County Commissioners v. Carroll Craft
Annotate this Case
Download PDF
In the Circu it Court for C arroll Coun ty Case No. C-2003-38589 IN THE COURT OF APPEALS OF MARYLAND No. 21 September Term, 2004 ______________________________________ COUNTY CO MMISSIONERS OF CARROLL COUNTY, MARYLAND v. CARROLL CRAFT RETAIL, INC. T/A LOVE CRAFT ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: December 3, 2004 We granted certiorari in this case on our own initiative, prior to any definitive ruling by the Court of Specia l 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 appe llant s brief tha t had been filed in that court. After considering the subseque ntly filed appellee s brief, reviewing the record, and questioning counsel at oral argumen t, it has become plain that there is no appe al properly before us. We therefore have no cho ice but to dismiss the wri t as impr oviden tly granted . This case has become a procedural nightmare, one that certainly was not apparent from the appellant s brief filed in th e Cou rt of Sp ecial A ppeals . In order to identify what is, and is not, properly before us, we need to reco unt the proc edural history in s ome deta il, which , unfor tunately, w ill make this Op inion m ore than a little tedio us. BACKGROUND Subject to specified siting requirements i.e., minimum distances fro m certain enumerated structures or uses the Carroll County Code permits an adult entertainment business in an IG General Industr ial Zon e, but in n o other zone. See § 223-125E . The term adult entertainment business is defined in § 223-2 of the C ode as an adult m ovie theater or an adult store. The business at issue here is cle arly not an adu lt movie thea ter but is alleged to be an adult sto re. 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 add ed). 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 ad ded). The term usable floor area is not defined in the ordinance. On or about D ecembe r 1, 2002, C arroll Craft Retail, Inc., trad ing as Lov e Craft, opened a retail store in a building owned by Drs. Jogen dra and K irpal Singh, f rom wh ich 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 operatio n 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, th e county, on D ecembe r 20, 2002 , filed suit in the District Court of Maryland for Carrol l Coun ty against th em, claiming that they were operating or permitting the -2- operation of an adult store in a B-G General Business zone, where an adult store is not permitted. The county soug ht both tem porary and p ermanen t injunctive relie f 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 po rtion of its stock or trad e is not characterize d by an emp hasis on m atters depicting , describing or relating to sexual activities and that, in any event, because the term substantial portion, as used in the ordinance, was vag ue, ambig uous, 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 1 Although the District Court does not have general equitable powers, Maryland Code, § 4-401(8) of the Cts. & Jud. Proc. Article gives it exclusive original jurisdiction over a petition filed by a county or municipality for the enforcement of local zoning (and certain other ) codes fo r which e quitable relief is provided . Section 22 3-195 of the Carroll County Co de, dealing w ith the enfo rcement o f the zonin g laws, per mits the cou nty commissioners to seek injunctive relief to compel compliance. 2 In filing their counter-claim, appellees evidently overlooked the fact that the District C ourt ha s no juris diction t o enter a declara tory judgm ent. See Marylan d Cod e, § 4-402(c) o f the Cts. & Jud. Proc. A rticle ( The D istrict Court do es not hav e jurisdiction to render a de claratory judgm ent. ); also Maryland Code, § 3-403(a) of the Cts. & Jud. Proc. Article ( Except for the District Court, a court of record within its jurisdiction may declare rights, status, and other legal relations . . . . ) (Emphasis added). The District Court informed Love Craft at the January 27, 2003 evidentiary hearing that it did not think it had jurisdiction to issue declaratory relief and made a handwritten notation on the pleading that the counter-claim was dismissed. W e are unable to find an y docket entry confirming that notation. If the counter-claim was not separately dismissed, it was (contin ued...) -3- 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 betwe en 50% and 60% of the esta blishment 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 operatin g the ad ult store. On February 19, within 10 days, th e defe ndants filed a m otion to alter or a mend the judg ment. That same day, the county, believing that the defendants had failed to bring th eir operation into confo rmanc e with th e zonin g requi remen t, filed a p etition fo r contem pt. At a hearing on April 14, the court denied the motion to a lter or amen d the judgm ent. In an Opin ion and O rder filed on April 25, the court denie d the conte mpt 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 w as 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 contem pt, therefore, the court gave Love Craft 14 days in which to bring the operation into full 2 (...continued) effectively reso lved by the ultim ate judgm ent entered by the District C ourt. -4- comp liance. On May 9, 2003, Love Craft filed an appeal to the Circuit Court for Carroll C ounty, and on May 30, 2003, it filed a separate complaint for declaratory and injunctive relief which, with some ex ceptions, w as a copy of th e compla int previous ly filed in the District C ourt. 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, 3 There were two departures from the declaratory relief improperly sought in the District Cou rt, one of w hich injected more than a little confusio n. The co unter-claim in the District Court asked for a declaration that the Carroll County Adult Entertainment Law 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. The complaint for declaratory relief filed in the Circuit Court asked [t]hat this Court issue a declaration that the Hagerstown Adult Bookstore Law is in violation of Article 40 of the Maryland Declaration of Rights. (Emphasis added). No complaint was made with respect to the Federal C onstitution. G iving coun sel the bene fit of the do ubt in light of the allegation s in the Complaint, we assume that the intended reference in the prayer for relief was to the Carroll County Adult Bookstore Law. Although the Declaratory Judgment Act, Maryland Code, § 3-409 (c) of the Cts. & Jud . Proc. Article, permits a party to obtain a declaratory judgment notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy, w e have m ade clear o n a numb er of occa sions that [a ]s a genera l rule, courts will not entertain a declaratory judgment action if there is pending, at the time of the commencement of the action for declaratory relief, another action or proceeding involving the same parties and in which the identical issues that are involved in the declaratory action may be adjudicated. See Waicker v. Colbert, 347 Md. 108, 113, 699 A.2d 426, 428 (1997) and cases cited therein. Given the pendency of the appeal from the District Court raising precisely the same issues as the declaratory judgment action, the declaratory judgment action was unnecessary and inappropriate. -5- in which it argued that the ordinance was Constitutional, but the county did not seek any affirmative declaratory jud gment to th at effect. At a hearing h eld on August 4, 2003, the c ourt (1) on m otion of the county, form ally consolidated the two cases and 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 usab le space was unc onstitutionally 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 appea l from th at judgm ent and not the d eclarato ry judgm ent 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 cou rt docketed the appea l as No. 13 76, Sept. Term 2003. Bo th parties, at least in itially, understood th at the appeal was solely from the 4 Although the Singhs did not appeal the District Court judgment, the case in the Circuit Court was docketed as County Commissioners v. Jogendra Singh, et al., probably because the record transmitted by the District Court showed the Singhs as the lead defenda nts. The co unty did not op pose the m otion to dism iss the Singh s from the Circuit Court case. -6- 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 repo rts filed b y both the county and Love Craft with the Court of Special Appea ls describe the Circuit Court action as an appeal from the D istrict 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 Dist rict C ourt, no a ppeal 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 th e Circuit Court to hold Love Craft in contempt, no appeal lay from such an order. On September 18, Love Craft filed a n identical m otion in the Court of Special A ppeals. Th e county, app arently 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 Cou rt 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. A rticle, an interlocu tory appeal w as permissib le 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 -7- judgment entered in the District Court appeal constituted a judgment as well in the declaratory judgment action, over wh ich 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 On October 9, 2003, the Circuit Court granted th e motion to dismiss filed in that co urt and struck the notice of appeal. Love Craft immediately informed the Court of Special Appea ls 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. Presuma bly upon th at infor mation , the appell ate court took no immediate action on the motion filed with it but apparently assumed, at that point, that the appeal had already been dismiss ed. Although, for reason s we shall describe, the Circuit Court had no authority to strike 5 Cases do not lose their separate status merely because they are consolidated for processing and trial. A ju dgment e ntered in on e case, if othe rwise fina l, does not los e its status as a fin al judgme nt because judgmen t has not bee n rendered in another c ase with which it ha d been co nsolidated. T he judgm ent becom es appeala ble, as a final ju dgment, when it is prop erly entere d. See Yarema v. Exxon Corp., 305 Md. 219, 236, 503 A.2d 239, 248 (1986); Unname d Atty. v. Attorney Griev. C omm n , 303 Md. 473, 484, 494 A.2d 940, 945 (1985); Coppage v. Resolute Insur. Co., 264 Md. 261, 263-64, 285 A.2d 626, 628 (1972). The appeal from the judgment entered in the District Court appeal was from a final judgment entered in that case. It was not an interlocutory appeal under § 12-303 of the Cts. & Jud. Proc. Article from the dissolution of the injunction. Love Craft s point was that, because the Circuit Court was, itself, acting as an appellate court, no further appea l of righ t was p ermissib le from its judgm ent. See Maryland Code, § 12-302(a) of the Cts. & Jud. Proc . Article. That is a matter we sha ll discuss further. The coun ty s alternative argument, that the judgment also resolved the declaratory judgment action finds no support in the record. -8- the notice of appeal on the grounds presented by Love Craft, the county never filed an appeal from that ord er, as it cle arly had a right to d o. See Sullivan v. Insuranc e 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 Cou rt of Specia l Appeals had effe ctively, even if improperly, been dismissed, and the record w as never tran smitted to the appellate co urt in accord ance with the Rules a nd nor mal pro cedure . It remain ed in the Circuit C ourt. As noted, on J uly 24, 2003 prior to the co nsolidation o f the two c ases the co unty 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, 2004, the county noted an app eal 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 Appea ls finally acted on the motion to dismiss Appeal No. 1376 that had been filed on -9- 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 appea l had, in fact, been stricken, the court denied the motion to dismiss without prejudice to the appellee raising the issue again in its brief. Lov e Craft resp onded w ith a motion to strike that ord er, 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 fro m that judg ment, 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 unre viewable . The cou nty answere d the motio n with the s ame argu ments it had made in response to the m otion to dismiss . On M arch 18, 20 04, the Co urt of Spe cial Appe als 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, the declarato ry 6 With exc eptions no t relevant her e, Maryland Rule 2-32 1(a) requires a party to file an answer to an o riginal complaint within 30 d ays after service. The clerk of the co urt entered an order giving the county 60 days after service to file an answer. Service was made on June 5, 2003. Under the Rule, an answer was due July 7, the Monday following (contin ued...) -10- 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 b e appealab le to the Co urt of S pecial A ppeals . Com plicating the ma tter even further , Love Craft, on February 23, 2004 , filed a petition in the Circuit C ourt, in the D istrict 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 Co urt of S pecial A ppeals as No . 643, S ept. Ter m, 200 4. Thus it was that the Court of Special Appeals had before it (1) Appeal No. 1376, which had been erroneou sly but nonethe less effectiv ely dismissed b y 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 Co urt 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. 6 (...continued) the thirtieth day; under the order, an answer was due August 4. As noted, the answer was not filed until October 15, 2003. Nonetheless, as Love Craft did not seek to strike the answer o n the grou nd of un timeliness, that iss ue is now moot. -11- 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 statin g that it appeared from the d ocket entries that those ap peals emanated from judg ments of the Circ uit Court rendered in the exercise of that court s appellate jurisdiction and directing the parties to show cause why those app eals should not be tr ansfer red to th is Cou rt pursu ant to C ts. & Jud. Proc. Article, § 12-302(a ) and Maryland Rule 8-132. The county, in response, urged that both ap peals b e transf erred to this Co urt, and conso lidated w ith Cas e No. 21 pend ing before this Court. In No. 2561 , the county continued to argue th at, because the Circuit Co urt 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 App eal 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 a ppealable, b ut that the app eal should b e transferred and cons olidated w ith Case No. 21. Love Craft, of co urse, took a d ifferent po sition. In both cases, it argued that, because that case aros e out of an d/or was c onsolidated with w ith the District Court appeal, the Court of Specia l Appeals had no jur isdiction ove r 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. Unimp ressed with Love Craft s argumen t, the Court -12- 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, applica ble 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 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 C ourt ha[d] au thority 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 discuss ion of the p rocedural h istory, this case is lace d with erroneous rulings, assumptions, and arguments. 7 It also suffers from a serious, and We have treated an order of the Court of Special Appeals transferring a case to us pursuant to Ma ryland Rule 8-132 as a p etition for certiorari, but, becaus e the order, q uite properly and understandably, does not usually give any reasons why we should accept the case and therefore does not comply with the normal requirements for a petition for certiorari under M aryland Rule 8-303(b), w e require the appellant/pe titioner to supplem ent the orde r with a petitio n that does comply with the Rule. Rule 8-302, which prescribes the time for filing a pe tition for certiorari, does not specifically address the time for supplementing a transfer order with a compliant petition. In these cases, the Clerk of this Court directed the county to file any supplement by October 14, 2004. -13- determinative, procedural lapse on the part of the county the failure to note an appeal from the erro neous dismiss al of its a ppeal in Appe al No. 1 376. 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 th ey 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 a nd unreso lved in the C ircuit Court. 8 That judg men t, alth ough it co uld h ave b een m ore c learl y expressed, w as ef fect ively a reversal of the District Court judgment, and it became a final judgment in that case when docketed. Maryland Code , § 12-301 of the Cts. & Jud. Proc. Article, provides that [e]xcept as provided in § 12-30 2 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, spec ial, limited, statutory ju risdiction , unless in a p articular ca se the right o f appeal is ex pressly denied by law. (Emph asis added ). Section 12 -302 enu merates ce rtain excep tions to appealab ility under § 12-301. T he first of tho se exceptio ns, stated in § 1 2-302(a), is, in 8 At the hearing conducted on August 4, 2003, the court noted that, because the county had not yet filed an answer to the complaint for declaratory judgment, it was unable to act on the motion for summary judgment the county had filed in that case. -14- relevant part, that [u]nless 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 ap pellate jurisdiction to review ju dgments of the District Court is provided only by §§ 12-305 and 12307(2). Section 12-305 provides: The Court of Appeals sha ll require by writ o f certiorari that a decision be certified to it for review and determination in any case in which a circuit court h as rendere d a final judgment on appeal fro m the Dis trict Court . . . upo n petition . . . that: (1) Review is necessary to se cure unifo rmity of decision, as where the same statute has been construed differently by two or more ju dges; or (2) There are other special circumstances rend ering it desirable and in the public interest that the decision be reviewed. (Empha sis added ). Section 12-307(2) supplements § 12-305 by conferring jurisdiction on this Court to review a case or proceedin g decided by a circuit cour t, in accordance with § 12-30 5 of this subtitle. In State v. Anderson, 320 Md. 17, 26, 575 A.2d 1227, 1231 (1990), we construed these provisions and m ade clear that §§ 12-30 5 and 12-307(2 ) are the only provisions of the Courts and Judicial Proceedings Article expressly authorizing further review of circuit court final judgmen ts rendered in cases on appeal from the District Cou rt, and they provide that there shall be discretionary review by the -15- Court of Appeals and not an appeal to the Court of Special Appeals. In conformance with that holding, we determined that, as no appeal from such a judgment lay to the Court of Special Appeals, this Court had no authority to review the Circuit Court judgment under a writ of certiorari issued to the Court of Special Appeals, and, accordingly, notwithstanding that this C ourt had issued such a writ in that case, the appeal had to b e dismis sed. Id., 575 A .2d at 12 31. In light of Anderson, which followed a similar pronouncement in State v. Jefferson, 319 Md. 6 74, 678 n.1, 574 A.2d 9 18, 919 n.1 (1990), it is clear that the county had no right to appeal the judgment entered in the District Court appeal to the Court of Special Appeals. It does not matter that the case was tried de novo in the Circu it Court. That does not alter the fact that the Circu it Court was exercising appellate, rather than original, jurisdiction.9 What the county shou ld have do ne was to file a petition for certiorari with this C ourt in conformance with Maryland Rules 8-302 and 8-303. It did not do so. That does not end the matter, however. Traditionally, if an action, including an appeal, was filed in a court tha t had no au thority to hear it, the normal response was for the court to dismiss the action or appeal. By Rule, however, this Court has softened that 9 Indeed, the Circuit Court could only have been exercising appellate jurisdiction, as it had no orig inal jurisd iction ov er the ca se. As n oted ab ove, § 4 -401(8 ) of the C ts. & Jud. Proc. Article confers on the District Court exclusive original civil jurisdiction over a petition by a coun ty to enfo rce a zo ning co de for w hich eq uitable r elief is p rovide d. The cou nty s enforcem ent action in th is case could not have b een brou ght in the C ircuit Cou rt init ially. -16- approach, at least in certain settings, by allowing the court in which the action or appeal has been improperly filed to transfer it to a court in which it could properly have been filed. Maryland Rule 2-327(a) provides that, if an action within the exclusive original jurisdiction of the District Court is filed in a Circuit Co urt, the Circu it Court may, in lieu of dismissing the action for want of ju risdiction, transf er it to the Distric t Court so th at it may procee d in the pro per cou rt. We have conferred that authority as well on the two appellate courts through Maryland Rule 8-13 2, with eve n greater em phasis, as, instea d of leavin g the transfer discretio nary, as we did in Rule 2-327(a), we made the transfer mandatory. It is not infrequent that an appeal is filed with this Court that, absent the issuance of a writ of certiorari, can be heard only in the Court of Special Appeals, or, as in this case, that an appeal is filed with the Court of Special Appeals that can be heard only, if at all, by this Court. To achieve the same beneficent policy reflected in Rule 2-327(a), Rule 8-132 provides that, if either appellate court determines that an appellant has improperly noted an appeal to it but may be entitled to appeal to another court exercising appellate jurisdiction, the court shall not dismiss the appeal but shall instead transfer the action to the court apparen tly having jurisdiction, upon the payment of costs provided in the order transferring the action. (Emphasis added). As noted, §§ 12-305 and 12-307(2) confer jurisdiction on this Court to review the judgment of a Circuit Court entered in an appeal from the District Court. In response to the motion to dismiss Appeal N o. 1376, therefore, the Co urt of Special -17- Appea ls should ha ve denied the motion and imm ediately transferre d the case to this Court. Had it done so, the Clerk of this Court, in due course, would have treated the transfer as a petition for certiorari and given the county time to supplement the petition. Presumably, as we have already, on our own initiative, declared that the substantive issue raised in the case was worthy of our consideration, we would have granted such a supplemental petition, and this case could have proceeded in an appropriate fashion. The fly in the ointment was the striking of the notic e of appe al by the Circu it Court. That was w holly imp roper. Maryland Rule 8-203 permits a Circuit Court to strike a notice of appeal to the Court of Special Appeals, but only for certain enumerated reasons: (1) if the appeal was not filed within the time prescribed by Rules 8-202 or 8-204 i.e., if the appeal was untimely; (2) if the Circuit Court clerk has prepared the record pursuant to Rule 8-413 and the appellant has failed to pay for it; (3) if the appellant has failed to deposit with the clerk the filing fee required by Rule 8-201(b); or (4) if by reason of any other neglect on the part of the appellant the record has not be en transm itted to the Co urt of Spe cial Appe als within the time prescrib ed by Ru le 8-41 2. These reasons are both entirely colla teral to the me rits of the app eal and as o bjectively determinable by the Circuit Court as they are by the Court of Special Appeals. This C ourt has not permitted a C ircuit Court to preclude review of its own decision by striking an appeal because it believes that the app ellate court has no jurisdiction to hear the appeal or that the appellant is not entitled to take the appeal, or for any other reason that goes, directly or -18- indirectl y, to the merits o f the appe al. If an appeal is subject to dismissal for any reason other than the four articulated in Rule 8-203, it is the appellate court that must order the dismissal. The order of the Circuit Court striking the notice of appeal was unauthorized, erroneous, and itself appealable.10 The problem, of course, is that the county failed to appeal that o rder, and w e need to consider the effect of that omission. In Sullivan, supra, 434 A.2d 102 4, we had befo re us a somewhat similar, but nonetheless distinguishable, situation. In an administrative proceeding, the Insurance Commissioner had apparently approved the termination of Sullivan s agency agreement with an insurance company, and Sullivan filed an action for judicial review. The Circuit Court affirmed the administrative decision, and Sullivan filed a timely appeal to the Court of Special Appeals. When it became c lear that, due to a delay by the court reporter in preparing the transcript, the record could not be transmitted to the appellate court within the time allowed, Sullivan sought an extension. The Court of Special Appea ls denied the extension because the request itself was untimely. W ithout notice to Sullivan, the Circuit Court, informed by its clerk that the record had not been time ly transmitted, entered an order prep ared by the clerk striking the no tice of appeal. Being 10 The Circuit Court s action was particularly inappropriate in this case, as it was based prin cipally on the ass ertion that the C ourt of Sp ecial App eals had no jurisdiction to hear the ap peal. As w e have ob served, in tha t situation, the C ourt of Sp ecial App eals would have been required by Rule 8-132 to transfer the appeal to this Court, which did have jurisd iction, rather tha n to dismiss th e appeal. T he Circuit C ourt thus arro gated to itself a power that not even the Court of Special Appeals had. -19- unaware of that order, Sullivan did not app eal it but petitioned this Court for certiorari to review the merits of the case. We granted the petition but, upon becoming aware of the procedural setting, limited our review to the procedural issues, including whether the dismissal of the app eal by the Circu it Court was reviewable in the absence of an appeal from that order. The predecessor to Rule 8-203 that was in effect at th e time did n ot require the Circuit Court to notify the parties befo re striking an a ppeal, wh ich is presumably why Sullivan was not notified of the court s intended action. We concluded that, in the absence of an appeal from the order strik ing the app eal, the merits of that dismissa l were no t before the appellate court, but that, in the absence of notice, the order was void on d ue proces s grounds and could be collatera lly attacked . Sullivan, supra, 291 Md. at 282, 287, 434 A.2d at 1027, 1030. We held (1) that the ord er striking the a ppeal wa s itself an app ealable judg ment (Id. at 284, 434 A.2d at 1028); (2) that the Circuit Court had no authority to strike the appeal except upon the grounds allowed in the Rule (Id., 434 A.2d at 1028); (3) that the appeal was stricken on the ground that the record had not been timely transmitted due to some neglect or omission on Sullivan s part, which amounted to a determination that the fault was that of Sullivan and not the court reporter (Id. at 287, 434 A.2d at 1030); and (4) that the making of such a determination without notice to Sullivan amounted to a denial of due process which voids the order striking the entry of appeal (Id. at 287, 434 A.2d at 1030 ). Because we regarded the Circuit Court order as void, the appeal was still effectively pending before the Court of -20- Special Appeals when we granted certiorari. Id. at 288, 434 A.2d at 1030. This case is d ifferen t. Rule 8-203, redrafted in light of Sullivan, requires that notice be given to the parties before an appeal is stricken by the Circuit Court. Notice was given to the county, and the county responded. There was no due process violation, and, although the Circuit Court s order was unauthorized and erroneous, it was not void and therefore not subject to collateral attack. A judicial decree or judgment made by a court lacking jurisdiction to enter it is void. Fooks Executors v. Ghingher, 172 Md. 612, 619, 192 A. 782, 785 (1937). The term jurisdiction can have different me anings, howeve r, depending upon the context in w hich it is used. It can refer to either i) the power of a court to render a va lid decree, [or] ii) the propriety of granting the relief sought. First Federated Comm. Tr. v. Comm r, 272 Md. 329, 334, 322 A.2d 539, 543 (1974) (quoting Moore v. McAllister, 216 Md. 497, 507, 141 A.2d 176, 182 (1958)). It is only when the court lacks the first kind of jurisdiction which, in Pulley v. Sta te, 287 Md. 406, 417, 412 A.2 d 1244, 1 250 (198 0), this Court termed fundamental jurisdiction that its judgment is void. First Federated, supra, 272 Md. at 334, 322 A.2d at 543. As this Court recently reiterated in Carey v. C hessie Computer, 369 Md. 741, 802 A.2d 1060 (2002), fu ndamen tal jurisdiction re fers to the power to act with regard to a subject matter which is conferred by the sovereign authority which organizes the court, and is to be sough t for in the ge neral nature of its pow ers, or in authority specially conferred. Id. at 756, 802 A.2d at 1069 (quoting Pulley, supra, 287 Md. at 416, 412 A.2d at 1249 (quoting Cooper v. Reynolds Lessee, 77 U.S. (10 Wall.) 308, -21- 316, 19 L. Ed. 931, 932 (1870)). It is the power that the law confers on a court to render judgmen ts over a class of case s, within which a particu lar case may fall. First Federated, supra, 272 M d. at 335 , 322 A .2d at 54 3. Thus, the main inquiry in determining fundamental jurisdiction is whether or not the court in que stion had g eneral auth ority over the class of cases to w hich the cas e in question belongs. As previously stated, Maryland Rule 8-203 confers upon the Circuit Co urt the power to strike notices of appeal, but limits the exercise of that pow er to certain circumstances. Although the co urt erred in the manner in which it ex ercised its pow er, it acted within its general authority to strike notices of app eal when it issued its ruling. In Pulley, supra, 287 Md. at 417, 412 A.2d at 1250, this Court m ade clear tha t a court still retains its fundamental jurisdiction though its ability to exercise that power may be interrupted or circums cribed by statute or Maryland Rule . Indeed, this Court has repeatedly declined to hold void court or agency dec isions that exc eeded statu tory limits but fell within the basic or fundamental jurisdicti on of th e court o r agenc y. See, e.g., Carey, supra, 369 Md. 741, 802 A.2d 1060; Board of License Comm . v. Corridor, 361 Md. 403, 761 A.2d 916 (2000); Parks v. S tate, 287 Md. 11, 410 A.2 d 597 (19 80); Block v. Sta te, 286 Md. 266, 40 7 A.2d 320 (1 979). The fact that the Circuit Court issued its dismissal order after the county had noted its appeal to the Cou rt of Specia l Appeals is of no consequence. Once the appeal was pending, the Circuit Court was certainly prohibited from exercising its jurisdiction in a way that would -22- affect the subject matter of the appeal or appe llate pro ceedin g. See Jackson v. State, 358 Md. 612, 620, 751 A.2d 473, 477 (2000); see also Pulley, supra, 287 Md. at 417, 412 A.2d at 1250. Any rulin g to that e ffect, however, was reversible on appeal, not void for lack of jurisdiction. Id. Accord F olk v. State, 142 Md. App. 590, 598, 791 A.2d 152, 157 (2002). If the county desired to challenge the Circuit Court s order . . . it was required to note an appeal. When it failed to do so within the 30 days allowed, the order became final; the appeal was dismissed. Thus, when we issued a writ of certiorari on May 14, 2004 in Appeal No. 1376, that appeal was no longer pending in the Court of Special Appeals. There is nothing for us to review. WRIT OF CERTIORARI DISMISSED, WITH CO STS, AS HAVING BEEN IMPROVIDENTLY GRANTED. -23-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
