Hickory Hills Ltd. Partnership v. Secretary of State

CATHELL, Judge. Before this Court is a Motion to Dismiss this appeal filed by the appellee, the Secretary of State (hereinafter “secretary”). The appellants, Hickory Hills Limited Partnership, et al. (hereinafter “Hickory Hills”) filed this appeal from an order of the Circuit Court, remanding the case to the Secretary for the taking of additional evidence. For the following reasons, we shall grant the motion and dismiss this appeal.

I The Facts In 1984, Hickory Hills registered a public offering statement for a condominium conversion in Harford County with ⁶⁷⁹ the Secretary. In November 1988, the Secretary made a preliminary determination that Hickory Hills had not complied with its promise contained in the public offering statement to spend at least $35,000 on road improvements. In March 1989, the Secretary held an administrative hearing in respect to that preliminary determination. At the end of that hearing, the Secretary, being uncertain as to whose $35,000 was expended, scheduled a second hearing.

At the second hearing in June 1989, in which Hickory Hills failed to appear, the Secretary rendered a decision against Hickory Hills. The Secretary determined that Hickory Hills did spend $35,000 for paving but that the condominium association reimbursed that amount to Hickory Hills. The Secretary then found that the reimbursement arrangement violated Hickory Hills’ “express warranty” to “spend $35,000 of its own money on paving.” (emphasis added) 1 Hickory Hills filed an appeal to the Circuit Court for Anne Arundel County, and an oral argument on the appeal was scheduled for December 11, 1989. Three days prior to that oral argument, the Secretary filed a Motion to Remand for Additional Evidence to be taken by the Secretary.

The Secretary’s motion was based on an auditor’s report which allegedly substantiated that Hickory Hills did not pay the promised $35,000. On December 11, 1989, the court had the record available, and presumably was familiar with it. At that hearing, the court heard only the motion and did not consider the substance of the appeal. On that same day, the court granted the Secretary’s Motion to Remand.

It is from that order that this appeal and the Motion to Dismiss arise. II The Issue The issue, as we phrase it, is: Whether an order of the circuit court, remanding to the administrative agency for ⁶⁸⁰ taking of additional evidence when the circuit court has not yet heard or decided the appeal from the administrative agency, is a final order, and therefore, appealable. III The Law We must first decide whether the circuit court’s order was made pursuant to § 10-215(e) or § 10-215(g) of the Md. State Gov’t Code Ann. (1984). Hickory Hills argues that this distinction is irrelevant for the purpose of determining the appealability of the circuit court’s order at issue.

We disagree. We find that if an order is made under § 10-215(e), then the circuit court has continuing jurisdiction over the subject matter. We arrive at this conclusion from our reading of § 10-215(e). It provides: (e) Additional evidence before agency. — (1) The court may order the agency to take additional evidence on terms that the court considers proper if: (i) before the hearing date in court, a party applies for leave to offer additional evidence; and (ii) the court is satisfied that: 1. the evidence is material; and 2. there were good reasons for the failure to offer the evidence in the proceeding before the agency.

(2) On the basis of the additional evidence, the agency may modify the findings and decision. (8) The agency shall file with the reviewing court, as part of the record: (i) the additional evidence; and (ii) any modifications of the findings or decision. When we interpret a statute, we must read pertinent parts of the statute as a whole, giving effect to all of those parts if possible, and rendering no part of the language surplusage. Sinai Hosp. v. Dep’t of Employment, 309 Md. 28 , 522 A.2d 382 (1987).

The scheme of § 10-215(e) appears to give the circuit court continuing jurisdiction over the appeal from the administrative agency. We conclude this ⁶⁸¹ because first, § 10-215(e)(l)(i) requires that such motion be made prior to the hearing date in court, and second, § 10-215(e)(3) requires that the agency file with the reviewing court, as part of the record, the additional evidence and any modifications of the findings or decision. Those two provisions of § 10-215(e) make clear that the circuit court retains jurisdiction over the appeal. It is of utmost importance to understand that under this section, if additional evidence is to be taken by the administrative agency, the motion must be made prior to the hearing date in court.

This means that the court will not have heard the appeal on the merits until the administrative agency has first received the additional evidence, and that same evidence, with any modifications of the agency’s findings or decision, is later made available to the court under § 10-215(e)(3). Section 10-215(g) 2 , however, is applicable only after the circuit court hears the appeal on the merits. The very title of § 10-215(g) is “Decision,” and the language of that whole subsection necessarily denotes that the court has completed its review of the case. We believe that it is situations similar to § 10-215(g) that the Court of Appeals in Schultz v. Pritts, 291 Md. 1, 6 , 432 A.2d 1319 (1981) was referring to when it said: When a court remands a proceeding to an administrative agency, the matter reverts to the processes of the agen ⁶⁸² cy, and there is nothing further for the court to do.

Such an order is an appealable final order because it terminates the judicial proceeding and denies the parties means of further prosecuting or defending their rights in the judicial proceeding. Under § 10-215(e), however, contrary to what the Court of Appeals said above, there is something further the court must do, i.e., review the additional evidence taken by the administrative agency and complete its appellate hearing on the merits. We were faced with the old version of § 10-215(e) 3 in Breedon v. Maryland State Department of Education, 45 Md.App. 73, 86-7 , 411 A.2d 1073 (1980), in which we said: This section does not require a complete remand of the case to the administrative agency, but rather it anticipates a referral for the receipt of additional evidence with an opportunity for the agency to modify its findings or decision. The circuit court remains a “reviewing court,” and the section clearly requires the agency to submit the additional evidence to the court along with its modifications, if any.

The APA [Administrative Procedure Act] contemplates that the circuit court, while ordering additional evidence to be received by the agency, retains continuing jurisdiction over the appeal. After the agency has completed its action, the circuit court may then proceed with its consideration of the appeal on the merits, [footnotes omitted] We shall now decide whether the order of the circuit court below was made pursuant to § 10-215(e) or § 10-215(g). First, we look at what it was exactly that the circuit court granted. The motion granted was the Secretary’s “Motion to Remand for Additional Evidence,” and the contents of that motion correspond with the elements of § 10-215(e).

Furthermore, the transcript of the hearing ⁶⁸³ reveals that it was exactly a § 10-215(e) motion that the court was considering: I’m convinced ... that it is within the discretion of the court to remand for additional evidence. I believe that’s addressed in 10-215, which says that the court can order an agency to take additional evidence if it deems it appropriate. [4] ****** And certainly, under these circumstances without getting into the merits of the case, it would appear that the whole element of the merits, the whole basis of the merits of this case is predicated on whether monies have been paid or not____ And here the Attorney General has indicated that there was no time to bring this to the court’s review. It only