Carr v. Lee

EYLER, Judge. It is an understatement to observe that there are many decisions by Maryland appellate courts addressing the concept of appealability. We add to that list by publishing this opinion, in which we discuss the 1997 amendment to Rule 8—602(d), a so-called savings provision. Factual Background Andrew J. Lee, appellee, contracted to buy property known as 441 Broadneck Road, located in Anne Arundel County, from Howard Smith, Donald Smith, and Saundra Parker (“the Smiths”).

A gravel driveway located between that property and the property next door owned by Edna Carr, appellant, had been used by both appellant and the Smiths. In addition to the contract of sale, appellee and the Smiths entered into a document entitled “affidavit.” In the affidavit, the Smiths stated that (1) they were the owners of the property located at 441 Broadneck Road, (2) the driveway between 441 Broadneck Road and the adjacent property was located in part on the Smiths property and appellant’s use was permissive, and (3) such use was not pursuant to an express easement, an interest acquired by adverse possession, or a prescriptive use or easement. The affidavit provided that the ²¹⁶ Smiths would indemnify appellee “from any loss or damage, including reasonable attorney’s fees which may occur due to any misstatement or misrepresentation, whether intentional or negligent, contained in this affidavit or as the result of the necessity of Andrew J. Lee to defend his title from such use or in connection with the termination of such use.” There was no survey or title search done at that time. Prior to closing, appellee engaged David Green and Survey Associates of Maryland, Inc. (“Green”) to perform a boundary survey of the property being acquired.

The survey, prepared in August, 1995, incorrectly reflected that title to the gravel driveway, as well as the property on which the Smith house was located, was held by the Smiths. Appellee and the Smiths settled on the property. In October, 1995, appellee contacted another surveyor to place stakes on the boundary lines. At that time, it was discovered that the Green survey was incorrect and that the property line not only did not include a portion of the gravel driveway but did not include a portion of the property on which appellee’s house was located.

Appellee advised Green of this discovery, and Green, in January, 1996, corrected his survey. In the Spring of 1996, appellee advised appellant of the above facts, including that a portion of his house was located on her property. Appellee filed a con'iplaint, later amended, in the Circuit Court for Anne Arundel County against appellant to quiet title, against the Smiths for rescission of the contract of sale, and attorney’s fees, and against Green seeking damages for professional negligence. The claim against Green was voluntarily dismissed prior to trial.

Appellant filed a third-party claim against Green, seeking damages, and a counterclaim against appellee, seeking the right to use the gravel driveway. The case was tried non-jury on December 8 and 9,1999. At the conclusion of the trial, from the bench, the court ruled as follows. First, the court stated that it was undisputed that appellee acquired the property under the comer of his house by adverse possession.

Second, the court reviewed the evi ²¹⁷ dence and concluded that appellee acquired ownership by adverse possession to the portion of the gravel driveway to which he did not hold record title. The court concluded: So, what I have been inclined to do based on my inspection, is to make it in effect a pie wedge, which I have sketched on this map and will ask the parties to confer about and see if they could agree on a metes and bounds description. If not, the Court will if necessary appoint a surveyor and come up with its own. But, it would be a line of adverse possession which would run from the pipe found on Broad Neck Road, which is the dividing line correctly between the two properties, to the pipe found at the edge of Ms. Cair’s garden.

So, the Court would certainly not-take her garden by this because she has apparently used that and that was the same area used by the pony stable and so forth in past years. And would run straight on back without deviating to a point that would be located approximately 35 feet beyond the southernmost edge of the chicken coop. Which puts it, I think, approximately five feet past the pine tree. And that would be the end of the area which is very close to the edge of the clearing.

Again, I don’t know that the Court can be exact about where the clearing starts and ends because that may move over the course of years with precisely how it is kept clear. I think it would go at least that far though. At that point the Court would find it should make a 90 degree turn and go back to the actual line of title which would be a distance of, at that point, approximately 40 feet—I may be wrong about that estimate, it is less than an inch as I scaled it on this photocopy, there [may be] some error in scale by the photocopying process—to the point where it would intersect with the existing actual title line of the Lee property and would then continue with the Lee property original metes and bounds description until it closes again at the same pipe found on Broad Neck Road. ²¹⁸ So, that whole distance is, I think, approximately six and one-half inches so that is going to be about 350 feet from the edge of Broad Neck Road before it makes that right angle turn and goes back to the existing .line. The trial court then found that the error had not been created by Green but that the situation had existed since the 1940s.

Based on that finding, the court dismissed the claim by appellant against Green. The court then turned its attention to the claim for counsel fees by appellee against the Smiths. The court stated: As to the claim for counsel fees by Mr. Lee against Ms. Parker and the two Mr. Smiths, the Court does not think that although it was sort of sprung on them at the settlement table and although they did not have an attorney, I think that it is an enforceable contract anyway. The fact that they didn’t understand precisely all of the language in it, I don’t think would protect them from it because it would not be a mutual mistake.

If anything it might be a one-sided mistake. So I do think that technically speaking they are obliged to indemnify, which would include counsel fees. I think practically, at this point it would only include counsel fees and costs because the Court does not find that they conveyed less than the metes and bounds description. It was an error in the representation that they were made to sign that they were conveying it by title and not by adverse possession.

Indeed they were conveying it by adverse possession, but the fact that it was adverse possession and not title does not mean that there was any damage to Mr. Lee in terms of loss of the property. In fact, it means that there was a gain to him of the property and that the property that he was conveyed arguably might be worth more than the property which he thought he was going to be conveyed. I haven’t gone and followed that line of reasoning to the point of saying whether there would be any possibility of a set-off. In other words, if what they conveyed was more ²¹⁹ than what they thought they conveyed, if that should create a set-off for the counsel fees, and will not attempt to do that at this point.

Something else that the parties might consider is that this I think is an appealable case. Whether it is winnable on appeal is another question. But, in the event of an appeal there certainly would be a lot more costs to either side and that might give rise to the possibility of compromise in terms of the counsel fees issue and perhaps in terms of the issue of where exactly the line might be set. It might be something that would be subject to negotiation between the Carrs and Mr. Lee in order for everyone to avoid an appeal that they might stipulate and agree to settle the case beyond this for any further litigation.

That the line would be slightly different and the Court otherwise is prepared to order. Do counsel and parties have any questions before we release the parties? And then I guess we would need to reset the case at a later time if there is not an agreement the parties can reach. MR.-: Only one question.

You indicated, I believe, that we are entitled to attomey[’]s fees, but you did not set the amount. THE COURT: That is true, I have not done that. I would be inclined to take that under advisement and urge the parties to talk about it. And then also, I guess I would be asking if the parties are able to reach an agreement, that could be submitted to the Court.

If the parties are not able to reach the agreement, I would ask if Mr. Simmons would draft a form of order that I would ask other counsel and Mr. Green to consent to, not as substance but as a matter of form, leaving blank the number for counsel fees. And then the Court could fill in that number. MR. SIMMONS: Thank you, Your Honor.

THE COURT: And I would ask if we could get that done, because of the holidays coming up I won’t ask you to get it ²²⁰ done by the end of this month, but perhaps by January the—within 30 days from now. MR. SIMMONS: I will draft the order and have it available for everybody within— THE COURT: January the 7th. MR.

SIMMONS:—by early next week. I will have it early next week for everyone. THE COURT: And then the Court would be ready to put that in writing within 30 days from today’s date. And I would indicate that because it is not a complete decision, that any time for noting an appeal would run from that time.

From the time that the Court would finalize the order. Anything else from counsel or Mr. Green? MR. BRILLIANT: Are you going to favor us with a copy of your drawing?

THE COURT: Yes, I will provide that. I have only done one, but I will provide that copy and if counsel wants to make a photocopy and return it to the Court that would be fine. Otherwise, the Court will replicate it. I have noted on there where I believe approximately the pine tree is.

But again, my measurements run from the edge of the chicken coop and not from the pine tree. I just used that as a reference point since the chicken coop is located on Mr. Green’s copy of the survey and the pine tree is not. I will retain the file while we are waiting for that order. If counsel want to approach the bench I will give you this and then ask that someone return it to the Court’s file.

Our review of the record indicates that appellant filed a motion to amend judgment on December 17, 1999. Appellee filed an opposition to that motion and a request for a final order on December 30, 1999. Appellant filed a notice of appeal on January 7, 2000. The circuit court signed three orders on January 10, 2000, which were docketed on January 12, 2000.

The first order provided that “the property described on attached Exhibit A” ²²¹ had been acquired by adverse possession by appellee and that appellant had no right to use any portion of the driveway located on appellee’s property. The attached Exhibit A was a plat depicting a metes and bounds description of the property acquired by adverse possession. The order further provided for judgment in favor of appellee against the Smiths for attorney’s fees in the amount of $6,000. The second order was entitled “Opinion and Order as to Award of Counsel Fees,” in which the court gave reasons for the amount of attorney’s fees awarded and referred to the court’s separate order on the merits previously described.

The third order denied appellant’s motion to amend. On January 19, 2000, appellee filed a motion for reconsideration with respect to the amount of attorney’s fees. On February 15, 2000, that motion was denied. On March 14, 2000, appellee filed a notice of appeal from the order awarding attorney’s fees in favor of appellee and against the Smiths, contending that the amount was inadequate. 1 Question Presented On appeal, appellant contends that the circuit court erred in determining that appellee had acquired title to the property in question by adverse possession, and that the court erred in dismissing appellant’s claim against Green.

Appellee has filed a motion to dismiss appellant’s appeal, contending that appellant’s notice of appeal was filed prematurely. We agree that appellant’s appeal must be dismissed. Discussion Motion to Dismiss Ordinarily, an appeal must be taken only after the entry of a final judgment. See Jenkins v. Jenkins, 112 Md.App. 390, 396 , 685 A.2d 817 (1996). 2 According to Md. ²²² Rule l-202(n), a judgment is “any order of court final in its nature entered pursuant to these rules.” See also Jones v. Hubbard, 356 Md. 513, 524 , 740 A.2d 1004 (1999)(stating that an order by the court is only considered a judgment if the court has “clearly indicated that the issue submitted has been adjudicated completely and it has reached a final decision on the matter.”).

A final judgment has three necessary attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2-601. [3] Id. (quoting Board of Liquor License Comm’rs v. Fells Point Cafe, Inc., 344 Md. 120, 129 , 685 A.2d 772 (1996)(quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767 (1989))). As stated in Jones , “[rjendition of judgment is the judicial act by which the court settles and declares the decision of the law on the matters at issue.” Id. at 520 , 740 A.2d 1004 . There are no specific formal requirements, however, in the rendition of judgment.

Id. at 524, 740 A.2d 1004 (quoting Davis v. Davis, 335 Md. 699, 711 , 646 A.2d 365 (1994)). Accordingly, “whether a judgment has been rendered in a particular case is an