Eastern Service Centers, Inc. v. Cloverland Farms Dairy, Inc.

SONNER, Judge. This case arises out of a controversy between a traditional gas station and another gas station combined with a convenience store, an emerging retail trend throughout Maryland. Appellee, Cloverland Farms Dairy, Inc. (“Cloverland”), obtained a zoning permit from the Board of Municipal and Zoning Appeals of Baltimore City (“Zoning Board”) to construct a gasoline service station with an accessory convenience store. Appellant, Eastern Service Centers, Inc. (“Eastern”), owns an Amoco service station approximately one block from Cloverland’s proposed site.

This appeal and cross-appeal arise from a judgment by the Circuit Court for Baltimore City ⁴ affirming the Zoning Board’s decision. The court found that a reasonable person could find the convenience store an “accessory use” to the gasoline station. Eastern brings this appeal, contending Cloverland did not offer substantial evidence that the convenience store was an accessory use to the gasoline station. In particular, Eastern asserts that the Zoning Board and trial court erred in finding that a convenience store is customarily found or associated with gasoline service stations.

Appellees, Cloverland and the Mayor & City Council of Baltimore, cross-appeal asserting the circuit court had no jurisdiction to revise the date of judgment, and thus, Eastern’s appeal was untimely filed. Cloverland also contends Eastern has no standing to appeal and that there was substantial evidence to find the convenience store an accessory use to the gasoline station. We hold the appeal was timely filed, but dismiss the case for lack of standing. On June 25, 1997, Cloverland applied for a zoning permit to construct a gasoline service station with an accessory convenience store.

The proposed site, currently a vacant lot owned by Home Depot USA, Inc., is located in an M-2-1 Industrial District in which automobile service stations are permitted as “conditional uses,” and carry-out food shops are permitted. Food/grocery stores, although not listed as permitted or conditional uses in the zone, may be permitted as “accessory uses.” A convenience store is considered a grocery store, and therefore may be permitted as an accessory use. Cloverland owns 68 Royal Farms stores in the Baltimore metropolitan area, 20 of which also sell Emroy gas, a Royal Farms brand of gasoline. On the proposed site, Cloverland would construct an Emroy gasoline station and accessory Royal Farms store on 4,008 square feet of land.

Four double gasoline pumps would be installed, which would allow eight cars to pump gas simultaneously. The total square footage of the store would be 2,900 square feet. According to Clover-land, 680 square feet of the store is actually part of the ⁵ gasoline station, including space for the cashier, 1 restrooms, and gasoline service items, such as motor oil. In addition, the remaining 2,270 square feet would consist of 1,500 feet of carry-out food items, a permitted use in the zone.

Therefore, according to Cloverland’s description of the plan, the remaining 770 square feet is the actual convenience store and should be permitted as an accessory use. An estimated two-thirds of the volume of business would come from the gasoline pumps, although the amount of profit from gasoline would be roughly equivalent to the amount of profit from the store. The Zoning Administrator denied the permit and Cloverland appealed to the Zoning Board. Eastern submitted a Memorandum to the Board opposing Cloverland’s proposal and argued the “full size” convenience store is not an accessory use to the gasoline station.

It suggested that more than just 770 square feet consists of the convenience store because a convenience store normally sells items typically used for car maintenance. The Zoning Board conducted a hearing on March 17, 1998. Cloverland and Eastern were represented at the hearing and both presented evidence and witnesses. During the hearing, the Board reviewed the site plan and thoroughly discussed it.

The Board granted Cloverland a permit on March 26, 1998. Eastern sought judicial review from the Circuit Court for Baltimore City. During trial on August 25, 1998, Judge Byrnes indicated he would affirm the Zoning Board’s decision granting Cloverland a permit and asked Cloverland for an Order. Cloverland submitted the Order on August 27, 1998, and Judge Byrnes signed it on August 28, 1998.

The entries in the court’s computerized docket state: 8/28/98 CLOS ORDER OF COURT THAT THE DECISION OF BOARD OF MUNICIPAL & ZONING APPEALS BE AND HEREBY “AFFIRMED” COST TO BE PAID BY PETITIONER /S/BYRNES, J. (10) ⁶ 8/31/98 PLEA CASE SUBMITTED TO THE COURT FOR. DETERMINATION W/O THE AID OF JUR BYRNES J 8/31/98 PLEA THE DECISION OF THE BD OF MUNICIPAL AND ZONING APPEALS IS HEREBY AFFIRMED. 8/31/98 CLOS JUDGMENT IN FAVOR OF THE DEF FOR COST. ORDER FD.

BYRNES J Relying on the computerized docket, Cloveriand contends judgment was entered on August 28, 1998. However, Eastern relied on a handwritten docket listing only the three entries from August 31, 1998. Eastern submits it was entitled to rely on the handwritten docket and that the Clerk’s office was inconsistent in docketing the entry of the order. It is uncontested that the Clerk’s office did not mail appellant a copy of the signed order.

Eastern filed an appeal on September 29,1998. On October 27, 1998, Eastern filed a motion to revise the August 28, 1998 Order, and requested a hearing on the matter. Without a hearing, Judge Byrnes granted Eastern’s motion and revised the August 28, 1998 Order to reflect August 31, 1998 as the date of judgment. The court exercised its revisory power using two rationales.

First, the court found Eastern was justified in relying on the August 31, 1998 date as the entry of the order. Second, the court found sufficient evidence that appellant did not receive notice of the order and was misled by the clerical error in the court file. Cloveriand contends that the date of judgment should not have been changed from August 28, 1998 to August 31, 1998. If the circuit court erred in changing the date of judgment, this appeal must be dismissed as untimely, pursuant to Maryland Rule 8-202(a), which states that a notice of appeal “shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” We find that the circuit court did not err in revising the date of judgment.

A court’s revisory power is set forth in Maryland Rule 2-535, which states in pertinent part: ⁷ (b) Fraud, mistake, irregularity. On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity. (d) Clerical mistakes. Clerical mistakes in judgments, order, or other parts of the record may be corrected by the court at any time on its own initiative, or on motion of any party after such notice, if any, as the court orders.

During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed by the appellate court, and thereafter with leave of the appellate court. In this case, having not received a copy of the order, Eastern diligently inspected the court’s file to determine the date of judgment. 2 Eastern was entitled to rely on the case docket in the court’s file, which unambiguously listed three entries on August 31, 1998: the case was submitted to the court for determination, the decision of the Zoning Board was affirmed, and judgment was entered for defendant. 3 Appellant had no reason to, and was not required to, use the computerized docket to search for an earlier or inconsistent judgment date. According to Maryland Rules Commentary, “Litigants and third persons can look at the file or docket to determine when the judgment was entered, and they are entitled to rely on that date as a public record.” See Paul V. Neimeyer & Linda M. Schuett, Maryland Rules Commentary, Rule 2-601, at 446 (2d ed.1992). This entitlement is absolute, “regardless of the accuracy of that record.

If the file or docket entry contains an error, the Court of Appeals has held that its language will nevertheless control until the error is corrected.” Id. at Supp. 122. ⁸ Cloverland’s argument that the handwritten docket located in the court file was not the “official” court docket is unfounded. Their alternative argument that even if the court entered two judgment dates, the first one controls, is also erroneous. Cloverland relies on Maryland Rule 8-202(f): Date of entry. “Entry” as used in this Rule occurs on the day when the clerk of the lower court first makes a record in writing of the judgment, notice, or order on the file jacket, on a docket within the file, or in a docket book, according to the practice of that court, and records the actual date of the entry. (Emphasis added.) Appellees’ interpretation that the first recorded judgment date controls contradicts the necessity for having a judgment date that is precise and certain.

Our holding should be read narrowly. Here, two different judgment dates were entered. 4 Appellant, who did not receive a copy of the order, diligently followed the case and reasonably relied on the latter date of judgment. The circuit court properly exercised its revisory power to correct this mistake and irregularity of having two judgment dates in the record. We now address whether appellant has standing to raise this appeal.

In Maryland, a person whose sole reason for appealing a decision from the Zoning Board is to prevent competition with his established business does not have standing. Bryniarski v. Montgomery Co., 247 Md. 137, 145 , 230 ⁹ A.2d 289 (1967); Kreatchman v. Ramsburg, et al., 224 Md. 209, 219 , 167 A.2d 345 (1961). Eastern’s sole motive for this appeal is to prevent competition. In fact, during the Zoning Board hearing, the President of Eastern, Robert Christ, conceded as much.

When he was asked why he opposed Cloverland’s plan, he responded: Well, I have five