Eggert v. Montgomery County Council

Barnes, J., delivered the opinion of the Court. In this case before us, there are two appeals which have been consolidated. Appeal No. 80 In No. 80, Eggert et al. v. Montgomery County Council et al., the plaintiffs, William E. Eggert et al.—appellants here—filed their Bill of Complaint (Equity No. 39799) in the Circuit Court for Montgomery County on October 1, 1970, against the Montgomery County Council (County Council) and Mason Butcher, the County Manager, alleging that Resolution No. 6-3172 adopted by the County Council on September 1, 1970, directing the County Manager to proceed with the construction of Tilden Lane between Parkedge Drive and Old Stage Road in Montgomery County was invalid and unlawful in that, inter alia, the road to be constructed lies within an area over which the Maryland-National Capital Park and Planning Commission (Park and Planning Commission) had jurisdiction, and that Commission had not given its consent to the proposed construction and that the adoption of Resolution No. 6-3172 was arbitrary, discriminatory and capricious because it ignored and disregarded without reason the recommendations of the Administrative Board appointed to conduct a hearing on whether the project should be constructed and contrary to the opposition of 61% of those to whom ballots had been sent and returned. The prayers for relief were that (1) Resolution No. 6-3172 be declared null and void, (2) the defendants be enjoined from proceeding with the construction, and (3) the plaintiffs have other and further relief.

The defendants demurred to the Bill of Complaint on November 17, 1970; and a hearing on the demurrer was held before ²⁴⁶ Judge Levine on December 18, 1970. In an oral opinion Judge Levine indicated that he would sustain the demurrer, without leave to amend, and gave his reasons for his decision. The plaintiffs, on December 22, 1970, filed a Petition for Rehearing together with three exhibits. Judge Levine, on December 23, 1970, filed a written order dated December 18, 1970, sustaining the demurrer, without leave to amend.

On January 26, 1971, Judge Levine passed an order which recited that the plaintiffs had orally petitioned the circuit court on January 22, 1971, to extend the enrollment of the court’s order of December 23, 1970, and had filed a Petition for Reconsideration with a request for a stay of the proceedings, and none of the parties knew of the entry of the order of December 23, 1970, and that the parties had consented to an order striking the order for mistake and irregularity. The order provided that any enrollment be stricken and that the order be deemed in force and effect, nunc pro tunc, as of January 22,1971. On February 10, 1971, Judge Levine filed an order dated February 9, 1971, denying the Petition for Rehearing or for Reconsideration. On February 19, 1971, the plaintiffs filed an order of appeal to this Court from “the Judgment and Order entered in this action on the 23rd day of December 1970 sustaining the demurrer without leave to amend; the Judgment and Order entered on the 26th day of January, 1971; the Order entered on the ninth day of February, 1971; and all underlying orders, rules and decisions.” Although no motion to dismiss the appeal in No. 80 had been made by the appellees, the Court, sua sponte, will dismiss the appeal in that case pursuant to Maryland Rule 835 a 2, b 3.

We have previously indicated that in equity the pleadings and definitive actions of the Chancellor must be done by written documents duly filed in the equity case. Tvar ²⁴⁷ dek v. Tvardek, 257 Md. 88 , 261 A. 2d 762 (1970); Mattingly v. Houston, 252 Md. 590 , 250 A. 2d 633 (1969). The docket entries indicate no written petition filed on January 22, 1971; and the order of January 26, 1971, recited that it was orally made on January 22. This is not a sufficient compliance with the established chancery practice.

The final order of December 23, 1970, had become enrolled on January 22, 1971, and, more importantly, the 30-day period for appeal to this Court also expired on that day. That final order could not be stricken out pursuant to Rule 625, the circuit court’s general revisory power over the order having expired on January 22. The circuit court, in our opinion, did not have the power to “strike” the enrollment of the final order of December 23, 1970, nunc pro tunc as of January 22, 1971, by an order passed on January 26, 1971. No appeal having been taken within the 30-day period, this Court has no jurisdiction to consider it and, being jurisdictional, the parties cannot supply a nonexistent jurisdiction by consent.

See Price v. Hobbs, 47 Md. 359 (1877). See also Bushey v. State Roads Commission, 231 Md. 154 , 189 A. 2d 98 (1963); 4A C.J.S. Appeal & Error § 458 (b), p. 150. The order of February 9, 1971, denying the Petition for Rehearing or for Reconsideration was within the sound discretion of the trial court and is not reviewable in the absence of an abuse of discretion, which is not shown in the present case. Then, too, substantially all of the issues and facts set forth in the Petition for Rehearing or Reconsideration are raised in Equity No. 40642, involved in Appeal No. 88, hereinafter considered.

The appeal from the order of January 26, 1971, was not argued or briefed in this Court and is deemed to have been waived. See Air Lift, Ltd. v. Board, of County Commissioners of Worcester County, 262 Md. 368 , 278 A. 2d 244 (1971); Dubrowin v. Schremp, 248 Md. 166 , 235 A. 2d 722 (1967), appeal after remand, 257 Md. 623 , 263 A. 2d 827 (1970). ²⁴⁸ We have, however, carefully considered the briefs and arguments in regard to Appeal No. 80 and concluded that if we were able to consider this appeal on its merits, we would have affirmed the order of December 23, 1970. Appeal No. 88 We now turn to Appeal No. 88. In No. 88, William E. Eggert et al. (for the most part, the same plaintiffs who filed the Bill of Complaint in Equity No. 39799 involved in Appeal No. 80) filed their Bill of Complaint (Equity No. 40642) on March 1, 1971, against James Gleason, individually and as County Executive, Lisbon-Madeira, Inc., a corporation, the Department of Public Works and the seven members of the County Council and their successors in office.

The relief prayed for was (1) for an injunction, preliminary and permanent, against the defendants from proceeding with Public Works Project No. 2140—the construction of Tilden Lane between Parkedge Drive and Old Stage Road, the same project involved in Equity No. 39799; (2) for a declaration in regard to the respective powers and authority of the County Council and the County Executive as well as in regard to the validity of laws, statutes, actions or decisions improperly restricting such power and authority; (3) for an order directing the County Council to reconsider Public Works Project No. 2140; and (4) for other and further relief. The Bill of Complaint alleged the standing of the plaintiffs as property owners and residents near the project and alleged that the suit was brought on behalf of the plaintiffs and all others similarly situated. It was alleged that after the earlier County Council (the County Council operating prior to the adoption of the new Montgomery County Charter effective on December 7, 1970) had passed Resolution 6-3172, dated September 1, 1970, in regard to Public Works Project No. 2140 (hereinafter referred to as the “Tilden Lane Bridge” or the “project”), studies were made indicating serious problems with the project. The defendant County Council members were ²⁴⁹ elected to office in the November 5, 1970, elections; and when the new County Charter became effective in December 1970, the old County Manager form of government was eliminated.

The new County Council, in view of the new circumstances, desired to reconsider the project; but the Montgomery County Attorney erroneously advised the new County Council that under the new Charter it lacked the power and authority to reconsider the matter. The new County Council, based on this erroneous advice instead of reconsidering the project itself, requested the defendant, Gleason, as the newly elected County Executive, to reconsider it. It was further alleged that the new County Council does have the power to reconsider the project and was improperly advised to the contrary. It is of the opinion that the project should be halted; but the County Executive has asserted that he alone has the power to make this determination and has refused to halt the construction of the project notwithstanding the known disapproval of the new County Council.

While the Petition for Rehearing or for Reconsideration was pending in Equity No. 39799, and without notice, the County Executive awarded the contract for the project to the defendant, Lisbon-Madeira, Ltd., the work to be supervised by the defendant, Department of Public Works. The denial of the Petition for Rehearing or for Reconsideration in Equity No. 39799 was also alleged and that the plaintiffs had no adequate remedy at law. The Bill of Complaint was duly verified. A number of documentary exhibits were filed with the Bill of Complaint to which reference in detail will be made later in this opinion.

After several preliminary skirmishes, a show-cause order, answer and a hearing, Judge Pugh, on March 29, 1971, issued an interlocutory injunction restraining the defendants, their agents, servants and employees, from going forward with the project pending final adjudication by the circuit court, requiring the plaintiffs to file a bond in the amount of $10,000.00 to answer to the defendants for any damage suffered by them by reason of ²⁵⁰ the issuance of the preliminary injunction if ultimately determined that it should not have been issued and setting the hearing on the merits for April 19, 1971. The required bond was deposited in the Registry of the circuit court on the day the order for the preliminary injunction was signed. v The defendants, on March 24, 1971, filed a “Demurrer and Answer” in which each paragraph of the Bill of Complaint is separately considered, the defendants “demurring” to certain paragraphs and also answering the paragraphs where an answer was deemed to be required. Rule 371 gives defendants the right to file a demurrer and an answer in the same paper, but the Rule does not contemplate a “blend” of these two documents. We will treat the “Demurrers” to the respective paragraphs as a part of an answer challenging the legal sufficiency of the allegations of that paragraph and will consider the entire document as an “Answer,” in the usual sense, to the Bill of Complaint.

The principal grounds of defense raised in the answer were: (1) Res judicata because of the adverse decision in Equity Nos. 39798 and 39799; (2) the award of the contract for the project was a discretionary governmentál function and there were no allegations of noncompliance with legal requirements, fraud or bad faith so that judicial review was not justified; and (3) that authorization of the project was done in executive session and all of the defendants have fully adhered to all laws and procedures governing their conduct in regard to the subject matter raised in the suit. When the case came on for a hearing on the merits on April 19, the parties entered into two Stipulations in lieu of oral testimony. The first Stipfilation was in regard to Pleadings and Exhibits. It provided that the suit on the merits should be submitted to the circuit court on the basis of the pleadings, including the Bill of Complaint and its exhibits and the demurrer and answer and its exhibits.

In addition, a number of exhibits were to be considered to be in evidence, the last one (Plaintiffs’ Exhibit ²⁵¹ P) being the entire record in Equity No. 39799. These stipulated exhibits will be considered in detail, where deemed necessary, later in this opinion. The second Stipulation was in regard to testimony. It provided: “I. While the County Attorney and Defendants do not stipulate to the allegations in the bill relating to instructions and advice of the County Attorney to the Montgomery County Council, the County Attorney does admit that he advised the Council that, in the type of matter involved in this case, roadbuilding and bridgebuilding, any power it may have had except powers relating to appropriations has been, and was, transferred to the County Executive as well as any reconsideration of such decision. “II.

The parties agree that, without conceding in any way the materiality or relevancy of the testimony, or to avoid extensive time devoted thereto, the Plaintiffs would produce testimony on the question of their standing and the adverse affect of the bridge and connecting thoroughfare as follows: “The Plaintiffs would themselves testify that all of them reside in the immediate vicinity of the proposed bridge; that some are located on the east side of the proposed span and some on the west; that the property that each owns is either adjacent to, or in close proximity to, the bridge here involved; that their testimony would further be that, because of the expected traffic patterns, each and his family will be exposed to an extremely large increase in the number of vehicles and trucks passing his home daily, and that as a consequence he and his family will suffer unusual physical danger; that their children will be in especial danger; and that on account of this and the conditions ere ²⁵² ated, and for reasons appearing in the exhibits as well, their homes and properties will be substantially depreciated in value, and be difficult to sell at any reasonable price; that this action will totally alter the neighborhood and area from a quiet residential neighborhood to a heavily trafficked thoroughfare, and that their damage will be irreparable. “III. The parties do further agree, without conceding materiality or relevancy of the facts, that evidence will be produced by the Plaintiffs, reflected in part in Exhibit M, that, following the resolution of September 1, 1970, adopting the Tilden Lane project, bids were submitted on December 3, 1970; on January 4, 1971 a memorandum from the Director of Public Works to the Chief of the Purchasing Department approved Lisbon-Madeira as contractor; on January 5th the Chief Administrative Officer approved