Y.Y. v. State , 205 Md. App. 724 ( 2012 )

KEHOE, J.

The principal issue in this case is whether the remedy of quantum meruit is available to a defendant who has not fully performed his obligations under a plea agreement. We hold that it is not.

Y.Y.¹ appeals from an order of the Circuit Court for Prince George’s County denying his motion to enforce the terms of a plea bargain. He presents three questions which we have reworded and consolidated as follows:²

Did the Prince George’s County Circuit Court err in denying appellant’s motion to enforce the plea agreement?

We will affirm the order of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

In early May, 2009, appellant, while represented by counsel, entered into a plea agreement with the State’s Attorney for Prince George’s County. In essence, appellant agreed to plead guilty to a pending charge of possession of cocaine with intent to distribute. If appellant cooperated with the Narcotics Enforcement Division of the Prince George’s County Police Department as a confidential informant, appellant would be sentenced to 18 months, with all but one day suspended; if appellant failed to do so, he would be sentenced within the sentencing guidelines, which were five to ten years. The parties further agreed that sentencing would be deferred until appellant had an opportunity to fulfill his obligations.

Appellant entered a guilty plea, which was accepted by the circuit court. Sentencing was deferred until August, 2009. The transcript of the proceeding contains no reference to the terms of a plea agreement. However, the terms of the agreement were explained to the presiding judge off the record.

On May 12, 2009, appellant and his counsel met with Prince George’s County Assistant State’s Attorney (“ASA”) Tamika S. Brown, Esq., to discuss the details of the plea agreement. At this meeting, Ms. Brown, appellant, and defense counsel signed a letter stating the following:

This is to advise you that the State’s plea offer in this case is conditioned on the agreement stated below:

1. The defendant is to sign up as a confidential informant with N.E.D.:³

2. The defendant is to give names and detailed information regarding three sources for cocaine;

3. The defendant’s sources must be people who are Kilo dealer’s of cocaine;

4. The defendant has to give information, conduct a control buy, or arrange an introduction that leads to the arrest of his supplier. The CDS weight has to be enough for PWID 1⁴1 indictment;

5. The defendant has to keep in constant contact with Lthe] N.E.D.;

6. The defendant must keep his communications that he has with [the] and N.E.D. confidential.

7. The defendant must follow directions of [the] N.E.D.;

8. As the last resort, the Defendant must testify; and

9. The defendant is to start working as a confidential informant starting the week of this letter.

(Footnotes added by this Court).

Appellant’s sentencing proceeding was continued four times between August and October, 2009. A sentencing hearing was held by the court in early November, 2009. During that proceeding, defense counsel alluded to a “dispute [that] has arisen” as to appellant’s obligation to perform “certain community services” and requested a continuance for a month for the parties “to fix it all.” Ms. Brown consented to the continuance, which was granted. Sentencing was rescheduled to early December. At that hearing, defense counsel requested another continuance because “we [have] an agreement that is still in the process of being fulfilled.” Again, Ms. Brown consented to the request. Sentencing was continued by the court on three additional occasions in December, 2009 and January, 2010.

Appellant then filed a motion to enforce his plea agreement, contending that the State had ceased performing its obligations under the agreement, therefore making it impossible for appellant to satisfy his. The circuit court conducted a two-day hearing on appellant’s motion. The circuit court heard testimony from both appellant and ASA Brown regarding the plea agreement and appellant’s progress, or lack therefore, in fulfilling the agreement. We summarize the evidence:

During his interaction with the Narcotics Enforcement Division, appellant was, at various times, assigned to work with different Prince George’s County detectives. Appellant testified that one detective forced him to participate in buy-bust operations,⁵ which were not part of his obligations under the plea agreement. Appellant further testified that the same detective refused to cooperate with or help appellant regarding one of his selected targets. Appellant also explained that, during the time he was assigned to another detective, he made a controlled purchase of narcotics, but the target was not apprehended because, by the time detectives tracked him down, the target had been murdered. Appellant was still given credit for this arrest.

However, as he stated in his testimony, appellant’s success ran out at this point. Starting in late November, appellant moved on to the third target. According to appellant:

[W]e moved on the target to make the buy. That was when I used my own money ... to make a buy.... I was told to have my target at a particular place at 6:15. I had my target there. He was there. He left. And [N.E.D. detectives] told me that he left and to call him. So I called him back and he came back. By the time the officers was able to get over there where he was and set up, he had left again.

Appellant testified that it took detectives 45 minutes to arrive at the location of the buy. Because the detectives arrived late and missed the target, appellant stated, they never made the buy. In the days following, appellant continued to pursue this target without success.

Appellant and the detective then “tried to move to another target.” Appellant found a new target but he “couldn’t get nothing from the cops.” Appellant sent a text message to the detective to give him information about this new target but the police officer did not respond. According to his testimony, appellant first discovered that the detectives in the Narcotics Enforcement Division would no longer be working with him when the officer sent him a text message asking him if he had spoken to his attorney because the N.E.D. detectives “no longer were on the case.”

Appellant testified that, even though the detectives were no longer interested in working with him, he was still willing and able to perform his obligations under the plea agreement. However, appellant argued, the Narcotics Enforcement Division rendered his satisfaction of the agreement difficult, if not impossible, by frequently transferring him between different detectives and assigning him to detectives who either did not have sufficient time to work with him or did not cooperate with him. Appellant explained that the detectives’ lack of availability hindered his ability to satisfy the agreement because appellant and the detectives needed to spend time together to plan and evaluate different strategies of identifying and arresting targets. Appellant testified that, despite this need to spend time together, “[t]hey was a little busy. They was tied up and [one of the detectives] will tell me, you know—each week will go by she will say we can’t work that target, I’m busy on working another assignment.... So it wasn’t like we weren’t doing nothing. The time elapsed, however, they were busy, too, though.” Appellant also testified that the State was not cooperating with his efforts because, under the agreement, he was required to produce three “Kilo dealers” of cocaine. However, the 2009 market rate for a kilo of cocaine was $36,000, and the Narcotics Enforcement Division detectives offered no more than $250 for the buy-bust operations, which could only purchase “approximately seven grams” of cocaine.

ASA Brown testified that she gave appellant credit for the first arrest and the murdered suspect as fulfilling two thirds of his obligation under the agreement.⁶ However, according to Brown, she warned appellant and his counsel in early December that appellant needed “to make one more arrest by December 11th of 2009” because, as of December 10, 2009, “the [d]etectives were tired of trying to work with” appellant because “he has been dragging his feet and not returning phone calls.” Brown added, “[i]t became unproductive. They have other cases.” Brown explained that, when appellant failed to provide information leading to a third arrest by December 11, 2009, after having seven months to complete the agreement, she again informed him that the detectives no longer wanted to work with him “because of his abandoned efforts over this period of time since May ..., 2009.” Brown stated that she “thought it was understandable that [the detectives] did not want to continue working with [appellant] due to the circumstances.”

At the close of the hearing, the court issued factual findings and legal conclusions from the bench. Specifically, the court determined that: the written plea agreement finalized on May 12, 2009 was controlling; under the agreement, if appellant satisfied his obligations, the State would dismiss charges against his wife⁷ and would recommend a sentence for appellant of eighteen months and one day; if appellant did not satisfy his obligations, the State would recommend a sentence within the guidelines; appellant only completed two of the three arrests required under the agreement; and, therefore, appellant did not satisfy the plea agreement.

The court then denied appellant’s requests for relief, concluding that they were not appropriate because “[i]n order to benefit from the contract, you have to do everything the contract says if you want the full benefit. Very clear, very clear from all of the evidence, that for one reason or another, that didn’t happen.” The court further stated that specific performance was not appropriate because the circuit court did not have the constitutional authority “to order the State to continue to have their agents work with the Defendant” and because to “order, specific performance, I have to find that the contract had been completed, and it hasn’t been.”⁸ The court also denied appellant’s request for quantum meruit relief after concluding that appellant had actually received a benefit from the plea agreement in that “he continued to be free in the community for seven months,” “the State had agreed not to file the mandatory ten [years],” and the State did not ultimately present appellant’s wife with criminal charges. Having denied appellant’s motion to enforce the plea agreement, the circuit court then stated that it was going to address the issue of sentencing. Appellant’s counsel noted an interlocutory appeal from the court’s ruling. The court subsequently revoked appellant’s bail.⁹

ANALYSIS

We first note that the circuit court’s order denying appellant’s motion to enforce the plea agreement is appealable under the collateral order doctrine. See Rios v. State, 186 Md.App. 354, 364-66, 974 A.2d 366 (2009) (“The enforceability of alleged plea agreements is a proper basis for interlocutory appeals because of the strong public policy that favors the plea negotiation process.”).

We now turn to appellant’s argument that the circuit court erred in denying his motion to enforce his plea agreement. In his brief, appellant sets forth thirteen separate arguments in support of his contention. In addition, the State raises a threshold argument as to whether this Court can entertain any of appellant’s contentions based on the record properly before us. We will address these issues in the following order: (1) whether the record properly before us indicates that the parties entered into a plea agreement; (2) if so, what are the terms and obligations to which the parties bound themselves, and (3) whether the parties performed their obligations under the controlling agreement and, if not, what remedies are available to appellant As we will explain, we hold that the record is sufficient for us to identify the terms of the plea agreement; that the May 12th written plea agreement is legally binding on the parties; and, because appellant failed to satisfy his obligations under this agreement within a reasonable time, he has no right to the benefit of his bargain, either in whole or in part.

I. A Binding Plea Agreement

We first address the State’s threshold argument. The State contends that, pursuant to Maryland Rule 4-243(d),¹⁰ all plea agreements “shall be on the record,” even if the “disclosure of the plea agreement or any of its terms would cause a substantial risk to any person of physical harm,” because, in that case, “the court may order that the record be sealed subject to terms it deems appropriate.” The State cites Cuffley v. State, 416 Md. 568, 582, 7 A.3d 557 (2010) and Matthews v. State, 424 Md. 503, 36 A.3d 499 (2012), for the proposition that Rule 4-243(d) requires strict compliance and that any questions arising from a “binding plea agreement must be resolved by resort solely to the record established at the Rule 4-243 plea proceeding.” Cuffley, 416 Md. at 582, 7 A.3d 557 (emphasis in Cuffley).

Therefore, the State argues, in this case, the record “begins (and ends) with [appellant’s entry of his guilty plea.” The State contends that, because the transcript of that hearing does not contain any references to a plea agreement, “an assessment of the court record, specifically, the transcript of the hearing ... inevitably leads to the conclusion that [appellant] entered a straight-up unconditional guilty plea on that date to possession of cocaine with intent to distribute. There is nothing in the transcript ... that demonstrates otherwise, ...” Therefore, the State concludes, whatever agreement the parties were alleged to have reached on or before the date appellant entered his guilty plea cannot be grafted upon that plea.

The State next turns its attention to the letter, signed by the parties, on May 12th. The State explains that, because the court had already accepted appellant’s unconditional guilty plea, there was no consideration for the agreement signed on May 12th. As a result, the May 12th agreement was a legal nullity. The State maintains that another basis for finding the May 12th letter invalid is the fact that the letter did not require the State to expressly bind itself to any promises in exchange for appellant’s services, nor did it provide a remedy for appellant or the State in the event that either party failed to perform under the agreement. Therefore, the State argues, the May 12th agreement is null and void in its own right and cannot save the parties’ original failure to reach a valid agreement before appellant entered his guilty plea. The State requests that we hold that the circuit court did not err in denying appellant’s motion to enforce what was ultimately a non-binding and/or non-enforceable plea agreement and that we remand this case for sentencing.

These arguments are unpersuasive. First, and most fundamentally, the State’s contentions are completely at variance with its position before the circuit court. While the State now argues that there is no valid, binding agreement between the parties, the State consistently represented that such an agreement existed to the circuit court. For example, during a hearing before the circuit court, the State stated that “[t]here was a plea agreement ... in front of [the judge who accepted the guilty plea]. The State is not contesting that.” The State further explained that:

what is not in the transcript is the actual plea agreement that was before [that] Judge ... where [he] had [bound] himself when we had approached the bench. Before the factual litany of the plea was taken, we approached to see if he could bind himself because of the nature of the plea, and I believe it may have been off the record, and then [the] Judge ... [bound] himself with the agreement that he is to complete the terms and conditions that both parties agree to from the proffer session by the [initially scheduled] sentencing date.... If for some reason he is making progress; needs to be extended, [the] Judge ... would do so at that time.

During that same hearing, the State confirmed that the May 12th agreement was “the entire contract, the entire agreement as enumerated, discussed, contemplated by [ASA Brown] and [appellant’s counsel].” We will not allow the State to advance directly contradictory positions in the circuit court and this Court. See Eagan v. Calhoun, 347 Md. 72, 88, 698 A.2d 1097 (1997) (“ ‘Generally speaking, a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter which is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts, and another will be prejudiced by his action.’ ”) (quoting 28 Am.Jur.2d Estoppel and Waiver § 68, at 694-95 (1966)); Gordon v. Posner, 142 Md.App. 899, 424-27, 790 A.2d 675 (2002).

Second, the State’s interpretation of Rule 4-243(d) is too narrow. That rule “evidences a purpose of ensuring meaningful appellate review of the proceedings and, in particular, of the enforceability of a plea agreement.” Poole v. State, 77 Md.App. 105, 120 n. 7, 549 A.2d 417 (1988). In this case, meaningful appellate review can take place because the record is clear as to what the parties agreed—the parties signed a written agreement setting out their understanding. Therefore, while the parties did not place the terms of their agreement on the record in the guilty plea proceeding, as required under Md. Rule 4-243(d), the uncontradicted testimony of the parties, along with the written plea agreement of May 12th, provides a sufficient record for meaningful appellate review.

Finally, the State’s reliance on Cuffley v. State, 416 Md. 568, 7 A.3d 557 (2010) and Matthews v. State, 424 Md. 503, 36 A.3d 499 (2012), is misplaced. The State suggests that these cases support its contention that there is no valid plea agreement because no agreement was set forth on the record of the plea hearing. The State seeks to extend the holdings of the cases beyond their facts. In Cuffley and Matthews, the issue was whether a defendant, filing a Rule 4r-345(a)¹¹ motion to correct a sentence, could challenge a sentence imposed by the court on the basis that the sentence was illegal because it was not within the terms of the plea agreement.¹² Cuffley, 416 Md. at 573-75, 7 A.3d 557; Matthews, 424 Md. at 507-08, 36 A.3d 499. The issue in those cases was not, as it is here, whether the State had violated a plea agreement prior to the imposition of a sentence. Therefore, because this case involved an interlocutory appeal filed before the court had the opportunity to impose a sentence, neither Cujfley nor Matthews supports the State’s argument.

We therefore reject the State’s argument that there is no valid or binding plea agreement between the parties.

II. The Controlling Terms of the Plea Agreement

We now turn to the issue of determining the terms and obligations to which the parties bound themselves. Appellant contends that the terms of the oral plea agreement, and not the written agreement of May 12th, control the rights and liabilities of the parties. Appellant asserts that, while he orally agreed to act as a confidential informant, he did not agree to provide information leading to the arrest of three drug dealers until May 12th. In addressing this argument, the circuit court determined that the plea agreement was finalized when it was signed on May 12, 2009 and that, therefore, the terms of that writing controlled. Specifically, the circuit court stated, “[ijt’s clear to me that the plea was entered into on [the date of the guilty plea] and finalized on May the 12th by the signed memorandum.... ” We agree with the circuit court; our conclusion is based on the relationship between the two agreements.

As this Court explained in Rios, we construe and, when necessary, enforce plea agreements based upon considerations of “ ‘fair play and equity under the facts and circumstances of the case____’” 186 Md.App. at 366-367, 974 A.2d 366 (quoting State v. Brockman, 277 Md. 687, 697, 357 A.2d 376 (1976)). This analysis requires us to consider, but not necessarily be fully bound by, precepts of the common law of contracts. Id.

In the case before us, there is no conflict between fairness to the parties and a well-established principle of contract law. There can be two types of enforceable preliminary agreements: first, “when the parties have reached complete agreement (including the agreement to be bound) on all the issues perceived to require negotiation ____ [but] the parties desire a more elaborate formalization.” Teachers Ins. and Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987); the second is “one that expresses mutual commitment to a contract on agreed major terms, while recognizing the existence of open terms that remain to be negotiated.” Id.; see also Cochran v. Norkunas, 898 Md. 1, 12 n. 5, 919 A.2d 700 (2007) (citing Teachers Ins. and Annuity with approval). We view the May 8th agreement as falling into the second category because the parties clearly intended to be bound, but they had not yet documented the agreement, nor articulated precisely of what appellant’s services were to consist. The parties reached an agreement as to that issue on May 12th. The parties understood that the agreement written on May 12th was a finalized version of the earlier oral agreement, and that they would therefore be bound by the terms of the May 12th agreement. We are further persuaded of the controlling nature of the May 12th written agreement by the fact that neither appellant nor his counsel objected to signing it, and by the evidence—throughout the record—that both the parties relied on, and referred to, the May 12th agreement as the controlling agreement. The circuit court’s conclusion was correct.

III. Performance and Remedies

We now address the main issue in this appeal, namely, whether the State complied with the plea agreement and, if not, whether appellant is entitled to relief. As we understand appellant’s brief, he presents three alternative arguments. First, appellant asserts that he satisfied the obligations under the oral plea agreement and should therefore receive the full benefits under that agreement (a sentence of ten years, all but 18 months and one day suspended). Second, appellant contends that the detectives in the Narcotics Enforcement Division rendered his satisfaction of the agreement impossible by refusing to cooperate with him or dedicate sufficient time and resources to helping him identify and arrest targets. Therefore, appellant argues, we should conclude that he either satisfied or substantially satisfied the requirements of the May 12th agreement and, under the doctrine of quantum meruit, he should receive a benefit (in the form of a reduction in sentence) proportional to his satisfaction of the agreement. Appellant’s third argument is similar to the second in that he maintains that, if he did not satisfy the plea agreement, it is only because the Narcotics Enforcement Division rendered his performance impossible. Appellant argues that, because he is still ready, willing, and able to satisfy the written agreement, he should be permitted to do so, and this Court should enter an order of specific performance compelling the State to cooperate with him in his efforts to provide information leading to the arrest of a third individual. We disagree with appellant and, for reasons which we will explain below, we will affirm the judgment of the circuit court.

In considering appellant’s contentions, we are bound by the circuit court’s findings of fact unless we conclude they are clearly erroneous. Maryland Rule 8-131(e). However, we consider de novo the legal issue of whether the plea agreement has been violated. Tweedy v. State, 380 Md. 475, 482, 845 A.2d 1215 (2004).

As we have explained, considerations of fairness, as opposed to the rigid application of the rules of the law of contracts, must guide us in deciding whether appellant is entitled to the relief he seeks. However, considerations of fair play and equity do not obviate the requirement that appellant, as the “ ‘party alleging the breach[,] has the burden of proof on all of [his] breach of contract claims.’ ” Weichert Co. of Md. v. Faust, 419 Md. 306, 339 n. 10, 19 A.3d 393 (2011) (quoting Richard A. Lord, 23 Williston on Contracts, § 63:13 (4th Ed. 2002)). Part of the moving party’s burden is to persuade the circuit court that he has satisfied his own obligations under the contract such that the court should enforce the contract against the other party. See Michael v. Towers, 253 Md. 114, 119, 251 A.2d 878 (1969). When the moving party has not satisfied his own obligations under the contract, and instead presents an affirmative basis to justify this failure, the moving party must still satisfy his burden of proof and persuasion. Wells Fargo Home Mortg., Inc. v. Neal, 398 Md. 705, 730 n. 12, 922 A.2d 538 (2007).

We may dispose of appellant’s first argument—that he fully satisfied the oral agreement—without delay because, as set forth above, the May 12th agreement is controlling. Therefore, whether appellant satisfied the earlier iteration of the parties’ agreement is not relevant to the resolution of this appeal.

We next turn to appellant’s argument that, even though he only performed two thirds of his obligations under the agreement, he is entitled to claim that he substantially performed under the agreement, and therefore have access to the remedy of quantum meruit, because his inability to perform his final obligation was due to the refusal of the detectives in the Narcotics Enforcement Division to cooperate with him or assist him in identifying and arresting targets.

The trial court determined that appellant’s efforts to perform his obligations under the plea agreement were unsatisfactory, noting that “the Police weren’t happy with his responses; so, there came a time when they said they are not going to try to continue to work with him anymore on it, with him.” The May 12 letter did not provide a time frame for appellant’s performance. While the terms of the written plea agreement did not set forth a deadline or time frame in which appellant was expected to have provided information resulting in three arrests, “[i]n the absence of an express time for performance, a reasonable time will be implied.” Anne Arundel County v. Crofton Corporation, 286 Md. 666, 673, 410 A.2d 228 (1980); see also Kiley v. First National Bank, 102 Md. App. 317, 335, 649 A.2d 1145 (1994) (“promises ordinarily are not interpreted to require perpetual performance.”) (citations omitted). Implicit in the circuit court’s analysis is its conclusion that appellant had been provided a reasonable period of time in which to satisfy the agreement. Appellant had seven months, from mid-May until mid-December (when the detectives ceased working with him), to assist in the arrest of three targets. We emphasize that considerations of fair play and equity, as opposed to the strict application of the principles of contract law guide our analysis in plea agreement cases, Rios, 186 Md.App. at 366-367, 974 A.2d 366, but we perceive nothing unfair or inequitable about the court’s conclusion that seven months was a reasonable time for performance.

Similarly, the court was not persuaded by appellant’s contention that the only reason he failed to satisfy the plea agreement within this time was because the detectives in the Narcotics Enforcement Division rendered his satisfaction of the agreement impossible. The trial court further concluded that quantum meruit was not an appropriate remedy for this case. The circuit court did not err in either determination.

We first address the court’s conclusion that appellant had failed to substantially satisfy the agreement—despite having been provided a reasonable time frame in which to do so—and that this failure was his own responsibility, and not that of the detectives. The circuit court was presented with two conflicting versions of the relevant events. The court concluded that ASA Brown’s evidence was more credible. We will not set the court’s credibility-based determination aside. See Rule 8—131(c).

We now turn to appellant’s contention that he is entitled to relief based upon the theory of quantum meruit. He states:

Two thirds of the obligation of the plea agreement should be rewarded with two thirds of the benefit of the bargain. Two thirds of the 3.5 year difference between 18 months [appellant’s maximum sentence if he performed his obligations under the plea agreement] and 5 years [the minimum sentence under the Sentencing Guidelines] would be 28 months. Subtracting 28 months from 5 years leaves a balance of 32 months. [Appellant] is thus entitled ... to a sentence of 32 months.”

Appellant’s argument fails for two reasons. First, the court correctly concluded that, because appellant did not substantially perform the agreement, he could not enforce the contract against the other party unless the contract, by its explicit terms or structure, indicated otherwise. See Restatement (Second) of Contracts § 237 (1981) (“It is a condition of each party’s remaining duties to render performances [under a contract] that there be no uncured material failure by the other party to render any such performance due at an earlier time.”). Here, no such terms were included in the plea agreement. Therefore, to hold that appellant could enforce the agreement the State, and receive a partial reduction in his sentence, would be to add terms to the plea agreement that are not there.

Second, appellant’s argument is based on a misunderstanding of the remedy of restitution, of which quantum meruit is an aspect. Explaining why requires us to consider the nature of restitutionary relief. The underlying purpose of an action for restitution is to “ ‘prevent the defendant’s unjust enrichment by recapturing the gains the defendant secured in a transaction.’ ” Alternatives Unlimited v. School Comm’rs, 155 Md.App. 415, 455, 843 A.2d 252 (2004) (quoting Dan B. Dobbs, 1 Law of Remedies § 4.1, at 557 (2d ed. 1993) (hereafter “Dobbs”)).

One application of the legal remedy of restitution has traditionally been termed quantum meruit. The two situations in which this term is most commonly encountered involve contracts implied by fact¹³ or contracts implied by law, also called quasi-contracts.¹⁴ The plea agreement between appellant and the State is an express contract. Appellant does not seek compensation for, or the return of, anything either in the State’s possession that is properly his, or paid by him to the State’s benefit, which are the core forms of relief in any action based on a quasi-contract theory. Alternatives Unlimited, 155 Md.App. at 485, 843 A.2d 252 (citing Mogavero v. Silverstein, 142 Md.App. 259, 276, 790 A.2d 43 (2002) and Mass Transit v. Granite, 57 Md.App. 766, 775, 471 A.2d 1121 (1984)). Therefore, these two applications of quantum meruit do not concern us.

In cases where an express contract exists, quantum meruit may provide a remedy for a non-breaching party when its full performance is rendered impossible by the breaching party. Mogavero, 142 Md.App. at 278, 790 A.2d 43 (citing Petropoulos v. Lubienski, 220 Md. 293, 303, 152 A.2d 801 (1959)). In this scenario, the non-breaching party can recover the reasonable value of services actually rendered under the contract. Mogavero, 142 Md.App. at 279-80, 790 A.2d 43. In contrast, the measure of recovery in a quasi-contract action is the value of the defendant’s gain, if any, from plaintiff’s actions. Id. at 281, 790 A.2d 43. These are actions at law, and monetary damages are the exclusive forms of relief. Alternatives Unlimited, 155 Md.App. at 462, 843 A.2d 252 (citing Dobbs at 557). Finally, a party can seek restitution through equitable remedies such as a constructive trust, an equitable lien, an accounting for profits, etc. Id. What is important for our analysis is that all restitutionary actions have, as an end result, the adjustment of the economic status of the parties by payment of damages, retitling of assets, or some combination of the two.

None of these theories of relief are relevant to the ease before us. As we have explained, every restitutionary remedy, whether legal or equitable, is designed to rectify unjust enrichment. There is no unjust enrichment in this case, because nothing unjust or unfair occurred when the law enforcement agencies in Prince George’s County used the information provided to them by appellant pursuant to the plea agreement. The narcotics detectives to whom the information was given had every right to act on it and appellant provided the information to them for that purpose. That appellant was later unable or unwilling to complete performance does not change the result. See Dashiell, 358 Md. at 100, 747 A.2d 600 (“Even if the County was enriched, such enrichment was not unjust because it was in strict compliance with the terms of [the] contract.”).

Although he termed his theory of relief “quantum meruit,” appellant was not seeking restitution, nor anything like it. Instead, he asked the circuit court to require the State, and the court itself, to reduce the maximum sentence to which he is exposed pro rata to the degree of his incomplete performance of the agreement. But the State never agreed to such an arrangement, nor was such an agreement presented to the court prior to the entry of the guilty plea. Again, our standard in deciding whether to enforce the plea agreement is fairness and equity under the facts of the case. Rios, 186 Md.App. at 366-367, 974 A.2d 366. There was nothing unfair or inequitable in the court’s refusal to rewrite the terms of the plea agreement in the manner requested by appellant As with other parts of our analysis, we perceive no conflict between considerations of fair play and equity and the results derived from the application of principles of contract and restitution to the facts of this case.

Finally, we examine appellant’s argument that, because the detectives of the Narcotics Enforcement Division rendered his satisfaction of the agreement impossible, he is entitled to an order of specific performance compelling the detectives to cooperate with him in his efforts to provide information leading to the arrest of a third individual. The circuit court declined to do so for two reasons: first, that it lacked the authority, under the doctrine of separation of powers, to order police officers to cooperate with appellant in law enforcement activities; and, second, because to “order specific performance, I have to find that the contract had been completed, and it hasn’t been.”

As we have previously explained, because appellant failed to perform the contract within a reasonable time period, and the circuit court was not persuaded by appellant’s evidence that the detectives made his performance impossible, he is not entitled to the remedy of specific performance. See Restatement (Second) of Contracts § 237.¹⁵

In conclusion, the parties’ written agreement, which elaborated upon their earlier verbal understanding, is the binding agreement between them. The circuit court did not err in deciding that seven months was a reasonable time for appellant to perform his obligations. The court made credibility-based findings as to appellant’s performance and these findings were not clearly erroneous. The court did not err in applying the law to the facts as it found them and concluding that appellant failed to perform the agreement. Quantum meruit, and other forms of restitutionary relief, are inapplicable for a variety of reasons. Because appellant, not the State, breached the agreement, appellant is not entitled to specific performance.

THE ORDER OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY DENYING APPELLANT’S MOTION TO ENFORCE PLEA AGREEMENT IS AFFIRMED. THIS CASE IS REMANDED FOR SENTENCING.

APPELLANT TO PAY COSTS.

Concurring Opinion by EYLER, DEBORAH S., J.

1 . Appellant acted as a confidential informant for the Prince George’s County Police Department. He has requested that this Court refer to him by initials only in this opinion, as disclosure of his role as a confidential informant places him at risk of retaliation. We will refer to appellant as "Y.Y.,” initials that are not his own.

Appellant has also requested that this Court seal the record in this case. That request is properly directed to the circuit court.' See State v. WBAL-TV, 187 Md.App. 135, 157-158, 975 A.2d 909 (2009) (It is within the discretion of a trial court whether or not to seal a criminal record.).

2 . Appellant presents the following issues:

A. Did the Circuit Court err in denying appellant’s motion to enforce his plea agreement?

B. Is the State of Maryland a person protected by the Thirteenth Amendment?

C. Are the police, protected by the Thirteenth Amendment from a court order mandating that the State cooperate with the Defendant in the enterprise of catching criminals?

3 . "N.E.D.” is an acronym for the Narcotics Enforcement Division of the Prince George's County Police Department.

4 . "PWID” is an acronym for “possession with intent to distribute.”

5 . “A 'buy bust' operation refers to an undercover narcotics operation designed to catch, suspected drug dealers by feigning a drug purchase.” United States v. Solorio, 669 F.3d 943, 945 (9th Cir.2012).

6 . Some of ASA Brown's testimony was hearsay; appellant did not object to her testimony on those grounds and does not assert that the circuit court erred in admitting it.

7 . The written agreement does not refer to appellant’s spouse but neither party asserts that the circuit court was incorrect in finding that the State had agreed not to pursue charges against her if appellant fulfilled the terms of the agreement.

8 . During Ms. Brown’s testimony, appellant’s counsel entered three exhibits into evidence that, according to the transcript, appear to be correspondence between appellant’s counsel and the State regarding the willingness of appellant and the detectives to work together to complete the plea agreement. Specifically, appellant's counsel sent two letters to the State dated December 21, 2009 and December 22, 2009, respectively. The State responded to the December 22, 2009 letter in a letter dated December 28, 2009. We consider these letters to be possibly significant as bearing on the issue of appellant's performance. These letters were returned to the parties at the close of the hearing and were not included in the record transmitted to this Court. This Court attempted to supplement the record with these exhibits by contacting the circuit court's clerks office, as well as counsel for the State and for appellant. On April 18, 2012, this Court received the letter dated December 22, 2009, the content of which does not affect the result in this appeal. This Court has not received the other two missing letters.

9 . In his brief, appellant sets forth an argument titled "The Revocation of Bail.” The entirety of his argument in this section is as follows: “The words of the Circuit Court seem to indicate that the hearing upon the motion for enforcement was but a mere formality, the Circuit Court having decided it beforehand.” We do not agree with his logic and, in any event, it is not clear whether appellant is contesting the revocation of bail or alleging a lack of due process in the hearing on the motion to enforce the plea agreement. We will not consider the argument (if it is one) further. " ‘[I]f a point germane to the appeal is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to address it.’ ” Abbott v. State, 190 Md.App. 595, 631 n. 14, 989 A.2d 795 (2010) (quoting Health Serv. Cost Rev. v. Lutheran Hosp., 298 Md. 651, 664, 472 A.2d 55 (1984)).

After filing his brief, appellant filed two petitions with this Court for bail pending appeal, the first of which was denied by order of this Court on December 1, 2010, and the second of which we will deny here. The proper forum for a motion for bail is the circuit court. There is no authority for this Court to modify the circuit court's revocation of bail. Long v. State, 16 Md.App. 371, 372-374, 297 A.2d 299 (1972).

10 . Md. Rule 4-243 provides:

Plea Agreements.

(d) Record of proceedings. All proceedings pursuant to this Rule, including the defendant’s pleading, advice by the court, and inquiry into the voluntariness of the plea or a plea agreement shall be on the record. If the parties stipulate to the court that disclosure of the plea agreement or any of its terms would cause a substantial risk to any person of physical harm, intimidation, bribery, economic reprisal, or unnecessary annoyance or embarrassment, the court may order that the record be sealed subject to terms it deems appropriate.

11 . Rule 4-345 reads in pertinent part:

Sentencing—Revisory power of court.

(a) Illegal sentence. The court may correct an illegal sentence at any time.

12 . The courts held that they could. Cuffley, 416 Md. at 575 n. 5, 7 A.3d 557; Matthews, 424 Md. at 506, 36 A.3d 499.

13 . "An implied by fact contract is inferred from conduct of parties and arises where plaintiff, without being requested to do so, renders services under circumstances indicating that he expects to be paid therefor, and defendant, knowing such circumstances, avails himself of benefit of those services.” Caroline County v. Dashiell, 358 Md. 83, 95 n. 6, 747 A.2d 600 (2000) (internal quotation marks and citations omitted). An implied by fact contract is a contract, albeit one established by the parties’ actions, as opposed to their express agreement. Alternatives Unlimited, 155 Md.App. at 478, 843 A.2d 252.

14 . A quasi-contract " 'is indeed no contract at all, it is simply a rule of law that requires restitution to the plaintiff of something that came into defendant’s hands but belongs to the plaintiff in some sense.’ ” Alternatives Unlimited, 155 Md.App. at 480, 843 A.2d 252 (quoting Mass Transit v. Granite, 57 Md.App. 766, 775, 471 A.2d 1121 (1984) (emphasis added by Alternatives Unlimited))-, see also Dashiell, 358 Md. at 95, 747 A.2d 600 (A contract implied by law is " ‘not based on the apparent intention of the parties ... [but rather] are obligations created by law for reasons of justice.' ’’) (quoting Restatement (Second) of Contracts § 4 (1981)).

15 . We decline to address the constitutional basis for the circuit court’s decision because we can resolve the issue on a non-constitutional ground. See, e.g., Robinson v. State, 404 Md. 208, 216-217, 946 A.2d 456 (2008) ("[I]t is this Court’s established policy to decide a constitutional issue only when necessary.”).