Mears v. Bruce, Inc.

• Decision Date: 11 July 1978
• Docket Number: No. 81,81
• Citation: 388 A.2d 550,39 Md.App. 649
• Parties: John H. MEARS, Jr. v. BRUCE, INC.
• Court: Court of Special Appeals of Maryland

Page 649

39 Md.App. 649

388 A.2d 550

John H. MEARS, Jr. v. BRUCE, INC.

No. 81.

Court of Special Appeals of Maryland.

July 11, 1978.

Charles W. Collett, Annapolis, with whom were Goldsborough, Franch & Collett, Annapolis, on the brief, for appellant.

T. Hughlett Henry, Jr., Easton, with whom were William H. Price, II, and Henry, Hairston & Price, Easton, on the brief, for appellee.

Argued before MASON, LISS and MacDANIEL, JJ.

LISS, Judge.

On November 11, 1977, the Easton Board of Zoning Appeals reversed a prior decision of the Town of Easton Building Inspector and directed that a building permit be issued to the appellee herein, Bruce, Inc., for the construction of a 55,000 square foot store to be leased to K-Mart, Inc. The appellant, John H. Mears, Jr., noted an appeal on December 8, 1977 to the Circuit Court for Talbot County, and on December 16, 1977 filed a petition pursuant to Rule B2.e of the Maryland Rules of Procedure. ¹ On the day the appeal was noted counsel for appellant communicated with the Town Clerk, Elizabeth M. Willey, and requested that she prepare a transcript of the proceedings before the Board of Zoning Appeals and delivered a cover letter and check for advanced costs, receipt of which was acknowledged on the same date.

There is some confusion as to what occurred on January 5, 1978. Counsel for appellant states that he personally communicated with the Town Clerk's office to determine if the record would be ready in time for transmittal within the 30-day period prescribed by the Rules which he mistakenly calculated to fall on January 8, 1978. The actual expiration date of the 30-day period was January 16, 1978. He further stated that he was advised that the record was ready and immediately dispatched his secretary to the office of the Town Clerk for the specific purpose of physically transporting the record to the Clerk of the Circuit Court. Appellant's counsel contends that his secretary was advised that the papers which she picked up from an employee at the Town Clerk's office was the Bruce, Inc. record and that she delivered them to the Deputy Clerk of the Circuit Court for Talbot County. Prior to that delivery the secretary stopped at her office and made two copies of the transcript, placing one copy in the appellant's file and delivering one copy to counsel for the appellee. Later that same day the Deputy Clerk called the secretary to request that a title page be prepared for the transcript, and the secretary prepared and delivered it to the Clerk's Office as requested.

Appellee at least partially contests the appellant's statement of the facts and points out that the Town Clerk in her testimony did not remember whether her conversation with appellant's counsel related to the readiness of the transcript or the record. It is conceded by the appellant that the documents delivered to the office of the Clerk of the Circuit Court did not include the exhibits filed before the Board of Zoning Appeals at the original hearing and that, therefore, the record was not complete to that extent.

On Friday, January 20, 1978, appellee filed a motion to dismiss appellant's appeal on the ground that appellant had failed to comply with the requirements of Rule B7 of the Maryland Rules of Procedure. ²

On Monday, January 23, 1978, the exhibits which had been introduced into evidence before the Board of Zoning Appeals were delivered by the Town Clerk and filed by the Clerk of the Circuit Court in the proceedings pending in that court. On January 26, 1978, the Town Clerk testified that she had no prior knowledge of Maryland Rule B7 and more specifically of the requirements imposed upon her by subsection a of that Rule. On that date, the Circuit Court for Talbot County granted appellee's motion to dismiss the appeal for failure to transmit the record within the time limitations allowed by law. At a later hearing on appellant's motion to reconsider, the Circuit Court on February 15, 1978 reaffirmed its prior ruling and this appeal followed.

The issue raised herein is whether the trial court erred in dismissing appellant's appeal in the Circuit Court on the ground that the entire record had not been transmitted within the time prescribed by the Rules. Appellant urges that his failure to comply completely with Rule B7 is excused by the provisions of subsection c of that rule. ³

The case Sub judice presents a unique situation in which the principal issue arises out of the failure of the clerk of an administrative agency to transmit the entire record within the time prescribed by Rule B7.a. It is agreed by both parties that the transcript of the proceedings before the administrative agency was timely filed but that the exhibits were omitted and not filed for record with the Clerk of the Circuit Court until after the 30-day filing period had expired. That failure is the sole deviation from the requirements of the B Rules, which is charged against the appellant. ⁴

The trial judge, in granting the appellee's motion to dismiss the appeal, based his conclusion on three grounds which he stated as follows: (1) Md.Rule B7.a imposed a duty on the appellant to see that a complete record was transmitted to the Clerk of the Circuit Court within the time allowed by law; (2) the fact that a secretary of counsel for the appellant physically picked up the record from the clerk of the administrative agency and delivered it to the Circuit Court placed appellant on notice that the record was incomplete, and (3) the fact that appellant undertook to transport the record to the Clerk of the Circuit Court and thereafter failed to notify the clerk of the administrative agency that the record was incomplete lulled the administrative clerk into a false sense of believing that her duties had been discharged, and the appellant should, therefore, be estopped from claiming error on the part of the clerk since appellant's actions precipitated the error. We do not agree and shall reverse. We note initially that we cannot accept the estoppel theory based upon the premise that the administrative clerk was lulled into believing that her duties had been discharged. By her own testimony, she had no knowledge that she was charged with the duty of delivering the record. She stated that during her 10 years in office she had had a similar case on only one occasion and on that occasion the details were handled by the Town Attorney. It seems clear to us that one who does not know that she is under an obligation to perform can hardly claim that she believed that she had satisfactorily performed a duty which she did not know existed. We find no bar to the appellant's claiming that it was the clerk's error which precipitated the delay which led to dismissal of the petition.

A review of the cases decided by the Court of Appeals and this Court dealing with similar controversies establishes two distinct lines of decision. One line of cases is harsh and unyielding in requiring strict adherence to the time limitations imposed by the rules for appeal. Horseman v. Furbush, 124 Md. 581, 93 A. 149 (1915), is illustrative of that approach. There the rules required that the record be filed with the Court of Appeals within 90 days. The record was mailed from Salisbury, Maryland on August 17, 1914 and arrived in the Annapolis Post Office too late for delivery on August 18, 1914. It was delivered on the 91st day after the order for appeal was filed. In affirming the dismissal of the appeal the Court stated:

"While we are naturally reluctant to enforce the rule when the time it allows for the transmission has been exceeded by such a narrow margin as on this appeal, we could not rightfully modify its express and definite terms, or make its application depend upon a mere measurement of the extent to which it has been transgressed, in order to avoid the prescribed consequence of the delay in a particular case." Id. at 585, 93 A. at 151.

To the same effect is Stiener v. Harding, 88 Md. 343, 41 A. 799 (1898) which held that a prima facie case for dismissal appearing from the fact that the time has elapsed for proper filing, "this Prima facie evidence must be rebutted and overcome by the appellant. He can overcome its effect by showing that the delay was due (first) to the neglect, (second) to the omission or (third) to the inability of the clerk." Id. at 345, 41 A. at 800.

See: Goldman v. Tauber, 258 Md. 174, 265 A.2d 225 (1970); Brill v. State, 144 Md. 68, 124 A. 414 (1923); Castelberg v. Hamburger, 133 Md. 42, 104 A. 473 (1918); Horsey v. Woodward, 124 Md. 361, 93 A. 9 (1914).

The Court, however, as far back as 1878 has recognized that there were some circumstances in which a failure of strict compliance with the Rules should be excused. In Wilson v. Merryman, 48 Md. 328 (1878), the Court had before it a motion that an appeal be dismissed because the record had not been transmitted to the appellate court within the prescribed period. The appellant had filed his appeal bond and affidavit promptly after entry of his appeal and had directed the clerk to make up the record for the Court of Appeals. Within the time allowed, the clerk notified the appellant that the record was ready and counsel immediately paid the cost of preparation of the record. The clerk waited to file the record until he received certain exhibits which the clerk claimed had been lost or misplaced. Appellant was not notified of the delay and did not learn of the failure to transmit until past the time for filing of the record. In refusing to dismiss the appeal the Court said:

"The only parties upon whom the law imposes the duty of preparing and transmitting the record, being the appellant and the clerk, if delay occurs it must ordinarily be ascribed to the act or omission of one or the other of those parties, hence the language of the Rule. The spirit and intent of which is that in such case the Onus is on the appellant to prove affirmatively that he has used due diligence to comply...