Myers v. Anne Arundel Cnty.

DAVID MYERS, et al. v. ANNE ARUNDEL COUNTY, et al.

No. 404

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

April 18, 2018

Circuit Court for Anne Arundel County

Case No. C-02-CV-16-001278

UNREPORTED

Nazarian, Shaw Geter, Davis, Arrie W. (Senior Judge, Specially Assigned), JJ.

Opinion by Shaw Geter, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In 2015, Anne Arundel County (the "County") filed, in the District Court for Anne Arundel County, a complaint against David Myers, Ekaterina Myers, and Mildred Myers (collectively the "Myers") seeking injunctive and other relief regarding the removal of vegetation on or near the Myers' property. While that case was pending, the Myers filed, in the Circuit Court for Anne Arundel County, a "counterclaim" for monetary damages and other relief against the County and several additional parties, namely, Bay Area Tree Care, Inc. ("Bay Area") and Richard E. Shortridge, Sr., Richard E. Shortridge, Jr., and David B. Shortridge (collectively the "Shortridges"). The County thereafter filed a motion to dismiss the Myers' counterclaim, and, following a hearing, the County's motion was granted. In this appeal, the Myers present the following questions for our review, which we rephrase and condense for clarity:

1. Did the circuit court err in denying the Myers their requested relief even though Bay Area and the Shortridges failed to respond to the Myers' counterclaim and failed to attend a pretrial conference?

2. Did the circuit court err in dismissing the Myers' counterclaim even though Bay Area did not request that the counterclaim be dismissed?

3. Did the circuit court err in denying the Myers' request for summary judgment?

4. Did the circuit court err in denying the Myers the right to join Bay Area as named-defendants in their counterclaim?

5. Did the circuit court err in not striking the County's motion to dismiss even though the motion lacked a valid certificate of service?

6. Did the circuit court err in dismissing the Myers' counterclaim on the grounds of governmental immunity?

For reasons to follow, we remand.

BACKGROUND

On November 19, 2015, the County instituted a civil action against the Myers in the District Court for Anne Arundel County. In its complaint, the County alleged that the Myers had submitted a "Standard Vegetation Management Plan," requesting permission to remove four trees on the Myers' property and that the County had approved the Plan but limited the proposed removal to only one tree. The County further alleged that, following its limited approval of the Myers' Vegetation Management Plan, it received information that four trees, not one, had been removed from the Myers' property in violation of the Anne Arundel County Code. The County ultimately requested, among other things, that the district court order the Myers to "abate the violation" and to comply with the directives of the County, which included replanting the trees that had not been approved for removal.

The Myers responded by filing a notice of intention to defend. Then, on December 15, 2015, the Myers filed a motion requesting that the proceedings be stayed so that they could file a counterclaim in circuit court that exceeded the jurisdictional limitations of the district court. On December 29, 2015, the district court ordered that a hearing be held on the Myers' motion to stay.

That same day, the Myers filed, in the circuit court, a "counterclaim" against the County, Bay Area, and the Shortridges, thus commencing the civil action from which the instant appeal arises. In their counterclaim, the Myers raised a number of factual allegations and legal arguments, many of which are not pertinent to the instant appeal. In summary, the Myers alleged that they had contracted with Bay Area (and its owners, theShortridges) to perform the work outlined in the County's revised Vegetation Management Plan, which called for the removal of one tree on the Myers' property. The Myers further alleged that, unbeknownst to them, Bay Area entered their property and mistakenly removed four trees. According to the Myers, that action set in motion a chain of events that resulted in the Myers suffering various harms and damages at the hands of both the County and Bay Area.

Specifically, the Myers' counterclaim raised five "counts." The first count, titled "Improper, Uneven Application of the Laws," alleged that the County improperly undertook various enforcement actions and demands following the removal of the trees by Bay Area. The second count, titled "Making a Defamatory Statement in Writing to a Third Person," alleged that the County, in its district court complaint, made allegations of fact that it knew were false. The third count, titled "Making a False Statement Under Penalty of Perjury," alleged that the County filed a sworn affidavit that included one or more false statements. The fourth count, titled "Making a False Statement to Cause an Investigation or Other Action to be Taken as a Result of the Statement," alleged that an "agent of the County" made one or more false assertions that were "essential to agent's justification under the law for the entirety of all the subsequent actions he and the County have undertaken since January 7, 2015." The fifth count, titled "Breach of Contract by the Company and Other Offenses," alleged that Bay Area violated its contract with the Myers when it removed the four trees and that the County undertook the district court action against the Myers knowing full-well that Bay Area was responsible.

Following the filing of their counterclaim in circuit court, but before the district court held its hearing on their motion to stay, the Myers, on January 6, 2016, informed the district court that they intended to remove the case to the United States District Court. The United States District Court for the District of Maryland eventually received the case but, on March 9, 2016, remanded the case to the district court because the federal court lacked jurisdiction. Recognizing that it had not ruled on the Myers' prior motion to stay, the district court, on April 13, 2016, stayed the case "30 days to allow [the Myers] to file in Circuit Court" and ordered that the case would be stayed "upon receiving proof of Circuit Court filing." Over the next few months, the Myers did not file anything in the district court action. Then, on September 22, 2016, the County filed, in the district court, a motion to lift the stay.

Meanwhile, on June 22, 2016, the County was served with a copy of the Myers' counterclaim and a summons from the circuit court, and the County filed an answer to the Myers' counterclaim on July 19, 2016. For reasons not entirely clear from the record, Bay Area and the Shortridges were not served until September 19, 2016. In lieu of an answer and pursuant to Maryland Rule 2-332(b), Bay Area and the Shortridges filed a motion to dismiss the Myers' counterclaim. On September 21, 2016, the Myers filed an amended countercomplaint, and, on October 12, 2016, the County responded by filing a motion to dismiss and/or a motion for summary judgment. On December 6, 2016, the circuit court ordered that a hearing be set on both motions.

In that time, the district court had granted, on November 10, 2016, the Myers' motion to stay the proceedings. Apparently, dissatisfied with the court's ruling, the Myersfiled a motion to alter or amend the judgment, which the court denied on January 11, 2017. The Myers then noted an appeal to the circuit court, and, on February 10, 2017, the case was transferred to the Myers' then-existing circuit court action (from which the instant appeal arises).

Meanwhile, the parties to the circuit court action had been scheduled to attend a pretrial conference on January 4, 2017, but that conference was stayed by the circuit court pending the outcome of the County's and Bay Area/the Shortridges' motions to dismiss, which were scheduled to be heard on February 21, 2017. Just prior to that hearing, however, Bay Area and the Shortridges, on February 16, 2017, filed a line withdrawing their motion to dismiss. Nevertheless, Bay Area and the Shortridges, by way of counsel, were present at and participated in the hearing on February 21.

At that hearing, the County argued that the Myers' counterclaim should be dismissed because there was no underlying circuit court claim to which the Myers could assert a counterclaim in circuit court. The County also argued, in the alternative, that the court should grant summary judgment, on all counts, based on governmental immunity. As for Bay Area and the Shortridges, counsel did not make any additional argument but instead concurred with "the County's assessments as far as [the Myers'] ability to file [a] counterclaim here in circuit court."

The Myers responded that, because the counterclaim alleged damages in excess of $30,000.00, Maryland Rule 3-331 required that the counterclaim be filed in circuit court. The Myers also argued that the County's motion to dismiss was untimely and did not include a valid certificate of service. Finally, the Myers argued that governmentalimmunity did not apply because the County was "not acting as a government entity" and "not enforcing its own laws properly."

Regarding the timeliness of the County's motion, the circuit court found:

The County filed a motion to dismiss and/or summary judgment and while the motion to dismiss may not have actually been within the time period, the motion for summary judgment certainly was within the time period for mandatory motions and no motion to strike the motion to dismiss was ever filed. Therefore, it is properly before the Court.

Regarding the claims against Bay Area and the Shortridges, the circuit court found:

So, first the amended countercomplaint must be dismissed

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