Albert W. Sisk & Son, Inc. v. Friendship Packers, Inc.

¹⁵⁴ ELDRIDGE, Judge. On December 12, 1988, pursuant to Maryland Rule 2-611(a), the plaintiff, Albert W. Sisk & Son, Inc., filed in the Circuit Court for Caroline County a complaint and a confessed judgment against the defendants, Friendship Packers, Inc., Richard L. Andrew and Donna L. Andrew. The defendants were served on December 16, 1988, and, within thirty days, pursuant to Rule 2-611(c), the defendants filed a “Motion to Vacate, Open or Modify the Judgment.” A hearing on the motion was held on April 6, 1989. At that hearing the defendants argued that they had a meritorious defense required by Maryland Rule 2-611(d), asserting that they had paid the debt in full and that the plaintiff owed them approximately $150,000.00. 1 The circuit court, not fully convinced that a meritorious defense had been set forth, stated: “[T]he denial of the motion to vacate or set aside, will be accompanied with the right of the Defendant — of any of the Defendants ... to file a cross-claim, counter-claim, or whatever they want to, in this case, in sixty days, setting forth who they say owes what to who, and why, and the basis thereof.

In the meantime, at least up front, I will do this much ... which will be to stay the enforcement of the judgment presently obtained for the sixty day period.” The docket entry for April 6th reads: “Court Denies Motion to Vacate filed 1-13-89, with the right of any defendant to ¹⁵⁵ file Counter-Claim in this case, within 60 days. Court stays enforcement of Judgment for a period of 60 days. Counsel to present Order.” The written order signed by the circuit judge was filed on April 27, 1989. On April 12,1989, the defendants filed a counterclaim and a demand for a jury trial, and on April 24,1989, they filed a motion to revise the order reflected in the April 6th docket entry quoted above.

A hearing was held on this motion to revise on May 2, 1989. At that hearing, the circuit court was persuaded that a meritorious defense to the confessed judgment did in fact exist and the court “sua sponte” revised the April 27th order and vacated the confessed judgment. The court again directed counsel to prepare a written order, and this order was filed on May 9, 1989. Thereafter the plaintiff Sisk & Son, Inc. both answered the counterclaim and noted an appeal from the circuit court’s May 9th order.

The plaintiff argued before the Court of Special Appeals that the circuit court did not have authority to enter the May 9th order. The plaintiff contended that the circuit court’s authority over a confessed judgment under Rule 2-611(c) and (d) takes the place of the general revisory power of the circuit court under Rule 2-535(a). 2 Thus, according to the plaintiff, the April 6th or April 27th denials of the motion to vacate the confessed judgment, pursuant to Rule 2-611(d), precluded the circuit court from revising its judgment under Rule 2-535(a). Under the plaintiff’s theory, the confessed judgment was final when the motion to vacate was denied on April 6 or April 27, 1989; thereafter, the circuit court lacked authority on May 9, 1989, to reconsider ¹⁵⁶ this denial absent fraud, mistake or irregularity. The plaintiffs theory also rests upon the assumption that an order, such as that filed on May 9th, purportedly authorized by Rule 2-535, setting aside an earlier final judgment, is appealable if the order is in fact not authorized by Rule 2-535.

Thus, under this assumption, the May 9th order was appeal-able. The defendants argued that the “denial” of the motion to vacate entered on April 6th or April 27th was subject to the general revisory power of the court under Rule 2-535(a). Therefore, according to the defendants, the trial judge had broad authority to revise the April order for thirty days regardless of fraud, mistake or irregularity. The Court of Special Appeals affirmed in an unreported opinion, agreeing with the defendants’ argument.

The intermediate appellate court held that the circuit court could revise the April order under the authority of Rule 2-535(a). The plaintiff Sisk & Son, Inc. filed a petition for a writ of certiorari, requesting that this Court consider whether the circuit court erred in vacating a confessed judgment in response to a motion to revise when the motion to revise was filed more than thirty days after entry of the confessed judgment but within thirty days of a denial of the motion to vacate. The plaintiff argued that Rule 2-535(a) is inapplicable to a judgment denying a motion to vacate a confessed judgment and that, therefore, the circuit court on May 9, 1989, had no power to revise the “final judgment” of April 6 or April 27, 1989. In order to address the important issue of the interplay between Rule 2-611(d) and the revisory power under Rule 2-535(a), we granted the petition for a writ of certiorari.

Cf Quartertime Video v. Hanna, 321 Md. 59, 65 , 580 A.2d 1073, 1075-1076 (1990); Banegura v. Taylor, 312 Md. 609, 618-619 , 541 A.2d 969, 973-974 (1988); Owen v. Freeman, 279 Md. 241, 245-248 , 367 A.2d 1245, 1247-1249 (1977). See also Gay Investment Co. v. Angster, 231 Md. 318, 321 , 190 ¹⁵⁷ A.2d 95, 97 (1963); Sunderland v. Braun Packing Co., 119 Md. 125, 130-131 , 86 A. 126, 127-128 (1912). We shall not, however, be able to reach the question raised by the petitioner. There never was in this case a final judgment under Rule 2-601.

Thus, no issue concerning the applicability of Rule 2-535, to revise an earlier final judgment, is presented. Because there never was a final judgment from which an appeal could be taken, the Court of Special Appeals lacked jurisdiction to hear the appeal. Therefore, we shall vacate the judgment of the Court of Special Appeals and remand the case to that court for dismissal of the appeal. 3 ¹⁵⁸ Although the parties did not question the finality of the April 1989 order, or the appealability of the May 9, 1989, order, or the jurisdiction of the Court of Special Appeals, it is settled that the parties cannot confer jurisdiction on the appellate courts of this State by consent. Anthony Plumbing v. Atty.

Gen., 298 Md. 11, 15-16 , 467 A.2d 504, 506 (1983); Biro v. Schombert, 285 Md. 290, 293 , 402 A.2d 71, 73 (1979); Eastgate Associates v. Apper, 276 Md. 698, 700-701 , 350 A.2d 661, 663 (1976). When an intermediate appellate court has entertained a case without having jurisdiction to do so, this Court will consider the issue of jurisdiction sua sponte. Board v. Haberlin, 320 Md. 399, 405 , 578 A.2d 215, 217 (1990); Dabrowski v. Dondalski, 320 Md. 392, 397-398 , 578 A.2d 211, 214 (1990); Blucher v. Ekstrom, 309 Md. 458, 463 , 524 A.2d 1235, 1237 (1987); Biro v. Schombert, supra; Smith v. Taylor, 285 Md. 143, 147 , 400 A.2d 1130, 1133 (1979); Eastgate Associates v. Apper, supra; Tvardek v. Tvardek, 257 Md. 88, 92 , 261 A.2d 762, 765 (1970). In this case, the circuit court never issued a final order.

Initially, we note that the docket entries of April 6th and May 2nd are not final judgments because, inter alia, the court directed counsel to prepare written orders. As we stated in Rohrbeck v. Rohrbeck, 318 Md. 28, 42 , 566 A.2d 767, 774 (1989), “whenever the court ... indicates that a written order embodying the decision is to follow, a final judgment does not arise prior to the