Gaetano v. Calvert County

JAMES F. COUCH, Judge, Specially Assigned. The single issue presented in this case is whether the Circuit Court for Calvert County erred in dismissing an appeal from an administrative agency for a party’s failure to timely file a memorandum pursuant to Maryland Rule B12. 1 For the reasons to follow, we conclude that the sanction of dismissal was improper under the facts present here. I The facts are not in dispute and may be quickly set forth. On August 13,1984, the Board of County Commissioners of Calvert County, Maryland (the “Board”), an appellee, approved the application of David Van Hoy, also an appellee, establishing a transfer zone of approximately 88 acres in Calvert County, Maryland.

Feeling aggrieved by the approval of Hoy’s application, the appellants—neighbors and adjacent landowners of the land comprising the transfer zone—filed an Order for Appeal and a Petition for Review ¹²³ in the Circuit Court for Calvert County. 2 The appellants sought to have the approval reversed. After receiving a copy of the Order and the Petition, the Board filed a timely Answer on September 26, 1984 and served a copy of the Order and Petition on Hoy. Md.Rule B2 d. To maintain his status as a party in the appeal, Hoy was required to file an Answer or some other affirmative pleading pursuant to Md.Rule B9. 3 Hoy failed to take any action within the allowable time limits and lost his party status in the appeal.

Although the Board was required to file the original or a certified copy of the record of the agency proceedings within a maximum of ninety days after receipt of the Petition, Md.Rule B7 a, b, the Board did not do so until nearly eleven months later, on August 13, 1985. On March 7, 1986, after nineteen months of inaction, Hoy filed a Motion to Intervene in the appeal, which the circuit court granted. Subsequently, on April 9, 1986, Hoy filed a Motion to Dismiss the appeal based on the appellants’ failure to file a memorandum pursuant to Md.Rule B12 within thirty days of the record having been filed. Five days later, the appellants answered the motion by filing the required memorandum.

After a brief hearing on May 12, 1986, the trial court granted the Motion to Dismiss. The court stated: “I think that Rule B12 mandates the Appellant, absent any compelling reason, to file a brief within the time constraints as set forth in that rule. Certainly there is no justification for an eleven month delay in this case. And ... accordingly, I will grant your Motion to Dismiss.” ¹²⁴ After motions were filed to have the court clarify its holding, the circuit court held a subsequent hearing on June 9, 1986.

In that hearing, the court concluded: “Gentlemen, for the record to be straight, 9/13/84, the original Order for Appeal was filed. I am not worried about that delay. Then there was eight months before there was a Memorandum filed. That’s the critical time.

As I recall it, there wasn’t any real rational basis, justification or excuse for the delay between 8/13 record filing and the April 14th memo filing. I think that the only appropriate sanction is, if the Rules are going to make any sense, is the dismissal. I guess for the purposes of the appeal the record is now straight.” The appellants noted an appeal from the circuit court order. We issued a writ of certiorari prior to consideration by the Court of Special Appeals.

We now reverse. II The appellants concede that they failed to file the required memorandum within thirty days of the filing of the record on August 13, 1985. The appellants argue, however, that dismissal of the appeal is an improper sanction for a delinquent filing. In deciding the appropriate sanction, they contend the circuit court should have balanced the purpose and importance of the rule against the circumstances of its violation.

This balancing, it is urged, requires assessing whether the appellants have substantially complied with the substance of the rule and whether the appellee Hoy has been inconvenienced by the delayed filing. By failing to engage in this balancing, appellants suggest the trial court abused its discretion. We begin with the obvious. Both parties agree that Rule B12 is a mandatory procedural rule which must be followed.

People’s Counsel v. Public Service Commission, 52 Md. App. 715, 719-20 , 451 A.2d 945, 948 (1982). See City of College Park v. Cotter, 309 Md. 573 , 588 n. 23, 525 A.2d 1059 , 1066 n. 23 (1987) (citations omitted) (the term “shall” is presumed to be mandatory and “denotes an imperative ¹²⁵ obligation inconsistent with the exercise of discretion”). However, the rule makes no mention of the particular sanction to be applied for its violation. People’s Counsel, 52 Md.App. at 720 , 451 A.2d at 948 (Rule B12 “does not specify or mandate any particular sanction for its violation”).

When compared with Rule B5, it is clear that dismissal is not the mandated sanction for a violation of Rule B12. Rule B5 states: “If the Appellant shall fail to file his Order for Appeal within the time prescribed by Rule B4 (Time for Filing) or any Order issued pursuant thereto, or shall fail to file his Petition within the time prescribed by section e of Rule B2 (How Appeal Taken), the Court shall dismiss the appeal unless cause to the contrary be shown.” (emphasis added) As the foregoing indicates, a violation of Rule B5 requires dismissal “unless cause to the contrary be shown.” 4 It is significant that similar language is absent in Rule B12. Had it been intended that a particular sanction was mandated for violating Rule B12, we believe provision would have been made in the rule. A violation of Rule B5, unlike B12, clearly requires dismissal of the appeal absent good cause.

Such is not the case, however, with respect to Rule B12. As we said very recently in In re: Keith W., 310 Md. 99, 104, 527 A.2d 35, 37 (1987), a statute or rule may be mandatory and yet not require dismissal as a sanction for failure to comply with its provisions. See State v. One 1980 Harley Davidson