Maryland Court Digests: June 25, 2007

Daily Record, The (Baltimore), Jun 25, 2007

Maryland Court of Appeals

Civil Procedure

Time for filing petition for writ of certiorari

BOTTOM LINE: Rule 1-203(c), extending time when a paper is served by mail, does not apply to time for filing a petition for a writ of certiorari.

CASE: Sterling v. Atlantic Automotive Corp., No. 105, September Term 2006 (filed June 4, 2007) (Judges Bell, Raker, Cathell, Harrell, Battaglia & GREENE) (Judge Wilner, concurring).

FACTS: Gail Sterling filed a civil suit against Atlantic Automotive Corporation, her former employer, for two types of workplace sexual harassment and for retaliation. The circuit court awarded damages in the amount of $195,000. The trial judge remitted the jury's damage award to $100,000 and awarded Sterling expert witness fees, attorneys' fees and costs.

Atlantic appealed to the Court of Special Appeals and Sterling filed a cross-appeal relating to the extent of the trial court's award of fees. In an unreported opinion, the Court of Special Appeals determined that eight of the nine claims were without merit. On the remaining issue, the court ruled that the trial judge had improperly instructed the jury as to the parties' respective burdens of proof in a hostile work environment action and therefore vacated the judgment of the circuit court and remanded the case for a new trial.

The Court of Special Appeals issued its opinion on September 5, 2006, and its mandate on October 11, 2006. Nineteen after the Court of Special Appeals issued its mandate, on October 30, Sterling filed a petition for writ of certiorari. On November 2, Atlantic moved to dismiss Sterling's petition as untimely, and on November 13 it filed a conditional cross-petition for writ of certiorari. The Maryland Court of Appeals granted both petitions and dismissed the appeal as untimely.

LAW: Pursuant to Rule 8-302, a petition for writ of certiorari must be filed no later than 15 days after the Court of Special Appeals issues its mandate. In reviewing the Maryland Rules, the Court looked to CJ Section 12-201, which provides that a petition for certiorari may be filed either before or after the Court of Special Appeals renders a decision, but no later than the time prescribed in the Maryland Rules.

Rule 8-302 begins by mirroring the language of CJ Section 12- 201. The rule states explicitly that a petition for a writ of certiorari may be filed before or after the CSA's decision, "but not later than 15 days after the Court of Special Appeals issues its mandate." The court concluded that if a petition for a writ of certiorari arrives in the Clerk's office after the 15th day, then it is not timely filed.

Sterling argued that Rule 1-203(c) should apply to extend her time for filing her petition as she received the mandate by mail. Rule 1-203(c), entitled "Additional time after service by mail," states explicitly: "Whenever a party has the right or is required to do some act - within a prescribed period after service upon the party of a notice or other paper and service is made by mail, three days shall be added to the prescribed period." While Sterling received a copy of the mandate by mail, service is not a requirement associated with the issuance of the mandate and Rule 1-203(c) is inapplicable to petitions for writs of certiorari.

Sterling argued that the manner in which the court issued its mandate fit within the ordinary definition of "service" and the mandate fit within the ordinary definition of "notice or other paper," such that Rule 1-203(c) applied. Sterling further argued that because she received the mandate in the mail, she was entitled to an extra three days in which to file her petition.

Sterling also contended that she was entitled to an additional day in which to file her petition under Rule 1-203(a), as the date she claimed was the proper date for her to file her petition was a Sunday and the Clerk's office was closed. As Rule 1-203(c) did not apply to this case, Rule 1-203(a) was also inapplicable and did not extend the time for filing a petition for writ of certiorari.

Rule 1-203(c) is inapplicable to petitions for writs of certiorari because that rule refers to a prescribed period after service upon a party, specifically service made by mail. While Sterling received a copy of the mandate by mail, service is not a requirement associated with issuance of a mandate. As is provided in Rule 8-302, the Court of Special Appeals issues a mandate, it is not required to serve the mandate upon the parties as a prerequisite to its issuance or effective date. See Kamara v. Edison Bros. Apparel Stores, Inc., 136 Md. App. 333 (2001).

The Kamara case is instructive on this point because entry of a judgment is analogous to the issuance of a mandate. In Kamara the intermediate appellate court was asked to determine whether the trial court erred in striking the notice of an appeal on the grounds that it was untimely filed because it was filed 33 days after a final judgment - three days longer than the time prescribed by Rule 8-202(a).

The Court of Special Appeals examined whether Rule 1-203(c) applied and held that "Rule 8-203(c) specifically uses the word entry. Since action is not required to be taken after service, Rule 1-203(c) does not apply." The court explained that "[t]he plain language of Rule 1-203(c) states that it applies to service by mail, not an entry by the court. Like statutes, we will not read an ambiguity into a rule where none exists - Rule 1-203(c) only applies when service is a prerequisite to triggering the clock."