Caught Between a Rock and a Hard Place: Court of Special Appeals Lacks Jurisdiction of County Hearing Officer’s Decision
In Ross Contracting, Inc. v. Frederick County, No. 977, Sept. Term 2103 (Md. Ct. Spec. App. Feb. 2, 2015), a contractor, whose efforts to replace a bridge were impeded by the unexpected discovery of hard rock material, was further frustrated when it learned that it had landed in a hard place – an appellate court that lacked jurisdiction over the contractor’s dispute with Frederick County. The case serves as a reminder “‘that appellate jurisdiction, except as constitutionally authorized, is determined entirely by statute, and that, therefore, a right of appeal must be legislatively granted.’” Slip Op. at 10 (quoting Prince George’s Cnty. v. Beretta U.S.A. Corp., 358 Md. 166, 173 (2000), quoting Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 485 (1997)) (other citation omitted).
Ross Contracting, Inc. contracted with the Board of County Commissioners of Frederick County to replace a bridge. The contract “required Ross to remove the bridge’s existing supporting abutments and excavate for new supports.” Id. at 1. The bid materials submitted to bidders for the project described “the types of subsurface materials at the excavation site.” Id. at 2 (footnote omitted). When excavation began on the second of the two abutments for the bridge, however, “Ross encountered hard rock material” at a higher level than what the county’s information had shown. Id. at 4. After additional testing by a third-party quality control/inspector subcontractor, the county issued a revised design for that second abutment. Under the contract, Ross submitted a proposed change order requesting that the contract price be adjusted to account for the added costs and time required by the revisions, but the county denied that request. Ross invoked the contract’s dispute resolution provision, which led to a hearing before a county hearing officer where Ross was largely unsuccessful. Ross then filed a petition for judicial review in the Circuit Court for Frederick County, where Ross fared no better than it had before the hearing officer. An appeal to the Court of Special Appeals followed.
The Court of Special Appeals, however, never reached the merits because it held that it did not have jurisdiction over the appeal. Although Md. Code Ann., Cts. & Jud. Proc. (CJ) § 12-301 generally permits the Court of Special Appeals to hear appeals from final judgments entered by circuit courts, that authority is subject to the exceptions contained in § 12-302. And subsection (a) of that section provides that “[u]nless a right to appeal is expressly granted by law, § 12-301 of this subtitle does not permit an appeal from a final judgment of a court entered or made in the exercise of appellate jurisdiction in reviewing the decision of ... an administrative agency.” As the Court of Special Appeals explained, the Court of Appeals has held that “[a] circuit court exercises ‘appellate jurisdiction’ when it reviews an administrative agency’s decision pursuant to statutory authorization.” Slip Op. at 11 (citing Gisriel, 345 Md. at 492; Rogers v. Eastport Yachting Ctr., LLC, 408 Md. 722, 733-34 (2009); Dvorak v. Anne Arundel Cnty., 400 Md. 446, 52-53 (2007)). In Gisriel, the Court of Appeals had explained that § 12?302(a) “‘is applicable to statutory judicial review actions, even though such actions technically do not represent exercises of a circuit court’s appellate jurisdiction.’” Id. at 13 (quoting Gisriel, 345 Md. at 493) (emphasis added by Court of Special Appeals).
1Consequently, “when a circuit court reviews a decision of an administrative agency pursuant to CJ § 12-302(a), any right of appeal to this Court must arise under a statute other than CJ § 12-301; if no statutory right to an appeal exists, we must dismiss the appeal.” Id. at 11 (citing Madison Park N. Apartments, Ltd P’ship v. Comm’r of Hous. & Cmty. Dev., 211 Md. App. 676, 90, dismissed, 439 Md. 327 (2014)) (emphasis in original).
This is why Ross, having battled the rock found at the location for the bridge abutment, found itself in a hard place. For while statutory authorization allowed the circuit court to entertain a petition for judicial review, there was no statutory authorization that allowed the Court of Special Appeals to exercise further appellate review. Although Ross tried to rely on the Administrative Procedure Act (APA), Md. Code Ann., State Gov’t, §§ 10-101 et seq., that reliance bore no fruit. First, the APA applies to state administrative agencies, not local agencies. Slip Op. at 16-17 n. 9. Second, Ross’ argument that the parties had “invoked the APA” in one provision of their contract was ultimately defeated by other language in the contract. Id. at 17-18. Finally, that argument had likely been waived, as Ross had not raised it below. Id. at 18 n. 10. Therefore, the court was forced to dismiss the appeal.
1As explained by the Court of Appeals in Colao v. County Council of Prince George’s County, 346 Md. 342, 361-62 (1997), petitions for judicial review invoke the original jurisdiction of the circuit courts and that, after the 1993 enactment of Title 7, Chapter 200 of the Maryland Rules, the term administrative appeal “is now an anachronism.”
Brad McCullough is a commercial and business litigator and appellate attorney at Lerch, Early & Brewer in Bethesda, Maryland. Brad represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts, as well as before arbitration panels and in mediation proceedings.
This article originally appeared on The Maryland Appellate Blog.