Montgomery County v. Ian Corp.

• Decision Date: 26 April 1978
• Docket Number: No. 128,128
• Citation: 385 A.2d 80,282 Md. 459
• Parties: MONTGOMERY COUNTY, Maryland v. IAN CORPORATION et al. MONTGOMERY COUNTY, Maryland v. William W. EDWARDS et al.
• Court: Maryland Court of Appeals

Page 459

282 Md. 459

385 A.2d 80

MONTGOMERY COUNTY, Maryland v. IAN CORPORATION et al.

MONTGOMERY COUNTY, Maryland v. William W. EDWARDS et al.

No. 128.

Court of Appeals of Maryland.

April 26, 1978.

Robert J. Aumiller, Asst. Atty. Gen., Baltimore, for Supervisor of Assessments for Montgomery County.

H. Christopher Malone, Asst. County Atty., Rockville (Richard S. McKernon, County Atty. and Robert G. Tobin, Jr., Deputy County Atty., Rockville, on the brief), for Montgomery County, Md.

John Burgess Walsh, Jr. and James L. Thompson, Rockville (David E. Betts, Rockville, on the brief), for appellees.

Argued before SMITH, DIGGES, LEVINE, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

We shall here hold that a trial judge did not commit reversible error when he denied the motion of appellant, Montgomery County, Maryland (the County), to intervene in two appeals from the Maryland Tax Court. The two cases were consolidated when they reached the Court of Special Appeals. We granted certiorari prior to consideration of the matter by that court.

Appellees William W. Edwards et al. (Edwards) appealed to the Circuit Court for Montgomery County alleging error on the part of the tax court in failing to grant their motions to dismiss appeals relative to land owned by them in Montgomery County. The Supervisor of Assessments for Montgomery County appealed to the Circuit Court for Montgomery County from a Maryland Tax Court decision involving the land of appellees Ian Corporation et al. (Ian), all of which land is located in the same general area. Through clerical error that order for appeal and the petition in connection with it were mailed to the tax court rather than to the Circuit Court for Montgomery County. Ultimately it was filed in the circuit court on December 6, which was not until after the expiration of the time for appeal. Ian moved in the circuit court to dismiss that appeal, which motion was overruled. The Edwards appeal also was filed in the circuit court on December 6. There is no contention with reference to the timeliness of that order for appeal.

On May 20, 1977, invoking the provisions of Maryland Rule 208, the County sought to intervene in the circuit court in the case involving the appeal of the supervisor. This was followed by a similar motion by the County on May 23 in the Edwards case. The County said it delayed filing the motions to intervene until after the jurisdictional issues were determined (whether the appeal of the supervisor should be dismissed). This was settled on March 23. Both motions to intervene were denied on June 10 in a consolidated proceeding. This is said to have been within about three weeks of the time the appeals were set for hearing. Judge Cahoon stated in denying the motions:

"If I were to grant the motion to intervene I would have to permit time to file a petition and I would have to allow the other parties the time permitted under the Rules to respond to it. The scheduled trial on the merits will have to be cancelled. I have no assurance, in fact, the argument by the County infers to the contrary, that they will assert different issues from the Appellants herein.

"I'm going to deny the motion to intervene as untimely. I will grant the County the leave to file an amicus curiae memorandum of points and authorities to be filed on or before four p.m. on the 24th of June."

Maryland Rule 208 states in pertinent part relative to intervention:

"a. Of Right.

"Upon timely application a person shall be permitted to intervene in an action: . . . when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action . . . ."

Rule 5 a in defining "action" states, "Unless otherwise indicated the word 'action' shall include an appeal from the final decision of . . . an administrative body where such appeal is authorized by statute." Rule 5 q defines the term "person" as including a "municipal or other corporation of any character whatsoever." Since the County is a "person" and an appeal from the tax court is an "action," it follows that the County is entitled to intervene if it shows (1) that its application is timely, (2) that "the representation of the (County's) interest by existing parties is or may be inadequate," and (3) that the County "is or may be bound by a judgment in the action . . . ." All three must be shown.

Under the Maryland scheme of things assessments of real estate are made by the supervisor of assessments in each county, a functionary of the State Department of Assessments and Taxation. See Maryland Code (1957, 1975 Repl. Vol., 1977 Cum.Supp.) Art. 81, §§ 231A-247A. The State raises but relatively little of its revenue by the tax on real estate, but a very substantial portion of the County's revenue is derived from such tax. The County asserted in the motion to intervene that the issues involved a reduction of assessments of almost $2,000,000. We are not told the exact rate in Montgomery County in the year in question, but it is true that the tax rate in Maryland counties, varying somewhat from county to county, has run from 10 to 30 times that of the State rate per $100 of assessment.

Although the County has argued to us that its interest will not be adequately represented on appeal in the Circuit Court for Montgomery County by the Attorney General of Maryland, it will be noted, as Edwards and Ian point out, that the trial judge based his decision on the issue of timeliness. He observed in the colloquy with counsel at argument that the hearing in the circuit court was not a de novo appeal, but an appeal on the record. In fact, Code (1957, 1975 Repl. Vol., 1977 Cum.Supp.) Art. 81, § 229(o ) provides that in the case of such appeals "the circuit court for the county . . . shall determine the matter upon the record made in the Maryland Tax Court," and it "shall affirm the Tax Court order if it is not erroneous as a matter of law and if it is supported by substantial evidence appearing in the record."

Maryland Rule 208 was derived from Fed.R.Civ.P. 24 as it formerly appeared. ¹ Since there are no relevant Maryland cases on the subject, we examine what has been said relative to the federal rule. 2 W. Barron & A. Holtzoff, Federal Practice and Procedure § 602 (C. Wright rev. 1961) states:

"In theory permissive intervention is discretionary with the court, but there is no discretion where intervention is as of right. Such a simple formulation overlooks the fact that intervention, whether of right or permissive, can only be had on a timely application. As has been seen, the question of timeliness requires a discretionary balancing of interests, and in this sense all intervention is discretionary. Nevertheless it is certainly true that the scope of permissible discretion is broader where application is made under Rule 24(b) than when it is intervention as of right under Rule 24(a)." Id. at 398 (footnote omitted).

Confirmation for this statement comes from two cases decided after that text was written, NAACP v. New York, 413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973), and Mack v. General Electric Company, 63 F.R.D. 368 (E.D.Pa.1974). In Mack the motion to intervene was filed approximately four and a half years after the commencement of the action and after the parties had submitted a proposed consent decree to the court for approval. Chief Judge Lord there observed in denying intervention:

"Under F.R.Civ.P. 24, a motion to intervene must be timely, regardless of whether intervention is sought as of right (24(a)) or by permission (24(b)). When the motion is advanced at such a late stage in the proceedings, the test for timeliness is whether the proposed intervenors knew or should have known of the pendency of the action at an earlier time, and should therefore have acted to protect their interests sooner, NAACP v. New York, 413 U.S. 345, 365-368, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973)." Id. at 369.

In NAACP the State of New York opposed the motion to intervene on a number of grounds, including timeliness. It pointed out that the suit had been pending for more than four months and an article about it had appeared in early February in the New York Times. Although the appellants did not deny that they had knowledge of the pendency of the action, their motion to intervene was not filed until April 7. Fed.R.Civ.P. 24 had been changed by the time of NAACP from the way it read when our Rule 208 was adopted. However, it still requires "timely application" to intervene. In NAACP the Court "conclude(d) that the District Court's denial of (NAACP's) motion to intervene was proper because of the motion's untimeliness, and that the denial was not an abuse of the court's discretion . . . ." In a preamble to that determination, Mr. Justice Blackmun said for the Court:

"Intervention in a federal court suit is governed by Fed.Rule Civ.Proc. 24. Whether intervention be claimed of right or as permissive, it is at once apparent, from the initial words of both Rule 24(a), and Rule 24(b), that the application must be 'timely.' If it is untimely, intervention must be denied. Thus, the court where the action is pending must first be satisfied as to timeliness. Although the point to which the suit has progressed is one factor...