Jacober v. High Hill Realty, Inc., No. 794

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Argued before ORTH; THOMPSON; Faced with the testimony of Mr. Perkins that three to four more weeks of rush work would have been sufficient to complete the transcription of the testimony, when appellant ordered that he 'hold off' in late July or earl
• Citation: 22 Md.App. 115,321 A.2d 838
• Decision Date: 15 July 1974
• Docket Number: No. 794
• Parties: Herbert C. JACOBER et al. v. HIGH HILL REALTY, INC., et al.

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22 Md.App. 115 321 A.2d 838 Herbert C. JACOBER et al.
v.
HIGH HILL REALTY, INC., et al. No. 794. Court of Special Appeals of Maryland. July 15, 1974.

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[321 A.2d 839] Anne Kay Kramer, Stevenson, for appellants.

Marvin I. Singer, Baltimore, with whom were Sullivan, Wiesand & Singer, Baltimore, on the brief, for appellees.

Argued before ORTH, C. J., and THOMPSON and MENCHINE, JJ.

THOMPSON, Judge.

Herbert C. Jacober et al, appellants, appeal from the order dated October 16, 1973, of Judge John E. Raine, Jr., granting a motion to dismiss their appeal from the decision of the County Board of Zoning Appeals to the Circuit Court for Baltimore County.

The question presented is:

Did the trial judge err in dismissing the appeal for failure to file the record within the period of time prescribed in Md. Rule B7?

FACTS

The recitation of facts necessarily emphasizes chronology, which shall determine the question before us. On April 10, 1973, the County Board of Zoning Appeals, finding 'error' in the comprehensive map, reclassified[321 A.2d 840] property held by the appellees to a more intensive high density residential use. On the last day for timely filing appeal, May 10, 1973, appellants, by their attorney, filed in the Circuit Court for Baltimore County an Order for Appeal from the Board's decision. The appellants next filed, on May 18, 1973, a Petition for Appeal which named Herbert C. Jacober, Roy B. & Carolyn J. Maguire, and Gardner T. Smith to be protestants to the proceedings before the Board. The aforementioned pleadings were timely filed.

The Board had considered two cases involving different properties held by the same parties. The hearings entailed a

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significant amount of testimony which was to be transcribed by the Court Reporter, C. Leonard Perkins. With firsthand knowledge of the logistical problems the court reporter faced in preparing such voluminous transcripts, counsel for appellants, for reasons not explained in the record, waited a full 21 days from the date the order for appeal was filed before ordering that the testimony be transcribed. On June 1, 1973, appellants sent to Mr. Perkins a written instruction to commence the transcription in the High Hill case.

A Motion for a 90 day Extension of Time for Filing of the Record was filed by the appellants. That same day, June 14, 1973, Judge Kenneth C. Proctor signed an ex parte order that the period to file the record be extended for a ninety (90) day period from June 14, 1973 until September 13, 1973 (in fact, ninety-one (91) days).

Between mid-July and early August, Mr. Perkins received a phone call from Mrs. Kramer, attorney of appellants. During this conversation, Mrs. Kramer advised Mr. Perkins that settlement negotiations were under way and to 'hold off' preparation of the transcript. At this point, 850 pages had been completed but 3 or 4 more weeks of rush work were required in order to finish the transcript. Mr. Perkins stopped work as directed by appellants' counsel.

On August 16, 1973, Mr. Perkins left for a three (3) day vacation in New Hampshire. He was hospitalized there for emergency surgery. The board was contacted in order to advise the people with records pending to seek extensions. Acting upon this information, the appellants moved for a second extension, on September 5, 1973, for a sixty (60) day period. That same day Judge Lester L. Barrett signed an ex parte order extending the time for filing the record for a sixty (60) day period from September 16, 1973 to November 16, 1973.

On September 10, 1973, appellees filed a motion to strike or rescind the order for extension of time rendered on September 5th by Judge Barrett, and filed a motion to dismiss the appeal of appellants to the Circuit Court.

Mr. Perkins had returned to Baltimore around September 1st. A subsequent illness required that he spend three days

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at Greater Baltimore Medical Center. But he was not instructed by appellants to resume transcribing the High Hill record until the last week in September.

On October 16, 1973, Judge John E. Raine, Jr. held a hearing on appellants' motions to strike and to dismiss the appeal. Judge Raine, on October 16th, rescinded the September 5th order for a sixty (60) day extension and further granted the motion to dismiss appellants' appeal. During this hearing, Mr. Perkins, testifying for appellants, stated that he still needed two weeks of work to complete the transcript, which he had resumed transcribing in the last week of September after being told to hold off in mid-July.

Md.Rules Chapter 1100, subtitle B prescribes the rules to be followed in appealing from administrative agencies. In accord with subtitle B, we will apply the facts in the instant case to the requirements[321 A.2d 841] for timely transmittal of the record, as set out by Rule B7 a-c. ¹

On April 10, 1973, the Board entered its decision; appellant timely filed his order for appeal on the last day

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permitted for such under Rule B4 a, on May 10, 1973. Eight days later, on May 18, 1973, appellant filed his petition for appeal within the time frame authorized by Rule B2 e. The petition for appeal, as filed by appellant on May 18, 1973, certified that a copy had been forwarded to the Board the day before. Rule B7 a requires that the record be transmitted promptly and in any event within thirty (30) days after a copy of the petition filed in the Circuit Court is received by the administrative agency, unless a court order pursuant to section b fixes a different time. Section b authorized the court for sufficient cause shown to extend the time for transmittal of the records, but the extension is not to exceed ninety (90) days beyond the date on which the copy of the petition for appeal was received by the agency. In the instant case, under the terms of sections a and b, an extension of the 'time prescribed' for transmitting the record could not extend beyond August 16, 1973. To transmit the record after mid-August would be to act without the 'time prescribed' in sections a and b, thereby requiring appellant to resort to section c for such authority. This section requires that the appeal not be dismissed for failure to transmit the record within the time prescribed, if the appellant can show to the satisfaction of the court that 'such delay' was occasioned by the 'neglect, omission or inability' of someone other than the appellant. By necessary inference, the motion to dismiss must be granted, however, if the appellant fails to sustain his burden of proof.

On June 14, 1973, Judge Proctor ordered that the time for filing the record be extended for a ninety (90) day period purportedly under Rule B7 to September 13, 1973, which is almost a month beyond the ninety (90) day time limitation prescribed by subsection b. On September 5, 1973, which likewise is beyond the period of time prescribed by subsection b for extension, Judge Barrett ordered a further sixty (60) day extension to November 16, 1973. The legal effect of these two ex parte rulings comprises our threshold question.

This question has not been considered under Rule B7 b, however, it has been considered in cases interpreting Rule

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825 b,...