Opinion
No. 980
07-16-2020
ANNA BUEHLER, et al. v. CECIL COUNTY BOARD OF APPEALS
Circuit Court for Cecil County
Case No. C-07-CV-17-000605
UNREPORTED
Fader, C.J., Nazarian, Kenney, James A., III (Senior Judge, Specially Assigned), JJ. Opinion by Kenney, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Appellants, Anna Buehler and Dr. Robert Gorman, Ph.D, petitioned for judicial review of the October 24, 2017 decision of the Cecil County Board of Appeals (the "Board") denying their request for a setback variance. The Clerk of the Circuit Court for Cecil County issued notice of the filing of the record on December 18, 2017. Md. Rule 7-207 required appellants to "file a memorandum setting forth a concise statement" of the questions presented, material facts, and arguments "[w]ithin 30 days after the clerk sends notice of the filing of the record." Appellants did not file a Rule 7-207 memorandum.
Md. Rule 7-207 provides, in pertinent part:
(a) Generally. Within 30 days after the clerk sends notice of the filing of the record, a petitioner shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on. Within 30 days after service of the memorandum, any person who has filed a response, including the agency when entitled by law to be a party to the action, may file an answering memorandum in similar form. The petitioner may file a reply memorandum within 15 days after service of an answering memorandum. Except with the permission of the court, a memorandum shall not exceed 35 pages. In an action involving more than one petitioner or responding party, any petitioner or responding party may adopt by reference any part of the memorandum of another.
The evening before the scheduled June 28, 2018 hearing on the petition, counsel for appellants filed a Motion to Reschedule, which the administrative judge denied because the action did "not comply with [the court's] Case Management Plan," "no alternative date" had been proposed, and there was "no indication of opposing counsel's position." At the June 28 hearing, the circuit court, after reiterating that appellants' motion did not comply with the Case Management Plan, dismissed the action because "there was no memorandum filed [by appellants]."
The Cecil County's Case Management Plan provides, in pertinent part:
Unless impossible due to emergency, requests shall include an alternate date agreed upon by the parties and the Assignment Office which is within the applicable Maryland Circuit Court Time Performance Standards, a copy of which is attached. No request for postponement which does not include the alternate date will be successful. Requests for postponement which include the alternate date will not, by that fact alone, be successful; the reason(s) for the postponement must still meet the other criteria set forth herein. Requests to reschedule a court date to a date sooner than the original date will usually be granted.Circuit Court for Cecil County, Maryland, Differentiated Case Management Plan, Part 1, General Provisions Applicable to All Cases, 2. Postponement Policy (last visited July 15, 2020), https://www.courts.state.md.us/sites/default/files/import/clerks/cecil/pdfs/dcm.pdf.
Appellants ask two questions, one of which we have rephrased:
I. Did the trial court err in dismissing the petition for judicial review when the Board failed to file a response to the Petition as per Maryland Rule 7-204.
II. Did the trial court err in refusing to allow the [a]ppellants to speak at the hearing and then summarily denying the [a]ppellants' motion for a continuance.
Appellants asked:
Did the trial court err in refusing to allow the [a]ppellants to speak at the hearing and then summarily denying the [a]ppellants' motion for a continuance because there was no indication of "opposing counsel's position" when, in fact there was no opposing counsel, since the administrative agency failed to comply with Maryland Rule 7-204?
For the following reasons, we answer "no" to both questions and affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On July 24, 2017, Cecil County's Division of Planning and Zoning (the "Division") received a complaint regarding appellants' "[f]unstead and associated facilities located within the Indian Acres of Chesapeake Bay campground" (the "Property"). Specifically, the complaint alleged that structures on the Property encroached over the building setback line. The Division, after verifying violations of the building setback line, requested that the "structures either be relocated so that they are within the building envelope, or removed from the property."
Appellants applied for a variance under the Cecil County Zoning Ordinance to allow the structures to remain in their current location. The Board held a hearing on their request on October 24, 2017. After reviewing evidence and hearing testimony, the Board found that appellants were granted "a zoning certificate dated July 21, 2014 to locate the RV and Dwelling on the Property with [certain] setbacks," and that appellants had violated the required setbacks. In addition, it found that the survey of the Property "demonstrates that the [structures] encroach on Campground property," and that "[p]robative testimony and the survey demonstrate" that they are located on property owned by Indian Acres Campground. Concluding that there was "no evidence in this record that demonstrates, or tends to demonstrate that the variance request arises from any condition to land or building use, either permitted or non-conforming, on any neighborhood property" and that the "circumstances giving rise to the variance application are the result of actions by the [appellants]," the Board denied the variance request.
Section 306.1 of the Cecil County Zoning Ordinance provides, in pertinent part:
Variances, as defined in Article II, may be granted by the Board of Appeals. In addition, due to special features of a site or other circumstances where a literal enforcement of provisions relating to the Critical Area District would result in unwarranted hardship to a property owner, the Board of Appeals may grant a variance of the Critical Area District. An unwarranted hardship means that without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.Cecil County, Maryland, Zoning Ordinance § 306.1.
Appellants filed a Petition for Judicial Review of the Board's decision in the Circuit Court for Cecil County on November 11, 2017. The Clerk of that court sent a Notice of Petition for Review to appellants and the Board on November 13, 2017. The docket entries indicate that, on December 18, 2017, the "Notice of Record [was] Issued." Rule 7-207 required a memorandum to be filed "[w]ithin 30 days after the clerk sends notice of the filing of the record," setting forth "a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on." That memorandum has never been filed.
In fact, appellants took no action related to their petition until June 27, 2018, when counsel filed a Motion to Reschedule the June 28, 2018 hearing due to counsel's medical issues. The administrative judge denied the motion.
Appellants' Motion to Reschedule Hearing Date was filed on June 27, 2018. It stated:
1. The judicial review of the below administrative hearing is currently scheduled for June 28, 2018 at 9:30 a.m.
2. On or about June 6, 2018 counsel for the plaintiffs went to see a Dr and was sent to the E.R. and from there admitted to Union Hospital where he was placed on a[n] isolation unit and or room for four days of intravenous antibiotics.
3. Counsel was released from the hospital on the 9th of June and told to return on June 11th to the Wound Care Center.
4. Subsequent to June 11th, Counsel has had to return to the Wound Care Center on June, 14, June 18, June 21 and June 26 for treatment and wrapping of both legs from the toes to the knees.
5. On June 26 Counsel was told he needs to not walk and to keep his wrapped legs elevated until he sees a vascular surgeon on or about July 10, 2018.
6. Dr James Levy, of the Wound Care Center has provided a signed notice regarding counsel's medical condition. Said letter is attached to this motion as Attachment A.
7. Wherefore the above stated reasons the petitioner respectfully requests this matter be rescheduled for the next available hearing date.
At the June 28 hearing, neither appellants' counsel nor a representative of the Board appeared. The circuit court dismissed the petition stating that counsel for the petitioners:
filed a motion for postponement earlier this week. That was filed on the 27th of June. Judge Baynes, the administrative judge, indicated, "No action," as it did not comply with the case management plan, "No alternative date, no indication of opposing counsel's position." I believe that there is no opposing counsel and, in fact, the agency had determined after no memorandum was filed by Plaintiff's counsel that they would not
participate, and, in fact, there is no opposing counsel, there is no opposing agency because there was no memorandum filed.
At 10:00 last night counsel filed another line regarding motion to reschedule hearing date. Included a lot of information about his medical situation, but nothing about a new date. And, in fact, the last paragraph doesn't make sense. It said, "Should this honorable court prefer counsel will have the clerk give counsel dates today and counsel will have opposing counsel notify Plaintiff's counsel of which date is best and counsel can notify the court by tomorrow of a new court date having been chosen." [Counsel] knew as of the 27th, as of yesterday at 1:30, that there were certain steps he had to take, and he hasn't done it. In addition, a memorandum not having been filed, the Court is going to dismiss this action at this time.
STANDARD OF REVIEW
We review a circuit court's decision to dismiss a judicial review proceeding for abuse of discretion. Gaetano v. Calvert Cty., 310 Md. 121, 127-28 (1987). Absent a mistake of law or clear error, reversal would only be appropriate if "the decision under consideration [is] well removed from any center mark imagined by the reviewing court and beyond the fringe of what that court deems minimally acceptable." North v. North, 102 Md. App. 1, 14 (1994).
DISCUSSION
I.
Did the trial court err in dismissing the petition for judicial review when the Board
failed to file a response to the Petition as per Maryland Rule 7-204.
Contentions
Appellants contend that the trial court erred is dismissing the petition for judicial review because the Board failed to respond to their Petition, as required by Md. Rule 7-204. As they see it, the Board "abandoned [its] status as a party to the judicial review proceedings and consequently there was no requirement for the [a]ppellant[s] to contact the Agency regarding rescheduling of the hearing." Citing Johnson v. State, 355 Md. 420, 446 (1999), they assert that "[t]he Court of Appeals has described the Maryland Rules as precise rubrics established to promote the orderly administration or justice—they are to be read and followed, not treated as mere guides or suggestions to the practice of law."
Appellants also contend that they did not receive notice of the filing of the transcript and record. They point out that the docket entry on December 18, 2017 reads, "'Notice of Record Issued' but does not indicate 'copies to all parties'" as did the notice of petition for judicial review. But had they received the notice of the Transcript and Record, they assert that "their memorandum would not have been due until on or about January 19, 2018." For that reason, "the deadline for the [a]ppellee to have filed a response to the [a]ppellant's petition expired over a month prior to the [a]ppellants' memorandum being due. Therefore, it was "factually impossible for the [Board] to have decided not to participate" because no memorandum was filed, "as the court had surmised" in dismissing the action.
The Board characterizes appellants' argument that they did not receive notice that the record had been issued as a "red herring." It observes that "the docket entries state that the notice was in fact mailed, and there is no notation in the docket entries indicating that the notice was returned unserved." Based on the December 18, 2017 docket entry, Notice of Record issued and no showing that it was made in error, we are persuaded that the notice was sent.
The Board contends that "[d]ismissal of the Petition for Judicial Review was proper, irrespective of whether the local agency (or any other interested party) was a party to the Circuit Court proceeding." Citing People's Counsel v. Public Service Commission, 52 Md. App. 715 (1982), it echoes the principle that the Rule is a "precise rubric" that "is meant to be obeyed," and argues that Md. Rule 7-207(a) required appellants to file a memorandum "[w]ithin 30 days after the clerk sends notice of the filing of the record," which appellants failed to do.
Analysis
Md. Rule 7-204 provides, in pertinent part:
(a) Who May File; Contents. Any person, including the agency, who is entitled by law to be a party and who wishes to participate as a party shall file a response to the petition. The response shall state the intent to participate in the action for judicial review. No other allegations are necessary.Because Md. Rule 7-204 is derived from former Rule B9, cases interpreting the earlier rule are instructive. Rule B9 provided, in pertinent part:
(b) Preliminary Motion. A person may file with the response a preliminary motion addressed to standing, venue, timeliness of filing, or any other matter that would defeat a petitioner's right to judicial review. Except for venue, failure to file a preliminary motion does not constitute waiver of an issue. A preliminary motion shall be served upon the petitioner and the agency.
(c) Time for Filing Response; Service. A response shall be filed within 30 days after the date the agency mails notice of the filing of the petition unless the court shortens or extends the time. The response need be served only on the petitioner, and shall be served in the manner prescribed by Rule 1-321.
A party to the proceeding before the agency, or to whom the agency is required by law to give notice of the action appealed from, who desires to participate in the appeal as a party, . . . shall file with the clerk of the court, within thirty days after the filing of the petition of appeal, or such longer or shorter time as may be fixed by the Court, a demurrer, or an answer admitting or denying a fact alleged in such petition and asserting briefly such defense as he or it may see fit, or other appropriate pleading. . . .
In Lawhorne v. Clinton Liquor Fair, Inc., 67 Md. App. 1, 7 (1986), we explained generally that "Rule B9 permits any party to the agency proceeding to 'participate in the appeal as a party' by filing a timely answer or motion to dismiss. A motion or petition to intervene is not necessary." (Emphasis added). It "freely allow[s] and provid[es] a method for parties to the administrative proceeding to participate in the judicial proceeding." Id. at 9.
Appellants look to State Farm Mutual Automobile Insurance Co. v. Insurance Commissioner, 283 Md. 663 (1978), for support. In that case, Patrick Morris, driving his own vehicle in the course of his employment, was involved in a car accident. Id. at 665. He recovered workmen's compensation benefits in the amount of $379.50 from his employer's insurance carrier. Id. After pursuing a tort claim against the negligent third party that resulted in a settlement, he filed a PIP claim against State Farm, his automobile insurance carrier. Id. State Farm paid the PIP benefits reduced by the amount Mr. Morris had received as workmen's compensation. Id.
Mr. Morris filed a protest with the Insurance Commissioner. Id. He argued "that since he paid back to his employer's workmen's compensation carrier $379.50 out of the proceeds of the settlement with the tortfeasor, he had not 'recovered' workmen's compensation benefits[.]" Id. at 665-66. After a hearing, the Insurance Commissioner found in favor of Mr. Morris, and ordered State Farm to pay $379.50 plus interest to Mr. Morris. Id. at 666. State Farm sought review of the Commissioner's decision in the Circuit Court for Baltimore City, and served copies of its order for appeal and its petition on Mr. Morris. Id.
The Court of Appeals explained that Mr. Morris was "clearly a 'party' to the administrative proceedings," but "by failing to appear before the Baltimore City Court after having been properly notified of a pendency of the action on several separate occasions, [Mr. Moore] lost his status as a 'party.'" Id. at 667-68. The Court observed that "one who has the status of a party at the administrative level, 'abandons this status by failing to file . . . an answer or other permissible pleading as directed by Rule B9. '" Id. at 668 (quoting Morris v. Howard Res. & Dev. Corp., 278 Md. 417, 423 (1976)).
Appellants' Rule 7-204 argument is premised on the Board being a party to the proceeding under review. But the Board acts in a quasi-judicial capacity in granting or denying a variance request. In Board of County Commissioners of Washington County v. H. Manny Holtz, Inc., 60 Md. App. 133, 141 (1984), we stated:
As made clear in [Zoning Appeals Board v.] McKinney[, 174 Md. 551 (1938),] and subsequently in Knox v. City of Baltimore, 180 Md. 88, 23 (1941), and Adler v. M. & C.C. of Baltimore, 242 Md. 329 (1966), the disqualification, or lack of standing, arises ultimately from the proposition that the agency is not a party to the administrative proceeding before it. That is why it has no cognizable interest in the outcome of the proceeding; that is why it is not regarded as a proper party in the circuit court, even as a respondent/appellee; and that is why it has no authority to appeal from a judgment of the circuit court that reverses or modifies its administrative decision.(Emphasis added).
In short, the Board was not a "party" to the variance proceeding and was not required to file a response to appellants' petition under Rule 7-204. And more importantly, an actual party's failure to file a response would, in no way, negate a petitioner's obligation to file a Rule 7-207 memorandum.
Md. Rule 7-207(a) was derived without substantive change from former Md. Rule B12. See Reporter's Notes to Proposed Rule 7-207, Md. Reg., Vol. 19, Issue 26, Wednesday, December 23, 1992. Md. Rule B12, in relevant part, provided:
Within 30 days after being notified by the clerk of the filing of the record, the appellant shall file a memorandum setting forth a concise statement of all issues raised on appeal and argument on each issue, including citations of legal authorities and references to pages of the transcript and exhibits relied on.
Md. Rule 7-207(a) provides:
Within 30 days after the clerk sends notice of the filing of the record, a petitioner shall file a memorandum setting forth a concise statement of the questions presented for review, a statement of facts material to those questions, and argument on each question, including citations of authority and references to pages of the record and exhibits relied on. Within 30 days after service of the memorandum, any person who has filed a response, including the agency when entitled by law to be a party to the action, may file an answering memorandum in similar form. The petitioner may file a reply memorandum within 15 days after service of an answering memorandum. Except with the permission of the court, a memorandum shall not exceed 35 pages. In an action involving more than one petitioner or responding party, any petitioner or responding party may adopt by reference any part of the memorandum of another.
The Court of Appeals Standing Committee on Rules of Practice and Procedure ("Committee") note to Rule 7-207 provides:
The Committee intends that all issues and allegations of error be raised in the memoranda, and that ordinarily an issue not raised in memorandum should not be entertained at argument. The Committee does not intend to preclude a person who has filed a preliminary motion, but not an answering memorandum, from arguing the issues raised in the preliminary motion.(Emphasis added). "If a petitioner fails to file a memorandum within the time prescribed" by Rule 7-207(a), "the court may dismiss the action if it finds that the failure to file or the late filing caused prejudice to the moving party." Md. Rule 7-207(d).
In Swatek v. Board of Elections, 203 Md. App. 272 (2013), Russell Swatek challenged the decision of the Board of Elections of Howard County, and filed a petition for judicial review. The circuit court dismissed when he failed to submit a memorandum pursuant to Md. Rule 7-207(a). Id. at 273. On appeal to this Court, Mr. Swatek argued that there was no prejudice from his failure to file a memorandum. Id. at 279.
Affirming the circuit court's decision, we explained that the rule is designed to "'to promote the orderly and efficient administration of justice,' and [it] is 'meant to be obeyed.'" Id. at 277 (quoting People's Counsel v. Pub. Serv. Comm'n, 52 Md. App. 715, 720 (1982)). Its purpose "is to inform the opposing parties and the trial court of the issues involved in the case . . . in sufficient time for the opposition to respond in kind and for the court to make an informed decision." Id. at 277 (quoting Gaetano v. Calvert Cty., 310 Md. 121, 126 (1987)) (emphasis added). We held that the failure to submit a memorandum was prejudicial to both the Board and the circuit court. Id. at 283-84.
Cases in which there were late filed memoranda are also instructive. See, e.g., Gaetano v. Calvert Cty., 310 Md. 121, 126-27 (1987) (untimely submission of a memorandum satisfied the purpose of the predecessor to Md. Rule 7-207 because it was submitted approximately three months before the hearing); Billings v. Cty. Council of Prince George's Cty., 190 Md. App. 649, 666-67 (2010), aff'd, 420 Md. 84 (2011) (the purpose of the predecessor to Md. Rule 7-207 was satisfied because the memorandum was filed ninety-five days before the hearing); Dep't of Econ. and Emp't Dev. v. Hager, 96 Md. App. 362, 375-76 (1993) (an untimely memorandum filed more than five weeks before the hearing fulfilled the purpose of Md. Rule 7-207(a)); People's Counsel v. Pub. Serv. Comm'n, 52 Md. App. 715, 718-19, 721 (1982) (the circuit court properly declined to dismiss the appeal when the memorandum was filed more than thirty days before the hearing). Gaetano, Billings, Hager, and People's Counsel teach that the prejudice arising from a late filed memorandum could be cured by a memorandum filed sufficiently in advance of the judicial-review hearing. In each of those cases, the appellate court agreed with the circuit court that the party advocating dismissal was not prejudiced by the late filing of the memorandum because each was filed well in advance of the hearing on the petition for judicial review.
In this case, appellants did not file the required memorandum prior to the scheduled hearing. Had the hearing on appellants' petition proceeded there would have been no "concise statement of the questions presented," no "statement of facts material to those questions," and no argument on the question with "citations of authority and references to pages of the record and exhibits relied on." As the Committee note to Md. Rule 7-207 states, "ordinarily an issue not raised in a memorandum should not be entertained at argument." In effect, there was nothing before the court.
Md. Rule 7-207(d) refers to "prejudice to the moving party" but in this case, there was no moving party: the court sua sponte dismissed the case. We have found no case in which there was not a moving party but we are not persuaded that the rule and related precedent preclude dismissal in the absence of a motion when there is no other party and it is the court that is prejudiced. Md. Rule 7-207(d) does not prohibit the court dismissing an administrative appeal based on the failure to comply with the rule that prejudices the court. And, to the extent that Gaetano influenced Md. Rule 7-207(d), the Gaetano Court permits dismissal by the court based on "the totality of the circumstances and the purpose of the rule," citing Md. Rule 1-201(a) as controlling authority. Gaetano, 310 Md. at 126. The Court went on to explain that the purpose of the rule was to inform the opposing parties and the trial court of the issues involved "in sufficient time" for a response and "for the court to make an informed decision." Id.
The Minutes of March 13, 1992 Meeting of the Court of Appeals Standing Committee on Rules of Practice and Procedure provide:
The Chairman drew the Committee's attention to section (d). He pointed out that this section refers to the case of Gaetano v. Calvert County, 310 Md. 121 (1987), but he noted that the provision is ambiguous because it is not clear if it means that to incur the possible sanction of dismissal, a memorandum was filed late or not filed at all. Mr. Titus said that both situations are covered. The Chairman asked whether it is necessary to file a motion to dismiss to get this relief. . . . The Chairman noted that Gaetano provides that a case cannot be dismissed for late filing of the memorandum unless the moving party shows prejudice. He suggested that section (d) provide that the court may dismiss if it finds that a failure to file or a late filing caused prejudice to the moving party. The Committee agreed to this suggestion by consensus.
Md. Rule 1-201(a) provides:
These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. When a rule, by the word "shall" or otherwise, mandates or prohibits conduct, the consequences of noncompliance are those prescribed by these rules or by statute. If no consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.--------
Here, without a memorandum, issues had not been framed and arguments had not been narrowed to assist the court in making an informed decision. See Swatek, 203 Md. App. at 284. Based on the totality of the circumstances, the purpose of the rule, and the resulting prejudice to the trial court, it was not an abuse of discretion to dismiss the petition.
II.
Did the trial court err in refusing to allow the [a]ppellants to speak at the hearing
and then summarily denying the [a]ppellants' motion for a continuance?
Contentions
Appellants contend that the circuit court "erred in refusing to allow the [a]ppellants to speak at the hearing and then summarily denying the [a]ppellants' motion for a continuance."
The Board responds that "the trial court permissibly exercised its discretion in denying appellants[] a forum for arguing against dismissal and, further, in denying appellants' motion for continuance." It argues that "[t]here is nothing in the text of [Md.] Rule 7-207(d) requiring that the court permit a delinquent party to present oral argument[.]"
Analysis
As to not allowing appellants to speak, we see nothing in the record that indicates that appellants asked to speak or that the court was even aware of their presence. But assuming they asked, we are not persuaded that a denial of their request to speak would have been an error or an abuse of discretion.
Granting "a continuance lies within the sound discretion of the trial judge. Absent an abuse of that discretion we historically have not disturbed the decision to deny a motion for continuance." Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006). The "exercise of discretion is presumed correct until the attacking party has overcome such a presumption by clear and convincing proof of abuse." Hossainkhail v. Gebrehiwot, 143 Md. App. 716, 725 (2002) (citing Langrall, Muir & Noppinger v. Gladding, 282 Md. 397, 401 (1978)).
There is no support for appellants' contention that the circuit court erred or abused its discretion by "summarily denying [a]ppellants' motion for continuance[.]" Appellants filed a motion for continuance a day prior to the June 28 hearing, the administrative judge considered that motion, and took "no action" because "it did not comply with the case management plan, 'no alternative date, no indication of opposing counsel's position.'" The trial court discussed the administrative judge's findings on the record and, after discussing a second filing in regard to the motion at 10:00 p.m. the night before, added that "appellants' counsel knew as of the 27th, as of yesterday at 1:30, that there were certain steps he had to take, and he hasn't done it." Though not expressly, the trial court effectively denied the continuance by dismissing the action based on appellants' failure to file a Rule 7-207 memorandum.
We are not unmindful that the last-minute request for a continuance was based on health issues that had apparently arisen, and had a Rule 7-207 memorandum been filed before the scheduled hearing, we may have viewed the denial of the requested continuance differently. But based on the record in this case, we are not persuaded that the circuit court abused its discretion.
JUDGMENT OF THE CIRCUIT COURT FOR CECIL COUNTY AFFIRMED; COSTS TO BE PAID BY APPELLANTS.