Brethren Mutual Insurance v. Suchoza

WOODWARD, J. The instant appeal arises from a lawsuit filed on March 12, 2010, in the Circuit Court for Prince George’s County by appellee, Kenneth Suchoza, against appellant, Brethren Mutual Insurance Company (“Brethren”), alleging that Brethren failed to pay benefits under an uninsured motorist (“UM”) policy between Brethren and appellee’s employer, Matrix Mechanical, Inc. (“Matrix”). Appellee’s UM claim resulted from injuries sustained during a May 29, 2007 motor vehicle accident caused by an uninsured motorist while appellee was driving within the scope of his employment with Matrix. On August 15 and 16, 2011, a trial was held in circuit court, at the conclusion of which a jury returned a verdict in favor of appellee for $535,876.00. Following the entry of judgment, Brethren filed a Motion for New Trial and to Alter or Amend Judgment, seeking, among other things, to have the judgment reduced by the amount of workers’ compensation benefits previously received by appellee.

On January 19, 2012, the circuit court denied Brethren’s motion for a new trial but amended the judgment by reducing the amount thereof from $535,876.00 to $356,669.03 to reflect the amount of workers’ ⁴⁷ compensation benefits received by appellee as of the time of trial. On appeal, Brethren presents three questions for our review, which we have slightly rephrased: I. Did the trial court err or abuse its discretion by refusing to admit testimony of the payment of appellee’s medical expenses by his workers’ compensation carrier and the acceptance thereof as full payment by his health care providers?

II

Did the trial court err by failing to reduce the judgment in favor of appellee by the amount of workers’ compensation benefits received by appellee from the trial date to the date of the court’s ruling on Brethren’s post-trial motion?

III

Did the trial court err by entering judgment in favor of appellee where appellee was entitled to recover future workers’ compensation benefits? For the reasons set forth below, we will answer all three questions in the negative and thus affirm the judgment of the circuit court. BACKGROUND On May 29, 2007, appellee was driving an E-250 commercial cargo van within the scope of his employment as a Service Technician with Matrix. While stopped at a stoplight in Prince George’s County, Maryland, the van driven by appellee was struck in the rear by a 1988 Dodge Dakota pickup truck, which was sitting at the stoplight directly behind appellee.

The pickup truck was propelled into the back of appellee’s van when the driver of a third vehicle, a Dodge Caravan, failed to control his vehicle and struck the rear end of the pickup truck. At the time of the accident, the driver of the Dodge Caravan was an uninsured motorist. As a result of the accident, appellee sustained injuries to his neck and left shoulder, causing him to undergo a cervical discectomy and fusion surgery. Following surgery, it was ⁴⁸ determined that appellee sustained a “40% whole person impairment,” had reached his “maximum surgical improvement,” and could return to work in a different capacity.

Appellee then sought relief by: (1) filing a workers’ compensation claim, and (2) filing a complaint in circuit court to collect benefits under Matrix’s UM policy with Brethren. Appellee’s Workers’ Compensation Claim At the same time appellee was proceeding with his complaint in the circuit court, he was pursuing a claim before the Workers’ Compensation Commission, seeking benefits for injuries and losses he sustained as a result of the accident. As of the date of trial, appellee had received workers’ compensation benefits of $179,206.97, including: $69,496.97 in medical expenses and $109,710.00 in lost wages. In addition, appellee’s workers’ compensation claim was not fully resolved, and he was entitled to future workers’ compensation benefits.

Between the close of trial and the date on which the trial court resolved Brethren’s post-trial motion, appellee was awarded an additional $56,639.00 in workers’ compensation benefits, $9,339.00 of which was received by appellee. Appellee’s Uninsured Motorist Claim Matrix maintained a UM policy with Brethren that, according to appellee, “was specifically contracted for by [Matrix] to provide for all medical treatment, lost wages, and any other relevant damages and injuries rendered to their employees as a result of an uninsured driver.” The insurance policy contained a provision limiting Brethren’s liability in the event that an employee recovered workers’ compensation benefits stemming from the same accident for which UM benefits were sought. The relevant provision states: We will not pay for any element of “loss” [i]f a person is entitled to receive payment for the same element of “loss” under any workers’ compensation, disability or similar law. However, this applies only to that amount for which the provider of the workers’ compensations [sic] benefits has not been reimbursed. ⁴⁹ Appellee filed a claim with Brethren under its UM policy, which Brethren denied.

On March 12, 2010, appellee filed a complaint in circuit court, asserting that Brethren’s denial of UM benefits pursuant to Brethren’s UM insurance policy with Matrix constituted a breach of contract. In light of the UM provision limiting Brethren’s liability based upon workers’ compensation recovery by appellee, the parties filed a Consent Motion to Stay Proceedings on January 11, 2011, requesting that the circuit court case be stayed pending the resolution of appellee’s workers’ compensation claim. On January 25, 2011, the trial court entered an order denying the request. On August 15 and 16, 2011, a jury trial was held in the circuit court.

At trial, appellee introduced into evidence the medical bills, totaling $129,876.00, that he incurred as a result of the accident, along with the testimony of his treating physician that such bills were fair, reasonable, and necessary. Brethren sought to introduce evidence of the reasonable value of the medical services rendered to appellee by proffering evidence of the actual payments made by appellee’s workers’ compensation carrier 1 and accepted as full payment by the health care providers. The trial court did not allow the admission of the evidence of such payments, stating that it was a “collateral source.” The jury returned a verdict in favor of appellee for a total of $535,876.00, comprised of: $156,000.00 in lost wages, $129,876.00 in medical expenses, and $250,000.00 in non-economic damages. On September 6, 2011, the circuit court entered judgment in favor of appellee in the amount of $535,876.00.

Following the trial court’s entry of judgment, Brethren filed a Motion for New Trial and to Alter or Amend Judgment on September 19, 2011. Brethren’s motion was “based upon (1) the exclusion of evidence of the actual amounts accepted by [appelleej’s doctors in full payment for treatment, (2) the trial court’s failure to reduce the Judgment by the amount of ⁵⁰ workers’ compensation benefits paid, and (3) the entry of Judgment for [appellee] absent a prima facie showing that [Brethren] breached the applicable contract of insurance.” On January 13, 2012, the circuit court heard argument on Brethren’s motion. On January 19, 2012, the circuit court denied Brethren’s motion for a new trial but reduced the amount of the judgment from $535,876.00 to $356,669.03 to reflect the amount of workers’ compensation benefits received by appellee as of the date of trial. Brethren noted a timely appeal to this Court.

DISCUSSION Reasonable Value of Medical Services Rendered At trial on August 15 and 16, 2011, the trial court ruled on the admissibility of evidence regarding the fair and reasonable value of medical services rendered by health care providers in treating appellee for injuries sustained as a result of the accident. Appellee offered medical bills totaling $129,876.00 as evidence of the expenses incurred by him for medical treatment rendered for such injuries. Appellee played portions of the videotaped deposition of Dr. Christopher Urban for the jury, in which Dr. Urban testified that he had reviewed such medical bills and that the amounts of those bills were fair and reasonable. The court admitted appellee’s medical bills into evidence. 2 Brethren sought to introduce evidence of the payments actually made by appellee’s workers’ compensation carrier to—and accepted as full payment by—appellee’s health care providers.

Brethren’s counsel made the following proffer to the court: [A]t this point the defense would offer testimony of Lori Shook. She is the workers[’] compensation adjuster for ⁵¹ [appellee]’s claim. We would elicit testimony from Ms. Shook concerning [appelleej’s workers^] compensation claim, his entitlement to recover under workers!’’] compensation, the amounts paid by workersP] compensation, the amounts accepted by providers from workersP] compensation, [ ] testimony concerning the pending status of the matter [ ] that [appellee] is still entitled to recover additional funds pursuant to workersP] compensation and that there has been no reimbursement. (Emphasis added).

Brethren did not proffer any expert testimony or other competent evidence regarding the reasonableness of the amounts actually paid for appellee’s medical treatment. The court ruled that Brethren’s proffered evidence was not admissible, finding that it was a “collateral source,” and thus would violate the collateral source rule. In the instant appeal, Brethren contends that “the trial court abused its discretion by excluding evidence concerning amounts accepted as full payment by [appellee’s] health care providers.” According to Brethren, “[t]he dollar amount written on the invoice [submitted by appellee] bears little relation to the value of the service or the amount these providers actually accepted].” Brethren further asserts that the collateral source rule is not applicable in contract cases, such as the instant matter. Even if the collateral source rule is applicable, according to Brethren, the admission of lesser amounts accepted as full payment of medical bills is not violative of such rule.

Brethren concludes that the trial court’s exclusion of evidence concerning payment actually accepted for appellee’s medical treatment prejudiced Brethren by “affecting the jury’s decision concerning the reasonable value of the medical care,” and thus constitutes reversible error. Appellee contends that the “trial court did not abuse its discretion in excluding the medical bills reflecting reduced amounts accepted as payment for medical services.” According to appellee, the collateral source rule does apply, because although the original action was for breach of contract, appellee’s claim was “the result of a tortious automobile accident,” and, therefore, Brethren “st[ands] in the shoes of the tortfea ⁵² sor.” Appellee argues that the court did not preclude Brethren from offering contradictory evidence concerning the reasonableness of the medical bills offered by appellee; however, Brethren “never made an attempt to get that type of evidence before the jury.” Further, appellee contends that Brethren “cannot show that any prejudice was probable, because [Brethren] did nothing to refute the testimony that the medical bills were fair and reasonable for the necessary treatment provided to appellee.” Recently, in Washington Metropolitan Area Transit Authority v. Washington, 210 Md.App. 439 , 63 A.3d 609 (2013), this Court set forth the standard of review governing an appellate court’s review of a trial court’s determination of evidentiary issues involving relevancy. We stated: Md. Rule 5-402, governing the admissibility of relevant or irrelevant evidence, provides: “Except as otherwise provided by constitutions, statutes, or these rules, or by decisional law not inconsistent with these rules, all relevant evidence is admissible. Evidence that is not relevant is not admissible.” Thus, although a trial court has “wide discretion” in weighing the relevance of evidence, it does not have discretion to admit irrelevant evidence.

Id.; State v. Simms, 420 Md. 705, 724 [ 25 A.3d 144 ] (2011). In evaluating the correctness of the trial court’s ruling, we engage in a two-pronged analysis. First, we consider whether the evidence is legally relevant, a conclusion of law which we review de novo. Simms, 420 Md. at 725 [ 25 A.3d 144 ].

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401. If we conclude that the challenged evidence meets this definition, we then determine whether the court nonetheless abused its discretion by admitting relevant evidence which should have been excluded because its “probative value is outweighed by the danger of unfair prejudice, or other ⁵³ countervailing concerns as outlined in Maryland Rule 5-403.” Simms, 420 Md. at 725 [ 25 A.3d 144 ]. Id. at 450-51. Brethren argues that the trial court abused its discretion in excluding its proffered evidence, because “Maryland’s courts, like courts in most jurisdictions, do not apply the collateral source rule in contract cases.” In our view, we do not need to reach the question of whether the collateral source rule applies to a UM action, or if applied, whether such rule would preclude the proffered evidence of Brethren.

We believe that the determinative issue is whether Brethren’s proffered evidence is admissible as evidence of the fair and reasonable value of medical expenses incurred by appellee as a result of the accident. For the reasons set forth below, we conclude that under Maryland law, it is not. In Kujawa v. Baltimore Transit Co., 224 Md. 195 , 167 A.2d 96 (1961), a mother, father, and son brought claims for damages arising out of a collision between a transit bus and a car in which the mother and son were passengers. Id. at 200 , 167 A.2d 96 .

At trial, the mother testified that she and her son had seen a number of doctors for treatment of their injuries. Id. at 208 , 167 A.2d 96 . The doctors’ unauthenticated bills were then proffered as evidence. Id.

The trial court excluded these medical bills, because the mother did not have evidence showing that the charges she sought to introduce into evidence were reasonable. 3 Id. In affirming the trial court’s ruling, the Court of Appeals stated that “[t]he medical bills, absent a showing of reasonableness, were properly excluded.” Id. The Court explained that “[e]vidence of the amount or payment of medical bills does not establish the reasonable value of the services for which the bills were rendered or justify recovery therefor.” Id. ⁵⁴ In Shpigel v. White, 357 Md. 117 , 741 A.2d 1205 (1999), the appellants sustained injuries and medical bills resulting from their car being hit in the rear by a vehicle driven by the appellee. Id. at 120-21 , 741 A.2d 1205 .

Following the accident, the appellants incurred expenses from their initial hospital visit, follow up visits to physicians, and psychotherapy sessions. Id. at 121-22 , 741 A.2d 1205 . At trial, the appellants attempted to introduce the medical bills into evidence without expert testimony, submitting the bills instead with accompanying affidavits of the custodians of those records, which affidavits stated, inter alia, that the expenses were fair and reasonable. Id. at 123-24 , 741 A.2d 1205 .

The trial court excluded the medical bills, reasoning that, because the defense challenged the reasonableness of the bills, wanted an opportunity to cross-examine, and wanted to see if some expert could say that the bills were reasonable, the admission of the medical bills required expert testimony. Id. at 124-25 , 741 A.2d 1205 . On appeal, the Court of Appeals recognized that “[the appellants’] purpose in offering the medical bills in evidence was to prove special damages. In order for the amount paid or incurred for medical care to be admissible as evidence of special damages, there ordinarily must be evidence that the amounts are fair and reasonable.” Id. at 128 , 741 A.2d 1205 .

The Court cited Kujawa for the proposition that “ ‘[e]vidence of the amount or payment of medical bills does not establish the reasonable value of the services for which the bills were rendered....’” Id. (quoting Kujawa, 224 Md. at 208 , 167 A.2d 96 ). In Shpigel , the Court was confronted with affidavits of the custodians of the records that the medical charges were reasonable. Id. at 123-24 , 741 A.2d 1205 .

In affirming the trial court’s exclusion of the medical bills, the Shpigel Court concluded: Inclusion in the affidavits of certain of the custodians of the records proffered in the instant matter of statements that the charges were reasonable did not make the medical bills admissible. On that aspect of admissibility required by our cases, the fact to be proved is the reasonableness of the ⁵⁵ bill, but the witness to that fact is not present and subject to cross-examination. Accordingly, the circuit court did not err in excluding from its consideration on summary judgment the medical bills proffered by [appellants]. Id. at 129 , 741 A.2d 1205 .

In Desua v. Yokim, 137 Md.App. 138 , 768 A.2d 56 (2001), the appellant incurred medical expenses after being involved in an automobile accident that caused her to experience pain in her neck. Id. at 141 , 768 A.2d 56 . At trial, the appellant sought to introduce medical bills through billing managers employed by her health care providers. Id. at 142 , 768 A.2d 56 .

The trial court prohibited the appellant from introducing the medical bills, reasoning that the “appellant needed expert testimony to introduce her medical bills into evidence.” Id. at 143 , 768 A.2d 56 . On appeal, this Court reaffirmed the principles of Kujawa and Shpigel that ‘“[e]vidence of the amount or payment of medical bills does not establish the reasonable value of the services for which the bills were rendered[,]’ ” id. at 143-44 , 768 A.2d 56 (quoting Kujawa, 224 Md. at 208 , 167 A.2d 96 ), and that, “ ‘[i]n order for the amount paid or incurred for medical care to be admissible as evidence of special damages, there ordinarily must be evidence that the amounts are fair and reasonable.’ ” Id. at 143, 768 A.2d 56 (quoting Shpigel, 357 Md. at 128 , 741 A.2d 1205 ). We then acknowledged that under Simco Sales v. Schweigman, 237 Md. 180 , 205 A.2d 245 (1964), a billing manager is competent to establish that a particular bill is fair and reasonable. 137 Md.App. at 144 , 768 A.2d 56 . However, because the issue of necessity was raised, we concluded that a billing manager was not “competent to explain why the patient’s physician chose a particular type of treatment,” and thus, the medical bills could not be introduced into evidence through a billing manager.

Id. Our inquiry on appeal in the case sub judice is to determine whether the trial court erred in excluding Brethren’s evidence of payment of appellee’s medical bills that was accepted as full payment by his medical providers. Brethren’s ⁵⁶ purpose in offering proof of payment of the medical bills is straightforward—it was an attempt to show the jury that the fair and reasonable value of the medical services rendered to appellee was the amounts paid and accepted by the health care providers, and not the amounts charged as stated on the medical bills. It is clear that under Kujawa, Shpigel, and Desua , evidence of the payment of appellee’s medical bills does not establish the reasonable value of the services for which the bills were rendered, and thus is irrelevant to the issue of reasonableness.

See Md. Rule 5-401. For the evidence of payment of appellee’s medical bills to be admissible, Brethren had to adduce expert testimony or other competent evidence that the amount of such payment was the fair and reasonable value of the medical services rendered to appellee. Brethren did not proffer to the trial court any expert testimony or other competent evidence of reasonableness. 4 In addition, the mere acceptance by a medical provider of the payment of a lesser amount on a bill is not probative of the reasonable value of the medical services reflected in that bill. There are many reasons (e.g., managed care contracts, Medicaid contracts, private insurance agreements, etc.) why medical providers would accept a lesser amount than the amount charged.

Indeed, in his deposition testimony, 5 Dr. Urban stated: “I think that the charges are what I should get paid for [the medical service provided]. We have horrible con ⁵⁷ tracts with our companies and I think that we are actually right now redoing our contracts because we don’t get paid enough for what we do.” Dr. Urban elaborated on the notion of reasonableness pertaining to a bill for anesthesia services provided to appellee in the amount of $2,070.00, upon which the workers’ compensation carrier paid only $444.00: The amount of the adjustment is I would say criminal in that they are paying someone $400 to put someone to sleep and wake them up for a complex spine surgery, so I would say that the amount that’s, again, accepted is well under what I would consider reasonable. Thus, the admission of evidence of a medical provider’s acceptance of a lesser amount as full payment for medical services rendered does little to assist the trier of fact in determining the reasonable value of such services. See Md. Rule 5-401.

Therefore, we hold that the trial court did not err in excluding Brethren’s proffered evidence of payments made on appellee’s medical bills that were accepted as full payment by his health care providers. Without expert testimony or other competent evidence to establish the fairness and reasonableness of such payments, Brethren’s evidence was inadmissible. Nevertheless, Brethren looks to cases from Ohio, Indiana, and Kansas, to support its contention that “both the amount originally billed by a medical care provider and the lesser amount paid by an insurer are admissible to prove the reasonable value of medical treatment.” A careful reading of each case relied on by Brethren reveals critical legal dissimilarities, distinguishing them from the matter sub judice. In Robinson v. Bates, 112 Ohio St.3d 17 , 857 N.E.2d 1195 (2006) and Stanley v. Walker, 906 N.E.2d 852 (Ind.2009), the Supreme Court of Ohio and the Supreme Court of Indiana, respectively, held that “both the original bill and the amount accepted are evidence relevant to the reasonable value of medical expenses.” Robinson, 857 N.E.2d at 1201 ; Stanley, 906 N.E.2d at 857 (quoting Robinson, 857 N.E.2d at 1201 ).

The distinction that makes these cases inapplicable to the case sub judice is that both states have either a statute or an ⁵⁸ evidentiary rule providing for the admission of medical bills as evidence of the reasonable value of medical services. In Robinson , an Ohio statute made medical bills “prima facie evidence of the reasonable value of charges for medical services.” Robinson, 857 N.E.2d at 1198 (citing Ohio Rev.Code § 2317.421). Similarly, in Stanley , Indiana courts were governed by a rule of evidence that reads: “ ‘Statements of charges for medical, hospital or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence. Such statements shall constitute prima facie evidence that the charges are reasonable.’ ” Stanley, 906 N.E.2d at 866 (quoting Ind.

Evid. R. 413). In contrast to Ohio and Indiana, Maryland has no statute, evidentiary rule, or other source of law that allows medical bills to be introduced as prima facie evidence of the reasonable value of medical services rendered, except for such bills arising in claims specified in Md.Code (1974, 2006 Repl.Vol.), § 10-104 of the Courts and Judicial Proceedings Article where the amount in controversy does not exceed $30,000. 6 In Martinez v. Milburn Enterprises., Inc., 290 Kan. 572 , 233 P.3d 205 (2010), the third case cited by Brethren, the appellant slipped and fell while shopping at the appellee’s business, necessitating surgery on her back and causing her to incur hospital charges in the amount of $70,496.15. Id. at 208.

The hospital wrote off $65,186.15 and accepted $5,310.00 in full ⁵⁹ satisfaction of the cost for medical services rendered to the appellant. Id. At trial, the court precluded the appellant from submitting evidence of medical bills in excess of the amount accepted by the hospital. Id.

On appeal, the Kansas Supreme Court framed the issue as being whether in a case involving private health insurance write-offs, the collateral source rule applies to bar evidence of (1) the amount originally billed for medical treatment or (2) the reduced amount accepted by the medical provider in full satisfaction of the amount billed, regardless of the source of payment. Id. The Martinez Court held that the collateral source rule did not bar either type of evidence. Id.

In its analysis, the Court observed that “Kansas courts do not reflexively order liable defendants to pay the full amounts billed by the health care providers to injured plaintiffs. Kansas courts instead have typically based the value of damages on the reasonable expense of treatment.” Id. at 221. The Martinez Court then cited to the Kansas Automobile Injury Reparations Act, which provides that “‘the charges actually made for medical treatment expenses shall not be conclusive as to their reasonable value,’ ” and that “ ‘[ejvidence that the reasonable value thereof was an amount different from the amount actually charged shall be admissible.’ ” Id. at 222 (quoting K.S.A. § 40-3117) (emphasis omitted). The Court reasoned that evidence relevant to the determination of reasonable value other than the amounts charged “may include write-offs or other acknowledgments that something less than the charged amount has satisfied, or will satisfy, the amount billed.” Id.

Accordingly, the Court held that both the amount originally billed for medical treatment and the reduced amount actually accepted by the medical provider in full satisfaction of the amount billed “are relevant to prove the reasonable value of the medical treatment, which is a question for the finder of fact.” Id. at 208. Implicit in the aforementioned holding of the Kansas Supreme Court is that expert testimony or other competent ⁶⁰ evidence of the reasonableness is not required for the admission of the medical bills or the reduced amounts accepted as payment thereof. In Kansas, the medical bills standing alone, as well as the accepted payments, are admissible as evidence of the reasonable value of medical treatment. For these reasons, Martinez , along with Robinson and Stanley , are not applicable to the instant case.

Reduction of Judgment As previously indicated, at the conclusion of the trial in circuit court on August 16, 2011, the jury returned a verdict in favor of appellee for $535,876.00. Following the trial court’s entry of judgment, Brethren filed a Motion for New Trial and to Alter or Amend Judgment (“motion to alter or amend”), 7 seeking, among other things, to have the judgment reduced by the workers’ compensation benefits previously received by appellee in the amount of $179,206.97. During argument on the motion on January 13, 2012, appellee agreed to the reduction of the judgment by $179,206.97 for the workers’ compensation benefits received as of the time of the trial. However, Brethren’s counsel asked the court to reduce the judgment by an additional $56,639.00 in workers’ compensation benefits awarded to appellee after the trial.

The following exchange occurred: [BRETHREN’S COUNSEL]: I’d just like to make sure that the Court is aware that since the trial, [a] fifty six ⁶¹ thousand six hundred dollar award has been entered and nine thousand three hundred and thirty nine of those dollars have been paid in workers[’ | comp. [APPELLEE’S COUNSEL]: That’s accurate, Your Hon- or. THE COURT: Okay. So you want, what’s the number you want me to reduce it by? [APPELLEE’S COUNSEL]: Well, the number that [appellee] would like to reduce by, what we feel is accurate is the amount as of the day of the trial. (Emphasis added).

On January 19, 2012, the circuit court entered an amended judgment, reducing the original judgment amount of $535,876.00 to $356,669.03, reflecting the $179,206.97 in workers’ compensation received by appellee at the time of trial, but not the additional $56,639.00 awarded thereafter, or the $9,339.00 actually received by appellee between the date of trial and January 13, 2012. In declining to reduce the judgment by the amount awarded or received after trial, the circuit court reasoned that the reduction was limited to the amount of workers’ compensation received as of the date of trial, relying on Md.Code (1995, 2011 Repl.Vol.), § 19-513(e) of the Insurance Article (“Ins.”) and the court’s view that “[w]e have to have some finality to this.” In the instant appeal, Brethren contends that it is not obligated to pay uninsured motorist benefits for the same benefits that appellee is entitled to recover pursuant to workers’ compensation law. Thus, according to Brethren, the trial court erred in not deducting an additional $56,639.00 from the judgment for the workers’ compensation benefits awarded to appellee after trial. 8 Although its argument may have some merit, 9 Brethren is not entitled to the relief it requests, ⁶² because of the procedural posture of the instant case. We shall explain.

On September 6, 2011, the circuit court entered judgment on the jury’s verdict in favor of appellee in the amount of $535,876.00. On September 19, 2011, Brethren filed its motion to alter or amend. 10 Because Brethren’s motion was not filed within ten days after the entry of the judgment, the time for filing a notice of appeal was not extended to 30 days after the disposition or withdrawal of such motion. See Pickett v. Noba, Inc., 122 Md.App. 566, 570 , 714 A.2d 212 (1998) (“If parties file a motion for new trial or a motion to alter or amend more than ten days after judgment, the time for filing an appeal will not be stayed.”). In other words, Brethren was required to file a notice of appeal on or before October 6, 2011.

See Md. Rule 8-202(a). Brethren, however, did file a timely notice of appeal on October 6, 2011. The timely filing of an appeal had a profound effect on the authority of the trial court to decide Brethren’s motion to alter or amend. In Unnamed Attorney ⁶³ v. Attorney Grievance Commission, 303 Md. 473 , 494 A.2d 940 (1985), the Court of Appeals discussed the effect of the filing of a timely appeal on a pending motion under Rule 2-535(a) that was filed more than 10 days after a judgment, but within 30 days of the judgment.

The Court said: A motion filed more than ten days after a judgment but within thirty days of the judgment, under Rule 2-535(a), would still have no effect upon the running of the thirty-day appeal period. When such a motion is filed, and while it is pending an appeal is filed, appellate jurisdiction attaches and the circuit court cannot decide the motion. See P. Niemeyer and L. Richards, Maryland Rules Commentary 321-325 (1984). But where a motion is filed within ten days, an appeal will not ordinarily lie until the trial judge rules on the motion.

Id. at 486 , 494 A.2d 940 (emphasis added). Unfortunately, Maryland appellate opinions have not been clear in their articulation of the meaning of the phrase “the circuit court cannot decide the motion.” On one hand, in Nina & Nareg, Inc. v. Movahed, 369 Md. 187 , 798 A.2d 557 (2002), the Court of Appeals addressed the same issue as in Unnamed Attorney , albeit in the context of the district court’s revisory power under Rule 3-535. After observing that the “fcjase law concerning the application of Rules 2-534 and 2-535 is applicable to Rules 3-534 and 3-535 and vice versa,” id. at 194, n. 4, 798 A.2d 557 , the Court held: [I]f a motion to amend is filed after ten days but within thirty days pursuant to the revisory power of Rule 3-535, a notice of appeal filed either before or after the motion to amend is filed, but within the thirty-day period