Carver v. RBS Citizens, N.A.

Lawrence R. Carver v. RBS Citizens, N.A., et al., No. 45, September Term, 2018 FINAL JUDGMENT – NOTICE OF APPEAL – TIMELINESS – MARYLAND RULE 8-602(g)(1)(D) – Court of Appeals exercised its discretion and held that, pursuant to Maryland Rule 8-602(g)(1)(D), notice of appeal filed by petitioner should be treated as if it were filed on same day as, but after, entry of trial court’s final judgment, and that appeal should proceed on merits in Court of Special Appeals. As such, Court vacated judgment of Court of Special Appeals dismissing appeal, and remanded case to that Court with instruction to treat notice of appeal as timely filed. Circuit Court for Cecil County Case No. 07-C-13-001300 Argued: January 3, 2019 IN THE COURT OF APPEALS OF MARYLAND No. 45 September Term, 2018 ______________________________________ LAWRENCE R. CARVER v. RBS CITIZENS, N.A., ET AL. ______________________________________ Barbera, C.J. Greene McDonald Watts Hotten Getty Cathell, Dale R. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: February 22, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-02-22 12:52-05:00 Suzanne C. Johnson, Clerk This case concerns the timeliness of the filing of a notice of appeal, and whether the Court of Special Appeals improperly dismissed an appeal as premature.

Under the circumstances of this case, we exercise our discretion to hold, pursuant to Maryland Rule 8-602(g)(1)(D), that the notice of appeal filed by the petitioner should be treated as if it were filed on the same day as, but after, the entry of the trial court’s final judgment, and that the appeal should proceed on the merits in the Court of Special Appeals. Accordingly, we vacate the judgment of the Court of Special Appeals dismissing the appeal, and we remand the case to that Court with instruction to treat the notice of appeal as timely filed. BACKGROUND On July 19, 2013, in the Circuit Court for Cecil County, Lawrence R. Carver, Jr. (“Petitioner”) and Nancy M. Carver filed a complaint against RBS Citizens, N.A. (“RBS”) and Security Title Guarantee Corporation of Baltimore (“Security Title”), Respondents.1 The Carvers sought damages that allegedly resulted from Security Title’s re-recording of a deed of trust between the Carvers and RBS, which allegedly caused a cloud on the Carvers’ title to certain properties that they owned.

The Carvers alleged that the re- recorded deed of trust erroneously encumbered the properties and frustrated their attempts to convey the properties. Security Title and RBS filed cross-complaints against each other, raising cross-claims for indemnification and contribution. On April 12 and 13, 2017, and June 19, 2017, the circuit court conducted a bench 1 Although Nancy M. Carter was a plaintiff, she is not a Petitioner. Additionally, although both RBS and Security Title are Respondents, only Security Title filed a brief and participated in oral argument. trial.

On the last day of trial, the Carvers and RBS filed a line dismissing with prejudice all of the Carvers’ claims against RBS. The case proceeded on the Carvers’ claims against Security Title for misrepresentation, fraud, constructive fraud, and conspiracy; and, according to an opinion that the circuit court issued later, Security Title “withheld” its cross-complaint against RBS pending the outcome of the trial. During closing argument, Security Title’s counsel argued that, should it be found liable for the Carvers’ damages, RBS should indemnify it. By contrast, RBS’s counsel argued that the circuit court should dismiss Security Title’s cross-claims against it because Security Title had failed to present evidence supporting the cross-claims.

After closing arguments, the circuit court held the matter sub curia, with an opinion to follow. On August 23, 2017, the circuit court entered an Opinion and Order. In the Order, the circuit court found in Security Title’s favor on the claims for misrepresentation, fraud, and conspiracy, but found in the Carvers’ favor on the claim for constructive fraud. As to the claim for constructive fraud, the circuit court awarded the Carvers $6,726 in damages.

Notably, the Order did not mention Security Title’s cross-claims against RBS. On September 14, 2017, Security Title filed a “Motion [] to Revise or so as to Dispose of an Unresolved Issue” (“the motion to revise”), requesting that the circuit court rule on its cross-complaint against RBS. Specifically, Security Title requested that the “judgment be modified to grant Security Title a judgment against RBS [] in the amount $6,726.00 so as to resolve the Cross Claim filed in this action, or in the alternative,” for the circuit court to find that RBS “was a joint tortfeasor equally liable, jointly and severally, with Security Title.” On September 22, 2017, Petitioner noted an appeal of the August 23, -2- 2017 Opinion and Order. The appeal was assigned case number CSA-REG-1418-2017 in the Court of Special Appeals.

On October 2, 2017, while the appeal was pending, Petitioner filed a response to the motion to revise, requesting, among other relief, that the circuit court find the August 23, 2017 Opinion and Order to be a final judgment. On May 18, 2018, the circuit court conducted a hearing on the motion to revise and ruling from the bench, denied the motion, and found the August 23, 2017 order to be a final judgment. On May 24, 2018, the circuit court issued an Order denying the motion to revise, and stating: “The [circuit c]ourt finds that its order of August 2[3], 2017 was a final order and no judgment shall be entered in favor of Security Title [] against RBS [] under its cross claim.” A docket entry dated May 29, 2018, states: “Case Closed[.]” As to the disposition of the case, the Maryland Electronic Courts system provides the following “Disposition Detail”: “05/29/2018 1:45 PM Final Judgment / Decree / Order[.]” On June 1, 2018, Security Title noted an appeal, which was assigned case number CSA-REG-0780-2018 in the Court of Special Appeals—a case number different from the case number that had been assigned to the appeal noted earlier by Petitioner. On the same day, Security Title filed in the Court of Special Appeals a motion to permit a supplemental brief in CSA-REG-1418-2017.

On June 15, 2018, Petitioner filed a response to the motion to permit a supplemental brief. On June 19, 2018, Security Title filed a reply, and, in a letter to the Court of Special Appeals that accompanied the reply, referred to the “unusual posture of this case[.]” On June 25, 2018, the Court of Special Appeals issued an order denying the motion to permit a supplemental brief, and ordering Petitioner to show cause in writing within -3- fifteen days as to why the “appeal should not be dismissed as [a] premature appeal from a non-final judgment.” On July 10, 2018, Petitioner filed a response to the show cause order, arguing that his appeal was timely filed from a final judgment. On July 23, 2018, the Court of Special Appeals issued an order stating that the show cause order was satisfied, but ordering, “on the Court’s own initiative, that the [] appeal be, and is hereby, dismissed pursuant to [Maryland] Rule 8-602(c)(1) as not allowed by law as a premature appeal from a non-final judgment.” On August 2, 2018, Petitioner filed a motion for reconsideration. On August 15, 2018, the Court of Special Appeals denied the motion for reconsideration.

On the same day, the Court of Special Appeals issued the following mandate: “On the 23rd day of July, 2018, the Court, on its own initiative, dismissed the appeal pursuant to Maryland Rule 8- 602(c)(1). On the 2nd day of August, 2018, [Petitioner] filed a Motion to Reconsider. On the 15th day of August, 2018, the Motion to Reconsider was denied.” On August 30, 2018, Petitioner petitioned for a writ of certiorari, raising the following issue: “Whether the Court of Special Appeals erred by dismissing [Petitioner]’s appeal as premature.” On October 9, 2018, this Court granted the petition. See Carver v. RBS Citizens, 461 Md. 481 , 194 A.3d 935 (2018).

DISCUSSION The Parties’ Contentions Petitioner contends that the Court of Special Appeals erred in dismissing the appeal, on its own initiative, and determining that the appeal was premature. Petitioner argues that the circuit court entered a final judgment against Security Title on August 23, 2017, and -4- that he timely filed the notice of appeal on September 22, 2017. Petitioner points out that, in the May 24, 2018 Order, the circuit court stated that the August 23, 2017 Order was a final judgment. Petitioner asserts that the post-judgment motion to revise filed by Security Title did not stay the time to file an appeal.

Petitioner maintains that he would have waived the right to appeal if the circuit court had denied the motion to revise and if he had not filed a notice of appeal within thirty days of the August 23, 2017 Order. Petitioner contends that, on the other hand, had the circuit court granted the motion to revise and determined that the August 23, 2017 Order was not a final judgment, then the September 22, 2017 notice of appeal still would have been deemed timely filed. Petitioner argues that, if the circuit court had granted the motion to revise, he would have been able to file a new notice of appeal of a final judgment entered on May 24, 2018. In sum, Petitioner asserts that he timely filed the notice of appeal and that the appeal should be reinstated.

Alternatively, Petitioner asserts that, if we determine that the August 23, 2017 Order was not a final judgment, then we may: (1) remand this case to the Court of Special Appeals to decide whether to direct entry of a final judgment; (2) enter a final judgment on our own initiative; or (3) treat the notice of appeal as if it were filed on the same day as, but after, the entry of a final judgment. Petitioner requests that this Court exercise the third option, and treat the notice of appeal as if it were filed on the same day as, but after, the entry of final judgment. Security Title responds that the Court of Special Appeals properly exercised its discretion to dismiss the appeal as a premature appeal of a non-final judgment. Security Title contends that the August 23, 2017 Order was not a final judgment because it did not -5- adjudicate Security Title’s cross-claims against RBS.

Security Title argues that, as a result, Petitioner’s notice of appeal—filed months before the circuit court ruled on Security Title’s cross-claims—was premature. Security Title asserts that the circuit court’s statement in the May 24, 2018 Order—finding the August 23, 2017 Order to be a final judgment—did not, and could not, make the August 23, 2017 Order a final judgment because the circuit court did not dispose of Security Title’s cross-claims until May 24, 2018. Security Title maintains that, although the Court of Special Appeals had the discretion to treat the notice of appeal as if it were filed on the same day as, but after, the entry of the judgment, the Court also had the authority to dismiss the appeal. Security Title contends that the Court of Special Appeals neither abused its discretion nor acted improperly in dismissing the appeal.

Security Title argues that there is no evidence or proffer “of any unfairness or hardship caused by the requirement to wait for a final judgment before filing an appeal” in this case. And, Security Title asserts that this is not an extraordinary case that would justify allowing a piecemeal appeal under Maryland Rule 2-602(b). Law Md. Code Ann., Cts. & Jud. Proc.

(1974, 2013 Repl. Vol.) § 12-301 provides, in pertinent part, that “a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” Indeed, it is a “long-standing rule that the right to seek appellate review ordinarily must await the entry of a final judgment, disposing of all claims against all parties[.]” Smith v. Lead Indus. Ass’n, Inc., 386 Md. 12, 21 , 871 A.2d 545, 550 (2005) (cleaned up). To that end, in Smith, id. at 21 , 871 A.2d at 550 , we explained that, to -6- constitute a final judgment, an order must have the following three 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 M[aryland] 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 M[aryland] Rule 2-601.

(Cleaned up). Maryland Rule 2-601 governs entry of a judgment. Maryland Rule 2-601(a)(1) provides that a “judgment shall be set forth on a separate document and include a statement of an allowance of costs as determined in conformance with [Maryland] Rule 2-603.” Maryland Rule 2-601(b)(2) provides that “[t]he clerk shall enter a judgment by making an entry of it on the docket of the electronic case management system used by that court along with such description of the judgment as the clerk deems appropriate.” And, Maryland Rule 2-601(c) provides that, “[p]romptly after entry, the clerk shall (1) record and index the judgment, except a judgment denying all relief without costs, in the judgment records of the court and (2) note on the docket the date the clerk sent copies of the judgment in accordance with [Maryland] Rule 1-324.” Finally, “the date of the judgment is the date that the clerk enters the judgment on the electronic case management system docket in accordance with section (b) of this Rule.” Md. R. 2-601(d). In turn, Maryland Rule 2-602 concerns a judgment that does not dispose of an entire action, and provides: (a) Generally.

Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties -7- to the action: (1) is not a final judgment; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. (b) When allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties; or (2) pursuant to Rule 2-501(f)(3), for some but less than all of the amount requested in a claim seeking money relief only. As to an appeal of a trial court’s decision, Maryland Rule 8-202(a) provides that, “[e]xcept as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken.” Maryland Rule 8-202(c) sets forth an exception that tolls the running of the thirty-day appeal period where certain post-judgment motions are filed, stating: In a civil action, when a timely motion is filed pursuant to Rule 2-532 [Motion for Judgment Notwithstanding the Verdict], 2-533 [Motion for New Trial], or 2-534 [Motion to Alter or Amend a Judgment -- Court Decision], the notice of appeal shall be filed within 30 days after entry of (1) a notice withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532 or 2-534.

A notice of appeal filed before the withdrawal or disposition of any of these motions does not deprive the trial court of jurisdiction to dispose of the motion. If a notice of appeal is filed and thereafter a party files a timely motion pursuant to Rule 2-532, 2-533,