Lone v. Montgomery County, s. 446

CourtCourt of Special Appeals of Maryland
Citation85 Md.App. 477,584 A.2d 142
Docket NumberNos. 446,699 and 702,s. 446
PartiesWilliam LONE v. MONTGOMERY COUNTY, Maryland. Shirley JONES v. MONTGOMERY COUNTY, Maryland. ,
Decision Date01 September 1990
Maureen A. Thompson, Silver Spring, for appellants

Alan M. Wright, Senior Asst. Co. Atty. (Clyde H. Sorrell, Co. Atty., on brief), Rockville, for appellee.

Argued before MOYLAN, FISCHER and CATHELL, JJ.


This is a consolidated appeal from three judgments of the Circuit Court for Montgomery County. The appellants, William Lone (No. 446) and Shirley Jones (Nos. 699 and 702), appeal from judgments of default and summary judgment, respectively. The appellee, Montgomery County, moved to dismiss Lone's appeal (No. 446) on the ground that Lone failed to comply with Rule 8-501(c) and (d). On November 15, 1990, we struck the appellants' briefs and appendix, which we found to be in violation of Maryland Rule 8-503(d). 1 The appellants then resubmitted their briefs. We shall now address all three cases.


Ordinance 8-66 was introduced to the Montgomery County Council in May 1977, and was enacted on March 23, 1978. 2 It permitted certain prohibited uses to continue for a ten-year grace period. In the "legislative purpose" section of Ordinance 8-66, the County Council found that up until January 1, 1954, conversions of single-family residences to multi-family uses were encouraged by governmental officials. Many of those prior conversions, although encouraged, violated the pre-existing zoning codes. The 1978 ordinance carefully distinguished between valid nonconformity and unauthorized nonconformity by referring to the former as "legal" nonconforming uses and the latter as merely nonconforming uses.

In essence, the grace period was for the purpose of permitting the continuation of prohibited uses for another ten years, not to phase out legal uses over the ten-year period. Thus, it legitimized for a ten-year period that which would have been otherwise illegal or prohibited. At the end of the ten-year period, those uses lost their legitimization by reason of the same ordinance that legitimized them in the first instance. The owners and their successors were then in the same position they were in before the ordinance was passed. The ordinance created no "vested" right in the traditional property meaning, but a contingent right subject to automatic divestiture at the conclusion of the ten years. To qualify for the ten-year grace period, the owners of eligible homes were required to register their homes with the Montgomery County Department of Environmental Protection to ensure that certain health and safety code provisions were complied with during the grace period. If an In 1980, the County Council enacted Ordinance 9-12 to amend 8-66. It allowed dwellings which were originally built as multi-family to remain so, on a permanent basis. 4 Then, in 1983, the Council enacted Ordinance 10-13, creating a special exception that allowed the maintenance of one "accessory apartment" in nonconforming multi-family homes which were owner occupied. 5

                owner did not register his home then multi-family use terminated as of September 1, 1979. 3  On or about September 1, 1979, the County started to enforce Ordinance 8-66 against all nonregistered dwellings which were in violation of the multi-family/single-family provisions

On March 23, 1988, the ten-year grace period ended, and the County began to enforce Ordinance 8-66 as to those units that had been registered for the grace period. The owners filed a declaratory judgment action in the United States District Court for the District of Maryland, Nickell v. Montgomery County, Nos. K-88-824 -902 (D.Md. May 20, 1988), alleging that the ordinance constituted a taking of vested property rights, in violation of the due process and equal protection clauses of the United States Constitution. They also made similar claims in respect to violations of the Maryland Constitution. The trial judge held that the ordinance was valid. He was upheld by the Fourth Circuit on appeal. Nickell v. Montgomery County, 878 F.2d 379 (4th Montgomery County then began bringing suits against individual owners under the ordinance, seeking fines and injunctive relief.

Cir.1989) (unpublished). 6


The County initiated this action by filing a complaint for injunctive relief and interrogatories on August 14, 1988. Service was returned non est, and the case lay dormant until, after renewal of summons, service was finally obtained on August 14, 1989. Lone filed a Motion to Dismiss alleging lack of jurisdiction on September 28, 1989. The next day, the County filed a Motion for Order of Default alleging a failure to answer. Lone's Motion to Dismiss was denied on October 12, 1989; he then filed his Answer on October 24, 1989. The County withdrew its Motion for Default Judgment 6 days later.

The County thereafter filed a Motion for Sanctions pursuant to Md. Rule 2-433 7 on December 22, 1989, stating as grounds Lone's failure to file timely answers to interrogatories. On January 12, 1990, more than 15 days after the filing of the motion and with no response having been filed thereto, the court entered a default judgment in the form of an Order for Sanctions and granted the injunctive relief requested by the County in its complaint. On February 1, Lone untimely filed an Opposition to the Motion for Sanctions and, on February 2, filed a Motion to Set Aside the Default Judgment. Lone's Motion to Set Aside the Default Judgment was denied on February 15, 1990, and on March 13, the court entered its Order for Injunction.

On appeal, Lone presents this question:

Is it an abuse of discretion for the trial judge to grant a default motion against a defendant who, having filed a preliminary motion pursuant to Rule 2-322, and being entitled to the automatic extension contained in Rule 2-321(c) and Rule 2-421(b), fails to answer interrogatories in a timely manner because he has no notice of the disposition of his preliminary motion?

Our review of the trial judge's dismissal of the case is under the abuse of discretion standard. Discretion is "a reasoned decision based on the weighing of various alternatives." Judge v. R and T Construction Co., 68 Md.App. 57, 60, 509 A.2d 1236 (1986), aff'd after remand, 82 Md.App. 700, 573 A.2d 96, cert. granted, 321 Md. 46, 580 A.2d 1066 (1990). When a court must exercise discretion, failure to do so is usually reversible error. Maus v. State, 311 Md. 85, 108, 532 A.2d 1066 (1987). Even when the ultimate penalty of entry of a default judgment is invoked, it cannot be disturbed on appeal without a clear showing of abuse of discretion. Klein v. Weiss, 284 Md. 36, 56, 395 A.2d 126 (1978); Mason v. Wolfing, 265 Md. 234, 236, 288 A.2d 880 (1972); Berkson v. Berryman, 63 Md.App. 134, 142, 492 A.2d 338, cert. denied, 304 Md. 296, 498 A.2d 1183 (1985).

Maryland Rule 2-321 states that "[a] party shall file an answer to an original complaint ... within 30 days after being served, except.... [w]hen a motion is filed pursuant to Rule 2-322 [such as Lone's Motion to Dismiss alleging lack of jurisdiction], the time for filing an answer is extended without special order to 15 days after entry of the court's order on the motion...." Rule 2-421(b) contains an analogous provision concerning interrogatories: "The party to whom the interrogatories are directed shall file a response within 30 days after service of the interrogatories or within 15 days after the date on which that party's initial Lone was thus required to file an answer or preliminary motion by September 15, 1989. He did not comply. He failed to file anything until he filed his Motion to Dismiss on September 28, 1989. He was at that time in violation of the time constraints of the Maryland Rules. The appellee, however, withdrew its first Motion for Default Judgment when Lone belatedly filed his answer in October. A denial of Lone's motion was entered on October 12, 1989. Appellant's answers to interrogatories were thus due approximately October 27. Lone admits that his answers to the interrogatories were untimely, as they were not filed until February 2, 1990, but blames the clerk's office, arguing that he never received notice of the court's disposition of the Motion to Dismiss. 9 We hold that the trial judge did not abuse his discretion when he imposed the "ultimate sanction" upon Lone. As he is allowed to do, he assigned little weight to the appellant's unsupported explanation for the failure to file timely. Absent any proof of mistake on the part of the clerk's office, a likely explanation for the appellant's lapse is dilatory conduct, which may properly result in sanctions.

pleading or motion is required, whichever is later." 8

At the time the court imposed sanctions for failure to respond to interrogatories, the appellant's dilatoriness in pleading had been the subject of a prior Motion for Default Judgment in respect to the failure to answer (which motion Assuming, arguendo, that the appellant did not receive service, we note that the language of Md. Rule 2-321 places the burden on the litigants to check the docket as the clock begins to run upon entry of the court's order disposing of the motion, not when service is made. Even if the judge were to have accepted the validity of Lone's lack of notice argument, which he did not, he nevertheless could have imposed sanctions for failure to comply.

had been withdrawn). Additionally, appellant had not responded to interrogatories as he was required to do, nor had he even responded to the Motion for Sanctions for failure to answer interrogatories after that motion was filed.

As discussed supra, we cannot hold that it was an improper exercise of the trial judge's discretion for him to have rendered the default judgment.


Shirley Jones is a property owner in Takoma Park and the appellant in two cases, Nos. 699 and 702, which...

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