Coroneos v. Montgomery County

EYLER, DEBORAH S., J. The Circuit Court for Montgomery County granted summary judgment in favor of Montgomery County and the Animal Services Division of the Montgomery County Police Department (“ASD”), the appellees, in a suit brought by Christopher Coroneos and his company, Reptile Connection, Inc. (“Reptile”), the appellants. The appellants pose four questions for our review, which can be reduced to one: 1 Did the court err in granting summary judgment? For the reasons set forth below, we shall reverse the judgment of the circuit court and remand the case for further proceedings. FACTS AND PROCEEDINGS On May 24, 2003, ASD received a complaint about an “offensive odor” emanating from a warehouse at 2629 Garfield Street, in Silver Spring.

Code Enforcement Officer Diana ⁴¹⁵ Clement went to the warehouse and found a dead snake and a dead gecko in the parking lot. She also retrieved 16 snakes from two adjacent warehouses. An employee at one of those warehouses told Clement she had found an empty shipping crate marked “Venomous Snakes” in the parking lot. Five days later, the landlord of the 2629 Garfield Street warehouse, a Mr. Zanoff, 2 called ASD to complain about “unsanitary or dangerous conditions due to inadequate facilities” for the number of animals in the warehouse.

He identified Coroneos as the leaseholder and reported that a sign on the warehouse read “Reptile Connection.” According to Za-noff, Coroneos did not have proof of a use and occupancy permit, which was required to operate the leased space as a business. Paul Hibler, Deputy Director of ASD, went to the warehouse in response to Zanoff s complaint and found a dead scorpion on the parking lot. On June 3, 2003, Clement obtained a warrant to search the warehouse and seize any animals in the warehouse for violations of Montgomery County Code (“MCC”) sections 5 — 201(a) (cruelty to animals); 5-203(a)(3) (animal trespass to property); 5-203(a)(5) (unsanitary or dangerous conditions for animals); and 5-202(a)(l)(B) (dangerous animals). ASD officers executed the search warrant the next day.

Inside the warehouse, they found “animals in need of veterinary care, escaped snakes, over 1500 animals[,] some not alive, including venomous snakes and lizards.” Many of the animals existed under the following conditions: unsecured in proper containers for species . .. uncontained ... [without] food supplies for [the] species housed ... decomposing carcasses housed with living animals .. . odor of dead animals and rotten vegetation ... lack of proper heat and light for species maintained ... decomposing feeder animals housed with animals too ill to consume food ... housed without access to water. ⁴¹⁶ A veterinarian on the scene determined that many of the animals were in need of “immediate veterinary] care including hospitalization and intensive care.” The ASD officers declared the live animals “at risk” and “in need of protection” and began removing them. As they were doing so, Coroneos arrived at the scene. 3 He could not provide any records to show the name of a veterinarian who had examined or would examine the animals, any inventory or estimated number of animals inside the warehouse, or copies of any state or federal permits for keeping the animals at the warehouse. In addition to seizing the “at risk” live animals, ASD officers seized computers and documents located in the warehouse. The next day, June 5, ASD officers arranged for various caregivers and veterinarians to inventory the animals, assess their conditions, and provide care for them.

On June 7, ASD informed Coroneos that he had a right to appeal the seizure of his animals, under MCC section 5-306(a), as being arbitrary, illegal, or not based on substantial evidence, but that, under MCC section 5-303(c), he was responsible for paying the costs of boarding and caring for the animals pending an appeal. 4 On June 9, Coroneos filed a pro se appeal with the Montgomery County Animal Matters Hearing Board (“Board”). He wrote on the appeal form: “This is an appeal of the confiscation of my reptiles, one bird[,][ ] somé invertebrate[s,] my computer, paperwork, and miscellaneous documents.” 5 ⁴¹⁷ On June 12, Coroneos and Reptile retained Maria Vacchio, Esquire, to represent them. The next day, Vacchio wrote to Captain Wayne M. Jerman, the Director of ASD. She requested, on behalf of her clients, a waiver of payment for the care of the animals, under MCC section 5 — 303(c)(7), asserting that the payment requirement would create a “serious financial hardship” for Coroneos because the confiscated animals were his livelihood, and that ASD’s estimate of the cost of care for the animals was “far beyond what the actual cost of care would be.” 6 On June 16, 2003, Director Jerman wrote to Coroneos directly, saying that he had five days to appeal the impoundment of his animals (even though an appeal had been filed); that he had to prepay the estimated cost of care for the animals during their impoundment; and, if he did not, the animals would be deemed abandoned and would become the property of Montgomery County, under MCC section 5-303(c)(5).

The letter attached an itemized list of the fees for caring for the animals, which came to $45,390 per month. The letter did not address the waiver request. On June 17, 2003, Hibler wrote to Vacchio, acknowledging receipt of the waiver request and stating that it needed to be supported by documents, including the most current Internal Revenue Service filings for both business and personal income, showing that prepayment would “cause a significant financial hardship.” On June 20, 2003, Vacchio responded by letter, enclosing Coroneos’s 2001 federal and state income tax returns, which showed a gross annual income of $47,722. She explained that the returns were “all of the documentation now available” to Coroneos, as ASD had confiscated his “personal and business papers” when it seized the animals on June 4, 2003.

She asked for copies of “any documents you may have ⁴¹⁸ that evidence costs claimed by [ASD] with regard to [Coron-eos’s] animals.” On June 24, 2003, Hibler wrote to Vacchio stating that Director Jerman had denied Coroneos’s waiver request, based on a “review of the documents, as well as ... [Coroneos’s] assets[,]” and that, if Coroneos wished to pursue an appeal of ASD’s seizure of the animals, he would have to pay the $45,390 monthly care charge by noon on June 27, 2003, or be deemed to have abandoned the animals. On June 26, 2003, Vacchio wrote to Director Jerman, noting that some of the seized animals were property of the corporation; that, because ASD had seized Coroneos’s computer and other records, he could not submit any information about the financial status of the corporation on the waiver form; and that “the issue of prepayment of costs cannot be fully explored” without the corporation’s information. Vacchio also stated that because Coroneos could not afford the prepayment amount, he wanted to relinquish some of the animals to buyers, and was asking ASD to return the animals for which he had buyers. Vacchio asked for a hearing “on the issue of prepayment of costs.” Also on June 26, 2003, Vacchio filed an appeal on Coroneos’s behalf with the Board of the decisions to seize the animals and other materials from the warehouse and to deny his application for a waiver of prepayment costs.

She asked for a hearing on both issues. 7 There was no response to Vacchio’s June 26 letter. On July 7, 2003, Vacchio spoke by telephone to Michael Fry, an Assistant County Attorney in the Office of the Montgomery County Attorney, proposing a settlement that would enable Coroneos to “reclaim his reptiles and assure the county that the conditions at his place of business are acceptable.” Under the proposal, which Vacchio put in writing that day, all the non-venomous reptiles and other animals would be returned to ⁴¹⁹ Coroneos, except the “baby ball pythons”; ASD could inspect his place of business at any time during normal business hours; and he would provide veterinary certification that the animals were being properly cared for. Vacchio urged the County to agree to the settlement proposal, emphasizing that the animals constituted Coroneos’s “livelihood” and “he [could] not afford the expenses” being charged by the County for the animals’ care, which “far surpasse[d] the actual cost of car[e].” On July 11, Fry responded to Vacchio’s July 7 letter. He rejected the settlement proposal and said that, if Coroneos still wanted to appeal ASD’s decision to impound the animals, he would have to pay the full amount of $45,390 by July 17, which would be the “last extension,” or petition the Board to post a bond to pay these expenses in the event that Coroneos did not prevail in his appeal.

If Coroneos did not do one or the other, ASD would consider his animals to be abandoned under 5-306(c)(5) and would “commence action to dispose of the animals.” Vacchio contacted ASD officials and on July 16 was told that a bond in the amount of $300,000 could be posted in lieu of the payment of $45,390. Vacchio requested additional time for Coroneos to secure resources for the bond, but this request was rejected. On July 18, 2003, in the Circuit Court for Montgomery County, the appellants initiated the case at bar by filing a “COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTION AND DAMAGES.” They alleged the County had violated their due process rights under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. Specifically, they asserted: [The appellees] have deprived [the appellants] of their liberty and property interests without due process of law by: (1) seizing all of [Coroneos’s] stock in trade and records, rendering it impossible for him to do business or to prove that payment of $45,390 per month is a hardship; (2) by demanding payment of $45,390 when there is no cost being ⁴²⁰ incurred by [the appellees] for the care of the animals; (3) by refusing to return the livestock to [the appellants] without a hearing, determining that there are no conditions for their return and that they will not be returned; (4) by threatening [the appellants] with abandonment of the animals if the money is not paid or bond is not posted; (5) by depriving [the appellants] of their livelihood; (6) by providing [the appellants] with no meaningful opportunity to comply with [the appellee’s] demand for bond; (7) by refusing to schedule [the appellants’] appeal until payment of $45,390; and (8) by predetermining, without a hearing, that the livestock will never be returned.

As relief, the appellants asked the court to enjoin the County from charging' them for the care of the animals without proof of the costs and from treating the animals as abandoned; to require the County to set “reasonable conditions” for the return of the animals, to schedule an immediate hearing on the appellants’ appeals to the Board, and to determine the appropriate conditions for the return of the animals; to order the County to pay costs and attorneys’ fees; and to grant any other relief. Notwithstanding the title of their complaint, they did not ask for damages. Together with the complaint, the appellants filed a motion for an “immediate injunction enjoining [the County] from treating the confiscated livestock as abandoned.” The court dénied the motion the same day, “upon representation that [the] County has no intention of destroying [the] animals or placing them for permanent adoption.” On August 12, 2003, Vacchio wrote to J.C. Crist, the Board Chairman, complaining that she had not yet been advised of the hearing date for the June 9 and June 26 appeals. Crist forwarded the letter to the County Attorney’s Office.

On August 20, 2003, Fry wrote to Vacchio, stating that “no appeals [were] pending” and “[n]o hearing w[ould] be scheduled” because Coroneos had waived his right to appeal by not “paying the required boarding fees, posting a bond, or making suitable arrangements on his own, after having been given ⁴²¹ extraordinary time and latitude to do so.” In fact, consistent with Fry’s representations, the Board never took any action with respect to the appeals, in effect treating them as if they did not exist. In the instant case, the County filed an answer to the complaint and discovery ensued. Vacchio struck her appearance and was replaced by new counsel for the appellants. 8 On March 3, 2004, the appellees filed a motion for summary judgment, a supporting memorandum of law, and exhibits. They argued that the court lacked subject matter jurisdiction because the appellants had not exhausted their administrative remedies; and that the appellants had waived their right to appeal to the Board the propriety of ASD’s seizure of the animals by not prepaying the cost of care, and thereby abandoning the animals. 9 The County requested a hearing.

The appellants filed a timely opposition to the motion for summary judgment, with exhibits in support. Principally, they argued that, under a proper interpretation of MCC section 5-306(c), they were not required to prepay the cost of care of the animals in order to pursue an appeal of a decision of the ASD Director to the Board and that, by conditioning their appeals on prepayment, the appellees denied them access to the administrative process they were due. They argued that they did not fail to exhaust their administrative remedies; notwithstanding their efforts to engage in the administrative process, it was denied them. 10 ⁴²² On March 29, 2004, the court held a hearing on the summary judgment motion. The court ruled from the bench, granting summary judgment in favor of the appellees on the ground that the appellants had waived their right to the process they were due-an appeal of the Director’s decisions to the Board-by not making the prepayment, posting a bond, or securing alternative arrangements for the care of the animals.

Specifically, the court determined that MCC sections 5-303 and 5-306, read together, made prepayment, posting a bond, or securing alternative care a precondition to an appeal to the Board and the appellants “lost that right to appeal” when they failed to satisfy one of those three conditions. On the same day, the court memorialized its ruling in an order granting summary judgment for the appellees. The order was entered on March 30, 2004. The appellants noted a timely appeal to this Court. 11 STANDARD OF REVIEW A circuit court may grant summary judgment upon a finding that there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Md. Rule 2-501; Salamon v. Progressive Classic Ins. Co., 379 Md. 301, 307 , 841 A.2d 858 (2004); Smith v. City of Baltimore, 156 Md.App. 377, 382 , 846 A.2d 1121 (2004). The court’s decision on both issues is a legal ruling; accordingly, we review a circuit court’s decision to grant summary judgment de novo. O’Connor v. Baltimore Co., 382 Md. 102, 110 , 854 A.2d 1191 (2004); Hines v. French, 157 Md.App. 536, 549-50 , 852 A.2d 1047 (2004).

If the moving party offers more than one basis for granting summary judgment, and the trial court rules on only one basis, we ordinarily are confined to review the ruling on ⁴²³ the basis on which the court granted summary judgment. Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726 (2001); Hoon v. Lightolier, 158 Md.App. 648, 657 , 857 A.2d 1184 (2004). We only will review an issue that did not form the basis for the court’s ruling when the court would have had no discretion but to grant summary judgment on that alternative basis. Md. Rule 8 — 131(a); Blades v.