Viner v. Manor Country Club, Inc., s. 105

• Decision Date: 03 June 1970
• Docket Number: 381,Nos. 105,s. 105
• Citation: 258 Md. 299,265 A.2d 857
• Parties: Robert V. VINER v. MANOR COUNTRY CLUB, INC.
• Court: Maryland Court of Appeals

Page 299

258 Md. 299

265 A.2d 857

Robert V. VINER v. MANOR COUNTRY CLUB, INC.

Nos. 105, 381.

Court of Appeals of Maryland.

June 3, 1970.

H. Hughes Spragins, Silver Spring (Tomes, Spragins & McDonald, Silver Spring, on the brief) for appellant.

Joe M. Kyle, Silver Spring (Heise, Kyle & Jorgensen, and David Macdonald, Silver Spring, on the brief) for appellee.

Argued before McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

Appellant Robert V. Viner filed two similar suits in the Circuit Court for Montgomery County in which he sought injunctions to restrain appellee Manor Country Club, Inc. (a private social club) from suspending his privileges as a member. Compensatory and punitive damages were also requested. He alleged that the attempted suspension resulted from his refusal to pay all of his dues, but that a substantial portion of these dues were assessed by the club's board of governors in violation of the club's constitution and by-laws. The first suit filed was No. 34,118 in the Circuit Court and is No. 105 in this Court. The issues it raised were decided by Judge Ralph G. Shure contrary to appellant's contentions. The second case likewise resulted in appellant's position not being sustained in an opinion by Judge James H. Pugh. It is No. 37,021 in the Circuit Court and No. 381 here. Even though there are separate records and briefs, there were simultaneous arguments in this Court. Since both cases involve the same parties, and appellant in each presents similar issues for our determination, we will treat the cases together in one opinion. Appellee has moved to dismiss both appeals because in each case appellant has failed to print a record extract complying with Maryland Rule 828 a and b. Additionally, in appeal No. 105 appellee says no appeal was taken within the thirty days prescribed by Rule 812. Oral arguments were heard on the motion to dismiss and the merits of the cases at the same time. We now conclude appellee's motion to dismiss must be granted and consequently do not reach the contentions made on the merits.

Appeal No. 105

The initial printed record extract was filed in this Court as a part of the appellant's brief. This entire record extract was confined to the printing of one exhibit, an agreement between Manor Club Estates, Inc. (the original development company) and appellee. The original record, however, contains appellant's complaint, appellee's answer, a sixty-nine page transcript of testimony with eighteen exhibits, Judge Shure's opinion and the trial court's decree. Appellant attempted to supply the obvious deficiency by seeking leave, just before the scheduled argument, to file a supplemental record extract containing the original complaint, the trial court's 'Memorandum Opinion' and what is styled 'Excerpts from Manor Club Inc. Board of Governors meeting April 13, 1966.' We are not compelled to rule specifically on this belated request because even this supplement does not comply with Rule 828 a and b. Rule 828 a states: 'The appellant shall cause to be printed * * * as an appendix to his brief, extracts from the record * * *.' Rule 828 b 1(a) and (b) provide the printed extract shall contain:

'(a) The judgment appealed from, together with the opinion or charge of the lower court, if any.

(b) So much of the evidence, pleadings or other parts of the record as is material to any question the determination of which depends upon the sufficiency of the evidence, pleadings or other matter contained in the record to sustain any action, ruling, order or judgment of the lower court.'

On the merits appellant contends that appellee is discriminatorily attempting to assess dues against him in violation of its own constitution and by-laws. Absent from this record extract is the final decree, the appropriate portions of the club's constitution and by-laws, and testimony relative to the action taken by the club in creating its dues structure or how it affects appellant and other members. From this it is clear we are unable to decide the question presented since the record extract, even as supplemented, is patently deficient in necessary content.

We have repeatedly dismissed appeals where the appellant's record extract was insufficient for a determination of the questions raised. Prime Contractors v. M. & C. C., 241 Md. 55, 215 A.2d 214 (1965) and cases cited therein.

There is a further reason the motion to dismiss will have to be granted. The original record discloses Judge Shure filed a written 'Memorandum Opinion' on January 6, 1969 which, after discussing the issues presented, contains the following two concluding paragraphs:

'For the reasons above indicated, no refunds are warranted and neither compensatory or punitive damages will be assessed. An injunction will, however, be signed as indicated, when presented. The Injunction will be without prejudice to any future official action to be taken by the Board of Governors in accordance with the Defendant's Constitution and By-Laws.

'SO DECREED this 3rd day of January, 1969, by the Circuit Court for Montgomery County, Maryland.' (Emphasis added.)

It is unclear whether appellant concluded the 'Memorandum Opinion' with its use of the words 'SO DECREED' was the court's decree and appealed, or whether, as all too frequently occurs, he appealed from the trial court's opinion and not the decree. In any event appellant filed his order of appeal to this Court on January 22, 1969. On February 20, 1969, Judge Shure signed and filed a decree in conformance with his 'Memorandum Opinion.' Appellant failed to appeal from that decree. Rule 812.

For the purpose of a preliminary motion to...