Cave v. Elliott

Decision Date27 January 2010
Docket NumberNo. 56 Sept. Term, 2007.,56 Sept. Term, 2007.
Citation190 Md. App. 65,988 A.2d 1
PartiesCharles M. CAVE v. Calvin ELLIOTT, Jr.
CourtCourt of Special Appeals of Maryland

Elissa D. Levan (Cynthia G. Peltzman, Douglas F. Gansler, Atty. Gen. on the brief), for appellant.

Patrick J. McAndrew (Murray A. Zitver, McAndrew, Zitver & McGrath, PA on the brief), Greenbelt, for appellee.

Panel: SALMON, WOODWARD and WILLIAM W. WENNER, (Retired, Specially Assigned), JJ.

WOODWARD, J.

This appeal arises from the termination of appellee, Calvin Elliott, Jr., from his position as a Deputy Sheriff with the Howard County Sheriff's Office ("Sheriff's Office") on October 28, 2005. On December 14, 2005, Elliott filed a complaint for a show cause order in the Circuit Court for Howard County pursuant to the Law Enforcement Officers' Bill of Rights ("LEOBR"), Maryland Code (2003), § 3-105 of the Public Safety Article. ("P.S."). Elliott requested that the court issue an order requiring the Sheriff's Office and appellant, Howard County Sheriff Charles M. Cave, to show cause, if any, why the rights provided by the LEOBR should not be afforded to Elliott.

As of January 25, 2006, all of the judges of the Circuit Court for Howard County recused themselves from the case. The case was then transferred to the Circuit Court for Carroll County. Following a show cause hearing held on August 25 2006, the Circuit Court for Carroll County, in a memorandum opinion, found that Elliott was improperly denied his right under the LEOBR to a hearing before a hearing board prior to his termination. By separate order, the court ordered Elliott's reinstatement to his former position as a Deputy Sheriff with the Sheriff's Office, "including the payment of all back pay and benefits."

On appeal, Cave presents one question for our review, which we have rephrased:

Did the trial court err in awarding Elliott back pay and benefits when it determined that Elliott had been denied his right under the LEOBR to a hearing before a hearing board prior to the termination of his employment?1

For the following reasons, we shall affirm the judgment of the circuit court.

FACTS & PROCEEDINGS

Elliott was employed as a Deputy Sheriff with the Sheriff's Office on a continuous basis from September 24, 2001, through October 28, 2005. During that time, Elliott was assigned to the Transport Court Security Unit. On October 28, 2005, Elliott received a memorandum from Major R. Scott Mergenthaler, Chief Deputy of the Sheriff's Office, advising Elliott that his employment was terminated, effective immediately. The memorandum stated that, in lieu of notice of his termination, Elliott would be compensated two weeks' pay.

On December 14, 2005, Elliott filed a Complaint For Show Cause Order Pursuant to the Law Enforcement Officers' Bill of Rights in the Circuit Court for Howard County. Pursuant to P.S. § 3-105, Elliott requested that the court issue an order "directing [Cave and the Sheriff's Office] to Show Cause why [Elliott] should not be afforded the rights guaranteed by the [LEOBR], and consistent with principles of due process under the Constitution of the United States and the State of Maryland." In addition, Elliott requested that the court issue an order directing Cave and the Sheriff's Office to restore Elliott to his former position as a Deputy Sheriff, "including the payment of all back pay and benefits."2

On December 30, 2005, the Circuit Court for Howard County entered a show cause order, pursuant to P.S. § 3-105, directing Cave and the Sheriff's Office to "show cause, if any, on or before the 29th day of January, 2006, why the rights provided by the [LEOBR] should not be afforded [Elliott]." The court further ordered that the show cause order stand for a hearing on February 9, 2006.

On January 30, 2006, Cave filed a Response to Order to Show Cause, requesting that the court dismiss the show cause order or, alternatively, find no violation of the LEOBR. In his response, Cave asserted, inter alia, that Elliott was not entitled to the due process protections of the LEOBR, because Elliott's termination was due to poor performance, and the LEOBR accorded procedural protections only to law enforcement officers "who are being investigated or interrogated for the purpose of imposing disciplinary action." Cave, however, did not respond to Elliott's request for reinstatement with payment of back pay and benefits.

Thereafter, all of the judges of the Circuit Court for Howard County recused themselves from the case, and on February 13, 2006, the parties consented to a transfer of the case to the Circuit Court for Carroll County.

Following the transfer, on August 25, 2006, the Circuit Court for Carroll County held a hearing pursuant to the show cause order. In a written memorandum opinion dated December 12, 2006, the court concluded that the actions of Cave and the Sheriff's Office "were sufficient to constitute an investigation as contemplated by the terms of the LEOBR and the appellate decisions interpreting the same, and [Elliott's] dismissal was punitive in nature." Accordingly, the court found that Elliott was denied the right to a hearing under the LEOBR prior to his termination. In an order dated December 12, 2006, and entered December 13, 2006, the court ordered Elliott's reinstatement to his former position as a Deputy Sheriff, "including the payment of all back pay and benefits."

On December 22, 2006, Cave filed a Motion for Reconsideration, asking the court to "reconsider its order insofar as it provide[d] for reinstatement and the payment of back pay and benefits." Cave argued that reinstatement was not a right guaranteed by the LEOBR and that, regarding back pay and benefits, the parties were entitled to litigate the amount to be awarded and Elliott had a duty to mitigate his damages. Therefore, Cave asserted that, "[a]t the very least, [he] is entitled to discovery of the efforts [Elliott] made to mitigate damages, the amount of time he actually worked, his efforts to find other employment, whether he earned unemployment insurance, and other issues related to benefits he claimed were lost as a result of the termination of his employment."

According to Cave, his Motion for Reconsideration was hand-delivered to the Circuit Court for Carroll County. As the motion appears in the record, it was time and date stamped, "RCVD 06 DEC22'06 13:08," indicating its receipt by that court on December 22, 2006. The caption of the motion, however, read, "In The Circuit Court For Howard County," and the case number appearing on the motion was the case number assigned by the Circuit Court for Howard County prior to the transfer of the case to the Circuit Court for Carroll County. (Emphasis added). The motion contained the correct names of the parties. Instead of docketing Cave's Motion for Reconsideration, the civil clerk of the Circuit Court for Carroll County returned the miscaptioned motion to Cave's counsel, striking out the time and date stamp on the motion and attaching a memorandum that stated that the motion was filed in the Circuit Court for Carroll County in error.

On January 4, 2007, Cave filed a Motion to Accept Filing of Motion for Reconsideration in the Circuit Court for Carroll County, requesting the court to accept for filing a motion for reconsideration identical to the motion Cave filed on December 22, 2006, but with a corrected caption. As the basis for his request, Cave stated that "the motion was timely filed, albeit with an erroneous caption."

On January 18, 2007, Elliott filed an Opposition to Motion to Accept Filing of Motion for Reconsideration. In his opposition, Elliott argued that Cave's motion, "whether intended as a [Maryland Rule] 2-534 or [Rule] 2-535 motion[,] is time barred and cannot now be accepted for filing by the Clerk."

By order dated January 19, 2007, the circuit court granted Cave's Motion to Accept Filing of Motion for Reconsideration and ordered that Cave's corrected motion for reconsideration, "which was originally filed on December 22, 2006, is accepted for filing, nunc pro tunc." Thereafter, on February 7, 2007, Elliott filed an opposition to Cave's Motion for Reconsideration. On February 15, 2007, the court entered an order denying Cave's Motion For Reconsideration.

Cave noted this appeal, which was filed in the Circuit Court for Carroll County on March 15, 2007.

MOTION TO DISMISS
I. Jurisdiction

Preliminarily, Elliott moves to dismiss this appeal pursuant to Maryland Rule 8-602(a)(3), because Cave did not file his notice of appeal within 30 days after entry of the judgment or order from which the appeal is taken. Elliott argues that as of January 12, 2007, which was 30 days after the entry of the order granting Elliott the relief requested, no Motion to Alter or Amend a Judgment (Rule 2-534), no Motion for Revisory Power (Rule 2-535), and no notice of appeal had been filed. According to Elliott, the only notice pending at that time was Cave's Motion to Accept Filing of Motion for Reconsideration, which was not ruled upon by the trial court until January 19, 2007. Elliott contends that the trial court did not have any authority under the Maryland Rules to enter the January 19, 2007 nunc pro tunc order and "thus all orders that flowed from it are nullities." Elliott concludes that the trial court

lost jurisdiction respecting revisory power (other than for fraud, mistake or irregularity—not at issue in the case at bar) forever when thirty days expired (on or about January 12, 2007) with no motion for revisory power, other post-trial proceeding, or notice of appeal having been filed. The Notice of Appeal filed on March 15, 2007, was approximately sixty (60) days too late.

Cave responds that the circuit court has the inherent authority "to order an act to be done nunc pro tunc as a means to amend the record to correct clerical errors to reflect that a thing is done, though not recorded." Cave asserts that the trial judge acted within his...

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