County Commissioners of Carroll County v. Carroll Craft Retail, Inc.

WILNER, Judge. We granted certiorari in this case on our own initiative, prior to any definitive ruling by the Court of Special Appeals, in order to examine whether certain provisions in the Carroll County zoning law dealing with adult entertainment businesses are unconstitutionally vague and ambiguous. As is often the case when, on our own initiative, we opt to review a case still pending in the Court of Special Appeals, we had before us, when we granted the writ, only the appellant’s brief ²⁸ that had been filed in that court. After considering the subsequently filed appellee’s brief, reviewing the record, and questioning counsel at oral argument, it has become plain that there is no appeal properly before us.

We therefore have no choice but to dismiss the writ as improvidently granted. This case has become a procedural nightmare, one that certainly was not apparent from the appellant’s brief filed in the Court of Special Appeals. In order to identify what is, and is not, properly before us, we need to recount the procedural history in some detail, which, unfortunately, will make this Opinion more than a little tedious. BACKGROUND Subject to specified sitting requirements — i.e., minimum distances from certain enumerated structures or uses — the Carroll County Code permits an “adult entertainment business” in an IG General Industrial Zone, but in no other zone.

See § 223-125E. The term “adult entertainment business” is defined in § 223-2 of the Code as an “adult movie theater” or an “adult store.” The business at issue here is clearly not an adult movie theater but is alleged to be an adult store. The term “adult store” is defined in § 223-2 as a business establishment that offers for sale or rental “any printed, recorded, photographed, filmed or otherwise viewable material, or any sexually oriented paraphernalia, if a substantial portion of the stock or trade is characterized by an emphasis on matters depicting, describing or relating to sexual activities.” (Emphasis added). Section 223-2 defines “substantial portion,” for purposes of that definition, as: A. At least 20% of the stock in the establishment or on display consists of matters or houses devices depicting, describing or relating to sexual activities; or B. At least 20% of the usable floor area is used for the display or storage of matters or devices depicting, describing or relating to sexual activities.” (Emphasis added).

The term “usable floor area” is not defined in the ordinance. On or about December 1, 2002, Carroll Craft Retail, Inc., trading as Love Craft, opened a retail store in a building ²⁹ owned by Drs. Jogendra and Kirpal Singh, from which it sold sexually oriented paraphernalia and other items. The store was located in a General Business zone.

On December 13, the acting zoning administrator, apparently believing that the operation constituted an adult store that was not permitted in a General Business zone, issued a violation notice to the Singhs and Love Craft. When the Singhs and Love Craft neither appealed the violation notice to the county board of appeals nor ceased or modified the operation, the county, on December 20, 2002, filed suit in the District Court of Maryland for Carroll County against them, claiming that they were operating or permitting the operation of an adult store in a BG General Business zone, where an adult store is not permitted. The county sought both temporary and permanent in-junctive relief to restrain the continued operation of the store. 1 In an answer and counter-claim, the defendants averred that the business was not an adult store because “a substantial portion of its stock or trade is not characterized by an emphasis on matters depicting, describing or relating to sexual activities” and that, in any event, because the term “substantial portion,” as used in the ordinance, was vague, ambiguous, and overly broad, the ordinance unconstitutionally chilled the exercise of freedom of speech and was therefore invalid. In furtherance of their attack on the ordinance, the defendants, in their counter-claim, asked for a declaratory judgment that the ordinance was in violation of Articles 24 and 40 of the Maryland Declaration of Rights and the First and Fourteenth Amendments to the U.S. Constitution. 2 ³⁰ After an evidentiary hearing, the District Court, on February 11, 2003, filed an opinion and order in which it found persuasive uncontradicted testimony by a county zoning inspector that between 50% and 60% ”of the establishment” was being used for purposes prohibited in a general business zone and that the property was therefore being unlawfully used as an adult store.

Upon that finding, it entered a permanent injunction restraining the three defendants — the Singhs and Love Craft — from operating the adult store. On February 19, within 10 days, the defendants filed a motion to alter or amend the judgment. That same day, the county, believing that the defendants had failed to bring their operation into conformance with the zoning requirement, filed a petition for contempt. At a hearing on April 14, the court denied the motion to alter or amend the judgment.

In an Opinion and Order filed on April 25, the court denied the contempt petition with respect to the Singhs, finding that the injunction did not require them to file a breach of lease action in order to evict their tenant. As to Love Craft, the court concluded that more than 20% of the of the usable floor area was being used for the display or storage of matters or devices depicting, describing or related to sexual activities, that the operation was therefore in violation of the injunction, but that Love Craft had made some effort to bring its operation in compliance with the zoning requirement. Instead of entering a finding of contempt, therefore, the court gave Love Craft 14 days in which to bring the operation into full compliance. ³¹ On May 9, 2003, Love Craft filed an appeal to the Circuit Court for Carroll County, and on May 30, 2003, it filed a separate complaint for declaratory and injunctive relief which, with some exceptions, was a copy of the complaint previously filed in the District Court. 3 The appeal seeking de novo review of the District Court judgment and the complaint for declaratory and injunctive relief were founded on the same premise but were separate actions and were properly treated as such; the appeal was docketed as Case No. 06-C-03-03859, and the complaint was docketed as Case No. 06-C-03-038720. The county filed a motion for summary judgment and an accompanying memorandum in the declaratory judgment action, in which it argued that the ordinance was Constitutional, but the county did not seek any affirmative declaratory judgment to that effect.

At a hearing held on August 4, 2003, the court (1) on motion of the county, formally consolidated the two cases and ³² identified the appeal from the District Court (03859) as the lead case; (2) dismissed the Singhs as parties; 4 and (3) reserved ruling on the county’s motion for summary judgment. On August 8, the court filed a memorandum opinion in which it concluded that the ordinance — in particular the term “usable space” — was unconstitutionally vague. In an accompanying order, it struck “any previous rulings or injunctions prohibiting Love Craft from operating their store” and determined that Love Craft “is not subject to any fines for not obeying the previous injunction.” Although the order does not expressly reverse the District Court judgment, that is certainly its effect, and we shall treat it as achieving that result. The memorandum makes clear that the matter upon which the court acted was the appeal from that judgment and not the declaratory judgment case.

It is at this point that the more important procedural glitches begin to appear. The Circuit Court order was docketed August .11, 2003. On August 29, the county noted an appeal to the Court of Special Appeals. That court docketed the appeal as No. 1376, Sept. Term 2003.

Both parties, at least initially, understood that the appeal was solely from the order dissolving the District Court injunction and not from any ruling made in the declaratory judgment action which was, as yet, formally unresolved in the Circuit Court. The pre-hearing information reports filed by both the county and Love Craft with the Court of Special Appeals describe the Circuit Court action as an appeal from the District Court. Love Craft’s report describes the judgment as “Reversing District Court Order.” On September 9, 2003, Love Craft filed a motion in the Circuit Court to dismiss or strike the appeal, contending that (1) as the action in the Circuit Court was an appeal from the ³³ District Court, no appeal lay to the Court of Special Appeals from the judgment of the Circuit Court, and (2) to the extent the county was appealing from the refusal of the Circuit Court to hold Love Craft in contempt, no appeal lay from such an order. On September 18, Love Craft filed an identical motion in the Court of Special Appeals.

The county, apparently confused as to (1) the nature and effect of a consolidation of two independent actions, (2) the fact that, even when entertaining a de novo appeal from the District Court, the Circuit Court nonetheless exercises appellate, not original, jurisdiction, and (3) the actual basis of Love Craft’s motions, averred in response that, because the declaratory judgment action was still pending in the Circuit Court, no final judgment had been entered in that court, that the county’s appeal was from the dissolution of the District Court injunction, and that, under § 12-303 of the Cts. & Jud. Proc. Article, an interlocutory appeal was permissible from such an order. Alternatively, the county argued that, in entertaining a de novo appeal from the District Court, the Circuit Court exercised original, not appellate jurisdiction, and that the judgment entered in the District Court appeal constituted a judgment as well in the declaratory judgment action, over which the Circuit Court had also exercised original, not appellate, jurisdiction.

On either of these alternative bases, it claimed, the judgment was appealable under Cts. & Jud. Proc. Article, § 12-301. 5 ³⁴ On October 9, 2003, the Circuit Court granted the motion to dismiss filed in that court and struck the notice of appeal. Love Craft immediately informed the Court of Special Appeals that the appeal had been dismissed in the Circuit Court, and, on October 16, 2003, it sent a copy of the Circuit Court’s order to that effect to the Court of Special Appeals.

Presumably upon that information, the appellate court took no immediate action on the motion filed with it but apparently assumed, at that point, that the appeal had already been dismissed. Although, for reasons we shall describe, the Circuit Court had no authority to strike the notice of appeal on the grounds presented by Love Craft, the county never filed an appeal from that order, as it clearly had a right to do. See Sullivan v. Insurance Comm’r, 291 Md. 277, 284 , 434 A.2d 1024, 1028 (1981). Accordingly, after 30 days, that order became final.

The county’s appeal to the Court of Special Appeals had effectively, even if improperly, been dismissed, and the record was never transmitted to the appellate court in accordance with the Rules and normal procedure. It remained in the Circuit Court. As noted, on July 24, 2003 — prior to the consolidation of the two cases — the county had filed a motion for summary judgment in the declaratory judgment action (038270). On October 15, 2003, the county got around to filing an answer to the complaint in that action.

Love Craft then moved to strike the county’s answer or, in the alternative, to dismiss the action, which it had filed, as moot. The motion was based on the assertion that the issues raised in the declaratory judgment action had been resolved by the judgment entered in the District Court appeal and that, with the dismissal of the appeal in that case to the Court of Special Appeals and the failure of the county to appeal from the order of dismissal, the judgment was final. On December 18, 2003, the Circuit Court granted that motion, struck the county’s answer to the complaint, and dismissed the action as moot. On January 15, ³⁵ 2004, the county noted an appeal from that order.

That appeal was docketed in the Court of Special Appeals as No. 2561, Sept. Term, 2003. On January 13, 2004, prior to the noting of that second appeal, the Court of Special Appeals finally acted on the motion to dismiss Appeal No. 1376 that had been filed on September 18, 2003 and that was then moot because the appeal had already been stricken by the Circuit Court. Apparently in some doubt as to whether the appeal had, in fact, been stricken, the court denied the motion to dismiss without prejudice to the appellee raising the issue again in its brief. Love Craft responded with a motion to strike that order, in which it (1) iterated its argument that, because the Circuit Court judgment was entered in an appeal from the District Court, the Court of Special Appeals had no jurisdiction to entertain the county’s appeal from that judgment, and (2) again asserted that the appeal had already been dismissed by the Circuit Court and that, as no appeal had been taken from that order, it was final and unreviewable.

The county answered the motion with the same arguments it had made in response to the motion to dismiss. On March 18, 2004, the Court of Special Appeals denied the motion to strike the January 13 order, thus leaving the already-dismissed appeal facially alive. This already-confusing state of affairs got worse when the county’s appeal from the dismissal of the declaratory judgment action was docketed as No. 2561, Sept. Term, 2004 in the Court of Special Appeals. As noted, that action had been filed by Love Craft, not the county, and it was dismissed on Love Craft’s motion immediately upon the striking of the county’s belated and untimely answer to the complaint. 6 Nonetheless, ³⁶ the declaratory judgment action was within the original and exclusive jurisdiction of the Circuit Court, and, subject to other defenses, any final judgment entered in such an action would be appealable to the Court of Special Appeals.

Complicating the matter even further, Love Craft, on February 23, 2004, filed a petition in the Circuit Court, in the District Court appeal case (038589), for attorney’s fees based on its victory in that appeal. The petition, brought pursuant to 42 U.S.C. § 1988 , sought $19,953 in fees and expenses. On May 11, 2004, the court granted the motion and entered judgment against the county for the $19,953 requested. On May 21, 2004, the county noted an appeal from that judgment.

That appeal was docketed by the Court of Special Appeals as No. 643, Sept. Term, 2004. Thus it was that the Court of Special Appeals had before it (1) Appeal No. 1376, which had been erroneously but nonetheless effectively dismissed by the Circuit Court but which the Court of Special Appeals considered as still pending, (2) Appeal No. 2561, from the dismissal of the declaratory judgment action, and (3) Appeal No. 643, from the judgment for attorney’s fees entered in the District Court appeal case. On May 14, 2004, unaware of the appeals in Nos. 2561 and 643 and unaware as well of the unappealed Circuit Court order dismissing No. 1376, this Court granted certiorari to the Court of Special Appeals in Appeal No. 1376, which we docketed as No. 21, Sept. Term, 2004. That is the case now before us.

That triggered action by the Court of Special Appeals in Nos. 2561 and 643. On June 24, 2004, the Court of Special Appeals entered an order in those appeals stating that it appeared from the docket entries that those appeals emanated from judgments of the Circuit Court rendered in the exercise of that court’s appellate jurisdiction and directing the parties to show cause why those appeals should not be transferred to this Court pursuant to Cts. & Jud. Proc. Article, § 12-302(a) ³⁷ and Maryland Rule 8-132.

The county, in response, urged that both appeals be transferred to this Court, and consolidated with Case No. 21 pending before this Court. In No. 2561, the county continued to argue that, because the Circuit Court order entered in the District Court appeal did not also resolve the declaratory judgment action, it was not a final judgment under Cts. & Jud. Proc. Article, § 12-301 but could be, and was, immediately appealed under § 12-303.

The county did not mention the dismissal of that appeal by the Circuit Court. In Appeal No. 643 — the judgment for attorney’s fees — the county averred that the Circuit Court was acting in its original jurisdiction, that the judgment was therefore appealable, but that the appeal should be transferred and consolidated with Case No. 21. Love Craft, of course, took a different position. In both cases, it argued that, because that case “arose out of and/or was consolidated with” with the District Court appeal, the Court of Special Appeals had no jurisdiction over it and therefore no authority to transfer it to this Court.

It urged further that, as no petition for certiorari had been filed, the county had waived its right to review in this Court. Unimpressed with Love Craft’s argument, the Court of Special Appeals, on August 17, 2004, transferred Nos. 2561 and 643 to this Court. In response to that order, the county, on October 13, 2004 filed petitions for certiorari in the two cases. 7 In Petition No. 324, applicable to the declaratory judgment action (Appeal No. 2561), the county stated the Question Presented as whether the Circuit Court erred as a matter of law in ³⁸ failing to allow the county “to defend its Zoning Ordinance in the declaratory ruling action and in summarily finding the [county] ordinance unconstitutional based on vagueness and ambiguity[.]” In Petition No. 325, applicable to the judgment for attorney’s fees in the District Court appeal, the Question Presented is whether the Circuit Court “ha[d] authority to award attorney’s fees pursuant to 42 U.S.C. § 1988 where no federal claim was raised by any party[.]” Those petitions have not been granted and, indeed, had not even been filed when this case was argued on October 5, 2004. DISCUSSION As is evident from our discussion of the procedural history, this case is laced with erroneous rulings, assumptions, and arguments.

It also suffers from a serious, and determinative, procedural lapse on the part of the county — the failure to note an appeal from the erroneous dismissal of its appeal in Appeal No. 1376. As we have indicated in n. 5 above, the District Court appeal and the complaint for declaratory relief were separate actions in the Circuit Court, and they did not lose their status as separate actions simply because they were consolidated. It is clear from the record, it was clear to the parties, and it was clear to the Circuit Court that the judgment entered by the Circuit Court on August 11, 2003 pertained only to the District Court appeal and not to the declaratory judgment action, which remained pending and unresolved in the Circuit Court. 8 That judgment, although it could have been more clearly expressed, was effectively a reversal of the District Court judgment, and it became a final judgment in that case when docketed. ³⁹ Maryland Code, § 12-301 of the Cts. & Jud. Proc.

Article, provides that “[ejxcept as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” Section 12-301 further provides that the right of appeal exists “from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.” (Emphasis added). Section 12-302 enumerates certain exceptions to appealability under § 12-301. The first of those exceptions, stated in § 12-302(a), is, in relevant part, that “[ujnless a right to appeal is expressly granted by law, § 12-301 does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of the District Court.” We know of no express right of appeal otherwise given to the county to appeal from a judgment of a Circuit Court reversing a District Court judgment entered in a zoning enforcement action. Further appellate review of a judgment entered by a Circuit Court in the exercise of its appellate jurisdiction to review judgments of the District Court is provided only by §§ 12-305 and 12-307(2).

Section 12-305 provides: The Court of Appeals shall require by writ of certiorari that a decision be certified to it for review and determination in any case in which a