Pack Shack v. Howard County

• Citation: 808 A.2d 795,371 Md. 243
• Decision Date: 09 October 2002
• Docket Number: No. 71,71
• Parties: The PACK SHACK, INC., v. HOWARD COUNTY, Maryland.
• Court: Court of Appeals of Maryland

808 A.2d 795

371 Md. 243

The PACK SHACK, INC., v. HOWARD COUNTY, Maryland.

No. 71, Sept. Term, 2001.

Court of Appeals of Maryland.

October 9, 2002.

Joseph S. Kaufman (Schulman & Kaufman, LLC, on brief), Baltimore, for petitioner.

Paul T. Johnson, Deputy County Solicitor (Barbara M. Cook, Howard County Solicitor, on brief), Ellicott City, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

BELL, Chief Judge.

The issue we resolve in this case is whether a party who unsuccessfully petitions the trial court to hold an adversary in constructive civil contempt of court may appeal the denial of that petition. The Court of Special Appeals held that, where the order denying the contempt petition is so closely intertwined with a separate, appealable order as to be reviewable as a part of that judgment, the petitioning party does have a right to appeal. Howard County v. The Pack Shack, Inc., 138 Md. App. 720, 725, 773 A.2d 612, 615 (2001). We shall reverse, holding that a party that files a petition for constructive civil contempt does not have a right to appeal the trial court's denial of that petition.

I.

Howard County adopted, as a part of its Zoning Regulations, CB 65-1997, which regulated the location in the County of adult entertainment businesses. Pack Shack, Inc., the petitioner, operates an adult book or video store, as defined in the Zoning Regulations. It filed a declaratory judgment action in the Circuit Court for Howard County, challenging the constitutionality, as applied to its premises, of those portions of the respondent Howard County's Zoning Regulations that restrict adult book or video stores to certain areas of the County. The court upheld those zoning regulations and issued a permanent injunction that enjoined the petitioner from using its leased premises in violation of the County's zoning regulations. The petitioner noted an appeal to the Court of Special Appeals.

While that appeal was pending in the intermediate appellate court, the respondent filed in the trial court, in the declaratory judgment action, a petition for constructive civil contempt to enforce the injunction previously entered against the petitioner. The petition was filed following an inspection conducted by the respondent of the petitioner's premises. From that inspection, the respondent concluded that the petitioner was continuing to operate its adult book or video store more than a year after the effective date of CB 65-1997 and in violation of the injunction against doing so that had been issued by the trial court less than a week before.¹ The court found that there was insufficient evidence to hold the petitioner in contempt and, therefore, ruled that the verdict was not guilty.²

Dissatisfied with that decision, the respondent, as the petitioner had done a week or so before, noted an appeal to the Court of Special Appeals. In that court, it moved to consolidate its appeal with the petitioner's then still pending appeal in that court. The petitioner, for its part, moved to dismiss the respondent's appeal, arguing that it was not permitted because there was no statutory basis for it. The Court of Special Appeals ultimately denied both motions. With respect to the declaratory judgment case, it affirmed the trial court's judgment. The Pack Shack, Inc. v. Howard County, 138 Md.App. 59, 770 A.2d 1028 (2001). Although recognizing that there ordinarily is no right of appeal from a trial court's denial of a petition for constructive civil contempt, the intermediate appellate court held that the respondent could appeal in the case sub judice "because the contempt proceeding was in the nature of a civil execution to enforce a decree intertwined with an appealable order, i.e., the injunction." Howard County v. The Pack Shack, Inc., 138 Md.App. 720, 725, 773 A.2d 612, 615 (2001). On the merits, the Court of Special Appeals vacated the contempt judgment, holding that the trial court applied the wrong burden of proof. Id. at 746, 773 A.2d at 627. It remanded the case for application of the appropriate standard. Id.

II.

The right to appeal in this State is wholly statutory. Prince George's County v. Beretta U.S.A Corp., 358 Md. 166, 747 A.2d 647 (2000); See also Gisriel v. Ocean City Elections Bd., 345 Md. 477, 489, 693 A.2d 757, 763 (1997),

cert. denied, 522 U.S. 1053, 118 S.Ct. 702, 139 L.Ed.2d 645 (1998).³ We recently reaffirmed this principle in State v. Green, 367 Md. 61, 78, 785 A.2d 1275, 1285 (2001). Noting that "except as may be constitutionally authorized, the right of appeal is entirely dependent upon statutes," Id. at 76, 785 A.2d at 1284, we held that the appeals statutes represent the entire subject matter of the law of appellate review and, as such, abrogate the common law on the subject. Id. at 77-78, 785 A.2d at 1284. In so concluding, we were persuaded by the rationale of Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999), holding that the enactment of Md. Code (1957, 1996 Repl.Vol.) Art. 27 §§ 12, 12A, and 12A-1, abrogated common law assault. Id. at 77, 785 A.2d at 1284.⁴

As in State v. Green, supra,

this case turns on the statutory construction of the relevant appeals statutes, Md.Code (1974, 1998 Replacement Volume) §§ 12-101 et. seq. of the Courts and Judicial Proceedings Article. It is appropriate, therefore, that we begin our inquiry with those appeals statutes for, if there is a right to appeal in this case, it must be grounded there.

The statutory scheme is structured to confer a broad, general right of appeal, that subsequently is limited by enumerated "exceptions." See State v. Green, 367 Md. at 78, 785 A.2d at 1284

. The general right of appeal is contained in § 12-301. It provides:

"Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence has been suspended. In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgment."

Section 12-302 contains the exceptions, or limitations, on that general right of appeal.⁵ Relevant to this case is § 12-302(b). It expressly states that "[s]ection 12-301 of this subtitle does not apply to appeals in contempt cases, which are governed by §§ 12-304 and 12-402 of this title."⁶ Section 12-304 provides:

"(a) Scope of review.—Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court, including an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action.

"(b) Exception.—This section does not apply to an adjudication of contempt for violation of an interlocutory order for the payment of alimony."

The petitioner argues that the respondent had no right to appeal the Circuit Court's denial of its contempt petition. Noting that § 12-304 is the only source for the right of appeal in contempt cases, it asserts that the language of that section clearly limits the appeal right to persons adjudged in contempt. The petitioner relies on Tyler v. Baltimore Co., 256 Md. 64, 70-72, 259 A.2d 307, 310-11 (1969), where we held that there was no right of appeal from a trial court's refusal to issue a contempt order. Discussing the predecessors of the current appeals statutes,⁷ the Tyler court opined:

"Our view is that ordinarily these two statutes offer the only right in Maryland to appellate review in cases of either civil or criminal contempt, and they offer the right only to those adjudged in contempt, not to those who unsuccessfully seek to have another held to be contemptuous." Id. at 70-71, 259 A.2d at 310. Because the respondent was not a person adjudged in contempt, the petitioner contends, the Court of Special Appeals lacked jurisdiction to entertain the respondent's appeal and, therefore, there was no right of appeal in this case. The intermediate appellate court, the petitioner submits, should have granted its motion to dismiss.

In response, the respondent contends that "by misconstruing certain appeal provisions contained in the Courts & Judicial Proceedings Article of the Maryland Annotated Code ..., [the petitioner] seeks to strip the County, and any moving party in a civil contempt proceeding, of the right to appeal a final civil judgment of a trial court refusing to enforce a previous court order through a civil contempt order." It maintains that it has a right of appeal under § 12-301, which, by "providing that `a party may appeal from a final judgment entered in a civil ... case by a circuit court,' supplies the statutory authority...." Section 12-304 does not govern its appeal, the respondent submits. In fact, the respondent asserts, § 12-304 merely supplements the general right of appeal provided in § 12-301, by expressly conferring that right in certain types of contempt cases: its main clause ("Any person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court") expressly authorizes appeals in criminal contempt cases, while it's subordinate clause ("including an interlocutory order, remedial in nature, adjudging any person in contempt") authorizes appeals from contempt judgments relating to the enforcement of a temporary injunction or restraining order. Noting that the term "contempt" is not defined in § 12-302(b) and, thus, does not differentiate between civil and criminal, but contending that, from its terms and the way it has been interpreted, § 12-304 clearly applies only to criminal contempt and orders enforcing interlocutory orders,...