 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Carey v. Chessie Computer Services11/14/2001
er lacked finality because it did "not adjudicate all of the claims in action" and was therefore subject to revision "at any time before the entry of a final judgment." Gertz, 339 Md. at 272-73. Thus, contrary to appellant's assertion, Judge Hennegan did not lack jurisdiction to address the Commission's 1996 decision even though Judge Turnbull had previously granted appellant's partial motion to dismiss as to that decision. Indeed, "`as a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo.'" Gertz, 339 Md. at 273 (quoting State v. Frazier, 289 Md. 422, 449 (1984)).
We turn next to appellant's claims that appellees' "appeal" of the 1996 decision was "barred by limitations" because it was filed "beyond the 30 day period allowed for appeal of a decision of the [Commission]" under Md. Rule 7-203, and because Judge Hennegan's review of that violated the doctrine of res judicata. We find both contentions unpersuasive.
Maryland Rule 7-203 governs the time for filing a petition for judicial review of an administrative agency decision in a circuit court and states in part:
(a) Generally. Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of:
(1) the date of the order or action of which review is sought;
(2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner; or
(3) the date the petitioner received notice of the agency's order or action, if notice was required by law to be received by the petitioner.
Unfortunately, appellant misconstrues the nature of a petition for judicial review. She incorrectly refers to appellees' petition for judicial review as an "appeal." It is not. " n action for judicial review of an administrative decision is an original action . . . not an appeal." Kim v. Comptroller of the Treasury, 350 Md. 527, 534 (1998). The difference is crucial here. Unlike " he time requirements for filing appeals," which are "ordinarily treated as jurisdictional," the time requirements for filing a petition for judicial review are not. Id. at 535-36. In fact, "the thirty-day period under Rule 7-203 is . . . considered in the nature of a statute of limitations." Colao v. County Council, 109 Md. App. 431, 445, aff'd, 346 Md. 342 (1997). And statutes of limitation "are generally waivable, including the 30-day time limit for filing a petition for judicial review." Kim, 350 Md. at 536. Indeed, according to the Committee note to Rule 7-203, a challenge to the timeliness of a petition for judicial review "must be specifically raised either by preliminary motion under Rule 7-204 or in the answering memorandum filed pursuant to Rule 7-207" or it is waived. See also Colao, 346 Md. at 362 (stating that "it is incumbent on a defendant/respondent to raise limitations timely as an affirmative defense and that the failure to do so constitutes a waiver of that defense"). And that is precisely what occurred here. Appellant did not raise the timeliness issue in the court below and therefore her argument has been waived.
Appellant further argues that Judge Hennegan's review of the Commission's 1996 decision violated the doctrine of res judicata. Specifically, appellant contends that appellees' petition for judicial review of the Commission's 1996 decision "was in effect asking the Circuit Court for Baltimore County to rescind its prior Order of November 13, 1997," which granted summary
Page 1 2 3 4 5 6 7 8 9 10 11 Maryland Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|