Jonathan A. Maizel & Beatriz E. Maizel v. Comptroller of the Treasury

Case No. 508, September Term, 2018

MARYLAND INCOME TAX – CLAIM FOR REFUND OF OVERPAYMENT –

STATUTE OF LIMITATION. A person who seeks to pursue a claim for a refund of 

overpayment of Maryland income taxes is generally subject to the time limit imposed by 

Maryland Code (1988, 2016 Repl. Vol.), Tax – General Article (“TG”), § 13-1104(c)(1), 

which requires that the claim be filed no later than three years from the time the pertinent 

tax return was filed or two years after the date the overpayment of tax was paid, 

whichever of such periods expires the later. The possible extension provided by TG § 13-

1104(j) is an exception that is applicable only to a taxpayer who was a party to an 

administrative proceeding as described in that subsection.
Circuit Court for Montgomery County

Case No. 0438961-V

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 508

September Term, 2018

JONATHAN A. MAIZEL, ET UX.

v.

COMPTROLLER OF THE TREASURY

Meredith,*

Graeff,

Reed,

JJ.

Opinion by Meredith, J.

Filed: April 29, 2021

*Meredith, Timothy E., J., now retired, 

participated in the hearing of this case while an 

active member of this Court, and after being 

recalled pursuant to the Constitution, Article IV, 

Section 3A, he also participated in the decision 

and the preparation of this opinion. 
Jonathan Maizel and Beatrize Maizel, appellants, have appealed from a judgment 

of the Circuit Court for Montgomery County which, upon judicial review of a ruling of 

the Maryland administrative agency known as the Maryland Tax Court, affirmed the 

denial of the Maizels’ application for income tax refunds, which was the position urged 

by the Maryland Comptroller of the Treasury, appellee.

The Maizels had filed amended income tax returns seeking refunds because, they 

asserted, they had overpaid Maryland income taxes for the calendar years 2006 through 

2011. At the time the Maizels filed their original returns for those years, the deduction

that Maryland allowed for income taxes they had paid in other states where they owed

income tax was structured in a manner that was later recognized as being in violation of

the dormant Commerce Clause of the United States Constitution. After the Maizels filed 

their original returns for 2006 through 2011, a challenge to the Maryland tax provision

was successfully raised by taxpayers named Brian and Karen Wynne. See Maryland 

State Comptroller of Treasury v. Wynne, 431 Md. 147 (2013), aff’d, 575 U.S. 542 (2015)

(hereinafter “Wynne I”), and Wynne v. Comptroller of Maryland, 469 Md. 62 (2020) 

(hereinafter “Wynne II”). In Wynne II, 469 Md. at 67, the Court of Appeals summarized

the Wynne I litigation very briefly as follows:

The litigation began when the Wynnes challenged an aspect of the 

Maryland income tax law – in particular, the credit allowed by State law 

against a Maryland resident’s income tax liability based on taxes the 

resident paid to other states on income derived from those states. The 

Wynnes argued that the Maryland tax scheme discriminated against 

interstate commerce and thus violated what is known as the dormant 

Commerce Clause of the federal Constitution. Both this Court and the 

Supreme Court, in closely divided decisions, agreed with that argument.
2

Beginning in October 2013, the Maizels attempted to take advantage of the 

Wynnes’ success by seeking refunds for the portion of the taxes that the Maryland Court 

of Appeals had declared unconstitutional in Wynne I. But, because more than three years 

had elapsed between the time the Maizels paid their taxes (without receiving full credit 

for taxes paid to other states) and the date the Maizels filed amended returns seeking to 

take advantage of the Wynne I ruling, the Comptroller denied the refunds because the

Maizels’ claims were filed after the three-year statute of limitations prescribed by 

Maryland Code (1988, 2016 Repl. Vol.), Tax – General Article (“TG”), § 13-1104(c)(1). 

That statute provides that, subject to exceptions that are not pertinent here, “a claim for 

refund or credit of overpayment of . . . income tax may not be filed after the periods of 

limitations for filing claims for refund or credit of overpayment set forth in [26 U.S.C.] § 

6511 of the Internal Revenue Code,” which requires such claims to be filed “within 3 

years from the time the return was filed or 2 years from the time the tax was paid, 

whichever of such periods expires the later.”

Although all of the Maizels’ amended returns seeking refunds were filed beyond 

the time limit prescribed by TG § 13-1104(c)(1), the Maizels argued that their refund 

claims should nevertheless be considered timely pursuant to the exception provided in 

TG § 13-1104(j), which states:

Notwithstanding subsection (c) of this section, a claim for refund or 

credit for overpayment of income tax attributable to a right to a reduction in 

a person’s Maryland income tax that is established by a decision of an 

administrative board or by an appeal of a decision of an administrative 

board may be filed within 1 year after the date of a final decision of the 

administrative board or a final decision of the highest court to which an 

appeal of a final decision of the administrative board is taken.
3

The Maizels took the position that they were entitled to file claims for refunds of 

all taxes they had overpaid (because of not receiving full credit for the taxes they had 

paid to other states) at any point in the past so long as they filed those claims for refunds

within one year after the date the Supreme Court issued its decision in Wynne I on May 

18, 2015.

After the Comptroller rejected the Maizels’ argument that, without regard to the 

normal statute of limitations, they were entitled to file their refund claims within one year 

after the Supreme Court’s decision in Wynne I, the Maizels appealed to the Maryland Tax 

Court, which heard the matter de novo and concluded that, because the Maizels were not

parties in Wynne I, they were not entitled to the extra one-year provided by TG § 13-

1104(j).

The Maizels filed a petition for judicial review in the Circuit Court for 

Montgomery County. After that court affirmed the ruling of the Tax Court, the Maizels 

filed this appeal, in which they have raised the following questions for our review:

1. Did the Tax Court err in concluding that § 13-1104(j) does not apply to 

appellants’ amended Maryland income tax returns seeking Wynne

refunds for the relevant years?

2. Does denial of appellants’ Wynne refunds for the relevant years violate 

appellants’ rights to due process under the 14th Amendment and/or the 

Maryland Constitution?

3. Did the Tax Court abuse its discretion or otherwise commit reversible 

error in allowing appellee’s assertion of privilege in respect of certain 

documents sought by appellants in discovery?

Because we conclude that the Tax Court correctly ruled that the extra time for 

filing a refund claim pursuant to TG § 13-1104(j) is available only to the parties to the 
4

administrative proceeding described in that section, we shall affirm the Tax Court’s

ruling denying the Maizels’ claims for refunds.

FACTS AND PROCEDURAL HISTORY

During the relevant period of 2006 through 2011, the Maizels resided in 

Montgomery County, Maryland. Mr. Maizel was a partner in a law firm that had offices 

in New York and California, and he paid income taxes in those states as well as in

Maryland.

The Court of Appeals explained in Wynne I, 431 Md. at 154, that a 1975 

amendment to Maryland tax law limited the credit against income tax liability that could 

be claimed by Maryland residents who earned taxable income that was also subject to 

taxation in other states, noting: “The Maryland income tax law reaches all of the income 

of a Maryland resident. The State income tax law allows a credit against an individual’s 

State tax liability for income taxes paid to other states based on the income earned in 

those states.” But, the Court explained in Wynne I, after the General Assembly amended

Maryland’s tax law in 1975, the credit was no longer allowed to be claimed against 

Maryland’s “county” income tax for income taxes Maryland residents had paid to other 

states. Id. at 157 (citing TG § 10-703(a); Comptroller v. Blanton, 390 Md. 528 (2006)).

When the Wynnes claimed the full credit on their 2006 tax return against all 

Maryland income tax, including the county portion, the Comptroller assessed them for a 

deficiency in the amount of Maryland taxes paid. Id. at 159. The Wynnes appealed to 

the Maryland Tax Court and argued “that the limitation of the credit to the State tax for 

tax payments made to other states discriminated against interstate commerce in violation 
5

of the Commerce Clause of the United States Constitution.” Id at 160. The Tax Court

rejected the Wynnes’ argument, but, upon judicial review, the Circuit Court for Howard 

County reversed the Tax Court and ruled that the tax scheme was in violation of the

dormant Commerce Clause. Id.

The Court of Appeals granted the Comptroller’s petition for certiorari and 

affirmed the circuit court’s ruling, holding in Wynne I that “the failure of the Maryland 

income tax law to allow a credit against the county tax for a Maryland resident taxpayer 

with respect to pass-through income of an S corporation that arises from activities in

another state and that is taxed in that state violates the dormant Commerce Clause of the 

federal Constitution.” Wynne I, 431 Md. at 176-77 (footnote omitted). The Court 

emphasized:

[T]he county income tax itself is not unconstitutional. Nor is the credit, 

which serves to ensure that the Maryland income tax scheme operates 

within constitutional constraints. Nor is the Maryland income tax law 

generally. What is unconstitutional is the application—or lack thereof—of 

the credit to the county income tax [for residents who paid income taxes to 

other states].

Id. at 177-78. The case was remanded to the Tax Court for recalculation of the Wynnes’

tax liability.

The opinion of the Court of Appeals in Wynne I was filed on January 28, 2013,

and refiled May 17, 2013, with minor revisions made in response to a motion for 

reconsideration. The United States Supreme Court granted certiorari on May 27, 2014, 

572 U.S. 1134 (2014), and affirmed the ruling of the Maryland Court of Appeals on May 

18, 2015, 575 U.S. 542 (2015). The majority opinion of the Supreme Court observed:
6

This case involves the constitutionality of an unusual feature of 

Maryland’s personal income tax scheme. Like many other States, 

Maryland taxes the income its residents earn both within and outside the 

State, as well as the income that nonresidents earn from sources within 

Maryland. But unlike most other States, Maryland does not offer its 

residents a full credit against the income taxes that they pay to other States. 

The effect of this scheme is that some of the income earned by Maryland 

residents outside the State is taxed twice. Maryland’s scheme creates an 

incentive for taxpayers to opt for intrastate rather than interstate economic 

activity.

575 U.S. at 545. The Supreme Court held that this discriminatory treatment (i.e., the less 

favorable tax treatment) of income earned by residents as a consequence of interstate 

commerce was a violation of the dormant Commerce Clause. Id.

The Court of Appeals observed in Wynne II, 469 Md. at 75:

Both this Court and the Supreme Court held [in Wynne I] that 

extension of the tax credit to the county portion of the income tax would 

cure the constitutional defect, but both decisions also acknowledged that 

there might be other ways of adjusting the State income tax law that would 

avoid the sort of discrimination against interstate commerce forbidden by 

the dormant Commerce Clause. 431 Md. at 189, 64 A.3d 453; [575 U.S. at 

568,] 135 S. Ct. at 1806.

The General Assembly opted to amend the Maryland tax law “to allow a tax credit 

against the county portion, as well as the state portion, of the Maryland income tax for 

income taxes paid in other states.” Wynne II, 469 Md. at 75 and 78.

Sometime in 2013, after the Court of Appeals decided Wynne I, 431 Md. 147, the 

Maizels’ accountant advised them that they should file amended returns to seek refunds

for the taxes they had paid to cover the county portion of Maryland income taxes as to 

which they did not claim or receive credit for income taxes paid to New York and
7

California. The timeliness of the amended returns the Maizels filed in an effort to obtain 

such refunds is at issue in this appeal.

For the years that are the subject of this appeal, the Maizels filed their original tax

returns and amended returns on the following dates:

TAX 

YEAR

DATE 

ORIGINAL

RETURN FILED

SIGNATURE 

DATE ON THE 

AMENDED 

RETURN

DATE AMENDED

RETURN 

RECEIVED BY 

COMPTROLLER

2006 June 11, 2007 February 26, 2016 March 1, 2016

2007 April 14, 2008 February 26, 2016 March 1, 2016

2008 July 15, 2009 February 26, 2016 March 1, 2016

2009 June 16, 2010 October 10, 2013 October 28, 2013

2010 August 11, 2011 October 15, 2014 November 5, 2014

2011 October 5, 2012 October 14, 2015 October 20, 2015

The Comptroller denied the Maizels’ claims for these refunds as untimely

pursuant to TG § 13-1104(c)(1), which, as noted above, requires that “a claim for refund 

or credit of overpayment of . . . income tax may not be filed after” the period of limitation 

in § 6511 of the Internal Revenue Code, which, in turn, requires federal claims to be filed 

within “3 years from the time the return was filed or 2 years from the time the tax was 

paid, whichever of such periods expires the later . . . .” 26 U.S.C. § 6511. It is not 

disputed that each of the six amended returns filed by the Maizels (for the tax years 2006 

through 2011) was filed after the period of limitations for claims of overpayment set forth 

in § 6511 of the Internal Revenue Code.

The Maizels appealed the Comptroller’s decision to the Tax Court. They asserted 

that the Supreme Court’s decision in Wynne I was the “final decision of the highest court 

to which an appeal . . . [wa]s taken” relative to the administrative ruling that 
8

“established” their right to a refund, and their deadline for filing for a refund therefore

qualified for the TG § 13-1104(j) exception to the normal period of limitations regardless 

of whether they were parties in the Wynne I litigation. But the Comptroller maintained 

that the normal period of limitations applied, and that the possible extension pursuant to 

TG § 13-1104(j) applied only to the parties who were the litigants in the administrative 

proceeding referred to in that subsection. The Tax Court agreed with the Comptroller’s 

position.

In its oral ruling, the Tax Court stated:

[W]hen [TG § 13-1104(j)] says “a person’s Maryland income tax,” they’re

talking about the individual taxpayer and that taxpayer’s process to get an 

administrative review of some fact of the taxpayer’s taxes or goes to court 

over some part of some fact or something that affects their taxes. It’s not 

intended for you to piggyback on someone else’s appeal process. . . . [T]his

case applies to the Wynnes individually, all the way through the Supreme 

Court, because they were the persons that were doing the appealing. For 

the Supreme Court to say that the statute is unconstitutional, that did not 

change your individual situation with respect to your refund or not. It made 

the statute unconstitutional. But whether or not you get a refund, you need 

to go look at the rest of the statutes of the state of Maryland to see how to 

apply for a refund and whether or not you are entitled to a refund. “J” 

doesn’t affect you. [Section] 13-1104(j) didn’t extend the time to you to

file for a refund for you. It only did it for the people who did that appeal.

By order dated October 11, 2017, the Tax Court affirmed the Comptroller’s denial 

of the Maizels’ claims for tax refunds.

The Maizels sought judicial review in the Circuit Court for Montgomery County, 

which affirmed the decision of the Tax Court. In a written opinion, Judge Ronald B. 

Rubin explained:

At common law, a taxpayer had no right to a refund of taxes 

erroneously collected by or paid to the State. Absent a statute authorizing a 
9

refund, a taxpayer who “voluntarily” albeit erroneously or incorrectly paid 

a tax could not sue the collector to recover. Apostol v. Anne Arundel 

County, 288 Md. 667, 672-73 (1980). If enacted, a statutory remedy is 

exclusive, and the statute serves both as the remedy and a limitation on the 

government’s liability to refund any “erroneously collected” tax. See State 

v. Sharafeldin, 382 Md. 129, 147-50 (2004); Halle Dev., Inc. v. Anne 

Arundel County, 371 Md. 312, 324-30 (2002). Tax statutes of limitation 

cannot be ignored or modified by the Comptroller, see United States v. 

Garbutt Oil Co., 302 U.S. 528, 533-35 (1938), and are not subject to any 

“judge-made” equitable exceptions. See United States v. Brockamp, 519 

U.S. 347, 352-54 (1997).

The [Maizels’] claims for refund are barred because each claim was 

filed more than three years after the original return was filed. The 

[Maizels] contend nonetheless that their refund claims did not ripen until 

the Supreme Court issued its decision in Wynne on May 18, 2015. They

assert, therefore, that their claims fall within the exception described in §

13-1104(j). The court disagrees.

* * *

The Supreme Court’s decision in Wynne did not make what 

Maryland did unconstitutional. The discriminatory tax was unconstitutional 

when it was enacted [in 1975]. The Supreme Court simply explained the 

Commerce Clause effect of Maryland’s system of taxation. Nothing in the 

Supreme Court’s decision (or, for that matter the earlier decision of the 

Court of Appeals) altered or created the [Maizels’] right to a refund. That 

right was established when they paid the unconstitutional tax. They simply 

waited too long to assert their claim. “A constitutional claim can become 

time-barred just as any other claim can.” Block v. North Dakota ex rel. 

Board of Univ. and School Lands, 461 U.S. 273, 292 (1983).

The exception created by § 13-1104(j) does not aid the [Maizels]

because they did not receive a final decision from an administrative board 

or tribunal. In other words, § 13-1104(j) applies only to the specific 

taxpayer who received the final adjustment report from the Comptroller, or 

were parties to the appellate decision reviewing that adjustment. This 

reading of § 13-1104(j) is confirmed by a review of its legislative history 

and the facts of the case that spurred its enactment. Suffice it to say that §

13-1104(j) was not enacted to aid taxpayers who do not file refund claims 

within the time required by § 13-1104(c), [and] do not themselves litigate 

the issues pertinent to their tax obligation but later simply come across a 

favorable appellate decision in a case prosecuted by some other taxpayer. 

The carefully crafted refund scheme established by § 13-1104(c) would 
10

have no meaning if taxpayers, who failed to comply with it, were 

nonetheless allowed to bring refund claims simply because of action taken 

by some other taxpayer. See United States v. Clintwood Elkhorn Mining 

Co., 553 U.S. 1, 8-9 (2008).

Contrary to their contentions, the [Maizels] were not denied due

process. The General Assembly has established a detailed refund scheme 

“that subjects complaining taxpayers to various requirements before they 

can bring suit.” United States v. Clintwood Elkhorn Mining Co., 553 U.S. 

at 11. Nothing stopped the [Maizels] from complying with § 13-1104(c). 

They knew all of the facts necessary to prosecute their refund claims well 

before the Supreme Court decided Wynne. No action by the State 

government prevented the timely filing of their refund claims. Like the 

taxpayers in Wynne, the [Maizels] could have challenged the validity of 

Maryland’s refusal to allow a credit for the “county” portion of the state 

income tax when they filed their returns or paid their taxes. The[y] did not 

do so, and cannot now be heard to complain that some inaction by the 

Comptroller interfered with their rights. . . . 

Similarly unavailing is the [Maizels’] contention that language in the 

2015 Budget Reconciliation and Financing Act authorized refund claims 

independent of the pertinent provisions of the Tax General Article. The 

direction in Section 27 of the Act [calling] for the Attorney General to 

review the effect of Wynne simply did not dispense with otherwise 

applicable refund claim requirements.

Finally, the Maryland Tax Court did not plainly abuse its discretion 

when it denied the [Maizels’] motions to compel. See Brown v. Daniel 

Realty Co., 409 Md. 565, 583-84 (2009). That tribunal correctly balanced 

the [Maizels’] asserted need for the documents against the Comptroller’s 

privilege assertions. Hamilton v. Verdow, 287 Md. 544, 563-64 (1980). 

This court cannot say that the Maryland Tax Court got it wrong, much less 

that its decision was so wide of the mark that it was not a reasonable 

exercise of discretion. In any event, the contested rulings, even if 

erroneous, have no effect on the outcome in this case. Any asserted 

evidentiary error, therefore, is harmless.

The Maizels filed this timely appeal.
11

STANDARD OF REVIEW

In Frey v. Comptroller of Treasury, 422 Md. 111, 136-38 (2011), cert. denied, 566 

U.S. 905 (2012), the Court of Appeals described the standard of review of decisions of 

the Tax Court as follows:

The Tax Court is “an adjudicatory administrative agency in the 

executive branch of state government.” Furnitureland S., Inc. v. 

Comptroller, 364 Md. 126, 137 n.8, 771 A.2d 1061, 1068 n.8 (2001). As 

such, the Tax Court is subject to the same standards of judicial review as 

other administrative agencies. T.G. § 13-532(a)(1) (“A final order of the 

Tax Court is subject to judicial review as provided for contested cases in §§ 

10-222 and 10-223 of the State Government Article.”); Supervisor of 

Assessments v. Hartge Yacht Yard, Inc., 379 Md. 452, 461, 842 A.2d 732, 

737 (2004). Moreover, because we are reviewing the decision of an 

administrative agency, our review looks “through the circuit court’s and 

intermediate appellate court’s decisions . . . and evaluates the decision of 

the agency.” People’s Counsel for Baltimore County v. Surina, 400 Md. 

662, 681, 929 A.2d 899, 910 (2007). . . . [W]e may not uphold the final 

decision of an administrative agency on grounds other than the findings and 

reasons set forth by the agency. Evans v. Burruss, 401 Md. 586, 593, 933 

A.2d 872, 876 (2007); Dep’t of Health & Mental Hygiene v. Campbell, 364 

Md. 108, 123, 771 A.2d 1051, 1060 (2001) (“[A]n appellate court will 

review an adjudicatory agency decision solely on the grounds relied upon 

by the agency.”).

Although we retain the power to review administrative decisions, 

judicial review of these decisions is narrow. We shall not “substitute [our] 

judgment for the expertise of those persons who constitute the 

administrative agency.” People’s Counsel for Baltimore County v. Loyola 

College in Md., 406 Md. 54, 66, 956 A.2d 166, 173 (2008) (internal

quotation marks omitted) (quoting United Parcel Serv., Inc. v. People’s 

Counsel for Baltimore County, 336 Md. 569, 576-77, 650 A.2d 226, 230 

(1994)). Accordingly, we review the Tax Court’s factual findings and the 

inferences drawn therefrom under a substantial evidence standard. Surina,

400 Md. at 681, 929 A.2d at 910; Md. Aviation Admin. v. Noland, 386 Md. 

556, 571, 873 A.2d 1145, 1154 (2005) (“A reviewing court should defer to 

the agency’s fact-finding and drawing of inferences if they are supported by

the record.” (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 

59, 67-69, 729 A.2d 376, 380-81 (1999))). Under this standard, we 

consider “whether a reasoning mind reasonably could have reached the 
12

factual conclusion the agency reached.” State Ins. Comm’r v. Nat’l Bureau 

of Cas. Underwriters, 248 Md. 292, 309, 236 A.2d 282, 292 (1967); see 

also Surina, 400 Md. at 681, 929 A.2d at 910 (explaining that under the 

substantial evidence standard courts examine whether the administrative 

record contains “such evidence as a reasonable mind might accept as 

adequate to support a conclusion”) (internal quotation marks omitted) 

(quoting Mayor and Aldermen of Annapolis v. Annapolis Waterfront Co.,

284 Md. 383, 398, 396 A.2d 1080, 1089 (1979)).

Just as we defer to an agency’s factual findings, we afford 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. Surina, 400 Md. at 682, 929 A.2d at 911;

Noland, 386 Md. at 572, 873 A.2d at 1154. This deference, however, 

“extends only to the application of the statutes or regulations that the 

agency administers.” Loyola College, 406 Md. at 67, 956 A.2d at 174. 

When an agency’s decision is necessarily premised upon the “application 

and analysis of caselaw,” that decision rests upon “a purely legal issue 

uniquely within the ken of a reviewing court.” Id. at 67-68, 956 A.2d at 

174.

In this case [i.e., in Frey], the Tax Court’s decision required the 

application and analysis of cases interpreting the United States Constitution 

as well as the Maryland Constitution and Declaration of Rights. Under 

these circumstances, we evaluate an agency’s legal conclusions to 

determine whether they are based upon an error of law, without deference 

to the agency’s determination. Id. at 68, 956 A.2d at 174; Surina,400 Md. 

at 683, 929 A.2d at 911; Adventist Health Care, Inc. v. Md. Health Care 

Comm’n, 392 Md. 103, 120, 896 A.2d 320, 331 (2006).

DISCUSSION

I. Statute of Limitations

The Maizels do not contend that they filed any of the six amended tax returns that 

are the subject of this appeal within the time limit imposed by TG § 13-1104(c)(1). But 

they argue strenuously that TG § 13-1104(j) expressly provides an exception to the 

generally applicable time limit, and, they contend, its plain language permitted them to 
13

file their claims for refunds within one year after the United States Supreme Court issued 

its opinion in Wynne I on May 18, 2015. All of their amended returns were filed before 

May of 2016, and therefore, although all of the Maizels’ amended returns (for which 

refunds were denied) were filed beyond the time limit prescribed by TG § 13-1104(c)(1), 

the Maizels assert that their refund claims should nevertheless be considered timely 

pursuant to the exception provided in TG § 13-1104(j). As noted above, that subsection 

states:

Notwithstanding subsection (c) of this section, a claim for refund or 

credit for overpayment of income tax attributable to a right to a reduction in 

a person’s Maryland income tax that is established by a decision of an 

administrative board or by an appeal of a decision of an administrative 

board may be filed within 1 year after the date of a final decision of the 

administrative board or a final decision of the highest court to which an 

appeal of a final decision of the administrative board is taken.

The Maizels contend that the plain language of this statutory provision clearly and 

unambiguously applies to their situation. They claim that they meet the definition of “a 

person” whose claim for refund or right to reduction in Maryland income tax liability was 

“established by . . . an appeal of a decision of an administrative board”—namely the 

appeal from the Tax Court’s ruling in Wynne I. Because they meet that test, they 

contend, their refund claims were timely filed within one year after the final decision of 

the highest court to which the parties appealed the Tax Court’s ruling in Wynne I.

The Comptroller, too, contends that “[t]he plain language of § 13-1104(j) is 

unambiguous.” But, according to the Comptroller, this plain and unambiguous statute

clearly establishes: “A taxpayer has one year to file a refund claim after that taxpayer 

receives a final decision from an administrative board or an appellate tribunal.”
14

Although both parties to this appeal assert that TG § 13-1104(j) is unambiguous,

we are unable to conclude, without adding to, or modifying, the words in the statute, that 

either party’s interpretation is without a rational basis. Because the provision is 

reasonably capable of more than one meaning, it is ambiguous. 

The ambiguity stems in large part from the reference to “a person’s Maryland 

income tax” liability. The Maizels would read that language to apply to “any person”

who might be able to assert a legal argument for a tax reduction based upon any ruling of 

any administrative agency at any time. The Comptroller would read that same language 

as applying only to “a person,” as in one person, singular, whose Maryland tax liability 

was established by a specific administrative proceeding in which that taxpayer was a 

party.

In Lewis v. State, 348 Md. 648, 653-54 (1998), Judge Irma S. Raker explained that 

an ambiguity will be found when words of a statute are reasonably capable of more than

one meaning. Writing for the Court of Appeals, she stated:

In construing a legislative enactment, the paramount objective is to 

ascertain and give effect to the intent of the Legislature. Harris v. State, 

344 Md. 497, 510, 687 A.2d 970, 976, cert. denied sub nom. Koenig v. 

Maryland, ––– U.S. ––––, 118 S.Ct. 605, 139 L.Ed.2d 492 (1997); Tapscott 

v. State, 343 Md. 650, 657, 684 A.2d 439, 442 (1996); Frazier v. Warfield, 

13 Md. 279, 301 (1859). To discern legislative intent, we look first to the 

language of the statute, giving those words their ordinary and natural 

meaning. Gardner v. State, 344 Md. 642, 647-48, 689 A.2d 610, 612-13 

(1997). When the plain meaning of the language is clear and unambiguous, 

and consistent with both the broad purposes of the legislation, and the 

specific purpose of the provision being interpreted, our inquiry is at an end. 

Philip Electronics v. Wright, 348 Md. 209, 216-17, 703 A.2d 150, 153 

(1997); Frank v. Baltimore County, 284 Md. 655, 661, 399 A.2d 250, 254 

(1979). If, however, the meaning of the plain language is ambiguous or 

unclear, we seek to discern legislative intent from surrounding 
15

circumstances, such as legislative history, prior case law, and the purposes 

upon which the statutory framework was based. Haupt v. State, 340 Md. 

462, 471, 667 A.2d 179, 183 (1995). As we recently observed in Greco v. 

State, 347 Md. 423, 429, 701 A.2d 419, 421 (1997), in the context of 

statutory construction, “ambiguity” is most accurately defined as 

“reasonably capable of more than one meaning.”

When the words of a statutory provision are reasonably capable of 

more than one meaning, and we examine the circumstances surrounding the 

enactment of a legislative provision in an effort to discern legislative intent, 

we interpret the meaning and effect of the language in light of the 

objectives and purposes of the provision enacted. Gargliano v. State, 334 

Md. 428, 435, 639 A.2d 675, 678 (1994); see Kaczorowski v. City of

Baltimore, 309 Md. 505, 513-16, 525 A.2d 628, 632-33 (1987). Such an 

interpretation must be reasonable and consonant with logic and common 

sense. Armstead v. State, 342 Md. 38, 56, 673 A.2d 221, 229 (1996). In 

addition, we seek to avoid construing a statute in a manner that leads to an 

illogical or untenable outcome. Greco, 347 Md. at 429, 701 A.2d at 422; 

Fraternal Order of Police v. Mehrling, 343 Md. 155, 174, 680 A.2d 1052, 

1062 (1996).

Accord Webster v. State, 359 Md. 465, 480 (2000).

We conclude that the language of TG § 13-1104(j) is ambiguous because it is 

“reasonably capable of more than one meaning,” Greco, 347 Md. at 429, and we shall 

therefore consider the circumstances surrounding the enactment of the statutory 

provision.

Among the exhibits presented to the Tax Court were documents that reflected the

apparent impetus for the General Assembly’s decision to add subsection (j) to TG § 13-

1104 in 2003. The Comptroller’s version of the legislative history of TG § 13-1104(j)

was summarized in the Notice of Final Determination that the Comptroller had sent to the 

Maizels on December 2, 2016. In that notice, which was an exhibit in the Tax Court, the
16

Comptroller rejected the Maizels’ argument that their claims were timely filed pursuant 

to TG § 13-1104(j), and explained:

Section 13-1104(j) is very limited in its application and the statute 

was very carefully worded to ensure it was not construed too broadly. The 

history behind the introduction of the bill and the Comptroller’s comments 

support this fact. An article in the Frederick News Post dated May 25, 

2001, explained the history of the bill as follows:

Commander Douglas Dellinger was dismissed from the U.S. 

Navy in 1990. He appealed the dismissal and nine years later 

an administrative panel ruled in his favor, reinstating him, 

retroactive to 1990. During the period at issue Maryland law 

exempted military personnel from paying state taxes. Thus, 

upon reinstatement, he became exempt from the taxes he had 

already paid to the state of Maryland. Because the ruling 

took so long Commander Dellinger’s refund request was 

untimely. Commander Dellinger requested assistance from 

[his Maryland State] Senator, Alex Mooney. Senator Mooney

understood that the request was untimely due to the three-year

deadline imposed on refund requests. Senator Mooney 

responded with the introduction of a senate bill that was 

“meant to shield state taxpayers from the red tape of other 

bureaucracies.” [(Quoting an article from the May 25, 2001 

Frederick News Post captioned “Mooney Says Veto was 

Personally Motivated.”)]

The exception that was ultimately codified as section 13-1104(j) was 

introduced by Senator Mooney as Senate Bill 344 in the 2001 Maryland

legislative session. It was vetoed by Governor Parris Glendening. In a 

letter dated May 17, 2001, to Mike Miller, Jr., President of the Senate, 

Governor Glendening stated he was vetoing the bill although the Office of 

the Comptroller reported that the bill would likely impact “one or two 

taxpayers a year.” He explained that although the bill would apply in 

“extremely rare” cases, that he was concerned with the congruity of federal 

and State law. [Citing

http://mgaleg.maryland.gov/webmga/frmMain.aspx?ys=2001rs/veto_letters

/sb0344.htm]

* * *
17

. . . Governor Glendening’s veto letter, and the history behind the 

introduction of the bill when read with the statutory language, evidence the 

limited application of the exception. The bill was introduced to afford 

relief to a member of the military whose tax status was in question for nine 

years pending the decision of an administrative board. . . .

The exception in section 13-1104(j) is applicable to the taxpayer 

who is pursuing the decision of an administrative board or an appeal of a 

decision of an administrative board, but not others who are not named in 

the appeal. The Maizels were not a party to Wynne, and are not entitled to 

an extension of the statute of limitations based on the result of an appeal to 

which they were not a party.

Other documents that were introduced in the Tax Court relative to the legislative 

history of TG § 13-1104(j)—which was finally enacted in 2003 as Chapters 71 and 72, 

Laws of Maryland 2003—included: (1) Senator Mooney’s letter to the Comptroller’s 

Compliance Division dated July 7, 2000, seeking its assistance regarding “the best way to 

revise the current law” to avoid “the unfairness” of Mr. Dellinger’s case; (2) one page of 

an internal memorandum of the Comptroller’s office dated July 13, 2000, with a subject 

heading of “Expansion of Statute of Limitations for non-IRS appeals,” and referring to 

that issue as having been “raised by State Senator Alex X. Mooney on behalf of Douglas 

C. Dellinger”; (3) a hand-written memo dated July 20, 2000, to the Director of the 

Comptroller’s Compliance Division, indicating a willingness to work with the “Senator in 

drafting legislation to correct problem in future”; (4) the first page of a letter dated 

November 15, 2000, from the Comptroller’s office to Senator Alex Mooney, proposing 

language for an amendment to TG § 13-1104(c)(2) to provide for filing a claim for refund 

of an overpayment within one year after “a final decision of an administrative board . . . 

establishing the right of the person to a reduction in the person’s taxable income”
18

(capitalization modified); (5) a letter dated February 21, 2001, from Douglas C. Dellinger

to the Chair of the Senate Budget & Taxation Committee, urging passage of that 

session’s Senate Bill 344 “to correct an inequity in the existing [tax] law” that came to 

light in Mr. Dellinger’s personal experience because, “by the time the administrative 

board released its decision entitling me to [a] refund, it was too late per current 

regulations for the Comptroller to issue the tax refund”; (6) a letter dated February 3, 

2003, from Comptroller William Donald Schaefer to the Chair of the Senate Budget & 

Taxation Committee, urging passage of Senate Bill 175—one of the bills that would 

ultimately become codified as TG § 13-1104(j)—to “correct an inequity in the existing 

law relating to the timely filing of a claim for refund of income tax” that could occur on 

“occasions in which a taxpayer’s entitlement to a refund is established by a decision of a 

non-tax agency following proceedings that extend beyond the three-year filing deadline 

under Maryland law”; and (7) a Fiscal and Policy Note relative to Senate Bill 175, noting 

that the “bill is the result of two cases that have been under review by the Comptroller 

where taxpayers filed for a refund after the three-year period due to a dispute of their 

residency status,” and stating that “only a few cases of this type occur each year” such 

that “the current amount of refunds that would be paid as a result of the bill is less than 

$10,000.” No documents were introduced in the Tax Court to refute the Comptroller’s

contention that the intent of the General Assembly was to permit taxpayers such as Mr. 

Dellinger—who experienced a change of status as a result of an administrative 

proceeding that did not conclude within three years after his overpayment of taxes had 
19

occurred—to seek a refund within one year after the final decision in that administrative 

process (including any appeal).

In light of the legislative history of this subsection of TG § 13-1104, we are 

persuaded that the Tax Court correctly ruled that TG § 13-1104(j) applies only to the 

specific taxpayers who were parties to a decision of an administrative body or an appeal 

of that decision, and therefore, did not extend the time limit established by TG § 13-

1104(c)(1) for the Maizels to seek a refund based upon the defect in Maryland tax law 

highlighted in Wynne I.

II. Due Process

The Maizels assert that, if TG § 13-1104(j) did not permit them to file their refund 

claim within the year after the Supreme Court’s decision in Wynne I, then the State of 

Maryland has deprived them of their Fourteenth Amendment and Maryland constitutional 

rights to due process because (1) they were deprived of property (namely, the taxes they 

overpaid to the State pursuant to a provision that violated the dormant Commerce 

Clause), and (2) the State failed to give adequate notice to them of their right to a refund 

after the judicial decisions in Wynne I confirmed the constitutional defect in Maryland’s 

tax law. The Maizels assert in their brief that “the State of Maryland denied Appellants a 

meaningful opportunity to recover the unlawful taxes paid in respect of the Relevant 

Years by failing over a four-year period [beginning with the circuit court’s ruling in favor 

of the Wynnes in 2011] to notify them, directly or by means of any public outreach to

taxpayers, of the fact that multiple courts of competent jurisdiction had ruled that 

Appellee’s denial of millions of Dollars of tax credits to Appellants and other similarly 
20

situated taxpayers was unconstitutional.” We see no merit in the Maizels’ due process 

arguments.

The Maizels refuse to recognize that the State of Maryland did nothing to preclude 

them from asserting the same challenge to Maryland’s tax law that the Wynnes 

successfully pursued. The Wynnes’ argument that Maryland’s treatment of income taxes 

that taxpayers—including the Maizels—paid to other states discriminated against 

interstate commerce was not based upon a novel legal principle that was unforeseeable

until first raised by the Wynnes relative to their 2006 Maryland tax returns. As Justice 

Alito observed in the Supreme Court’s opinion affirming the ruling of the Maryland 

Court of Appeals, there was long-standing precedent to support the result in Wynne I. 

Writing for the 5-4 majority, Justice Alito stated, 575 U.S. at 549-50:

Under our precedents, the dormant Commerce Clause precludes 

States from “discriminat[ing] between transactions on the basis of some 

interstate element.” Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 

318, 332, n. 12, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). This means, among 

other things, that a State “may not tax a transaction or incident more 

heavily when it crosses state lines than when it occurs entirely within the 

State.” Armco Inc. v. Hardesty, 467 U.S. 638, 642, 104 S.Ct. 2620, 81 

L.Ed.2d 540 (1984). “Nor may a State impose a tax which discriminates 

against interstate commerce either by providing a direct commercial 

advantage to local business, or by subjecting interstate commerce to the 

burden of ‘multiple taxation.’ ” Northwestern States Portland Cement Co. 

v. Minnesota, 358 U.S. 450, 458, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959) 

(citations omitted).
21

The Supreme Court stated: “Our existing dormant Commerce Clause cases all but 

dictate the result reached in this case by Maryland’s highest court.” Id. at 550. The 

Court then cited three cases that it considered “particularly instructive,” id., namely, J.D. 

Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938); Gwin, White & Prince, Inc. v. 

Henneford, 305 U.S. 434 (1939); and Central Greyhound Lines, Inc. v. Mealey, 334 U.S. 

653 (1948). The Court explained: “In all three of these cases, the Court struck down a

state tax scheme that might have resulted in the double taxation of income earned out of 

the State and that discriminated in favor of intrastate over interstate economic activity. . . .

Maryland’s tax scheme is unconstitutional for similar reasons.” 575 U.S. at 551.

In other words, the legal precedent that enabled the Wynnes to prevail in Wynne I

had been available to Maryland taxpayers—including the Maizels—since at least 1948, 

long before the Maizels paid any of the taxes they sought to recover in this case. The fact 

that they did not assert that legal argument until more than three years after they had paid 

the taxes is not due to the lack of an available remedy provided by the State of Maryland.

Nor can the State be faulted for failing to notify individual multi-state taxpayers of 

Supreme Court jurisprudence regarding the dormant Commerce Clause that had been the 

topic of litigation and judicial opinions for decades. Cf. City of West Covina v. Perkins, 

525 U.S. 234, 241 (1999) (Stating that, unlike the obligation of law enforcement agents to

give notice of their seizure of property, “[n]o similar rationale justifies requiring 

individualized notice of state-law remedies which, like those at issue here, are established 

by published, generally available state statutes and case law.”).
22

And the enforcement of a reasonable statute of limitations—such as the three-year

limit imposed upon refund claims by TG § 13-1104(c)(1)—does not deprive a taxpayer 

of due process. As the Maryland Court of Appeals observed in Wynne II, 469 Md. at 82 

n.26, “the Supreme Court in McKesson [Corp. v. Division of Alcoholic Beverages and 

Tobacco, Fla. Dept of Business Regulation, 496 U.S. 18 (1990),] . . . indicated that a state 

could place various constraints on any refunds, such as limiting them only to taxpayers 

who paid the tax under protest or by enforcing a relatively short period of limitations for 

claiming a refund. 496 U.S. at 50, 110 S.Ct. 2238.”

In sum, we perceive no merit in the Maizels’ contentions that they suffered a

denial of due process.

III. Discovery

The Maizels’ final argument is that the Tax Court abused its discretion by not

sanctioning the Comptroller for failing to provide a pre-trial privilege log pursuant to 

Maryland Rule 2-402(e)(1) and for withholding certain documents based upon claims of 

privilege. We conclude that Maryland Rule 2-402 does not apply to proceedings in the 

Tax Court, and the Tax Court did not abuse its discretion in the ruling it made with 

respect to the Comptroller’s response to the Maizels’ subpoena.

“The Maryland Rules pertaining to pre-trial discovery in circuit court cases do not, 

generally, apply to administrative proceedings.” Hammen v. Baltimore County Police 

Dep’t., 373 Md. 440, 457 (2003); accord Montgomery County v. Supervisor of Assmts., 

275 Md. 58, 62 n.4 (1975) (“Appellees’ reliance upon [Maryland Rule 208] is misplaced 

since the Maryland Rules do not govern procedures before the Tax Court.”). See
23

Maryland Rule 1-101(b), stating: “Title 2 [of the Maryland Rules] applies to civil matters 

in the circuit courts, except for Juvenile Causes under Title 11 of these Rules and except 

as otherwise specifically provided or necessarily implied.” (emphasis added).

The scope of discovery in Tax Court cases is limited. TG § 13-521 permits a party 

to “take a deposition in or out of the State in the manner provided by law for taking 

depositions in a civil case,” and permits a party to request that the Tax Court issue a 

subpoena commanding a witness to appear and produce “any pertinent document” at the 

deposition. But the Maizels did not subpoena any witnesses to attend a deposition.

Instead, the Maizels did request, and the Tax Court did issue pursuant to TG § 13-

520(b)(2), a subpoena duces tecum for a Custodian of Records of the Comptroller to 

appear and produce documents at the merits hearing in the Tax Court. Among the 

documents the subpoena requested were “copies of any and all written communications”

“relating to whether, when and/or how” the Comptroller notified taxpayers of their 

“refund rights” growing out of the Wynne I litigation. The Maizels complain that the

Comptroller violated Maryland Rule 2-402(e)(1) by failing to produce documents, and 

failing to provide a detailed privilege log until after the hearing on the merits had closed.

When the parties appeared for the merits hearing in the Tax Court on September 

19, 2017, Mr. Maizel asked the court at the outset to compel disclosure of minutes of a 

Deputy Comptroller’s staff meeting that had been withheld due to a claim of executive 

privilege. Counsel for the Comptroller represented to the court and the Maizels that all 

pertinent documents had been provided to the Maizels other than four privileged 

documents: (1) minutes of a staff meeting in the Comptroller’s office at which the 
24

attendees discussed Comptroller “business and policy”; and (2) three documents in which 

counsel from the Attorney General’s office were providing privileged legal advice and 

comment. But counsel for the Comptroller further represented that, otherwise, “anything 

that was out there that we had that was in a document form that was responsive to a 

document request was produced.”

After listening to argument from both parties, the Tax Court said to Mr. Maizel: 

“I’m going to suggest the remedy for you [for] today is I would not let them present any 

additional documents to Court that they haven’t already disclosed to you.” Cf. TG § 13-

522, which permits the Tax Court to apply to the circuit court for that court to issue a 

show cause order and potentially impose sanctions for contempt in the circuit court.

Mr. Maizel objected that the suggested remedy would not redress the fact that the 

Comptroller had withheld the documents identified in its privilege log. Mr. Maizel urged 

the Tax Court to compel disclosure of the minutes identified in the privilege log in 

particular, noting the privilege log was lacking the date of the communications and the 

identities of the parties to the communications. He acknowledged, however, that the 

Comptroller’s production of documents had included an e-mail that referred to attached 

minutes dated April 24, 2014. Mr. Maizel also stated that, although he had hoped to have 

the information before the day of the merits hearing, “I don’t want to postpone this any 

more.”

Counsel for the Comptroller then stated that the meeting that was the subject of the 

withheld minutes was a meeting of “the assistant deputy director of the [C]omptroller’s 
25

office and her directors of the various divisions discussing [C]omptroller business and 

policy there.”

Mr. Maizel returned to his complaint regarding the adequacy of the privilege log, 

stating: “But where a privilege[] log is produced, it’s my understanding that that log, at 

least under the federal rules . . . needs to indicate who the communications were between 

and when they happened.” At that point, counsel for the Comptroller offered to provide 

that missing information, stating:

I’m more than happ[y] to give those dates if they were missing or the 

names of the parties.

In terms of the director’s meeting, . . . there’s an e-mail in there [i.e., 

the documents previously produced] . . . that gives you the date and the 

[names of the] people that were there because the minutes were distributed 

to those people. And we apologize if the log didn’t have that information 

on it. The other two that had to do with the e-mails that the attorney-client 

privilege was related to would have been communications. . . . I was the 

attorney on those particular communications and the dates[,] again we can 

give that to Mr. Maizel.

Mr. Maizel began to request that the court “ask them to produce a log that 

shows—.ˮ Counsel for the Comptroller volunteered: “We will voluntarily do that, Your 

Honor. You don’t even have to worry about that.” The court and counsel then moved on 

to other motions. The Maizels did not request any further relief regarding the

Comptroller’s claims of privilege. The hearing officer directed counsel for the 

Comptroller to draft orders after the hearing disposing of all of the motions decided that 

day.

The hearing then proceeded, without any objection from either party, with the 

evidentiary phase. At the conclusion of the parties’ presentation of evidence, the Maizels 
26

did not request that the record remain open for them to present additional evidence and 

argument regarding the Comptroller’s claims of privilege. Both parties made closing 

arguments, and the hearing officer provided an oral decision that same day (September 

19, 2017). On October 20, 2017, the Comptroller provided the Maizels a revised 

privilege log, listing the same four documents and document identification numbers, and 

reasons for claiming privilege, adding brief descriptions, the document’s date (although 

three were described as “undated”), and the identity of the author or authors and the

recipients.

In their brief in this Court, the Maizels assert:

The Tax Court’s refusal to hold Appellee to its DuPont [v. Forma-Pak, 351 

Md. 396, 406 (1998),] privilege burden constitutes an error sufficiently 

serious to warrant reversal under both Wilson v. John Crane, 385 Md. 185, 

198-99 (2005) and In re Adoption/Guardianship No. 3598, 347 Md. 295, 

312-13 (1997) (reversal of the trial court’s discovery rulings required 

“where it is apparent that some serious error or abuse of discretion or 

autocratic action has occurred.”).

(Emphasis added by the Maizels.) They ask that “this Court disallow all Appellee’s 

privilege objections,” or alternatively, “specifically disallow Appellee’s claim of 

executive/deliberative privilege and compel production of the withheld document[,]” i.e., 

the minutes dated April 24, 2014.

We conclude that the Maizels waived these remedies by failing to either request

another postponement of the merits hearing, or at least ask that the record be held open

until after the Comptroller’s revised privilege log had been received and they had an 

opportunity to seek additional relief from the Tax Court. Because the Maizels asked for 

nothing further after counsel for the Comptroller agreed to supplement the original 
27

privilege log on some unspecified date, the Tax Court did not abuse its discretion in 

proceeding to decide the case based upon the record made at the hearing.

Moreover, we fail to see how the Tax Court’s failure to order the Comptroller to 

produce the minutes of a meeting held on April 24, 2014, prejudiced the Maizels. Any 

abuse of discretion or error on the part of the hearing examiner appears to be harmless at 

most. See Consolidated v. Standard, 421 Md. 210, 219 (2011) (“Even when a trial court 

is found to have abused its discretion, it has long been the settled policy of this [C]ourt 

not to reverse for harmless error.” (internal quotation marks and citations omitted)); 

Flores v. Bell, 398 Md. 27, 33 (2007) (appellate courts of Maryland “will not reverse a 

lower court judgment if the error is harmless” and “[t]he burden is on the complaining 

party to show prejudice as well as error.” (footnote omitted)).

The Maizels’ asserted reason for needing to see these documents is based upon a 

suspicion that the documents could have supported their hypothesis that the 

Comptroller’s office deprived them of due process because it affirmatively worked to 

avoid refund claims by withholding public notice of the Wynnes’ success in the courts.

The Maizels assert in their brief that the Comptroller’s decision not to notify individual 

taxpayers was “the result of a deliberate decision to withhold or delay furnishing such 

information to taxpayers—all while the three-year statute of limitations worked to 

extinguish taxpayer refund claims.” They surmise that this conspiracy to deprive them of 

their due process right to refunds might have been confirmed by the minutes from the 

Deputy Comptroller’s meeting.
28

Counsel for the Comptroller made clear during the hearing in the Tax Court, and 

in the revised privilege log, that the date of the meeting with the Deputy Comptroller that 

was the subject of the minutes took place on April 24, 2014. In light of the fact that the 

Court of Appeals filed a reported opinion in Wynne I on January 28, 2013, any argument 

that taxpayers had no public notice of the Wynnes’ success after that date due to a

nefarious scheme of the Comptroller is devoid of merit.

JUDGMENT OF THE CIRCUIT COURT FOR 

MONTGOMERY COUNTY AFFIRMED.

COSTS TO BE PAID BY APPELLANTS.