Sullivan v. Insurance Com'r

• Decision Date: 16 September 1981
• Docket Number: No. 103,A-1,103
• Parties: Frederick J. SULLIVAN andInsurance Agency, Inc. v. INSURANCE COMMISSIONER of the State of Maryland and Aetna Casualty & Surety Company.
• Court: Maryland Court of Appeals

Page 277

291 Md. 277

434 A.2d 1024

Frederick J. SULLIVAN and A-1 Insurance Agency, Inc. v. INSURANCE COMMISSIONER of the State of Maryland and Aetna Casualty & Surety Company.

No. 103.

Court of Appeals of Maryland.

Sept. 16, 1981.

Joseph A. Schwartz, III, Baltimore, Brocato & Schwartz, Baltimore, on the brief, for appellants.

Nora Winay, Baltimore, Thomas Waxter, Jr. and Semmes, Bowen & Semmes, Baltimore, on the brief, for appellee Aetna Casualty & Surety Co.

Michael L. Cohen, Asst. Atty. Gen., Baltimore, Stephen H. Sachs, Atty. Gen. and Alan B. Lipson, Asst. Atty. Gen., Baltimore, on the brief, for appellee Insurance Commissioner.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

This case presents an aspect of the problem of court reporter delay in appellate record transmittal which was not involved in Uhler v. Real Properties, Inc., 289 Md. 7, 21 n.11, 421 A.2d 966, 974 n.11 (1980). There we dealt with a dismissal by the Court of Special Appeals. Here the appellants' order for appeal to the intermediate appellate court was stricken by the trial court acting under the recited authority of Md. Rule 1013. We shall hold that the order of the trial court was void under the circumstances of this case.

Appellants Frederick J. Sullivan and A-1 Insurance Agency, Inc. (Sullivan) sought review in the Baltimore City Court of an order of the Insurance Commissioner of Maryland (Commissioner), one of the appellees here. The administrative proceeding had involved the termination of Sullivan's agency agreement with Aetna Casualty and Surety Company (Aetna), the other appellee in this Court. When the Baltimore City Court affirmed the Commissioner, Sullivan, on May 8, 1980, timely noted an order for appeal to the Court of Special Appeals. The basic period of 60 days for transmitting the record on appeal is measured from that date in this case. Rule 1025 a. On May 15, and in compliance with Rule 1026 a 2, Sullivan ordered the transcript from the court reporter. By letter dated May 26, the court reporter advised Sullivan's counsel that the transcript "will not be available until October of 1980, due to the heavy appeal work load that preceded your request." Sullivan's counsel wrote on May 28 to the Clerk of the Baltimore City Court, with copy to the Commissioner's attorney, related the statement of the court reporter, and requested that his letter be placed in the court file because "the delay in obtaining a transcript will obviously impede the timing of the appeal." The 60th day was July 7. When the Clerk of the Baltimore City Court advised Sullivan's attorney on July 25 that no motion for extension of time for transmittal of the record had been filed with the Court of Special Appeals, counsel transmitted a motion for extension to the intermediate appellate court which was received there July 28. It represented that the transcript could not be available until October of 1980 and included the May 26 letter from the court reporter as an exhibit. This motion was denied on August 5, 1980 with the notation on the margin that it was "(n)ot timely. Md.Rule 1025b." ¹ The five day period for any answer to the motion had expired, under Rule 1055b, on August 4 and no opposition to the motion had been filed. ² The Clerk of the Court of Special Appeals, by letter of August 6 to Sullivan's counsel, advised that the motion was denied "as untimely filed. Maryland Rule 1025b."

A copy of the August 6 letter was also sent to the Clerk of the Baltimore City Court and thereby precipitated the "wrinkle" on Uhler presented in this case. On August 14, 1980 the Baltimore City Court signed and filed an order that Sullivan's entry of appeal be stricken. We are advised by counsel for the parties that this order was prepared and submitted by the Clerk of the Baltimore City Court. The order recites that the motion for extension of time had been denied by the Court of Special Appeals as "being untimely filed in Contravention of Maryland Rule 1025b ...." There is not a suggestion in the record of any notice to Sullivan that this order was to be presented to the court.

Meanwhile, Sullivan, following receipt of the August 6 letter, prepared a petition for a writ of certiorari to review the August 5 order of the Court of Special Appeals. The petition was filed in this Court on August 15, 1980, one day after the dismissal order by the Baltimore City Court. When Sullivan received a copy of the August 14 Baltimore City Court order, he transmitted a copy of it to the Clerk of this Court as a supplementary exhibit to the petition for certiorari. No appeal was noted by Sullivan from the August 14 order of the Baltimore City Court.

We granted Sullivan's petition. By an amended order we clarified that review under the writ did not embrace the underlying merits of the controversy between the parties but was limited to the procedural issues, which were stated in the amended order pursuant to Rule 813. They were:

1. In the light of Uhler v. Real Properties, Inc. ... did the Court of Special Appeals err in denying

Petitioners' Motion for Extension of Time to Transmit the Record?

2. Did the Baltimore City Court have power pursuant to Rule 1013 to dismiss Petitioners' appeal to the Court of Special Appeals under the circumstances of this case?

3. If the Baltimore City Court had the power, pursuant to Rule 1013, to dismiss Petitioners' appeal to the Court of Special Appeals, did the Baltimore City Court err in so exercising that power under the circumstances of this case?

4. Is the dismissal of Petitioners' appeal to the Court of Special Appeals by the Baltimore City Court subject to appellate review in the absence of a timely order for appeal from the order of dismissal?

However, appellees, at oral argument, went directly to the jugular and questioned whether this Court has any jurisdiction. They contend that, because the Baltimore City Court struck out Sullivan's order for appeal prior to the filing of his petition for certiorari, there was not "any case or proceeding pending in or decided by the Court of Special Appeals upon appeal from a circuit court" within the meaning of Md.Code (1974, 1980 Repl.Vol.), § 12-201 of the Courts Article, and consequently there was no case as to which this Court was authorized by statute to grant certiorari. We shall assume, arguendo, that § 12-201 is properly to be construed as appellees contend. However, a court has jurisdiction to determine the issue of its own jurisdiction to proceed. Messall v. Merlands Club, Inc., 244 Md. 18, 36, 222 A.2d 627, 637 (1966), cert. denied, 386 U.S. 1009, 87 S.Ct. 1349, 18 L.Ed.2d 435 (1967); Stanley v. Safe Deposit and Trust Co., 87 Md. 450, 453-54, 40 A. 53, 54-55 (1898). Determination of this jurisdictional issue requires an examination of the effect of the Baltimore City Court's order striking Sullivan's entry of appeal.

In considering the effect of the dismissal order, we recognize that Sullivan's appeal to the Court of Special Appeals was entered following the final judgment of the Baltimore City Court in the administrative appeal to it, and brought up to the intermediate appellate court matters reviewable under that final judgment. Because no further order for appeal was filed by Sullivan from the dismissal entered after Sullivan's order for appeal from the final judgment, the merits of the dismissal were not before the Court of Special Appeals and were not brought before this Court by certiorari. We shall therefore assume, most favorably to appellees, that our consideration of the effectiveness of the dismissal order, which we make in conjunction with determining our own jurisdiction to review by certiorari a case "pending" in the Court of Special Appeals, arises out of a collateral, as opposed to a direct, attack on the dismissal order. See Fisher v. DeMarr, 226 Md. 509, 514-15, 174 A.2d 345, 348 (1961). For the order striking Sullivan's notice of appeal to be disregarded on collateral attack, that order must be a nullity. Board of Medical Examiners v. Steward, 207 Md. 108, 112, 113 A.2d 426, 427 (1955); Fooks' Executors v. Ghingher, 172 Md. 612, 192 A. 782, cert. denied, 302 U.S. 726, 58 S.Ct. 47, 82 L.Ed. 561 (1937). Cf. Thomas v. Hardisty, 217 Md. 523, 536, 143 A.2d 618, 625 (1958) (action to have deed vacated decree of foreclosure upon which deed issued declared void and subject to collateral attack).

Sullivan argues that the Baltimore City Court did not have the power to dismiss his appeal. He asserts that once an order for appeal is filed the jurisdiction of the trial court ends. Appellees point to Rule 1013 as the source of the trial court's power. The present form of Rule 1013, as last amended effective July 1, 1968, reads (italics denote 1968 additions; brackets denote 1968 deletions):

Rule 1013. When Lower Court May Strike [DELETED: [Out]] [ADDED: Order For] Appeal.

If [ADDED: the order for appeal has not been timely filed or if] the clerk of the lower court has prepared the record as required by Rule 1026 (Record on Appeal) and the appellant has neglected or omitted to pay for such record, [ADDED: or has failed to deposit with the clerk of the lower court the filing fee as required by section d of Rule 1011 (How Appeal to Be Taken),] or by reason of any other neglect or omission on the part of the appellant, the record has not been transmitted to this Court within the time prescribed pursuant to Rule 1025 (Record Time for Transmitting), the lower court may[DELTED: [,]] [ADDED: sua sponte or upon] [DELETD: [on]] motion, strike [DELETED: [out]] the order for appeal and take all proceedings as if such order for appeal had not been filed.

The 1968 changes in Rule 1013 were recommended in the Thirty-second Report, dated June 21, 1968, of the Standing Committee on Rules of Practice and Procedure. Pursuant to that report, former Rule 813, which applied to this Court, was also amended effective July 1,...