Compliance with Appellate Rules – The Heit v. Stansbury Decision

           Inevitably, a litigator will be involved in a matter that is appealed to the Maryland Court of Special Appeals.  Unless that litigator specializes in appellate practice, he or she probably only has a vague familiarity with the appellate rules codified in Chapter Eight of the Maryland Rules of Civil Procedure.  Recently, the Court of Special Appeals rendered an opinion that confirms that trial attorneys in Maryland must become intimately familiar with the appellate rules or run the risk of jeopardizing their client’s case.

           In Heit v. Stansbury, 2011 WL 2135086 (2011), the Court of Special Appeals held that the appellant husband in a divorce action could not file a reply brief more than twenty days after the appellee wife had filed her brief.  Maryland Rule 8-502(a)(3) provides that an “appellant may file a reply brief within 20 days after the filing of the appellee’s brief, but in any event not later than ten days before the date of scheduled oral argument.”  The appellant husband had filed a reply brief more than five months after his wife had filed her brief, but more than ten days before the scheduled hearing.  As such, he argued that he was in compliance with the requirements of Rule 8-502(a)(3).

           The Court disagreed, holding that the word “may” reflected the fact that a reply brief was optional and did not qualify the time by which the reply brief must be filed.  Utilizing standard rules of construction, the Court held that appellant’s interpretation of the Rule would render superfluous the phrase “within 20 days after the filing of appellee’s brief” and that it would “not read a statute or rule so as to write out language that is not superfluous.”  Therefore, the Court of Special Appeals struck the appellant’s reply brief.

           There are many deadlines contained in the appellate rules and some of them are triggered by other events during the appellate process.  It is highly important that a litigator become familiar with the pertinent dates and deadlines of the appellate process and refresh his or her recollection when involved in an appeal.  Although, on rare occasion, the appellate courts have exercised discretion not to penalize a party on appeal for a minor violation of the rules, where filing deadlines are concerned, this discretion is rarely exercised.  Interestingly, the Court of Special Appeals signaled in Heit that it might have exercised its discretion, had it been requested to accept the late filed reply brief, noting that such a request had not been made.

           The Heit decision merely reemphasizes the fact that attorneys must know what they are doing when they handle an appeal and that this requires close scrutiny of and adherence to the appellate rules.  Deadlines should be ascertained upon the filing of an appeal, and the requirements for the content, style and form of briefs should be reviewed to assure compliance with those rules.  An attorney does not want to be in a position where he or she is asking an appellate court to exercise its discretion to permit the filing of a brief, or to overlook a violation of the requirements for content, style or form of a brief, as the favorable exercise of discretion may not be forthcoming.

Article Contributed by James Andersen