Comptroller of Md. v. Broadway Services

Comptroller of Maryland v. Broadway Services, Inc., No. 2807, September Term, 2018,
Argued: May 11, 2020
PRINCIPAL-AGENT RELATIONSHIP – ANALYSIS OF THE RELATIONSHIP
When analyzing whether an agency relationship exists between parties to a contract, the
contract is the starting point for analyzing the nature of the parties’ relationship,
particularly whether a fiduciary relationship has been established or is precluded by the
terms of the contract.
PRINCIPAL-AGENT RELATIONSHIP – ANALYSIS OF THE RELATIONSHIP
When analyzing whether an agency exists between affiliated business entities, the distinct
nature of the entities should be respected unless a cognizable reason for disregarding the
separateness of the entities has been established.
PRINCIPAL-AGENT RELATIONSHIP-POWER TO ALTER LEGAL
RELATIONSHIPS
When analyzing whether an agency relationship exists, courts should consider whether the
agent had the power to alter the principal’s legal relations with third parties or even with
the agent.
PRINCIPAL-AGENT RELATIONSHIP - DUTY TO ACT FOR BENEFIT OF THE
PRINCIPAL
When analyzing whether an agency relationship exists, in determining whether a party has
a duty to act for the benefit of another, courts should consider whether, in providing the
service, the provider had a duty to place the interests of its client above its own interests.
PRINCIPAL-AGENT RELATIONSHIP - THE PRINCIPAL’S RIGHT TO
CONTROL THE AGENT
A contractual requirement for a party to comply with company policies or legal obligations
does not provide the control indicative of an agency relationship.
Circuit Court for Anne Arundel County
Case No. C-02-CV-18-000554
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2807
September Term, 2018
______________________________________
COMPTROLLER OF MARYLAND
v.
BROADWAY SERVICES, INC.
______________________________________
Leahy,
Gould,
Eyler, Deborah S.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Gould, J.
______________________________________
Filed: March 31, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
* Fader, C.J., and Nazarian, J., did not participate
2021-04-01 in the Court’s decision to report this opinion
10:21-04:00 pursuant to Maryland Rule 8-605.1.
Suzanne C. Johnson, Clerk
This appeal requires us to review the Maryland Tax Court’s determination that
appellee Broadway Services, Inc. (“Broadway”) was entitled to a refund for sales taxes it
paid when, as part of the housekeeping supervisory services it provided to three non-profit
hospital clients, it purchased the cleaning supplies used at each of the hospitals.
Broadway’s refund request was based on its contention that because it resold the supplies
to the hospitals, its purchases fell outside the statutory definition of “retail sales” and thus
were not subject to sales taxes. The request made its way to the Tax Court, which rejected
Broadway’s “reseller” theory. The Tax Court nevertheless granted the refund on the basis
that Broadway purchased the supplies as an agent for the hospitals which, as tax exempt
non-profits, were not subject to sales and use taxes.
The Comptroller petitioned the circuit court for judicial review, which affirmed the
Tax Court’s decision. The Comptroller timely appealed the circuit court’s judgment and
presents the following question:
Did the Maryland Tax Court err when it determined that Broadway was the
Hospitals’ agent when no evidence showed a manifestation of an intent for
Broadway to be the hospitals’ agent, and Broadway failed to introduce
evidence proving 1) that it had a fiduciary obligation to act for the Hospitals’
benefit, 2) that it could alter the Hospitals’ legal relationships, or 3) that it
acted subject to the Hospitals’ control?
We conclude that the answer to this question is yes and reverse.
FACTS AND PROCEDURAL BACKGROUND
Broadway is in the business of providing security, parking, housekeeping,
transportation, and facilities and property management services to its clients. Broadway is
a for-profit company that provides services to clients both inside and outside of The Johns
Hopkins Health System (“JHHS”). Broadway is a subsidiary of the DOME Corporation
(“DOME”), which in turn is owned in equal shares by The Johns Hopkins University (the
“University”) and JHHS.
In addition to its partial and indirect ownership in Broadway, JHHS owns multiple
academic and community hospitals, some of which are non-profit corporations.1 Certain
types of non-profit organizations are exempt from sales and use taxes pursuant to Section
11-204 of the Tax-General Article (“TG”) of the Maryland Annotated Code (1988, 2016
Repl. Vol.).
This case involves the services that Broadway provided between 2007 and 2011 to
three non-profit hospitals within the JHHS system: Johns Hopkins Hospital (“Hopkins
Hospital”), Johns Hopkins Bayview Medical Center (“Bayview”), and Howard County
General Hospital (“Howard”).2
The Comptroller of Maryland (the “Comptroller”) conducted a sales tax audit of
Broadway for the time-period of December 1, 2007 through November 30, 2011.
Broadway responded to the audit with an application for an offset credit and refund in the
amount of $76,161.96 for the sales tax it had paid to its vendors for cleaning supplies used
at the three non-profit hospitals. Broadway stated on its application that the taxes were
“improperly paid on services and products purchased for resale.” Broadway’s legal theory
1
The word “own” in this context is used loosely, because, as discussed below, non-
profit entities are technically not “owned” by anyone.
2
These three hospitals are collectively referred to as the “hospitals.”
2
was that although a sales and use tax is imposed on retail sales pursuant to TG § 11-102,3
its purchases of supplies were governed by TG § 11-101(h)(3)(ii)(1), which excludes from
the definition of a retail sale “a sale of tangible personal property if the buyer intends to . .
. resell the tangible personal property in the form that the buyer receives or is to receive the
property[.]” Broadway contended that this provision applied to it because it purchased
the supplies and resold them to the hospitals.
The Comptroller rejected Broadway’s reseller theory, denied its refund request, and
assessed Broadway $9,073.93 in unpaid sales and use taxes.
Broadway appealed to the Tax Court. In its petition, Broadway asserted, under the
penalty of perjury, that the supplies were purchased “for resale to three tax-exempt
hospitals” and that “[a]ll of the cleaning supplies were used by employees of the three
exempt hospitals.”
The Comptroller moved for summary judgment in the Tax Court proceeding. The
Comptroller argued that Broadway did not qualify as a reseller because it did not sell the
supplies to the hospitals. In addition, based on deposition testimony of Broadway’s
President and CEO, Peter Seidl, the Comptroller was anticipating that Broadway would
advance the alternative theory that it purchased the cleaning supplies as a purchasing
3
TG § 11-102(a) provides that: “Except as otherwise provided in this title, a tax is
imposed on (1) a retail sale in the State; and (2) a use, in the State, of tangible personal
property or a taxable service.”
3
agent.4 Thus, in a preemptive attack on an agency theory that Broadway had not yet made,
the Comptroller argued in its motion for summary judgment that Broadway was not acting
as an agent for the hospitals when it purchased the cleaning supplies.
In response, Broadway rebuked the Comptroller for even raising the principal-agent
issue, stating that the Comptroller “provides absolutely no background or authority to
explain how this is even relevant to the matter before the Court.”
Finding that material facts were disputed, the Tax Court denied the Comptroller’s
motion and held a one-day evidentiary hearing on Broadway’s appeal. Broadway
presented testimony from five individuals: (1) Mr. Seidl; (2) Linda Bushell-English,
finance administrator of JHHS; (3) Patrick Michael Kastendike, Broadway’s CFO; (4) Ken
Dickard, Broadway’s retained independent auditor; and (5) Andrew J. Maschas, an
attorney in the Comptroller’s office.
From the testimony of these witnesses, the following picture emerged regarding
Broadway’s business relationship with the hospitals. The housekeeping functions at the
hospitals were performed by the hospitals’ employees. The hospitals contracted with
Broadway to supervise, evaluate, and train their janitorial staff. Broadway had separate
written contracts with each hospital for the provision of these services.
The contracts also required Broadway to provide the cleaning supplies, which
Broadway purchased from its vendors. The hospitals had to approve the supplies chosen
4
Mr. Seidl testified in his deposition that there was a written agency agreement
which apparently appointed Broadway as a purchasing agent under certain circumstances.
However, the agreement did not, according to Mr. Seidl, authorize Broadway to act as an
agent to purchase the cleaning supplies at issue in this case.
4
by Broadway to ensure compliance with their infectious disease protocols. The vendors
shipped the supplies directly to the hospitals. The vendors’ invoices were issued to and
paid by Broadway.
From time to time, although not frequently, the hospitals purchased office supplies
directly from a vendor and asked Broadway to pay for the items on their behalf. Broadway
tracked those payments separately from the costs incurred in providing services and
supplies to the hospitals.5
The contracts required the hospitals to pay Broadway a fixed annual fee for its
services. This fee covered Broadway’s labor and other costs, including cleaning supplies,
plus an additional fifteen percent to cover Broadway’s overhead. The fixed fee was based
on Broadway’s annual budget for such costs. Broadway invoiced the hospitals on a
monthly basis for one-twelfth of the annual fixed fee. The hospitals did not see Broadway’s
detailed budgets or a breakdown of the expenses. The monthly invoices did not contain
itemized charges for the cleaning supplies. The invoices would “just say housekeeping
monthly fee.” The hospitals therefore did not know how much Broadway spent on cleaning
supplies.
Only in rare circumstances, such as when the parties agreed to increase the scope of
the services, did the parties adjust the fixed fees mid-stream, and such changes were
memorialized in a contract amendment. Otherwise, the fixed fee remained the same even
5
Mr. Seidl testified that Broadway provided this service pursuant to a contract,
which he called a “security contract,” which was separate and distinct from the contracts
at issue here. Thus, such purchases are not relevant to the purchases made pursuant to the
three contracts at issue here.
5
if the prices of cleaning supplies fluctuated during the contract year. If Broadway’s
expenses increased, the parties would adjust the fee in the contract for the next year.
Broadway was in a “tight margin” business and expected to make a nominal profit on its
contracts with the hospitals. Mr. Seidl’s testimony underscored the risk Broadway
assumed under this arrangement, explaining that when predicting the expenses for the
upcoming year, “[y]ou can’t afford to be wrong.”
At the conclusion of the evidence and the parties’ closing arguments, the Tax Court
ruled, without any explanation, that Broadway’s purchases on the supplies did not qualify
for the reseller exemption under TG § 11-101(h)(3)(ii)(1). The Tax Court found, however,
that Broadway purchased the supplies as an agent of the hospitals, and on that basis
concluded that Broadway “should not have been charged [a] sales tax.” Thus, the Tax
Court concluded that Broadway was entitled to a refund from the State in the amount of
$76,161.96, plus interest.6
The Comptroller filed a petition seeking judicial review of the Tax Court’s decision
in the circuit court.7 The circuit court denied the Comptroller’s petition and affirmed the
decision of the Tax Court. This timely appeal followed.
6
The court’s ruling did not require Broadway to remit the refund to the hospitals.
7
The Comptroller filed its petition with the Circuit Court for Baltimore County,
which transferred the matter to the Circuit Court for Anne Arundel County.
6
DISCUSSION
The focus of our review is the decision of the Tax Court, not the decision of the
circuit court. Supervisor of Assessments v. Stellar GT, 406 Md. 658, 669 (2008). We do
not disturb factual findings and conclusions that are supported by substantial evidence in
the record. Frey v. Comptroller of the Treasury, 422 Md. 111, 137 (2011). Substantial
evidence means “such evidence as a reasonable mind might accept as adequate to support
a conclusion[.]” Id. (cleaned up).
The Tax Court’s legal conclusions are another matter. We accord “great weight to
the agency’s legal conclusions when they are premised upon an interpretation of the
statutes that the agency administers and the regulations promulgated for that purpose[,]”
but if the decision is based on “the application and analysis of caselaw, that decision rests
upon a purely legal issue uniquely within the ken of a reviewing court[,]” and in such
cases, “we evaluate an agency’s legal conclusions to determine whether they are based
upon an error of law” without deference. Id. at 138 (cleaned up).
Here, the Tax Court’s agency finding was not based on an analysis of statutes or
regulations within the ambit of the Tax Court’s expertise, but instead rested on widely
applicable agency principles. Thus, we shall not accord any deference to the Tax Court’s
legal analysis of the underlying agency principles.
7
I.
AGENCY ANALYSIS
A.
GENERAL PRINCIPLES
Writing for the Court of Appeals, Judge Chasanow described the essence of the
principal-agent relationship as follows:
According to the RESTATEMENT (SECOND) OF AGENCY, “Agency is
the fiduciary relation which results from the manifestation of consent by one
person to another that the other shall act on his behalf and subject to his
control, and consent by the other so to act.” RESTATEMENT (SECOND)
OF AGENCY § 1 (1958). The creation of an agency relationship ultimately
turns on the parties’ intentions as manifested by their agreements or actions.
Green v. H&R Block, Inc., 355 Md. 488, 503 (1999).
The agency relationship can arise from an express agreement or by inferences drawn
from the parties’ words and conduct. Id. Ascertaining the parties’ intent is the central
focus of a court’s analysis. Id. at 505. The inquiry has been framed as follows:
There are two fundamental elements for the creation of the agency
relationship: (1) some manifestation or indication by the principal to the
agent that he consents to the agent’s acting for his benefit; and (2) consent
by the agent to act for the principal. In sum, the agency relationship can arise
only when there is mutual consent between the two parties that it should arise.
However, consent may be inferred from words or conduct, including
acquiescence. Whereas, however, some manifestation of the principal’s
consent must actually come to the attention of the agent, the agent need not
necessarily communicate his consent to the principal if, under the
circumstances, embarking on the purpose of the agency is, itself, a sufficient
indication of consent.
Id. at 505-06 (quoting W. Edward Sell, Sell On Agency § 7, at 7-8 (1975)).
8
To guide its analysis of the relationship between the putative principal and agent, a
court may look at the following three factors: “(1) the agent’s power to alter the legal
relations of the principal; (2) the agent’s duty to act primarily for the benefit of the
principal; and (3) the principal’s right to control the agent.” Id. at 503. These factors are
not “essential elements” of a principal-agent relationship, but instead are non-exclusive
“considerations” to be “viewed within the context of the entire circumstances of the
transaction or relations.” Id. at 506. The party asserting a principal-agent relationship by
inference has the burden of proving the existence of the relationship, “including its nature
and its extent.” Id. at 504 (citations omitted). If that party produces “legally sufficient
evidence . . . of an agency relationship,” whether an agency relationship exists becomes an
issue of fact. Id.
B.
ANALYSIS OF THE RELATIONSHIPS
1.
Distinguishing the Entities
As discussed above, Broadway and the hospitals are part of a larger corporate
structure consisting of entities affiliated with JHHS. Here, the Tax Court treated “Johns
Hopkins” and the hospitals as one and the same. The Tax Court started with the observation
that the “basic facts of what was going on aren’t in dispute.” The Tax Court then used
“Hopkins” as shorthand for the hospitals, stating “[i]t was an arrangement by, for lack of a
burden, I’ll call it Hopkins and Broadway; that Hopkins on an annual basis entered into an
agreement to pay a fixed amount of money to Broadway to supervise some of the Hopkins’
9
employees[.]” The Tax Court also stated that “Hopkins paid attention . . . on an annual
basis [to] how much they were being charged” but “it was not as detailed as it would have
been if they hadn’t owned Broadway.” But, the Tax Court concluded, “it didn’t matter
what they paid Broadway because if they paid too much, they would get it back at the end
as profits.”
The Tax Court’s conflation of “Hopkins” and the three hospitals permeated its
description of how the supplies were chosen. For example, the Tax Court stated that “[t]he
supplies were specified by Hopkins,” and then later, referring to the hospitals, stated that
“[t]hey told [Broadway] what to buy, and those were the items that were purchased.” In
addition, the Tax Court noted that the “supplies certainly were [for] the benefit of the
hospital” and later stated that the supplies “were purchased as agents for Hopkins for the
benefit of Hopkins so that they should not have been charged sales tax.”
Tax Court’s conflation of the entities was factually incorrect and legally improper,
but to understand why this is so requires at least a rudimentary understanding of some of
the attributes of non-profit organizations. Generally, a non-profit entity “is an organization
in which no part of the income is distributable to its members, directors, or officers.”
MARILYN E. PHELAN, NONPROFIT ORGANIZATIONS: LAW AND TAXATION, 2D § 1.1 (vol. 1,
Nov. 2017 ed.). Although Maryland recognizes and allows for the formation of various
forms of entities, including corporations, limited liability companies, and partnerships,
“Maryland does not have a separate corporation code for nonprofit corporations.” Id. at
§ 1:33. Instead, in Maryland, non-profits usually take the form of a special corporation
known as a non-stock corporation. Id. Non-stock corporations do not have owners as they
10
are not permitted to issue capital stock; instead, they have “members” and “directors.” Md.
Code Ann. (1975, 2014 Repl. Vol) Corporations and Associations Article (“C&A”) § 5-
202.8
In Maryland, certain “nonprofit organizations” may qualify for a sales tax
exemption under TG § 11-204(a)(3). One of the requirements for this exemption is that
the entity must be determined by the Comptroller to be a “charitable, educational, or
religious organization.” TG § 11-204(a)(3)(ii), (c), and (d). The Court of Appeals has
stated that “a determination of whether an institution is charitable must include a careful
examination of the stated purposes of the organization, the actual work performed, the
extent to which the work performed benefits the community and the public welfare in
general, and the support provided by donations.” Comptroller of the Treasury v. Maryland
State Bar Ass’n, Inc., 314 Md. 655, 669 (1989) (quotation omitted).
Thus, if an entity receives an exemption certificate from the Comptroller, it can
reasonably be inferred that the Comptroller carefully examined the stated purposes and
actual work performed by the entity. That’s the case here with respect to the three hospitals
and JHHS, because the testimony and exhibits established that each qualified for the sales
tax exemption under TG § 11-204(a)(3). And although the record does not indicate which
of the categories—charitable, educational, or religious—applied, for present purposes, it
8
The record does not indicate whether these entities are non-stock corporations
under Maryland law, and if so, how their internal affairs are governed. We can, however,
take judicial notice from information available on the website of the Maryland State
Department of Assessments and Taxation that the three hospitals and JHHS are, in fact,
Maryland non-stock corporations.
11
suffices to note that the following three points are established inferentially by the evidence
in the record. One, the three hospitals and JHHS each established their own stated
charitable, educational, or religious purpose. Two, each proved to the satisfaction of the
Comptroller that the actual work they performed was in furtherance of their stated purpose.
And three, each has its own board of directors and is separately managed and operated in
accordance with their respective stated purposes. In other words, each of these entities is
distinct from one another, both legally and in practice.
Under Maryland law, corporations are deemed separate and distinct from their
stockholders. See Gosain v. Cnty. Council of Prince George’s Cnty., 420 Md. 197, 210
(2011). That’s generally true of subsidiaries and their parent companies. Food Fair Stores,
Inc. v. Blumberg, 234 Md. 521, 529 (1964). For income tax purposes, Maryland courts
have considered whether a subsidiary corporation is a separate business entity apart from
its parent corporation by assessing the following factors: 1) how dependent a subsidiary is
on its parent company for income; 2) whether there is a circular flow of money from the
parent company to the subsidiary and then back to the parent; 3) how much the subsidiary
relies on the parent for its core functions and services; and 4) whether the subsidiary has
substantive activity that is “in any meaningful way separate from” its parent. ConAgra
Foods RDM, Inc. v. Comptroller of the Treasury, 241 Md. App. 547, 575 (2019); see also
Gore Enter. Holdings, Inc. v. Comptroller of the Treasury, 437 Md. 492, 516-17 (2014);
Comptroller of the Treasury v. Syl, Inc., 375 Md. 78, 106 (2003). Here, the Tax Court
blurred the distinction between Broadway, the hospitals, and JHHS without assessing any
of these factors and without sufficient evidence in the record to do so.
12
Hospitals and universities are sophisticated entities doing business in complex and
highly regulated industries. Indeed, the relationships between non-profit hospitals and
affiliated for-profit entities raise complicated federal tax and other corporate issues. See,
e.g., Andrea I. Castro, Comment, Overview of the Tax Treatment of Nonprofit Hospitals
and their For-Profit Subsidiaries: A Short-Sighted View Could be Very Bad Medicine, 15
Pace L. Rev. 501 (1995); Melvin Horowitz, Corporate Reorganization: The Last Gasp or
Last Clear Chance for The Tax-Exempt, Nonprofit Hospital?, 13 Am. J.L. & Med. 527
(1988). Presumably the corporate structure and relationships among the various entities
were established in furtherance of a carefully thought-out plan that took into consideration
the relevant tax and corporate issues. And presumably the architects of this plan intended
that this structure be maintained and honored, even when inconvenient or more costly to
do so. The proceedings in the Tax Court—in which the only party involved in the litigation
was at the lowest rung of the corporate ladder—yielded no evidence on which the Tax
Court could properly treat the hospitals, JHHS, and Broadway as one and the same.
2.
The Contracts
Returning to the agency analysis that lies at the heart of this matter, as noted above,
the central inquiry is whether each hospital and Broadway mutually intended to establish a
fiduciary relationship. The record is limited as to the hospitals’ intentions because none of
the employees, officers, or directors from the hospitals testified at the Tax Court hearing.
And, none of the witnesses called by Broadway purported to have such knowledge.
13
The hospitals did, however, express their intent through their execution of the
contracts. See Credible Behav. Health, Inc. v. Johnson, 466 Md. 380, 393-94 (2019) (the
intent of parties to a contract is discerned from the words of the contract); Adloo v. H.T.
Brown Real Est., Inc., 344 Md. 254, 261 (1996) (“determining the intention of the parties
to a contract involves construing the language of the contract, more particularly, the words
of the subject clause”). As acknowledged by Broadway in its brief and before the Tax
Court, though it is true that the hospitals required cleaning services, it is not true that
Broadway was the only company capable of providing such services. On this record,
therefore, the relationships between Broadway and the three hospitals were voluntary and
contractual.9
Thus, if one wanted to ascertain the intentions of the hospitals and Broadway with
respect to the purchase of cleaning supplies, the contracts would be the first place to look.
The Tax Court did this to a limited degree when it summarily ruled out an agency by
express agreement. This was a start, but instead of jumping straight to the three factors
discussed above, the Tax Court should have examined the contracts to determine the nature
of the relationship they established.
Our own examination leads us to the conclusion that the contracts established arms-
length relationships between Broadway and the hospitals. Mr. Seidl testified that
Broadway “mimicked” the contracts used by Broadway’s more well-known national
9
This conclusion is one of the consequences of honoring the overall corporate plan
in which Broadway and the hospitals were purposefully separated as distinct entities.
14
competitors, Sodexo, Crothall, and Aramark. Thus, the parties’ choice of contract template
indicates a purposeful effort to create an arms-length relationship, notwithstanding their
shared connection to JHHS.
Moreover, under the plain language of each contract, and with slight variations in
the specific wording of the contracts, Broadway was required to “provide” the cleaning
supplies “to” the hospitals’ housekeeping employees.10 The word “provide” in this context
is synonymous with words such as “bring,” “make available,” or “furnish,” none of which
connote or confer the status of a purchasing agent of cleaning supplies. So long as the
supplies were permitted under the hospitals’ infectious control standards, Broadway was
left to its own devices in choosing what, how much, and when. Broadway alone was
10
Section IX of the Howard contract provided:
[Broadway] shall provide[] cleaning supplies and minor cleaning equipment
to [Broadway] personnel performing housekeeping duties in and about the
facility. It is understood that all paper and plastic supplies will be provided
by the [C]lient. Major equipment such as buffing machines, floor scrubbers,
vacuums, etc. are to be provided by the Client.
Section VIII of the Hopkins Hospital contract provided:
[Broadway] shall provide cleaning supplies and equipment to Client
personnel performing housekeeping duties in and about the facility. The
provision of plastic trash can liners, paper restroom supplies and hand soap
is the responsibility of the Client.
Section VIII of the Bayview contract provided:
[Broadway] shall provide cleaning supplies, minor and major cleaning
equipment to [Broadway] and the Client personnel performing services in
and about the facility. The [C]lient shall supply plastic trash can liners, paper
restroom supplies, and hand soap.
15
responsible for payment for the products and coordinating the orders. Broadway had no
duty to disclose pricing data to the hospitals. If the prices of the supplies went down during
the contract term, Broadway suffered the loss; if the prices went up, Broadway enjoyed the
gain.11
Moreover, the contracts each contain an integration clause and a “no oral
modifications” clause that preclude the assumption of any duties not expressed in the
contracts. Each contract states:
This agreement represents the entire Agreement between the parties with
respect to the subject matter hereof and supersedes all prior agreements,
written or oral. . . . No amendment of this Agreement shall be valid and
effective unless in writing and signed by the parties hereto. . . .
In the absence of fraud, which is not alleged here, integration clauses in contracts
are generally enforceable. See Hovnanian Land Inv. Group, LLC v. Annapolis Towne Ctr.
at Parole, LLC, 421 Md. 94, 126 (2011) (“Maryland law generally recognizes the validity
and effect of integration clauses.”). This is especially so where, as here, the contracting
parties are sophisticated entities. See Cent. Truck Ctr., Inc. v. Cent. GMC, Inc., 194 Md.
App. 375, 391–92 (2010). Thus, the parties mutually agreed to cabin the terms of their
business relationship to the four corners of the contracts and preclude any unwritten
modifications.12
As explained below, the parties’ practice of adjusting prices in each subsequent
11
contract term does not negate the contracts’ allocation of risks and benefits during the
contract term.
12
To be sure, parties can waive integration and no oral modification clauses orally
or through their conduct. Hovnanian, 421 Md. at 125-26. Here, however, Broadway never
16
Our conclusion about the arms-length nature of the relationships between Broadway
and the hospitals is supported by Maryland caselaw that has addressed this issue in other
business contexts. For example, in Brass Metals Prods., Inc. v. E-J Enters., Inc., 189 Md.
App. 310, 357 (2009), we had to decide whether the business relationship between a
purchaser and supplier qualified as a confidential relationship.13 The dispute involved
multiple plaintiffs, multiple defendants, and multiple claims. In the claim relevant here,
the purchaser of aluminum railings sued its exclusive supplier for, among other things,
non-disclosure and concealment. Id. at 354. The supplier understood that the purchaser
had designed the railings and claimed exclusive rights in their designs. Id. at 318. Yet
unbeknownst to the purchaser, the supplier sold the same products to the purchaser’s
competitor. Id. at 323. The purchaser alleged that the supplier’s failure to disclose this
information amounted to fraudulent concealment/non-disclosure. Id. at 325-26. But to
sustain this cause of action, the purchaser had to prove that the parties had a confidential
relationship that imposed a duty of disclosure on the supplier. Id. at 354.
contended the parties modified or waived any of the contractual clauses relevant to whether
Broadway served as fiduciary in purchasing the supplies at issue here. Nor does the record
reflect any modifications to such clauses through the parties’ course of dealing.
13
As the Court of Appeals stated in Thompson v. UBS Financial Services, Inc., 443
Md. 47, 70 (2015), “a Plaintiff and Defendant are in a confidential relationship where the
Defendant has gained the Plaintiff’s confidence and purports to act or advise with the
Plaintiff’s interests in mind,” and “all fiduciary relationships are confidential
relationships.” A relationship can be considered confidential, however, even if it’s not a
fiduciary relationship. Buxton v. Buxton, 363 Md. 634, 654 (2001). Thus, a finding that a
relationship is not confidential means it’s not a fiduciary relationship either.
17
In affirming the trial court’s grant of the supplier’s motion for judgment, we rejected
the purchaser’s contention that it had a confidential relationship with its supplier, and held
that their relationship was “a typical ‘arms-length’ transaction between two businesses to
‘further their own separate business objectives, rather than joined together to achieve a
common business objective.’” Id. at 358 (quotation omitted). We did not rule out the
possibility that a business relationship could also be a confidential relationship, but we
noted that “[c]ertain factors above and beyond a typical business relationship must exist[.]”
Id. at 357. We held that trusting and relying on the other party to perform its side of the
transaction is not enough; rather, something “apart” from the transaction itself is required
to create a confidential relationship. Id. at 359. As an example, we took note of authority
supporting the proposition that a confidential relationship could be found where the parties
had a close personal relationship before becoming business associates. Id. at 357.
Likewise, notwithstanding the imbalance of bargaining power that often attends the
landlord-tenant relationship, such relationships are generally considered to be contractual,
but not confidential. See Rhaney v. Univ. of Md. E. Shore, 388 Md. 585, 603 (2005); P.V.
Props., Inc. v. Rock Creek Vill. Assoc. Ltd. P’ship, 77 Md. App. 77, 91-92 (1988).14
14
In PV Properties, we stated that if the tenant was completely dependent on the
landlord for information about the common area maintenance charges that the tenant was
required to pay, the landlord had a limited fiduciary duty to provide the tenant with an
accounting of such expenses. 77 Md. App. at 91-92. No such dependence has been shown
here. To the contrary, the hospitals had the same access to the vendors of cleaning supplies
as Broadway. Indeed, Mr. Seidl testified that the hospitals did not have to rely on Broadway
to buy and provide the supplies, and that Broadway could have simply agreed to provide
the supervisory and managerial services.
18
Similarly, the relationship between a bank and its borrower/customer is also considered
contractual and not confidential. See Parker v. Columbia Bank, 91 Md. App. 346, 368–71
(1992).
Although we do not rule out the possibility that entities with common ownership
could, depending on the specific facts and circumstances, have a confidential relationship,
the evidence in this record supports no such conclusion. First, the hospitals and Broadway
chose to document their relationships with contracts that appear in all respects to create
arms-length relationships. Second, the record discloses nothing about the internal
governance structures of the hospitals and Broadway from which such a relationship could
be inferred, such as, for example, the composition, roles, and responsibilities of members
of their respective board of directors.15 On this record, therefore, we discern no basis to
put Broadway’s contractual relationships with the hospitals on a different footing than the
arms-length nature of the relationships between a purchaser-supplier, landlord-tenant, or
creditor-borrower. Thus, we hold that the contracts between Broadway and the hospitals
established a contractual relationship devoid of any fiduciary obligations, thereby
precluding an agency finding as a matter of law.
15
Because of the duties imposed on directors under C&A § 2-405.1, we do not rule
out the possibility that if the parties had a sufficient number of overlapping directors, there
could conceivably be a basis to infer the existence of a confidential relationship.
19
C.
THE TAX COURT’S ANALYSIS OF THE THREE FACTORS
After correctly noting that an agency relationship was not established by an express
agreement, the Tax Court proceeded to apply the three factors discussed above. In doing
so, however, the Tax Court misapprehended the relevant legal principles and made at least
one factual finding critical to its analysis that lacked evidentiary support. We address each
factor in turn.
1.
Power to Alter Legal Relationships
The Tax Court’s analysis of this factor centered on (1) whether Broadway had the
power to change the supplies it used; and (2) whether the parties altered the terms of their
contracts. The Tax Court stated:
First is power to alter. I don’t see that there were any alterations in terms of
the chemicals in any given year. Hopkins told them what to buy, and those
are the ones that they purchased. There was some testimony that mid-year,
at least once, the contract was re-negotiated because the contract amount
wasn’t enough. Hopkins added a building or two, and the contract -- they
were running out of money. They didn’t have enough money to cover it, so
Hopkins made an amendment to the contract; that if they had too much
money, which didn’t seem to happen, there was sort of an agreement that the
next year they would make it up by charging less. But I didn’t hear any
testimony that ever happened.
The Tax Court’s focus on whether there was a change in the chemicals used or
whether the parties amended or renegotiated their contracts misstated the issue and was
legally incorrect. The issue was whether Broadway had the power to alter the hospitals’
20
legal relations with third parties or even with Broadway. As explained by the Restatement
(Second) of Agency:
The phrase “power of an agent” denotes the ability of an agent or apparent
agent to affect the legal relations of the principal in matters connected with
the agency or apparent agency. The exercise of this power may result in
binding the principal to a third person in contract; in divesting the principal
of his interests in a thing, as where the agent sells the principal’s goods; in
the acquisition of new interests for the principal, as where the agent buys
goods for the principal; or in subjecting the principal to a tort liability, as
where a servant, while acting within the scope of his employment, injures a
third person. The agent also has power to alter the legal relations between
himself and the principal, creating rights and liabilities inter se by his proper
or improper exercise of authority.
RESTATEMENT (SECOND) OF AGENCY § 12 cmt. a (Am. Law Inst. 1958); see also Schear
v. Motel Mgmt. Corp. of Am., 61 Md. App. 670, 687 (1985) (citing RESTATEMENT
(SECOND) OF AGENCY §§ 12-14 (1958)).
There is no evidence in the record that Broadway had the right to change the
hospitals’ legal relationships with third parties, particularly with respect to the purchase of
cleaning supplies. Certainly, the contracts gave Broadway no such right. Broadway
purchased the supplies from its vendors, with which Broadway had its own contractual
relationships. Thus, any changes in the terms of the contracts with the vendors altered only
Broadway’s legal relationships, not those of the hospitals.16
One of the hallmarks of a principal-agent relationship is that the principal is liable
for the contractual debts incurred by the agent acting within the scope of the agency.
16
Broadway seems to concede that this factor does not support the Tax Court’s
finding, stating “[w]hether Broadway was able to legally bind the Hospitals to third-parties
is not an issue in this matter.”
21
Grinder v. Bryans Rd. Bldg. & Supply Co., 290 Md. 687, 707-08 (1981). Yet, based on the
evidence before the Tax Court, the only possible conclusion was that Broadway, and
Broadway alone, incurred liability for the purchase of the cleaning supplies. Based on the
facts in this record, it made no difference if Broadway purchased too many or too few
supplies or if it did or did not have sufficient funds to pay for the supplies. Either way,
Broadway’s actions altered only its legal relationships with the vendors; the vendors had
no recourse against the hospitals.17
The Tax Court’s analysis of this factor also rested on a clearly erroneous factual
finding that “Hopkins told [Broadway] what to buy.” Neither the contracts nor the
testimony supported this finding. The testimony established only that Broadway could not
choose a product without getting approval from the hospitals’ infectious control unit that
the proposed product was “an acceptable product to be used in health care.” In other words,
the hospitals could veto a proposed cleaning product if it didn’t comply with their
infectious disease policies, but they could not require Broadway to use a particular product.
17
Nor was there any evidence that Broadway had the unilateral right to alter its
contracts with the three hospitals. To the contrary, as explained above, the contracts
expressly prohibited Broadway from unilaterally amending the contracts, and there is no
evidence that, in practice, Broadway ever purported to unilaterally amend their contracts.
Broadway would counter that because the parties’ practice was to adjust the contract price
when the contract is renewed at the end of the year to make up for any losses due to price
changes, in effect Broadway had the ability to unilaterally alter its contracts with the
hospitals. However, a consequence of holding the parties to the contractual nature of the
relationship they chose to create is that Broadway could not have required the hospitals to
retain its services in the subsequent contract year. Thus, although Broadway may have
expected to renew the contracts and recoup any losses incurred during a given contract
period, Broadway did not have the power to require the hospitals to do so, let alone dictate
the terms of a renewed contract.
22
By resting its decision on an unsupported factual determination, the Tax Court committed
reversible error. See Domingues v. Johnson, 323 Md. 486, 494 (1991).
2.
Duty to Act for Benefit of the Principal
The agent’s duty to act primarily for the principal’s benefit arises from the fiduciary
nature of their relationship. RESTATEMENT (SECOND) OF AGENCY, § 13 cmt. a. In Green,
the Court of Appeals reiterated the
universal principle in the law of agency, that the powers of the agent are
to be exercised for the benefit of the principal only, and not of the agent
or of third parties. A power to do all acts that the principal could do, or
all acts of a certain description, for and in the name of the principal, is
limited to the doing of them for the use and benefit of the principal only,
as much as if it were so expressed.
355 Md. at 517 (cleaned up). The Court further explained that
an agent is under a strict duty to avoid any conflict between his or her self-
interest and that of the principal: It is an elementary principle that the
fundamental duties of an agent are loyalty to the interest of his principal and
the need to avoid any conflict between that interest and his own self-interest.
Id. at 517-18 (cleaned up). In addition, the agent must disclose to the principal any
information that is “significant and material to the affairs of the fiduciary relationship.” Id.
at 518 (cleaned up). And, the agent has a duty to account to its principal for any profits
made on the transaction. Id. at 518-19.
In discussing this factor, the Tax Court noted that the supplies were used for the
benefit of the hospitals, that the hospitals told Broadway what to purchase, and that having
Broadway order the supplies was “again to the benefit of the hospital” because Broadway
had the personnel qualified to make such determinations. As noted above, the Tax Court
23
also stated that to “some extent, it didn’t matter what they paid to Broadway because if
they paid too much, they would get it back at the end as profits.”
Again, the Tax Court misunderstood the issue. The issue was not whether the
cleaning supplies were used for the benefit of the hospitals or who benefited from the fact
that Broadway was the party responsible for ordering supplies. That’s true of every service
contract—the recipient of the service is supposed to benefit from the service. The Tax
Court’s misunderstanding of this factor was an error of law necessitating a reversal.
The central issue as to this factor was whether, in providing the service—here, the
provision of cleaning supplies—the provider had a duty to place the interests of its client
above its own interests. Green, 355 Md. at 518. On that issue, the Tax Court made no
finding, and that Broadway had no such duty is highlighted by the implications behind the
parties’ agreements.
Suppose there are two brands of a cleaning product that perform the same function,
both of which have been approved by the hospitals’ infectious disease departments. Let’s
further suppose that one brand costs $10 per unit, the other brand costs $9 per unit, and
although both brands would be appropriate and reasonable choices, the difference in the
price is attributable to a difference in the quality of the product. Because the fee paid to
Broadway is fixed, if both parties act in their own interests, the hospitals would presumably
favor the more expensive but higher quality brand, and Broadway would logically prefer
the less expensive albeit lower quality brand. But, if Broadway served in a fiduciary
capacity, it would be required to subordinate its interests in profits to the hospitals’ interest
in quality. See id. at 518. Yet, there is not a single provision in the written contracts that
24
even hints at such a duty on Broadway’s part; nor was there any evidence that Broadway
accepted such a duty through the parties’ course of performance.
Echoing the Tax Court’s line of reasoning, Broadway argues that the hospitals’ and
Broadway’s common ownership meant that their interests were aligned. Presumably,
Broadway is suggesting that by acting in its own best interests, it necessarily meant that it
was also acting in the best interests of the hospitals. Relatedly, Broadway argues that it
didn’t matter whether Broadway or the hospitals enjoyed the savings or bore the risk from
price fluctuations because, due to their shared ownership, any profits were “returned to
JHHS in any event.” The evidence in the record, however, does not support Broadway’s
theory.
As stated above, one of the defining attributes of a non-profit organization is that it
is not permitted to distribute profits to its members and directors. Thus, it matters greatly
where, as between Broadway and the hospitals, the risks and benefits of a transaction are
allocated. For example, suppose that due to a decrease in prices of the supplies, Broadway
would save $10,000, $20,000, and $30,000 in its contracts with Bayview, Howard, and
Hopkins Hospital, respectively. If those savings were allocated to the three hospitals in
those amounts, as would be required if Broadway was the hospitals’ agent, the increased
“profits” would not filter up to JHHS because, as non-profit entities, no distributions are
permitted. But if the benefits of those savings were allocated to Broadway, as would be
25
the case in an arms-length relationship, the $60,000 in savings would ultimately inure to
the benefit of Broadway’s parent entities. 18
On the evidence contained in this record, therefore, we cannot accept Broadway’s
contentions that the interests of the entities are necessarily aligned, or that it makes no
difference whether Broadway or the hospitals profit from their transactions, or that, as a
result, Broadway had a duty to act for the benefit of the hospitals. Both the evidence and
basic logic suggest otherwise.19
18
From the evidence in the record, particularly the contracts, the only supportable
inference is that the architects of the overall corporate structure intended that the profits
would be earned by Broadway, not the hospitals. Moreover, from the testimony of JHHS’s
employee, Linda Bushell-English, one can reasonably infer that JHHS exists to provide
support services to each of the non-profit hospitals under its umbrella. That being the case,
it would make no sense to allocate the profits to the hospitals because they lack the
flexibility to efficiently re-allocate the profits to ensure that the needs of all of the hospitals
are met. In contrast, if the profits were allocated to Broadway, then JHHS would have the
flexibility to deploy the additional resources in the most efficient manner to serve the needs
of each hospital under its umbrella.
19
Relatedly, Broadway contends that “Hopkins performed audits on Broadway to
ensure the latter was keeping costs low” and therefore Broadway had a duty to act primarily
for the hospitals’ benefit. For that assertion, Broadway relies on this exchange between
the Tax Court and Mr. Seidl:
[THE COURT]: Does the hospital look over your -- the amount of money
you spent in supplies annually?
[THE WITNESS]: More they look at the budget, total budget. If it was out
of line or we were asking for increase, yes, we would have to give backup
supporting that.
[THE COURT]: They don’t -- they never look at invoices for --
[THE WITNESS]: No.
26
3.
The Principal’s Right to Control the Agent
A principal’s level of control necessary to support a finding of an agency
relationship is not susceptible to a formulaic articulation, but “the principal must have
ultimate responsibility to control the end result of his or her agent’s actions; such control
may be exercised by prescribing the agents’ obligations or duties before or after the agent
acts, or both.” Green, 355 Md. at 510. For example, although a lawyer may negotiate a
business transaction or a settlement agreement largely without supervision from a client,
the client ultimately makes the final decision whether to move forward. Id. at 511.
Here, the Tax Court did not discuss the control factor expressly, other than stating
that the hospitals “told [Broadway] what to buy.” As noted above, this was factually
incorrect; the hospitals merely had to approve the cleaning supplies used by Broadway for
compliance with their infectious disease control guidelines and their obligations imposed
by law. See COMAR 10.07.01.34.20 Otherwise, the choice of supplies was left to
[THE COURT]: -- supplies to see how much you were spending?
[THE WITNESS]: No. Internal audit from Johns Hopkins comes and audit
our contracts. They may look at it at that time. But no, we don’t need to get
approval for them to come look at something.
We fail to see how speculation that the hospitals “may look at” the spending for
supplies supports Broadway’s assertion that the hospitals were monitoring the costs of
supplies to keep the costs to a minimum. There is no evidence in the record as to the nature,
scope, or purpose of any such audits.
20
COMAR 10.07.01.34.F.(b) states:
27
Broadway. A contractual requirement for a party to comply with company policies or legal
obligations does not provide the control indicative of an agency relationship. Brooks v.
Euclid Sys. Corp., 151 Md. App. 487, 509 (2003) (finding that an issuer’s requirement that
its brokers comply with its policies and securities laws did not provide the control
necessary to create an agency relationship); Schear, 61 Md. App. at 686-88 (holding a
franchisor’s right to ensure franchisee’s compliance with its policies does not establish a
confidential relationship). Accordingly, although the extent of the hospitals’ control over
Broadway didn’t much factor into the Tax Court’s analysis, we conclude that it militates
against a finding of an agency relationship.
II.
RESELLER
Citing the general principle of appellate law that “an appellate court may affirm a
trial court’s decision on any ground adequately shown by the record,” see Capron v.
Mandel, 250 Md. 255, 259 (1968), Broadway contends that the Tax Court’s decision can
be upheld based on the reseller theory that the Tax Court rejected. The Comptroller
disagrees and relies on the general rule that “[a]n administrative agency may be affirmed
(b) Sanitation.
(i) The hospital shall maintain a sanitary environment to prevent the
spread of communicable diseases and infections.
(ii) The hospital shall have systems to maintain the environment in a
clean and sanitary condition.
(iii) Systems shall be provided to ensure that housekeeping, linen
handling, waste disposal including medical waste, food handling,
ventilation systems, water systems, and pest control meet acceptable
federal and State standards and guidelines.
28
only on the basis of the grounds on which it decided the case.” Classics Chicago, Inc. v.
Comptroller of the Treasury, 189 Md. App. 695, 707 (2010). The Comptroller further
notes that Broadway did not file a cross-petition for judicial review based on the Tax
Court’s denial of its reseller theory, thus implying that Broadway waived its right to obtain
judicial review on that issue. To that, Broadway responds that it was not permitted to seek
judicial review because it was not aggrieved by the final decision of the Tax Court.
As a general matter, the Comptroller is correct that we may affirm solely on the
grounds and reasons as stated by the Tax Court, and we are not permitted to affirm the
circuit court on other grounds adequately appearing in the record. For starters, the Tax
Court expressly considered and rejected Broadway’s reseller argument. It would therefore
be inappropriate for us to affirm its decision on the grounds that the evidence could have
supported a finding that the reseller exemption applied. Rather, to the extent judicial
review is available on that issue, it would have to be conducted under the deferential
“substantial evidence” standard for factual findings, and as to legal conclusions, we would
have to “afford great weight” to the Tax Court’s interpretation of the statutory reseller
exemption. Frey, 422 Md. at 136-38.
Even if the Tax Court had not rejected Broadway’s reseller theory, our hands would
still be tied. As the Court of Appeals has explained:
Judicial review of administrative action differs from appellate review of a
trial court judgment. In the latter context the appellate court will search the
record for evidence to support the judgment and will sustain the judgment
for a reason plainly appearing on the record whether or not the reason was
expressly relied upon by the trial court. However, in judicial review of
agency action the court may not uphold the agency order unless it is
29
sustainable on the agency’s findings and for the reasons stated by the
agency.
United Steelworkers of Am. AFL-CIO, Local 2610 v. Bethlehem Steel Corp., 298 Md. 665,
679–80 (1984) (cleaned up); see also Comptroller of the Treasury v. Taylor, 465 Md. 76,
98–99 (2019). Thus, to the extent that Broadway urges us to affirm the Tax Court by
searching the record for evidence that supports its reseller theory, we are constrained to
decline.21
Whether Broadway had the right to obtain judicial review of the Tax Court’s
rejection of its reseller theory is another question. By statute, only “a party who is
21
We note that the rationale behind this rule does not seem to apply in the context
of this case. The Court of Appeals explained:
Were we to search the subject record for evidence sufficient to support any
one or more of the theories advanced by Steelworkers or by [the
Commissioner of Labor and Industry occupational safety and health staff],
and then to decide if that theory constitutes a violation of the general duty
clause, we would be performing the administrative function that [the
Maryland Occupational Safety and Health Act] commits to the
Commissioner, and not our proper function of judicial review.
United Steelworkers, 298 Md. at 680. Here, there would be no danger of the judiciary
usurping an administrative function because the Tax Court considered and rejected
Broadway’s reseller theory, leaving us with the sole task of reviewing that decision, not
making it in the first instance. More recently, in Comptroller of the Treasury v. Taylor, the
Court of Appeals articulated the same issue in terms of the preservation requirement, noting
that an issue is not preserved if the Tax Court contemplated an issue but “did not base its
final decision on the issue.” 465 Md. at 98-99. Here, the Tax Court addressed the agency
theory only after it rejected the reseller theory; thus, it could be plausibly argued that the
issue was preserved because the Tax Court’s final decision was based at least in part on its
rejection of the reseller theory. That said, the Court of Appeals did not budge from the
well-settled principle that “the court may not uphold the agency order unless it is
sustainable on the agency’s findings and for the reasons stated by the agency.” Id. at 98.
In our view, therefore, our hands remain tied.
30
aggrieved by the final decision” “is permitted to seek judicial review.” Md. Ann. Code
(2014) State Government (“SG”) § 10-222(a).22 The final decision of the Tax Court
granted Broadway’s request for a tax refund; in that sense, therefore, Broadway could not
have claimed aggrieved party status. However, once the Comptroller filed its petition for
judicial review, Broadway’s status as a non-aggrieved party was put in jeopardy depending
on the outcome of the judicial review process.
The question, therefore, becomes whether Broadway could have preserved the
reseller issue by filing a conditional cross-petition for judicial review. Arguably, once the
Comptroller filed its petition for review on the agency issue, Broadway could have filed a
conditional cross-petition under Rule 7-203(b) to preserve for judicial review the reseller
issue and thereby provide an alternative basis to reach the same result as the Tax Court.23
Given the novelty of the issue and the absence of any briefing on this topic, under the
circumstances, we conclude that Broadway should not be foreclosed of the right to seek
judicial review of the Tax Court’s rejection of its reseller theory. Accordingly, this case
shall make its way back to the Tax Court with instructions to enter a new final decision
denying Broadway’s petition for a tax refund based on the Tax Court’s prior rejection of
Broadway’s reseller theory.
22
SG §§ 10-222 and 10-223 apply to judicial review from decisions from the Tax
Court. See TG § 13-532(a).
23
Rule 7-203(b) states “[i]f one party files a timely petition, any other person may
file a petition within ten days after the date the agency mailed notice of the filing of the
first petition, or within the period set forth in section(a), whichever is later.”
31
JUDGMENT OF THE CIRCUIT COURT FOR
ANNE ARUNDEL COUNTY REVERSED; CASE
REMANDED TO CIRCUIT COURT WITH
INSTRUCTIONS TO VACATE THE FINAL
DECISION OF THE TAX COURT AND REMAND
THE CASE TO THE TAX COURT WITH
INSTRUCTIONS TO ENTER A NEW FINAL
DECISION DENYING BROADWAY’S PETITION
FOR A TAX REFUND. COSTS TO BE PAID BY
APPELLEE.
32