the Environment stated that " [t]here are
actual water quality impacts on Lake Bonnie. . . It now
appears that the situation has deteriorated and created
environmental concerns that will need to be addressed."
August 1996, MDE and Goldsboro's then-Mayor William H.
Bartin signed an administrative consent order which "
explain[ed] the problems, order[ed] Goldsboro to take certain
actions, impose[d] mandatory reporting obligations and
specifie[d] penalties for non-compliance." Some of the
specific requirements of the agreement between MDE and
1. Within 60 days . . . (Goldsboro will) identify the private
sewage disposal systems located in and around Goldsboro which
are discharging pollutants to surface or ground water . . .
2. By October 30, 1996, complete a study to identify and
characterize the construction of a public sewer system. . .
3. By January 1, 1997, submit (to MDE) for review and
approval a plan and schedule. . . for construction of a
public sewer system (the " Compliance Plan" )
4. Within 30 days of approval of the Compliance Plan, begin
implementation of the Compliance Plan.
the timetable and remedies contemplated by this Consent Order
did not come to pass.
2004, the Caroline County Health Department issued warnings
to multiple towns, including Goldsboro, about issuing
additional building permits for areas with water and sewage
concerns. Even with these warnings, " the Town has
failed to [446 Md. 261] comply with any of the material terms
of the Consent Order and MDE has enforced no part of
Lake Bonnie was being polluted continually by the pollutants
in the water flowing through the drainage system into the
Oldtown Branch and the Broadway Branch and then into Lake
Bonnie, Ms. Litz alleges that " the campground has been
destroyed, and Litz's property has been substantially
devalued," which left her " unable to pay the
mortgage on the Litz property because the campground was
generating no income." A foreclosure action resulted and
the property was sold to Provident State Bank on 14 May 2010
Litz's original complaint, filed on 8 March 2010, sought
a permanent injunction and alleged negligence, trespass,
private and public nuisance, and inverse condemnation against
the Town of Goldsboro and Caroline County (the Health
Department) and negligence and inverse
condemnation against MDE. An amendment later added a count
for mandamus or equitable relief under the Environmental
Standing Act. Ms. Litz's second amended complaint added
the Department of Health and Mental Hygiene ("
DHMH" ) and the State of Maryland as defendants, seeking
a permanent injunction and alleging negligence, trespass,
private and public nuisance, and inverse condemnation against
the newly added defendants.
September 2010, a hearing was conducted in the Circuit Court
on motions to dismiss (based on a host of defenses, including
applicable statutes of limitation) filed by MDE, DHMH, the
State, the County, and Goldsboro. The Circuit Court granted
the motions to dismiss as to all defendants, save the
Town, reserving ruling as to the Town to [446 Md. 262] allow
for a response to be filed. On 22 September 2010, Ms. Litz
filed a Motion for Reconsideration in the Circuit Court and,
a few days later, filed her opposition to Goldsboro's
Motion to Dismiss. On the same day, Ms. Litz filed her Third
Amended Complaint, which added some factual allegations, but
stated no additional claims.
trial judge denied Ms. Litz's Motion for Reconsideration
and dismissed her claims against all of the defendants, with
prejudice and without leave to amend. Ms. Litz appealed to
the Court of Special Appeals, which affirmed, in an
opinion, the Circuit Court's dismissal based on its
narrow conclusion that Ms. Litz's claims were barred by
the relevant statutes of limitation.
granted Ms. Litz's first Petition for Certiorari,
Litz v. Maryland Dep't of Env't, 429 Md. 81,
54 A.3d 759 (2012). We concluded ultimately that " it
was error to affirm the grant of the motions to dismiss
Litz's causes of action for negligence, trespass, and
inverse condemnation on the grounds of limitations, but we
affirm the judgments of the Circuit Court and the
intermediate appellate court in dismissing Litz's
nuisance counts." Litz v. Maryland Dep't of
Env't, 434 Md. 623, 642, 76 A.3d 1076, 1087 (2013)
(hereinafter " Litz I " ). We remanded the
case to the Court of Special Appeals to conduct a review of
the other arguments advanced by the governmental defendants
for why Ms. Litz's suit should be dismissed totally.
remand, the Court of Special Appeals reviewed the legal
sufficiency of Ms. Litz's remaining tort and inverse
condemnation claims, the applicability and satisfaction of
the notice requirements under the Maryland Tort Claims Act
(" MTCA" ) [446 Md. 263] and Local Government Tort
Claims Act (" LGTCA" ), and the defense of
governmental immunity. In an unreported opinion, the
intermediate appellate court concluded that Ms. Litz failed
to state an inverse condemnation claim against the
State, reasoning that " [a]t most, MDE
[and the other State entities] can be charged with
discretionary inaction, which would not support a taking
claim." Ultimately, the Court of Special Appeals held
" that the circuit court properly dismissed the State
and its agencies from the case," but that it was "
error to dismiss the negligence, trespass and inverse
condemnation claims against the Town." At the conclusion
of the intermediate appellate court's second review, Ms.
Litz's remaining causes of actions included only those
three claims against the Town.
Litz filed her second Petition for Writ of Certiorari with
this Court, which we granted, Litz v. Maryland Dep't
of the Env't, et al., 442 Md. 515, 113 A.3d 624
(2015), to consider four questions, which we have reordered
for organizational convenience:
1) Whether the Court of Special Appeals erred when it held
that Petitioner failed to state a cause of action for inverse
condemnation against the State government Respondents?
2) Whether an inverse condemnation claim comes within the
notice requirements of the Maryland Tort Claims Act and the
Local Government Tort Claims Act?
3) Whether the Court of Special Appeals exceeded the scope of
this Court's remand order when it considered an issue
disavowed expressly by Respondents, to wit, Petitioner's
claim for inverse condemnation against the State government
Respondents was subject to the Maryland Tort Claims
[446 Md. 264] 4) Whether a trespass claim is covered by the
notice requirement of the Local Government Tort Claims Act?
conclude that Ms. Litz stated adequately in her Third Amended
Complaint a facial claim for inverse condemnation against
Respondents. Moreover, a claim for inverse condemnation is
not covered by the notice provisions of either tort claims
act. We agree, however, with the intermediate appellate
court's holding that the tort of trespass is covered by
the notice requirement of the LGTCA. Thus, we reverse in part
and affirm in part the judgment of the Court of Special
Appeals, and remand with instructions to remand the case to
the Circuit Court for Caroline County for further
Because this case was disposed of by the Circuit Court
through the grant of motions to dismiss, pursuant to Maryland
Rule 2-322, our review of the sufficiency of the facts
alleged is limited to the four corners of the relevant
complaint, the Third Amended Complaint. We " accept all
well-pled facts in the complaint, and reasonable inferences
drawn from them, in a light most favorable to the non-moving
party." Converge Servs. Grp., LLC v. Curran,
383 Md. 462, 475, 860 A.2d 871, 878-79 (2004). Thus,
dismissal of a complaint " is proper only if the alleged
facts and permissible inferences, so viewed, would, if
proven, nonetheless fail to afford relief to the
plaintiff." Ricketts v. Ricketts, 393 Md. 479,
492, 903 A.2d 857, 864 (2006) (citations omitted). We
determine " whether the trial court was legally correct,
examining solely the sufficiency of the pleading."
Ricketts, 393 Md. at 492, 903 A.2d at 865 (citation
Md. 265] DISCUSSION