Attorneys for Frederick County have asked a judge to throw out a lawsuit aimed at blocking the sale of a county-owned nursing home and assisted living center.

A motion for summary judgment filed last week argues that county commissioners have the authority to make policy decisions, such as whether to privatize Citizens Care and Rehabilitation Center and Montevue Assisted Living. The document submitted to Frederick County Circuit Court also asserts that a 185-year-old deed does not bar the county from disposing of the facilities.

The court has not yet scheduled a hearing on the motion, but an attorney representing the county said they want to resolve the lawsuit expeditiously.

“We’re hopeful of getting the issues decided as quickly and fairly and completely as possible,” said Kurt Fischer, an attorney with Venable LLP. 

Fischer’s law firm has received $13,206.60 so far to represent the county in two cases involving Citizens and Montevue, according to county attorney John Mathias.

The 54-page motion for summary judgment filed by Fischer and Mathias details the county’s defense against the suit filed by those who want Citizens and Montevue to stay in public hands.

The document explores at length the type of decision the commissioners made June 25 when they voted to sell the two facilities to Aurora Health Management. The $30 million sale to Aurora, a for-profit company based in Millersville, has not been finalized.

The county’s attorneys argue that the vote was legislative in nature and not quasi-judicial, or more similar to decisions made by the courts. The difference would determine the scope of the court’s review, Fischer said.

“The core decision whether to sell the facilities involved a determination as to how the County General Fund should be appropriated to care for low income and disadvantaged persons and to provide other essential services,” the motion states.

Because the underlying debate had to do with policy considerations, selling Citizens and Montevue falls into the realm of a legislative decision, one for which judges have a more limited oversight role, Fischer said.

The county also argues that a deed for the property is no obstacle to the sale.

In 1828, Elias Brunner sold the county 88 acres for about $5,313, with the deed for the transaction stating that the land was “for the Benefit of the Poor of said County, and to and for no other use, intent or purpose whatsoever.” 

Montevue, a 75-bed facility, provides reduced-cost assisted living care to residents who can’t afford to pay full price. Plaintiffs in the case have argued that because the prospective buyers are under no obligation to continue caring for indigent residents, the sale violates the deed.

The motion filed last week by county attorneys argues that there is no such restriction on the property and that the deed language simply reflects the anticipated use of the land.

“It is an entirely unreasonable interpretation of the 1828 Deed to suggest that the government would pay market value for a property and then hamstring its ability to sell the property in perpetuity, even if it later determines that the project should be altered or abandoned and the government’s investment devoted to other public purposes and projects,” the motion argues.

The lawsuit against the county was filed in August, the second case launched to challenge the sale of Citizens and Montevue. 

The plaintiffs are preparing a response to the motion for summary judgment. While she declined to comment on specifics of the motion, the plaintiffs’ attorney said they “vigorously oppose” the county’s arguments.

“I think their motion is premature, and I don’t think they’re entitled to summary judgment,” said Leslie Powell, who is representing the plaintiffs in the case.

Both sides are due in court Dec. 16 to debate the county’s request to dismiss the first case filed by sale opponents. Fischer said he hopes to argue the motion for summary judgment at the same hearing, but the court has not yet decided whether to grant that request. 

Follow Bethany Rodgers on Twitter: @BethRodgersFNP.

(47) comments

briancaps

Under the Freedom of Information laws I obtained the financial P/L for Citizen's Care and Rehab for 2012. The board overseeing the facilities reported a loss of $246,914 for the entire year $20,000 a month, with occupancy at 86%. If occupancy moved toward 90% this facility would be profitable and benefit the county coffiers. This is why Aurora Health Management wants to purchase the facilities.

thump1202

this whole affair is a joke, an obvious backdoor deal, and to be perfectly blunt has no place in legal proceeding. grab a bag of popcorn and enjoy the drama, it will continue for quite some time.

Newthinking7

Steve Burns. You are right, Money will drown the law out . Call the A.C.L.U. If you all back this the A.C.L.U will take it on as part of Government changing laws to fit profits.

dbjanda1

If the deed stated the property was to be used to benefit the poor and the BoCC doesn't think it's relevant then why did they extend subsidizing it for four years after the sale is completed...Sounds like they put some credibility into the statement and not much confidence in Aurora...Me

dbjanda1

KellyAlzan---Blaine wants your buddy Sheriff Jenkins to run for the county exec. position...Guess who'd run things if he won ???...Me

backroomfrederick

[thumbup]

Sourdoh1

If they can run a surplus, then time to sell. By the looks of the majority of the posts it seems there are plenty of people who don't mind spending beyond their means.

KellyAlzan

I have the upmost confidence that Ba'Lane Young has made up his mind that he will NOT see the county executive seat.

randomfax

So the mullet bunch is now attempting to place a time limit on honoring a legal document. Go figure, 4 stooges trying to go back on a handshake, actually a binding legal document. I wonder how low they can go before they decide that 1 year is enough? Thus, the next board should be able to rescind on any agreement made by the mullet bunch by the very use of the reasoning behind this attempted legal argument. It is hard to imagine what they are getting away with but just watch BY's pot of political money grow. He still holds the reigns and thus those that want something will drop $$ in the PAC bucket as he stands there and rings his own bell. For what purpose??? Power and influence down the road when he is kicked out with the voters' footprints on his keester. He will still attempt to influence politics through the use of the PAC, of course a few dollars will slip here or there off the books or to a friend. The good thing is that I think the voters learned their lesson. The TEA party started out with good intentions and was quickly hijacked. The simple rule of thumb, don't negotiate with hijackers. They're like cockroaches, you'll never get rid of them. That same rule applies here.

MCEDDE21

We need your help… We're facing a county attorney's office with a million dollar budget, multiple lawyers on staff and legal services they are buying from one of Baltimore's most expensive law firms. Aurora Healthcare, the BoCC's chosen purchaser for Citizens/Montevue, also has lawyers involved in the litigation. The BoCC has - and is using - every option they have to slow the flow of public information on quality of care and financial reports.

Please visit us online at: http://www.monoclecreative.com/montevue/
—Send a check-- DONATE what you can, even if it’s only $5.00 or $10.00.
Help Us Save Montevue, PO Box 3625, Frederick, MD 21705-3625

PS: Nobody here is on anybody’s payroll… In fact, we’re putting up our own money for the benefit of our community.

squibmyer

LOL. Good luck.

crowtoo

stevebruns, the link is bad in your post. It will be tough for people to help out without a working link.

MCEDDE21

You're right... Try this: http://www.monoclecreative.com/Montevue/#

backroomfrederick

I hope the people who voted for this BSoCC saved a newspaper clipping from that election day so their kids and grandkids can dust it off and revisit their stupidity. Scratching your heads wondering where your Frederick went?

backroomfrederick

Montevue- designed to fail. Too many so-called elected business leaders in Frederick and they couldn't get their heads behind a plan to save a historic institution. Many examples to follow in the ultra-profitable health care business. Easier to let a lawyer handle a discount sale instead. Lots of shrimp cocktail and not much innovation. Houses Houses Houses all they know how to bow for. The lowest hanging fruit for the lowest group of BSoCC. They whine about MoCo Dems but build homes all over S. Frederick to draw them. They whine about moving to WVA because of their own decisons. They are so twisted in favors they can't think straight.

watson4sherlock

Did the county accept the land transfer under the stated conditions?

I think they did. If they don't want to comply with the stated conditions then the seller should rescind the sale. Coming back now and insisting the county paid to much for the land to be bound by the conditions of the transfer is futile.

Money buys justice. I hope there is money.

briancaps

$13,207 of tax payer money spent trying to discredit the 185 year old deed. How much more tax payer money is the county going to spend to try go against Mr. Brunner's wishes and try and sell to the greedy for profit Aurora Health Management, Don't forgot the Maryland Board of Public Works, which includes Gov. O'Malley has final say on the sale. So if you are against the sale E-mail the Governor!

watson4sherlock

It can always be recovered by future government officials as eminent domain.

MCEDDE21

“the vote was…not quasi-judicial”… Indeed, whatever it was, the vote was not “quasi-judicial”. Why? Because there is no such thing. It is merely tautological to say that a thing isn’t a thing—when the thing isn’t, in fact, a thing… No foolin’ us, there, Mr. Lawyer @lawyerbot.whatev.

The vote was not JUDICIAL. That’s what the thing was not… The issue is a matter for the courts to decide; and NO--the BoCC doesn’t have judicial authority.

The vote was legislative “in nature”. So, mrlawyerbot, you’re saying what? It was kinda, really, sorta like any other things the bosses of FC do. Mushy, dontcha think? You’re a highly paid lawyerbot. Shouldn’t you be doing more for your client's money? And, btw: contract law is different from criminal.

Deed Restrictions - "are private restrictions that affect the use of the land. Once placed in the deed by a previous owner, they run with the land, limiting the use of the property and binding to ALL grantees." PERIOD! from "Modern Real Estate Practice" (Galaty, Allaway, Kyle). (the text utilized for the state of MD Real Estate Licensing Course to prepare from licensure). However, since some believe they are above the law and have no business being a "leader" of anything, they have chosen to waste time and money trying to "have it their way." I can hardly wait to see how this plays out. Someone sold their land for a specific purpose ONLY. It runs with the land FOREVER! Thanks for wasting money, AGAIN, trying to get your way. "Frederick County ~ Opened for BS"

Comment deleted.
Ballenger Creek Golfer

"Blainethevader is afraid that if it go to court some of the . . . "? What? Do you mean "Blainethevader is afraid that if it go[es] to court some of the . . . "

Newthinking7

I have a feeling this may go up the ladder to the state level and possibly beyond for intreptations.
I feel sorry for the company who entered this on good faith,, Have the employees of this place started to exit yet?

armillary

If the terms of the deed have no meaning, then certainly Blaine's DRRAs have no meaning either.

armillary

For selling out Blaine is persistent
his regard for the poor nonexistent
at the end of his slide
he'll be forced to reside
with the space between bars equidistant.

watson4sherlock

If only it could be sooner rather than later.

pretzel

So the 1828 deed they claim is basically unrealistic, sounds a bit like Mr. Obama claiming the same thing about the US. constitution almost word for word. I guess no longer is a piece of paper signed with dotted I's and crossed T's worth anything?

Trayvon

nice going Blaine... you've fooled no one. we all know your a selfish thug who seeks to profit off the less fortunate, You cant run for county executive bec you trashed your reputation. We cant wait for you to go away and will always remember what a fool you are and how no one like you should ever be elected to office again See yay!

LucyLucy

Okay this Elias dude way way back in 1828 sold the county the 88 acres stating his wishes that the land was "for the Benefit of the Poor."
So now the lawyers are arguing that “It is an entirely unreasonable interpretation of the 1828 Deed"....REALLY.

How long ago was the constitution written and yet we HAVE to live by what it states, especially the 2nd amendment, cannot tell you how unreasonably that has been interpreted and we are pretty sure the founding fathers could not envision the type of arms we would be allowed to bear. SO now the lawyers have audacity to argue that in 2013 we are unreasonably interpreting the deed...um no you do not get to cherry pick, if we are still living by the constitution, then the BoCC has to live by the deed.

cellmark

This case has little to do with the sale. The over all bigger picture is, does the verbage from 100 years ago mean something different today than it was obviously intended back then.
If this gets thrown out, It could easily go up the ladder, What it would possibly mean if thrown out is the United States constitution is no longer valid due to the translation of words.
Nice mess boys. LOL

KellyAlzan

Look Ba'Lane and Maithas - We, the residents, we the property owners, and we the business owners of Frederick County MD, DO NOT want the nursing homes sold.

Frednecklocal

I and a Frederick County resident and I want the property sold

Ballenger Creek Golfer

Whom is the Frederick County Resident you are referring to? "I and a Frederick County resident . . . "

Comment deleted.
backroomfrederick

[thumbup]

deezilfit

YOU'RE

Ballenger Creek Golfer

Thanks, you're correct. Sorry, I wrote the wrong word.

squibmyer

"We, the residents, we the property owners, and we the business owners of Frederick County MD, DO NOT want the nursing homes sold."

You assertion is false. I am a resident and a property owner; I want them sold.

watson4sherlock

Then you should have asked for a vote so we can know what the majority of the people want instead of what the vocal minority want.

backroomfrederick

[thumbup]

squibmyer

Will the vocal minority stop trying to stop the sale if the vote indicates what the majority wants?

watson4sherlock

The people could not stop the seller from resending the sale for violating the deed.

But the transfer of public assets to private use is something the people have a right to approve or disaprove.

squibmyer

"You assertion is false. I am a resident and a property owner; I want them sold."

Sorry, should have been "your" not "you".

mobilityedge

Nobody knows where the majority of the county stands on this, so put it up for referendum. (Frankly, that's the only way the public will have any say with this BOCC.)

backroomfrederick

[thumbup][thumbup]

Sourdoh1

I am a Frederick city resident and I want the homes sold.

squibmyer

Do you directly pay property taxes?

Ballenger Creek Golfer

The property tax I pay for my house goes into esrow and that taxes are paid from their, so, I pay property taxes for my house but I don't pay it "directly", the escrow pays the taxes from my money.

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