GUY NAMED MOE LLC v. CHIPOTLE MEXICAN GRILL OF COLORADO LLC (2016)

In this case we are asked to determine whether A Guy Named Moe, LLC, the Petitioner, a foreign limited liability company doing business in Maryland, having filed a civil action in the Circuit Court for Anne Arundel County, although not registered to do business in Maryland, can continue to pursue its claims, once Chipotle Mexican Grill of Colorado, LLC, the Respondent, moved to dismiss the case because of Moe's failure to register.¹ Because we shall hold Moe can maintain its suit, we also address whether Moe has standing as a “person aggrieved” by the decision of the Board of Appeals of the City of Annapolis to approve Chipotle's application for a special exception and shall hold it does not.

The parties to this case are two foreign limited liability companies:² A Guy Named Moe, LLC (“Moe”) and Chipotle Mexican Grill of Colorado, LLC (“Chipotle”). Both companies operate a chain of restaurants, which are respectively known as “Moe's Southwest Grill” and “Chipotle Mexican Grill.” The dispute between the parties, which underlies this appeal, began in 2012, when Chipotle applied for a “special exception”³ to build a restaurant at 36 Market Space in Annapolis, Maryland, which is approximately 425 feet from Moe's Southwest Grill at 122 Dock Street. The Department of Planning and Zoning for the City of Annapolis recommended that the City's Board of Appeals approve Chipotle's application, but Moe opposed that recommendation during Board proceedings. The Board, though, unanimously approved Chipotle's request in the Spring of 2013.

Moe subsequently filed a petition for judicial review, pursuant to Maryland Rule 7–201 et seq.,⁴ asking that the Circuit Court for Anne Arundel County review the Board's decision. Chipotle then filed a Motion to Dismiss in which it argued that Moe was unable to file a petition for judicial review because its right to do business had been forfeited,⁵ and, thus, could not “maintain” suit under Section 4A–1007(a) of the Corporations and Associations Article of the Maryland Code (1975, 2007 Repl.Vol.).⁶ Chipotle also argued that Moe did not have standing to pursue a petition for judicial review of the Board's decision because it was not a “taxpayer” and was not “a person aggrieved” under Section 4–401(a) of the Land Use Article, Maryland Code (2012) .⁷

Moe, in response, filed an Amended Petition for Judicial Review and attached a “Certificate of Good Standing” issued by the State Department of Assessments and Taxation on September 24, 2013. Moe argued that, while it was not registered to do business in Maryland when it had filed its petition, it could still “maintain” the action under Section 4A–1007 of the Corporations and Associations Article because it had subsequently successfully registered and paid the associated penalty. Moe also argued that it did have standing, both as a taxpayer and as a person aggrieved.

The Circuit Court, after a hearing, dismissed Moe's petition, reasoning that a foreign limited liability company could maintain an action as long as it “c [a]me back and renew[ed]” its right to do business, but found that Moe lacked standing to petition for judicial review because it was not a taxpayer and the petition was brought “simply [as] a matter of competition”:

[THE COURT]: The fact is that in this case, your client does not have standing. Your client is not a taxpayer within the meaning of the statute and therefore on that basis alone the Court must grant the motion.

You stand in the front of either one of these properties and look at the other, you will never have a direct view of it, and I don't even have to get into all of those issues that you have raised, all the other issues. The fact is they are not a taxpayer and therefore cannot maintain this action.

I do believe, however, I believe if a limited corporation does file and hasn't paid their taxes or whatever, if they come back and renew it, I believe that would restore their right to maintain the action. But in this case, it simply appears to this Court it is simply a matter of competition.

It is an argument that is not the subject for which the Court could grant on the basis of competition. So therefore the Court is going to grant the motion to dismiss the case with prejudice. I will sign an order to that effect.

Moe appealed to the Court of Special Appeals, conceding that it was not a “taxpayer,” under Section 4–401(a) of the Land Use Article, but arguing that it still had standing to file such an action as “a person aggrieved” by the Board's decision under the very same statutory provision.⁸

In a reported opinion, A Guy Named Moe, LLC v. Chipotle Mexican Grill of Colorado, LLC, 223 Md.App. 240, 242, 115 A.3d 733, 734 (2015), the Court of Special Appeals affirmed the Circuit Court but disagreed with the lower court on the seminal issue of whether Moe could maintain its suit. Our intermediate appellate court concluded that, “the petition at issue was void ab initio, given that, at the time that it was filed, Moe's had lost its right to do business in Maryland and was nonetheless continuing to do business in Maryland.” Id. at 246, 115 A.3d at 736. The court reasoned that Moe's right to do business in Maryland was forfeited when it had filed its initial petition for judicial review and had not been restored until over four months after the 30–day filing period had lapsed. Id. at 244, 115 A.3d at 735. Thus, according to the court, Moe could not proceed with its action because “it did not meet Rule 7–203(a)'s 30–day deadline, as it had no right to ‘maintain suit’ under C.A. § 4A–1007(a) during the entire 30–day period and, when it re-attained that right, the thirty-day period had long since lapsed.” Id. at 254, 115 A.3d at 741. The court opined that, “the plain language of the statute allows a foreign LLC to ‘cure the infirmity’ of forfeiture so that it may ‘maintain suit,’ “ but that even after satisfying the court of its right to maintain suit it could not “rely on a petition it had filed with the court when it had no such right to do so”. Id. at 248, 115 A.3d at 738.

The Court of Special Appeals determined that “there are no Maryland appellate decisions that address the issue of a foreign LLC's standing to bring or maintain a legal action under the circumstances presented by this case”. Id. at 249, 115 A.3d at 738. The court, nonetheless, relied on Price v. Upper Chesapeake Health Ventures, 192 Md.App. 695, 995 A.2d 1054 (2010), which dealt with a domestic limited liability company's ability to file and maintain suit after forfeiture:

In Price, members of a domestic LLC filed a derivative suit against members of the LLC's management committee, who had decided to sell substantially all of its assets, as well as against those members of the LLC who had ratified that sale. But the suit was brought nearly a year after the domestic LLC's right to do business had been forfeited. While noting that C.A. § 4A–920 does provide that “[t]he forfeiture of the right to do business in Maryland and the right to the use of the name of the limited liability company does not ․ prevent the limited liability company from defending any action, suit, or proceeding in a court of this State,” we stressed that “[t]he negative implication of such language, and the sweep of the ‘doing business' and name ‘using’ prohibition is that the company may not file or maintain a lawsuit after its rights have been forfeited.” That reasoning and, more specifically, that “negative implication” is applicable to foreign LLCs, like Moe's, as well. Like C.A. § 4A–920, the statute governing domestic LLCs, C.A. § 4A–1007(b), the statute governing foreign LLCs, provides: “The failure of a foreign limited liability company to register in this State does not impair the validity of a contract or act of the foreign limited liability company or prevent the foreign limited liability company from defending any action, suit, or proceeding in a court of this State.” Then, significantly, the foreign LLC subtitle goes one step further and includes a statutory provision, C.A. § 4A–1007(a), that expressly bars a foreign LLC from maintaining suit when it is doing business in Maryland without a right to do so. Thus the reasoning in Price clearly applies to the instant case: If a domestic LLC cannot, by “negative implication,” file or maintain suit, then surely a foreign LLC containing an express bar to such legal action cannot file or maintain suit, or its legal equivalent, a petition for judicial review.

Id. at 249–50, 995 A.2d 1054, 115 A.3d at 738–39 (citations omitted) (emphasis in original). The court concluded that, “a foreign LLC, like Moe's, that had its right to do business in Maryland forfeited but nonetheless continued to do business in this State, in violation of Maryland law, cannot maintain a suit in Maryland. And, if it files a petition for judicial review during that time, that action is void ab initio.” Id. at 253–54, 115 A.3d at 741.

The court also found helpful “cases involving the legal effects of the loss of a corporate charter, by forfeiture, upon a corporation.” The Court of Special Appeals concluded that “neither a corporation nor, by implication, an LLC like Moe's may revive a suit that, though timely filed, was initiated by such an entity, after it had lost the right to do business in Maryland and yet persisted in doing business in this State.” Id. at 253, 115 A.3d at 741. The court reasoned that since a domestic limited liability company or corporation, under Maryland law, could not revive a suit filed after forfeiture, then neither could a foreign limited liability company. Id.

The Court of Special Appeals also addressed whether Moe was a “person aggrieved” by the Board's decision to grant Chipotle's special exception. Our intermediate appellate court declared that, “the circuit court, in effect, appeared to make a finding as to whether Moe's qualified as ‘a person aggrieved’ when it opined, in its oral decision, that Moe's action against Chipotle was brought simply as a ‘matter of competition.’ “ Id. at 254, 115 A.3d 733, 115 A.3d at 742. The court concluded that, “a person is not ‘aggrieved’ for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business.” Id., quoting Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md.App. 479, 500, 822 A.2d 478, 478 (2003).

We shall affirm, but we disagree with the Court of Special Appeals in its holding that a foreign limited liability company cannot file a petition for judicial review and subsequently “cure” a forfeiture of its registration to do business in Maryland that occurred prior to the filing of its action; we agree with the intermediate appellate court's decision, however, because Moe was not aggrieved for standing purposes.

It is undisputed that prior to filing suit, Moe's right to do business in Maryland was forfeited by the State Department of Assessments and Taxation pursuant to Section 4A–1013(a) of the Corporations and Associations Article, Maryland Code (1975, 2007 Repl.Vol.):

The Department may forfeit the right of any foreign limited liability company to do business in this State if the limited liability company fails to file with the Department any report or fails to pay any late filing penalties required by law.

Upon forfeiture of the right to do business a foreign limited liability company is treated as if it never registered:

On forfeiture of its right to do business in this State, the foreign limited liability company is subject to the same rules, legal provisions, and sanctions as if it had never qualified or been licensed to do business in this State.

Maryland Code (1975, 2007 Repl.Vol.), Section 4A–1013(d) of the Corporations and Associations Article.

Under Section 4A–1009(a)(1) of the Corporations and Associations Article Maryland Code (1975, 2007 Repl.Vol.), “doing business,” however, does not include “maintaining suit”:

In addition to any other activities which may not constitute doing business in this State, for the purposes of this title, the following activities of a foreign limited liability company do not constitute doing business in this State: (1) Maintaining, defending, or settling an action, suit, claim, dispute, or administrative or arbitration proceeding[.]

“Unless the [foreign] limited liability company shows to the satisfaction of the court” that it has paid a penalty for noncompliance and complied with the registration requirements, it cannot “maintain” suit, however:

If a foreign limited liability company is doing or has done any intrastate, interstate, or foreign business in this State without complying with the requirements of this subtitle, the foreign limited liability company and any person claiming under it may not maintain suit in any court of this State, unless the limited liability company shows to the satisfaction of the court that: (1) The foreign limited liability company or the person claiming under it has paid the penalty specified in subsection (d)(1) of this section; [[9] and (2)(i) The foreign limited liability company or a successor to it has complied with the requirements of this title; or (ii) The foreign limited liability company and any foreign limited liability company successor to it are no longer doing intrastate, interstate, or foreign business in this State.

Maryland Code (1975, 2007 Repl.Vol.), Section 4A–1007(a) of the Corporations and Associations Article.

The issue, thus, is queued up: If a foreign limited liability company had filed a judicial review action after it had forfeited its right to do business, could it then “maintain” the suit, after it cured the infirmity? The Circuit Court answered in the affirmative; the Court of Special Appeals determined that the suit was void ab initio.

Moe argues that the prohibition on maintaining suit does not prohibit it from filing suit and that its subsequent registration efforts would allow the suit to continue. Moe asserts that, not only is such an interpretation of “maintain” warranted by a plain meaning interpretation, but also that we concluded as much in Kendrick & Roberts v. Warren Bros. Co., 110 Md. 47, 72 A. 461, 463 (1909). Chipotle argues that the prohibition on “maintaining” suit includes a prohibition on commencing suit.

The statute does not answer the question, but embraces an ambiguity that has permitted the two varying interpretations developed by the Circuit Court and our intermediate appellate court. Section 4A–1007(a) of the Corporations and Associations Article admonishes that a foreign limited liability company “may not maintain suit in any court of this State” if it is noncompliant, but this prohibition is subject to the proviso, “[u]nless the [foreign] limited liability company shows to the satisfaction of the court” that it has paid a penalty for noncompliance and complied with the registration requirements.

“Maintain,” used in Section 4A–1007(a), means “to continue” something already in existence, Black's Law Dictionary 1097 (10th ed.2014), and coupled with “unless the limited liability company shows to the satisfaction of the court,” indicates that the Legislature intended to permit a noncompliant foreign limited liability to “cure” its failure to comply with registration requirements, even though having failed to register before filing suit. The history of Section 4A–1007(a) after our decision in Kendrick, 110 Md. at 47, 72 A. at 461, and the Kendrick case itself, as well as out of state cases interpreting the words “maintain” and “unless” or “until” in similar statutes support this analysis.

In Kendrick we analyzed an iteration of our foreign corporation statute, enacted in Section 109(d) of Chapter 270 of the Maryland Laws of 1898 and codified in Section 140 of Article 23 of the Code of Public General Laws of 1904, which stated that, “No such foreign corporation shall be permitted to maintain any action, either at law or equity, in the courts of this state, until the provisions of this Act shall have been complied with”. 110 Md. at 70, 72 A. at 464. In the case, Kendrick & Roberts Inc., a West Virginia corporation, had sued Warren Bros. Co., which in response stated that, “at the time of the institution of this suit in this Court the said foreign corporation had not filed in the office of the Secretary of the State of Maryland”. Id. at 67, 72 A. at 462. Kendrick & Roberts Inc. alleged, thereafter “by way of replication,” that two months after filing suit, “the plaintiff fully complied with all the requirements of the law of the state of Maryland relating to foreign corporations”. Id. at 68, 72 A. at 463. The trial court allowed the action to proceed, and Kendrick & Roberts Inc. prevailed.

We affirmed and held that, “The statute does not forbid the institution or bringing of the action, but prevents the maintaining of such action until the provisions of the law shall have been complied with.” Id. at 72, 72 A. at 464. We recognized that, “The meaning of the word ‘maintain’ has been defined ‘in pleading, to support what has already been brought into existence.’ “ Id. We concluded that, “omission on the part of the plaintiff does not operate to end a suit otherwise regularly instituted, or to destroy a right in other respects validly existing, and the greatest effect ․ would be to suspend the prosecution of such suit until compliance was had with statute.” Id., quoting Wetzel & T. Ry. Co. v. Tennis Bros. Co., 145 F. 458, 464 (4th Cir.1906).

The subsequent history of Section 140 of Article 23 reveals that the Legislature retained the “maintain” language in every iteration of the foreign corporation statute to permit a noncompliant foreign corporation to come into compliance.¹⁰ The statute has been amended on several occasions since it was interpreted in Kendrick, and the General Assembly has not changed the statute so as to modify the Kendrick interpretation. It is then presumed that the Legislature has acquiesced in the interpretation given in Kendrick. Forbes v. State, 324 Md. 335, 342, 597 A.2d 427, 431 (1991). While the word “until” was replaced with “unless” during the enactment of the Corporations and Associations Article by Chapter 311 of the Maryland Laws of 1975, the revisers indicated that “no substantive changes [we]re made” by the amendment. Governor's Commission to Revise the Annotated Code, Commission Report No. 1975–2: Revised Article on Corporations and Associations [S.B. 330] 47 (1975) (“Subtitle 3 [of Title 7—Foreign Corporations] is composed of five sections relating to sanctions and penalties; no substantive changes are made.”).

Both the foreign corporation statute and the statute governing foreign limited liability companies embody identical “may not maintain suit” language that we interpreted in Kendrick. Maryland Code (1975, 2007 Repl.Vol.), Sections 4A–1007(a) and 7–301 of the Corporations and Associations Article. Foreign limited liability companies and foreign corporations also suffer identical consequences upon failure “to file with the Department any report or fail[ure] to pay any late filing penalties required by law” such that the Department of Assessments and Taxation may forfeit the entities's right “to do business in this State”. Maryland Code (1975, 2007 Repl.Vol.), Sections 4A–1013(a) and 7–304(a) of the Corporations and Associations Article. Upon forfeiture of the right to do business, a foreign limited liability company and a foreign corporation are “subject to the same rules, legal provisions, and sanctions as if [they] had never qualified or been licensed to do business in this State.” Maryland Code (1975, 2007 Repl.Vol.), Sections 4A–1013(d) and 7–304(d) of the Corporations and Associations Article.

Our analysis that a foreign limited liability company may cure the infirmity of failure to register from the time of filing suit also finds support in our sister jurisdictions interpreting the words “maintain” and “unless” or “until” in statutes similar to ours.

In Nolte v. MT Tech. Enterprises, LLC, 284 Va. 80, 726 S.E.2d 339, 345 (Va.2012), MT filed suit when it was not registered to transact business in Virginia. Under the Virginia Code § 13.1–1057(A) “[a] foreign limited liability company transacting business in the Commonwealth may not maintain any action, suit, or proceeding in any court of the Commonwealth until it has registered in the Commonwealth.”¹¹ Id. (emphasis in original). While MT was not registered when it initiated suit, it registered “before the trial court entered its final order” granting judgment in its favor. Id.

The Supreme Court of Virginia affirmed and concluded that MT could maintain its suit after registering. The court interpreted the statutory language in Virginia Code § 13.1–1057(A) of “maintain” as “ ‘to continue (something),’ not to start or commence.” Id., quoting Black's Law Dictionary 1039 (9th ed.2009). The court also relied on its prior interpretation of a similar statute applicable to foreign corporations where the court had determined that, “[i]t is not the right to begin the action, but the right to maintain it, that is withheld for failure to comply with its terms. It takes no right away from the offending party after compliance. When its terms are met, the barriers theretofore existing are removed.” Id. (emphasis in original), quoting Phlegar v. Virginia Foods, Inc., 188 Va. 747, 51 S.E.2d 227, 230 (Va.1949). The court reasoned that, “[t]he statute at issue in Phlegar contained language similar to the language in Code § 13.1–1057(A)” and that the foreign corporation statute at issue in Phlegar stated in relevant part that, “ ‘no action shall be maintained in any of the courts in this State by any such person, firm or corporation ․ until the certificate required by this act has been filed.’ “ Id. (emphasis in original).

A similar result was reached by the Delaware Supreme Court in interpreting its foreign corporation statute.¹² In Hudson Farms, Inc. v. McGrellis, 620 A.2d 215, 216 (Del.1993), Hudson Farms Inc., a Pennsylvania corporation, filed a mechanic's lien against John McGrellis in Delaware at a time when Hudson Farms was not licensed to do business there. McGrellis filed a motion for summary judgment asserting that Hudson Farms was a foreign corporation not licensed to do business in Delaware, and was, therefore, barred from initiating the action. The trial court determined that Hudson Farms was not licensed at the time it filed the action and dismissed the action without prejudice, although, “the practical effect of the [trial court's] ruling was to defeat Hudson Farms' cause of action because the period for filing a mechanic's lien had expired.” Id. at 217. Hudson Farms, in a motion for reargument, asserted that, between McGrellis's filing of the motion for summary judgment and the date of the hearing on the motion, it had properly registered to do business in Delaware. The trial court denied reargument, “ruling, in effect, the Hudson Farms registration efforts were unavailing since its nonregistered status at the time of filing suit was an uncorrectable defect.” Id.

The Supreme Court of Delaware reversed. The court interpreted 8 Del. C. § 383:

(a) A foreign corporation which is required to comply with §§ 371 and 372 of this title and which has done business in this State without authority shall not maintain any action or special proceeding in this State unless and until such corporation has been authorized to do business in this State and has paid to the State all fees, penalties and franchise taxes for the years or parts thereof during which it did business in this State without authority. This prohibition shall not apply to any successor in interest of such foreign corporation.

Id. at 216 n. 3 (emphasis in original), and stated that, “The great majority of courts which have construed such statutes have concluded that a court may stay a suit commenced by a non-qualified foreign corporation until the foreign corporation obtains the requisite authority.” Id. at 218. The Delaware court recognized that in states with similar statutes, “Courts which have considered the “maintaining” language of foreign corporation statutes appear to have adopted a liberal stance in construing the term” and “allowed a non-qualified foreign corporation to file suit and thereafter obtain the required authorization.” Id. at 220, citing Oxford Paper Co. v. S.M. Liquidation Co., 45 Misc.2d 612, 257 N.Y.S.2d 395 (Sup.Ct.N.Y.1965). The court concluded that, “The majority of courts would permit a non-qualified foreign corporation to achieve registration during the pendency of the proceeding, notwithstanding the lack of such status when the litigation was commenced and regardless of whether the applicable registration statute contains the term ‘unless' or ‘unless and until .’ “ Id. at 221, 257 N.Y.S.2d 395.

The court determined that Delaware's statute as well as those in other states was similar to Section 117 of the Model Business Corporation Act (1960), which stated, in part, that “[n]o foreign corporation transacting business in this State without a certificate of authority shall be permitted to maintain any action, suit or proceeding in any court of this State, until such corporation shall have obtained a certificate of authority.”¹³ Id. at 218, 257 N.Y.S.2d 395. The court reasoned that, “It is not unreasonable to assume, as most courts do, that the word “until,” as used in § 117, provides an inference that a proceeding may be stayed until compliance occurs .” Id. at 218–19, 257 N.Y.S.2d 395.¹⁴ See also Empire Excavating Co. v. Maret Dev. Corp., 370 F.Supp. 824, 826 (W.D.Pa.1974), citing inter alia, Kendrick, 110 Md. at 47, 72 A. at 461 (“[T]he majority view among courts interpreting similar statutes in other states is that “maintain” means to continue an action already begun.”).

Chipotle, however, points to various cases in which other courts have not permitted a noncompliant foreign corporation to file suit and maintain the action.¹⁵ In League to Save Lake Tahoe v. Tahoe Reg'l Planning Agency, 93 Nev. 270, 563 P.2d 582, 583 (Nev.1977), for example, the League to Save Lake Tahoe was a foreign corporation not qualified to do business in Nevada when it filed an action against Tahoe Regional Planning Agency. During the pendency of the suit, The League “qualified to do business.” Id. The trial court, nevertheless, dismissed the action with prejudice reasoning that Nevada Revised Statute (“NRS”) 80.210 which provided that, “a foreign corporation ‘․ shall not be allowed to commence,[¹⁶ ] maintain, or defend any action or proceeding in any court of this state until it shall have fully complied with the provisions of NRS 80.010 to 80.040, inclusive’ “ mandated dismissal since The League had not qualified to do business when the suit was commenced. Id.

The Supreme Court of Nevada affirmed and concluded that, “[i]nstitution of suit before compliance with filing requirements does not toll the statute of limitations, nor does later compliance operate retroactively to permit continuation of the action if the statute of limitations had run between filing of the suit and such compliance.” Id. at 585. The court stated that “The League to Save Lake Tahoe lacked capacity to commence this action. We must decide whether the statute, NRS 80.210, allows curative efforts to revive initial lack of capacity to sue․ Case authority elsewhere is split and not particularly helpful since statutory language differs.” Id. at 583–84. The court reasoned that “the word ‘maintain’ was meant to apply to a case commenced by a corporation which had qualified to do business here but which subsequently became unqualified because of failure to comply with continuing statutory requirements.” Id. at 584.

The League to Save Lake Tahoe was expressly overruled, however, in Executive Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 38 P.3d 872, 873 (Nev.2002). In the case, Executive, a foreign corporation in Nevada, had its certificate to do business revoked prior to the time it filed suit against Ticor Title in Nevada, and Ticor argued that Executive's action should be dismissed. Executive subsequently renewed its qualification, but the trial court dismissed Executive's suit with prejudice, because the statute of limitations had run. Id. at 874.

The Supreme Court of Nevada reversed and concluded that “NRS 80.210 is susceptible to a different construction than the construction that League to Save Lake Tahoe relied on.” Id. at 875. The court reasoned that “maintain” could be interpreted to mean “carry on” or “continue” and “impl[ies] that the foreign corporation should not be allowed to proceed with its action ‘until it has fully complied with the’ qualification requirements after its failure to comply has been discovered.” Id. The court determined that, “The majority of states follow this more forgiving approach—rather than dismiss an action filed by an unqualified foreign corporation outright, most states with statutes similar to Nevada's simply stay the action until the corporation qualifies.”¹⁷ Id.

In the case sub judice, we shall hold that a foreign limited liability company can “cure” its failure to comply with registration requirements and continue its suit even though not registered at the time of filing suit. What was true in Kendrick, 110 Md. at 47, 72 A. at 464, remains true today with respect to a foreign limited liability company: “omission on the part of the plaintiff does not operate to end a suit otherwise regularly instituted”. Thus, once a foreign limited liability company comes into compliance with the statute, it may maintain its action even though not registered when initiating the suit.

Chipotle, though, argues that the result reached by our brethren on the Court of Special Appeals is more appropriate. Unlike our intermediate appellate court we, however, rely on an interpretation of “maintain” and “unless” in Section 4A–1007(a) as well as Kendrick and related out of state cases, while the Court of Special Appeals relied upon Price v. Upper Chesapeake Health Ventures, 192 Md.App. 695, 697, 995 A.2d 1054, 1055 (2010), which we find to be inapposite.

In Price, members of The Surgery Pavilion, LLC, a domestic limited liability company whose right to do business and use its name had been forfeited,¹⁸ sought to bring a derivative action on behalf of the LLC after management approved the sale of substantially all of its assets. The circuit court dismissed the suit, determining that the members could not bring a derivative suit on behalf of the LLC. Id. at 702, 995 A.2d at 1058.

The Court of Special Appeals affirmed the dismissal. The court relied primarily on two statutory sections that address a domestic limited liability company's abilities following forfeiture: Sections 4A–911(d) and 4A–920 of the Corporations and Associations Article. Section 4A–911(d) stated that, after forfeiture, a domestic limited liability company loses “the right to do business in Maryland and the right to the use of [its] name” while Section 4A–920 provided that, “forfeiture of the right to do business in Maryland and the right to the use of the name of the limited liability company under this title does not ․ prevent the limited liability company from defending any action, suit, or proceeding in a court of this State.” Id. at 703–05, 995 A.2d at 1058–60. Interpreting the “savings clause” permitting the domestic limited liability company to defend a suit, the Court of Special Appeals rejected the notion that defending a suit includes filing an action.

Chipotle and the Court of Special Appeals relied on Price, obviously, because Moe, like Surgery Pavilion LLC, lost its right to do business, albeit not its name. Price is inapposite, however, because a foreign limited liability company is offered the opportunity after forfeiture to “maintain suit,” as well as defend an action.¹⁹ Maryland Code (1975, 2007 Repl.Vol.), Section 4A–1007 of the Corporations and Associations Article. The inclusion of the language “maintain” makes all the difference in the world as explained in Kendrick, a part of our jurisprudence not cited to the Court of Special Appeals by Moe, and bulwarked by our sister states interpreting the same language.²⁰

Chipotle, however, argues that Moe's subsequent compliance with the statutory registration requirement “cannot be given retroactive effect” under Rule 7–203(a), which states:

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.

In essence, Chipotle argues that Rule 7–203 creates a statute of limitations that was not observed when registration was “cured” outside of the thirty days.²¹

In the present case, Moe could file suit without having registered once Moe cured its infirmity during the pendency of the action. Clearly, in so holding we recognize that the thirty day dictates of Rule 7–203 have been met as a result of Moe's registration during the pendency of the suit based upon those out-of-state cases upon which we have relied; some permitted curing of registration requirement infirmities to permit maintenance of suit even when the statute of limitations had run at the time of curing.²² Hudson, 620 A.2d at 217; Executive Mgmt., 38 P.3d at 874.

Although we hold that Moe could file its petition for judicial review and then register in order to maintain its action, Moe was not a “person aggrieved” and thus did not have standing under Section 4–401 of the Land Use Article, Maryland Code (2012), to file a request for judicial review of the decision of the board of appeals:

(a) Any of the following persons may file a request for judicial review of a decision of a board of appeals or a zoning action of a legislative body by the circuit court of the county: (1) a person aggrieved by the decision or action; (2) a taxpayer; or (3) an officer or unit of the local jurisdiction.

Chipotle did not raise the issue of standing before us, conceivably because the issue was decided in its favor in the Circuit Court and the Court of Special Appeals. Rather than remand to the Circuit Court to once again decide the issue of Moe's standing and then encounter further proceedings, however, we rely upon the language of Maryland Rule 8–131(a), which provides that, “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Lizzi v. Washington Metro. Area Transit Auth., 384 Md. 199, 206, 862 A.2d 1017, 1022 (2004) (The Court may decide an issue not raised by petition or cross-petition when the issue “was raised in and has been fully determined by the trial court.”). We avoid the expense and delay of another appeal because we hold that Moe was not a “person aggrieved.”

The issue of whether Moe was a person aggrieved by Chipotle's special exception was raised for the first time in the Circuit Court when Chipotle filed a Motion to Dismiss challenging Moe's standing to file a judicial review action. After a hearing on the Motion, the Circuit Court Judge dismissed the action finding Moe's arguments concerning increased traffic unavailing saying, “You stand in the front of either one of these properties and look at the other, you will never have a direct view of it ․ in this case, it is simply a matter of competition. It is an argument that is not the subject for which the Court could grant on the basis of competition. So therefore the Court is going to grant the motion to dismiss the case with prejudice.”

To be a person aggrieved, “[t]he decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally.” Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967). “An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.” Id. at 145, 230 A.2d at 294. “A protestant is specially aggrieved when she is farther away than an adjoining, confronting, or nearby property owner, but is still close enough to the site of the rezoning action to be considered almost prima facie aggrieved, and offers ‘plus factors' supporting injury.” Ray v. Mayor & City Council of Baltimore, 430 Md. 74, 85, 59 A.3d 545, 551–52 (2013). In Ray we succinctly summarized that proximity is the most important factor and beyond that, special aggrievement must be shown:

A review of our cases, where standing to challenge a rezoning action was at issue, reveals one critical point: proximity is the most important factor to be considered. The relevance and import of other facts tending to show aggrievement depends on how close the affected property is to the re-zoned property. There is, however, no bright-line rule for exactly how close a property must be in order to show special aggrievement. Instead, this Court has maintained a flexible standard, finding standing in cases that do not quite satisfy the “adjoining, confronting or nearby” standard of prima facie aggrievement, but are nudging up against that line. Protestants in such cases will be considered to pass the standing threshold if they allege specific facts of their injury. In other words, once sufficient proximity is shown, some typical allegations of harm acquire legal significance that would otherwise be discounted. But in the absence of proximity, much more is needed. For example, an owner's lay opinion of decreasing property values and increasing traffic has been considered sufficient for special aggrievement when combined with proximity that is almost as great as in cases where properties are “adjoining, confronting or nearby.” Conversely, without sufficient proximity, similar facts will only support general aggrievement. For example, when the affected properties are not sufficiently close to the site to qualify as almost prima facie aggrieved, claims of increasing traffic, change in the character of the neighborhood, lay opinion projecting a decrease in property values, and limited visibility have been held to show only general aggrievement.

Id. at 82–85, 59 A.3d at 550–52 (internal footnotes and citations omitted).

Moe lacks the sufficient proximity and “plus factors” identified in Ray needed to demonstrate aggrievement. The Circuit Court determined that Moe's property was not within direct view of Chipotle's. Additionally, the issue of traffic is not dispositive because “there is an overwhelming weight of authority that claims of increased traffic, by protestants who lack close proximity, are insufficient to prove special aggrievement.” Ray, 430 Md. at 96, 59 A.3d 545. The motivator driving Moe to protest the rezoning was, as found by the Circuit Court Judge, “simply a matter of competition.” It is clear, however, that, “a person is not ‘aggrieved’ for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business.” Superior Outdoor Signs, Inc., 150 Md.App. at 500, 822 A.2d at 490, citing Kreatchman v. Ramsburg, 224 Md. 209, 220, 167 A.2d 345, 351 (1961). As a result we shall affirm the dismissal of Moe's judicial review action.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER .

BATTAGLIA, J.