Wormwood v. BATCHING

• Court: Maryland Court of Appeals
• Writing for the Court: EYLER.
• Citation: Wormwood v. BATCHING, 723 A.2d 568, 124 Md. App. 695 (Md. App. 1999)
• Decision Date: 02 February 1999
• Docket Number: No. 874,874
• Parties: Kerry M. WORMWOOD v. BATCHING SYSTEMS, INC., et al.

723 A.2d 568

124 Md. App. 695

Kerry M. WORMWOOD v. BATCHING SYSTEMS, INC., et al.

No. 874, Sept. Term, 1998.

Court of Special Appeals of Maryland.

February 2, 1999.

Cynthia E. Young, Annapolis, for Appellant.

William A. Crawford (Law Office of Joseph M. Jagielski, on the brief), Baltimore, for Appellees.

Argued before EYLER, KENNEY, and PAUL E. ALPERT (Ret., specially assigned), JJ.

EYLER, Judge.

This case raises the issue of whether the Circuit Court for Calvert County erred in dismissing a petition seeking judicial review of a decision by the Workers' Compensation Commission on the ground that the record was not timely transmitted to the circuit court. For reasons stated below, we find error and reverse the judgment of the circuit court. In doing so, we hold that a failure to transmit timely a record, in literal violation of Rule 7-206(d), does not mandate dismissal of a petition for judicial review. Because there was substantial compliance with the Rule, and no showing of prejudice, the petition should not have been dismissed.

Facts

Appellant, Kerry M. Wormwood, filed a workers' compensation claim against Batching Systems, Inc., employer, and Travelers Indemnity Company, insurer, both appellees. The Workers' Compensation Commission denied the claim on June 30, 1997. On July 16, 1997, appellant filed a petition for judicial review in the Circuit Court for Calvert County. On July 21, 1997, the petition was received by the Commission.

By letter dated July 21, 1997, Jacqueline P. Proctor, a court reporter, advised appellant's counsel¹ that she had reported the workers' compensation proceeding and estimated the cost of preparing the transcript at $42.50. The letter also advised appellant's counsel that the transcript would be completed within 60 days after payment had been received and that counsel could request an extension of the deadline for filing.

On September 2, 1997, counsel for appellant forwarded payment to the court reporter. On September 19, 1997, the court reporter filed the transcript with the Commission's appeals clerk. Pursuant to Md. Rule 7-206(c), September 19 was the last day for transmission of the record to the circuit court.

On September 25, 1997, the record, including the transcript, was sent to the circuit court, and on September 29, 1997, it was received by it. Appellees filed a motion to dismiss the petition for judicial review on the ground that the record had not been timely filed and attached a request for hearing. On October 29, 1997, without a hearing, the circuit court granted the motion. The docket entries reflect that a copy of that order was mailed to counsel on November 7, but a copy of the mailing envelope contained in the record extract bears a postmark of November 10, 1997.

On November 14, 1997, appellant filed a motion for reconsideration on the ground that the delay was the fault of the agency and not that of appellant. On March 10, 1998, the circuit court held a hearing on that motion and, thereafter, denied it. Appellant noted a timely appeal to this Court and inquires whether the circuit court erred in dismissing the petition for judicial review and in denying the motion for reconsideration.

Contentions

Appellant acknowledges that the motion for reconsideration was not filed within 10 days after the order dismissing the petition for judicial review. Consequently, the time for noting an appeal was not extended pursuant to Rule 2-534, and the only matter before this Court is the denial of the motion for reconsideration.

Appellant also acknowledges that, ordinarily, the standard of appellate review applicable to the circuit court's ruling on such a motion is whether the court abused its discretion. Appellant argues, however, that the standard in this instance is whether an error of law was committed. Relying primarily on Sullivan v. Insurance Commissioner, 291 Md. 277, 434 A.2d 1024 (1981),² appellant asserts that the underlying dismissal was void because of lack of notice and an opportunity to be heard. The lack of notice and opportunity to be heard was as a result of two alleged errors committed by the circuit court. First, because a hearing was requested by appellee, pursuant to Rule 2-311(f) and Adams v. Offender Aid & Restoration, 114 Md.App. 512, 691 A.2d 248 (1997), the circuit court was required to hold a hearing before dismissing the case. Second, pursuant to Rule 1-321, a copy of the order of dismissal was not timely served on appellant.

Alternatively, appellant argues that, if the proper standard of appellate review of the decision on the motion for reconsideration is whether the circuit court abused its discretion, the circuit court's failure to vacate the prior order of dismissal was such an abuse.

With respect to the merits of the underlying dismissal, appellant contends that the duty to prepare and transmit the record, including the transcript, rests on the Commission. First, pursuant to Rule 7-206(d), appellant contends that he must have caused the failure, not merely have contributed to it, to justify dismissal of the petition. Second, appellant argues that substantial compliance with the rule regulating transmission of the record is sufficient and that there was substantial compliance in this case.

Appellee argues that the circuit court found as a fact that the delay in transmitting the record was not solely attributable to the court reporter or the Commission and that this finding was not clearly erroneous. Once the court made that finding, appellee continues, the court had no discretion under the Rule and dismissal was mandatory.

Analysis

Standard of Review

An appeal from a denial of a motion to revise or "motion for reconsideration," pursuant to Rule 2-535(a), does not serve as an appeal from the underlying judgment, and the applicable standard is whether the court abused its discretion. New Freedom Corp. v. Brown, 260 Md. 383, 386, 272 A.2d 401 (1971),rev'd on other grounds,352 Md. 31, 720 A.2d 912 (1998); Stuples v. Baltimore City Police Department, 119 Md.App. 221, 241, 704 A.2d 518 (1998); and Blitz v. Beth Isaac, 115 Md.App. 460, 469 n. 4, 694 A.2d 107 (1997),rev'd on other grounds,352 Md. 31, 720 A.2d 912 (1998). As we said in B & K Rentals v. Universal Leaf, 73 Md.App. 530, 537, 535 A.2d 492 (1988), however, that the matter is left to the discretion of the trial court does not mean that if the action of that court is clearly arbitrary or has no sound basis in law or in reason, it could not be reviewed, but it does mean that we will not reverse the judgment of the trial court unless there is grave reason for doing so.

The fact that an error may have been or was committed and not corrected by a trial court on a motion to revise is not necessarily an abuse of discretion. The nature of the error, the diligence of the parties, and all surrounding facts and circumstances are relevant. Thus, the determination is case specific. The real question is whether justice has not been done, and our review of the exercise of a court's discretion will be guided by that concept. Clarke Baridon, Inc. v. Union Asbestos & Rubber Co., 218 Md. 480, 483, 147 A.2d 221 (1958); B & K Rentals, 73 Md.App. at 537, 535 A.2d 492.

It appears, based on appellee's argument in support of its motion to dismiss and the comments by the circuit court, that the circuit court believed, based on its finding that appellant contributed to the delay, that dismissal was mandatory. Given our holding that dismissal was not mandatory, the circuit court committed an error of law. As stated above, it is not necessarily an abuse of discretion to fail to correct an error, even one of law. In this case, the court also failed to grant a hearing as required on the motion to dismiss, and the clerk's office failed to serve timely a copy of the order of dismissal on appellant, thereby causing or contributing to the late filing of the revisory motion. Consequently, even though we are reviewing only the decision on the motion for reconsideration, because it was an abuse of discretion not to correct the error, we reverse the decision of the circuit court.

The Merits

We agree with appellee that there is sufficient evidence to support a finding that the delay in transmitting the record was not the fault of the Commission or the court reporter without at least some responsibility for delay being attributable to appellant. We note that: (1) the court reporter advised that payment was necessary; (2) the court reporter advised that counsel should consider requesting an extension; (3) appellant's counsel did not follow up with the Commission; and (4) the preparation of the transcript may have been delayed because of late payment. There was also evidence, however, that (1) the Commission contributed to the delay because of the length of time it took to advise the court reporter of the filing of the petition for judicial review; (2) the delay in payment may not have delayed preparation of the transcript; and (3) the transcript was completed in time for the record to have been timely transmitted.

Maryland Rules 7-201 through 7-210 govern judicial review of administrative agency decisions.³ Rule 7-206(c) and (d) provide the time frames within which to transmit an administrative agency's record:

(c) Time for transmitting. Except as otherwise provided by this Rule, the agency shall transmit to the clerk of the circuit court the original or a certified copy of the record of its proceedings within 60 days after the agency receives the first petition for judicial review.

(d) Shortening or extending the time. Upon motion by the agency or any party, the court may shorten or extend the time for transmittal of the record. The court may extend the time for no more than an additional 60 days. The action shall be dismissed if the record has not been transmitted within the time prescribed unless the court finds that the inability to transmit the record was caused by the act or omission of the

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