Cochran v. GRIFFITH ENERGY SERVICE, INC.

DEBORAH S. EYLER, Judge. This is the second appeal in a successful action by Robert and Suzanne Cochran (“the Cochrans”), the appellants, against Griffith Energy Services, Inc., t/a Ewing Oil (“Griffith”), the appellee, for damages caused by a fuel oil spill in the Cochrans’ home. The primary issue now in dispute is the amount of post-judgment interest the Cochrans are entitled to receive. A jury in the Circuit Court for Washington County found in favor of the Cochrans on their claims of negligence and breach of contract, 1 and awarded them $230,000 in damages.

There ⁶²⁹ after, Griffith contacted the Cochrans several times to arrange payment of the judgment. The Cochrans did not respond to these communications. In the meantime, the Cochrans pursued an appeal in which they challenged the imposition of sanctions against them for discovery violations and pretrial rulings disposing of certain of their claims. 2 In an unreported opinion, this Court rejected the Cochrans’ appellate contentions and affirmed the judgment. Cochran v. Griffith Energy Services, Inc., No. 215 September Term, 2007, 180 Md.App. 763 , 180 Md.App. 765 (filed July 2, 2008) (“Cochran /”).

The Cochrans subsequently instituted execution proceedings to collect the $230,000 judgment plus post-judgment interest from the date judgment was entered forward. Griffith, believing that its efforts to pay the judgment had arrested the accrual of post-judgment interest, responded by filing a motion to deposit the $230,000 judgment, plus interest (although less than that claimed by the Cochrans), into the court registry, and to have the judgment declared satisfied. At the conclusion of a hearing, the circuit court ruled in favor of Griffith in the dispute over post-judgment interest, and granted its motion. ⁶³⁰ In this appeal, the Cochrans challenge two orders of the circuit court stemming from the post-judgment interest dispute. We slightly reword their questions presented as follows: I. Did the circuit court err by awarding only $5,544.88 in post-judgment interest?

II

Did the circuit court err by denying their recusal motion? 3 For the reasons that follow, we shall affirm the judgment. We also shall grant a motion by Griffith to strike portions of the Cochrans’ reply brief for failure to comply with the Maryland Rules. FACTS AND PROCEEDINGS The $230,000 judgment at the center of this dispute was entered on Monday, March 5, 2007, at the close of a nine-day jury trial. The damages awarded consisted of the following: • Robert and Suzanne Cochran: Additional Repair/Remediation/Assessment — $55,000; Diminution in value due to market resistance — $125,000; Past loss of rental value— $10,000; • Robert Cochran: Past lost earnings — $0; Non-economic damages — $25,000; • Suzanne Cochran: Non-economic damages — $15,000.

On Thursday, March 8, 2007, counsel for Griffith sent an email to counsel for the Cochrans stating: We do not foresee filing any post trial motions. [Griffith] wishes to put the matter behind them at this point. We would like to start the process to cut the check for judgment. I will need the full legal name and social security number for Mr. and Mrs. Cochran, plus your firm’s Tax ID ⁶³¹ Number. Let me know how the check should be payable ....

Counsel for the Cochrans did not respond to this e-mail. On April 4, 2007, the Cochrans noted an appeal in Cochran I. They did not challenge the jury’s award of damages in their favor on their breach of contract and negligence claims; rather, they challenged the trial court’s imposition of discovery sanctions against them and its pretrial rulings disposing of certain of their claims. Specifically, they asserted that the circuit court had erred in dismissing their claim for violation of the Maryland Medical Records Confidentiality Act, Md.Code (2005) section 4-301 et seq. of the Health General Article; granting summary judgment against them on their claim for fraud; dismissing as speculative their claim for “lost business opportunities”; and dismissing their claim for violation of the Maryland Consumer Protection Act, Md.Code (2005) section 13-101 et seq. of the Commercial Law Article (“CL”). Griffith did not note a cross-appeal or otherwise challenge the jury verdict.

On May 30, 2007, two months after the appeal in Cochran I was noted, counsel for Griffith again wrote to counsel for the Cochrans (this time via facsimile and U.S. mail) expressing his client’s desire to pay the judgment. He opined that, given that the Cochrans “only [were] appealing the rulings on [Griffith’s] dispositive motions,” and therefore were not challenging the $230,000 jury verdict on appeal, “there [was] no reason not to resolve the judgment as we had expressed back on March 8, 2007.” Counsel for Griffith continued: Liberty Mutual [Griffith’s liability insurance carrier] is prepared to tender the judgment amount of $230,000, as it has been willing to do since we wrote back in early March. We request that you please indicate no later than June 1, 2007 if the [Cochrans] are willing to accept the tender of this amount. If we do not hear from you by 5 p.m. this Friday we will consider the tender rejected by the [Cochrans].

Please ⁶³² respond in writing so that we may relay the response to our client and its insurer. Counsel for the Cochrans did not respond to this correspondence either. More than a year went by. On July 2, 2008, this Court filed the opinion in Cochran I, affirming the judgment below.

Then, on July 30, 2008, counsel for Griffith wrote counsel for the Cochrans to express for a third time his client’s intention to pay the $230,000 judgment. (The letter again was sent via facsimile and U.S. mail.) Counsel for Griffith asked to whom the check should be made payable, and again asked for the Cochrans’ social security numbers and the tax ID number for their counsel’s firm. Again, counsel for the Cochrans did not respond. On November 19, 2008, shortly after the Court of Appeals denied the Cochrans’ petition for writ of certiorari, and about one year and eight months after the judgment was entered, the Cochrans’ lawyer sent a letter to Griffith’s lawyer captioned: “NOTICE TO PRESERVE EVIDENCE PENDING INITIATION OF SUIT.” The letter set forth counsel’s intent to bring suit on behalf of the Cochrans’ two adult children against Griffith and the law firm representing it, and asked that “all evidence concerning the non-disclosure of the increase in the benzene finding be preserved, including but not limited to all communications between Griffith, Griffith’s counsel, Griffith’s insurer and their experts, as well as all billing records for this time period.” In reference to the prior unanswered correspondence from counsel for Griffith, the Cochrans’ attorney wrote as follows: [Although I appreciate what we affectionately refer to as “set-up” letters in the bad faith context, please be advised that [the Cochrans] will commence execution efforts immediately upon [Griffith] for the full amount of the judgment, interest and costs.

As your local counsel will advise you [4] ⁶³³ acceptance of payment in Maryland absent an express, unequivocal agreement terminates the appeal, and Liberty Mutual was required to file a Md. Rule 8-424 complaint Affidavit and Written Undertaking in the Circuit Court for Washington County, Maryland, not simply “tender” letters. In any event, our judgment is against [Griffith], not Liberty Mutual, and thus [the Cochrans] will proceed immediately with the remedies provided by Md. Rule 2-633 et seq. against Griffith until the outstanding amount of $278,438.36 (as of 11/14/2008) is fully satisfied. By my calculation the per diem interest amount is $63.01, so the above figure should be adjusted daily by this amount. With respect to this issue, as it appears that your interests lie with Liberty Mutual, we would ask that you forward a copy of this letter to Griffith’s non-insurer retained counsel, as it is their assets, accounts and property which will be garnished or attached.

In light of transparent effort on Liberty’s behalf, as evidenced, for example, by its May 30, 2007 correspondence, to fail to protect its insured pursuant to Md. Rule 8-424 while also refusing to even offer to satisfy the full amount owed, we will also proceed with a direct action against Liberty Mutual pursuant to WMATA v. Queen, 324 Md. 326 , 597 A.2d 423 (1991). We will send a courtesy copy of this suit to you following service upon the M.I.A. Liberty has obviously had the benefit of the money for which it is now attempting to renege on its obligation to its insured, for its own interest, so we would request that Griffith’s non-insurer retained counsel contact us upon receipt of this letter to discuss possible assignment of claims and/or joinder in the action against Liberty, in exchange for a short term stay of discovery and execution upon them. On November 21, 2008, the Cochrans filed discovery requests “in aid of enforcement,” including a notice of deposition of a designee of Griffith, scheduled for December 30, 2008, interrogatories, and a request for production of documents. See Md. Rule 2-633(a) (providing that “[a] judgment creditor may obtain discovery to aid enforcement of a money judgment ⁶³⁴ (1) by use of depositions, interrogatories, and requests for documents, and (2) by examination before a judge or an examiner as provided in section (b) of this Rule”).

On December 3, 2008, Griffith filed a “Motion to Deposit Judgment Funds into the Court Registry and Declare Judgment Satisfied” (“motion to deposit”). It recited its attempts to pay the judgment to the Cochrans and argued that post-judgment interest ceased accruing on June 1, 2007, the deadline for acceptance of payment that was set by Griffith’s May 30, 2007 letter. Griffith requested deposit of an attached check for $235,544.88 (the $230,000 judgment plus $5,544.88 in interest) in the court registry, and to have the court enter an order declaring the judgment satisfied. Finally, it asked the court to offset the appeal costs awarded to Griffith by this Court in Cochran I against any judgment and interest owed to the Cochrans.

On December 9, 2008, the court entered an order depositing the $235,544.88 into the registry “for the protection and custody of said judgment funds until release or disbursement is ordered----” (“Deposit Order”). The Deposit Order did not resolve the interest dispute or declare the judgment against Griffith satisfied. On January 12, 2009, the Cochrans filed a motion to vacate or, in the alternative, to reconsider the Deposit Order. They asserted that Griffith and/or Liberty Mutual had filed the motion to deposit, rather than simply pay the Cochrans the amount it owed them, “in response to [the Cochrans’] need to resort to discovery in aid of enforcement and [their] initiation of a new action [against Liberty Mutual in the Circuit Court for Baltimore City].” 5 They further asserted that the court’s action would deprive them of the funds owed to them, and, if deemed to temporarily toll the accumulation of interest, would cost them “at minimum ... an additional $3,3339.72 [sic].” ⁶³⁵ On February 6, 2009, the court held a hearing on Griffith’s request to have the judgment declared satisfied and to resolve the dispute over post-judgment interest.

Counsel for the Cochrans argued, inter alia, that, if the Cochrans had taken payment of the $230,000 judgment, they would have been foreclosed, under the “acquiescence rule” (which we shall discuss below) from pursuing their appeal in Cochran I. After listening to arguments of counsel, the judge ruled orally from the bench. He concluded that the acquiescence rule did not apply to the appeal in Cochran I and that Griffith had made a valid tender of the judgment on March 8, 2007, which stopped the accrual of post-judgment interest as of that date. Nonetheless, because Griffith had offered to pay post-judgment interest until June 1, 2007, and was not withdrawing that offer, the court awarded the Cochrans interest accrued until that date; it therefore found the judgment satisfied by the $235,544.88 deposited into the court. The court further ruled that the amount due to the Cochrans be offset by the costs due to Griffith in Cochran .

At the close of the hearing, however, the Cochrans agreed to provide Griffith with a check for the appeal costs. For that reason, the court removed the offset provision from the written order it subsequently issued. DISCUSSION I. Post-Judgment Interest The Cochrans advance two main arguments to support their contention that the circuit court erred by awarding them only $5,544.88 in post-judgment interest. First, they argue that had they accepted payment of the judgment when Griffith offered to pay it, they would have forfeited their appeal in Cochran I, under the acquiescence rule, and the circuit court mistakenly relied on Dietz v. Dietz, 351 Md. 683 , 720 A.2d 298 (1998), to conclude otherwise.

They maintain that for this reason they were not obligated to accept payment of the judgment until (at the earliest) the appeal process in Cochran ⁶³⁶ I had concluded. In the interim, they were entitled to earn the statutory 10% interest on the judgment. See Md.Code (2006), section ll-107(a) of the Courts and Judicial Proceedings Article (“CJ”) (stating that, with exceptions not applicable here, the legal interest rate post-judgment is 10 percent per annum on the amount of the judgment). Second, the Cochrans attack Griffith’s offers of payment as insincere and legally inadequate to constitute valid tenders.

The Cochrans supplement their two-pronged challenge with additional arguments that the circuit court’s resolution of the post-judgment interest dispute exceeded its “limited power to decide the date upon which [the] mandatory obligation [to pay post-judgment interest] commences,” and that Liberty Mutual should have acted to protect the interests of its insured (Griffith) pursuant to Rule 8-424 during the pendency of the appeal. The Cochrans ask us to remedy the alleged errors by vacating the $5,544.88 interest award and remanding the case to the circuit court with instructions to enter an order “requiring payment of interest of $44,525.30 (from March 5, 2007 through the date of release of the amount deposited in the Registry of the Court on February 12, 2009)____” Griffith counters that the Cochrans have misinterpreted the acquiescence rule, which did not apply; that even if the rule applied the Cochrans could not engage in “a tactic of willful blindness” to obtain a “risk-free windfall of ten percent interest on the judgment while they pursued an ... appeal”; that the e-mail and letters it sent to the Cochrans were valid, unconditional, and sincere tenders that tolled the accrual of post-judgment interest; that the circuit court did not exceed its authority in resolving the post-judgment interest dispute; and that Rule 8-424 is inapplicable to the issue in this case. The circuit court resolved the post-judgment interest dispute by answering two questions corresponding to the Cochrans’ main arguments: (1) did the acquiescence rule allow the Cochrans to decline payment of the judgment and continue to earn post-judgment interest while their appeal in Cochran I ⁶³⁷ was pending? and (2) did Griffith make a valid tender that at some point arrested accrual of post-judgment interest? As noted, the circuit court ruled that the acquiescence rule did not apply and that Griffith made an effective tender of the judgment in its March 8, 2007 e-mail.

In doing so, the court applied legal principles to undisputed material facts. Accordingly, we review the court’s ruling de novo. Liddy v. Lamone, 398 Md. 233, 247-48 , 919 A.2d 1276 (2007). Before we do so, however, we shall address the Cochrans’ argument that the court exceeded the scope of its authority in its ruling.

(a) Did the circuit court lack authority to determine the amount of post-judgment interest owed? The Cochrans assert that the circuit court’s power was “limited ... to deciding] the date upon which th[e] mandatory obligation [to pay post-judgment interest] commence[d]” and therefore it could not determine “when [they] were entitled to interest and/or in what amount.” This argument is completely without merit. To begin, there was no dispute that the judgment was recorded on March 5, 2007, and that post-judgment interest started to accrue from that date. See Md. Rules 2-604(b) (“A money judgment shall bear interest at the rate prescribed by law from the date of entry”); 2-601(b) (“The clerk shall enter a judgment by making a record of it in writing on the file jacket, or on a docket within the file, or in a docket book, according to the practice of each court, and shall record the actual date of the entry.

That date shall be the date of the judgment.”). The issue before the court, which the Cochrans themselves raised by opposing Griffith’s motion to deposit, was when post-judgment interest stopped accruing. This issue was extensively briefed in motions filed by both parties and was argued before the court in a hearing. Thus, the court had authority to make findings and reach conclusions necessary to resolve the dispute before it.

The cases the Cochrans cite on this issue have no application. They quote Brown v. Med. Mut. Liab.

Ins. Soc’y, 90 ⁶³⁸ Md.App. 18, 30, 599 A.2d 1201 , cert denied, 326 Md. 366 , 605 A.2d 101 (1992), for its holding that “[t]here is no room for an equitable approach under Maryland law____ Maryland Rule 2-604(b) and its predecessors require ... that post-judgment interest be awarded from the date of the entry of judgment on the original verdict.” As noted, however, there was no dispute in this matter over when post-judgment interest started to accrue; the dispute was over when post-judgment interest stopped accruing. The Cochrans’ discussion of Mona v. Mona Electric Group, Inc., 176 Md.App. 672 , 934 A.2d 450 (2007), is similarly unavailing. In that multi-issue case, we commented that “[t]he Court of Appeals has been clear that, when determining the date of entry of judgment for the purposes of calculating post-judgment interest, we must evaluate the circumstances on a case-by-case basis.” Id. at 730 , 934 A.2d 450 .

From this quote, the Cochrans reason that a court “has discretion only when the date of entry of judgment is at issue, [and] this [discretion] does not apply when there is an absence of any issue concerning [that] date----” Indeed, when the date of entry of judgment is not at issue, the circuit court has no discretion to decide when post-judgment interest begins to accrue because that question is clearly controlled by Rule 2-604(b). It does not follow, however, that when the date of entry of judgment is undisputed the circuit court lacks discretion to resolve any other matter related to post-judgment interest. Under the Cochrans’ legal theory as now advanced, the circuit court would have lacked the authority to decide the very issue they placed before it when they challenged the amount of post-judgment interest Griffith had paid into the court. Moreover, the theory would limit a circuit court’s power to decide matters related to post-judgment interest to those cases, and only those cases, in which the date of entry of judgment is in dispute.

There is no authority for such a restriction and we cannot conceive of any justification for it. Finally, the Cochrans’ assertion that the court could not, in a non-evidentiary hearing, “fashion some sort [of] ‘equitable’ ⁶³⁹ relief’ by “mak[ing] fact finding and adjudging] the sincerity of [their] concerns [regarding the acquiescence rule] and [Griffith’s tender letters]” is likewise confounding given the arguments they have made in this dispute. The Cochrans themselves placed these issues before the court by arguing (a) that they could not accept payment of the judgment because of the “risk” to their appeal in Cochran I under the acquiescence rule, and (b) that Griffith’s tender letters did not stop the accrual of post-judgment interest because they were invalid. Furthermore, notwithstanding the court’s characterization of some of its conclusions as “findings,” the court did not need to resolve any factual disputes to decide the issues before it because the parties did not dispute any material facts.

As noted, the questions before the court involved the application of legal principles to undisputed facts, i.e., did the acquiescence rule apply to Cochran I such that the Cochrans could decline payment of the judgment and still collect post-judgment interest, and did the letters by Griffith constitute valid tenders that stopped the accrual of post-judgment interest? Thus, the Cochrans’ argument that the circuit court went beyond the scope of its authority in its rulings is meritless. (b) Did the acquiescence rule apply to the Cochrans’ first appeal (Cochran I)? We now return to the circuit court’s answers to the two main questions in this case.

The court first determined that an exception to the acquiescence rule that had been applied in Dietz v. Dietz, 351 Md. 683 , 720 A.2d 298 (1998), also applied here and therefore the Cochrans were “entirely wrong” in their view that they could not accept payment of the $230,000 judgment without forfeiting their appeal and, not being able to accept payment, post-judgment interest continued to run. The acquiescence rule stems from the “well settled” principle that “ ‘the right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a ⁶⁴⁰ position which is inconsistent with the right of appeal.’ ” Osztreicher v. Juanteguy, 338 Md. 528, 534 , 659 A.2d 1278 (1995) (quoting Rocks v. Brosius, 241 Md. 612, 630 , 217 A.2d 531 (1966)). Thus, a litigant who “ ‘voluntarily aceept[s] the benefits of a judgment or decree’ ” may not “ ‘later be heard to question its validity on appeal.’ ” Id. (quoting Suburban Dev.

Corp. v. Perryman, 281 Md. 168, 171 , 377 A.2d 1164 (1977)). See also Dubin v. Mobile Land Corp., 250 Md. 349, 353 , 243 A.2d 585 (1968) (“It is well settled in Maryland, and the law generally is to the effect, that if a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, order or decree, such acceptance operates as a waiver of any errors in the judgment, order or decree and estops that party from maintaining an appeal therefrom.” (citing Silverberg v. Silverberg, 148 Md. 682 , 130 A. 325 (1925)); Mona, 176 Md.App. at 723 , 934 A.2d 450 (“An appeal must be dismissed ‘if the appellant 1) accepts a benefit from or 2) acquiesces in or 3) recognizes the validity of the judgment or decree or 4) acts in a manner inconsistent with the maintenance of the appeal.’ ” (quoting First Md. Leasecorp v. Cherry Hill Sand & Gravel Co., 51 Md.App. 528, 534-35 , 444 A.2d 1053 (1982)). This rule is not without exception, however. In Dietz , a divorce case, the wife was granted a monetary award of $225,000, which the court ordered the husband to pay in an initial lump sum of $20,000, followed by monthly payments of $1,250 for 15 years.

The court entered a judgment to this effect. After receiving and depositing the initial $20,000, the wife noted an appeal from the judgment, arguing that the family farm should have been counted as marital property, which likely would have increased her monetary award, and the monthly arrangement was inequitable. The husband did not note a cross-appeal or otherwise challenge the amount of the monetary award or the method of payment. He moved to dismiss the appeal, arguing that the wife had forfeited her right to appeal by accepting partial payment of the judgment.

This Court granted the husband’s motion and dismissed the appeal. Dietz v. Dietz, 117 Md.App. 724 , 701 A.2d 1144 (1997). ⁶⁴¹ The Court of Appeals reversed, holding that “the acquiescence rule does not apply where there is no cross-appeal and the appellant seeks only an increase in an undisputed minimum.” Dietz, 351 Md. at 695 , 720 A.2d 298 . The Court derived this exception to the acquiescence rule from a line of workers’ compensation cases in which the claimants had accepted the payments awarded (which their employers had not contested) while at the same time appealing the amount of the payments awarded as insufficient. In addition, to make clear that “the holdings [from] the workers’ compensation cases [were] not limited to that field of law,” id. at 695 , 720 A.2d 298 , the Court noted that it had applied the same exception in Shapiro v. Maryland-Nat’l Capital Park & Planning Comrn’n, 235 Md. 420 , 201 A.2d 804 (1964), a condemnation case.

Finally, the Court quoted with approval the Iowa Supreme Court’s application of this exception in In re Marriage of Abild, 243 N.W.2d 541 (Iowa 1976): “When an appellant accepts only that which the appellee concedes, or is bound to concede, to be due him under the judgment or decree, he is not barred from prosecution of an appeal which involves only his right to a further recovery. Acceptance of part of the award in such circumstances is not inconsistent with the appellant’s claim that the award should have been larger. This principle is applicable when an appellant in a [case involving marital property,] where there is no cross-appeal[,] accepts part of an award of cash ... while claiming entitlement to a larger award on appeal.” Dietz, 351 Md. at 696 , 720 A.2d 298 (some alterations in original). The Dietz Court reasoned that these were exactly the circumstances it was facing.

The husband was not contesting the amount of the monetary award that had been made. The wife was arguing on appeal that the amount should have been higher because a valuable asset had not been counted as marital property. If the wife prevailed, she might be entitled to a higher award than she had been given. If she did not prevail, however, she still would have the uncontested award amount that she was granted.

Therefore, by accessing that ⁶⁴² uncontested minimum sum, the wife was not acknowledging the validity of that judgment amount. Thus, the wife had not acquiesced in the judgment by accepting the money that had been awarded and her appeal could proceed. We agree with the circuit court that the exception to the acquiescence rule stated in Dietz applied to the circumstances in the case at bar. As noted above, the damages the jury awarded the Cochrans for their negligence and breach of contract claims consisted of $55,000 for additional repair, remediation, and assessment to their house; $125,000 for diminution in value of the house; $10,000 for past loss of rental value of the house; $25,000 in pain and suffering for Robert; $15,000 in pain and suffering for Suzanne; and $0 for lost past wages for Robert.

The claims/damages the trial court did not allow the Cochrans to pursue, and that they were arguing, on appeal in Cochran I, they should have been allowed to pursue, were: • Damages for breach of the Maryland Confidential Records Act. The Cochrans had claimed that certain of their medical records had been wrongfully disclosed by Griffith and its counsel to third-party expert witnesses; they sought compensation for emotional distress caused by that “violation.” • Damages for lost business opportunities due to the harm to their house caused by the fuel spill. • Damages (and attorneys’ fees) for violation of the Consumer Protection Act for misrepresentations by Griffith that its services would be the same or just as good as that of the Cochrans’ prior oil service delivery company; that the transition from one company to the other would be “seamless”; and that (as stated in flyers it distributed) Griffith was an expert in oil delivery and had provided over 200 years of “quality and dependable service.” As explained, this Court in Cochran I agreed with the trial ⁶⁴³ court that none of these claims/damages were viable. 6 It is plain, however, that, had the Cochrans prevailed on any of their appellate arguments that they should have been allowed to pursue these claims/damages, that would not have had any impact on the $230,000 damages verdict they already had obtained. If the Cochrans had pursued and won the medical records and fraud claims they were championing, any damages they would have been awarded would have been in addition to the $230,000 already awarded. Likewise, any “lost business opportunity” damages obtained would have been above and beyond the $230,000 judgment amount.

A damages award on a CPA claim may have duplicated, in part, the award already made, or may have exceeded it, but would not have diminished it. Finally, the only other contention the Cochrans were advancing on appeal in Cochran I was that the trial court had erred in imposing discovery sanctions. They were unsuccessful in this contention, as well, but even had they prevailed, that outcome would not have negatively affected the $230,000 judgment. The Cochrans make two arguments as to why Dietz should not apply here.

First, Dietz “involved [a] very specific [determination of] property ... rights arising from a domestic case” and should therefore be limited to its facts. This argument is flatly contradicted by the Dietz Court’s pronouncement that the exception to the acquiescence rule it was applying in that case was “not limited to [a specific] field of law.” Dietz, 351 Md. at 695 , 720 A.2d 298 . Second, the Cochrans argue that this Court “limited” the holding in Dietz in Chimes v. Michael, 131 Md.App. 271 , 748 A.2d 1065 (2000). We disagree. ⁶⁴⁴ In Chimes , also a divorce case, the husband was awarded and immediately accepted a monetary award of approximately $1.5 million that had been calculated based primarily upon the value of certain stock options held by the wife that had vested during the marriage.

We granted the wife’s motion to dismiss the appeal on the ground that the husband had acquiesced in the judgment by accepting the monetary award. We distinguished Dietz as follows: As we read Dietz today, the Court of Appeals reached its conclusion based on the alimony-like effect of a scheme of monthly payments, rather than on that scheme’s actual nomenclature. In workers’ compensation, alimony, and condemnation cases, which the Court found analogous to the facts in Dietz, the defendant enters the litigation with a clear understanding that he owes a specific statutory or common law obligation to the plaintiff, whether it be the cost of medical treatment, support for necessities, or the fair market value of land. See, e.g., Bethlehem Steel Co. v. Mayo, 168 Md. 410, 413 , 177 A. 910 (1935) (workers’ compensation case, stating that acquiescence rule does not apply “where the right to the benefit received is conceded by the opposition party, or where the appellant would be entitled thereto in any event”).

Here, the large lump sum award already enjoyed by Chimes does not have the support-like effect of the payments made in Dietz. The analogy is ineffective. Dietz is also distinguishable from the present case in that Mrs. Dietz only accepted a small portion of the judgment before she appealed.... Finally, although Dietz considerably broadens the exception stated in Lewis [7] to the acquiescence rule, it does not, ⁶⁴⁵ we believe, eviscerate that rule.

If we were to construe Dietz as [the husband in] Chimes would like us to, we would open the floodgates for divorce litigants to collect on money judgments, then return to the court via the appellate process to ask for more money. We would also effectively require every payor on such judgments who finds herself before our Court to prosecute vigorously a cross-appeal— and not just present an appellate defense — in order to protect her interests. We cannot imagine that the Court of Appeals intended such a result when it handed down Dietz. Id. at 285-87, 748 A.2d 1065 (emphasis omitted).

The Cochrans maintain that their case is more akin to Chimes than Dietz because, like the husband in Chimes , they would have received a lump sum award. Thus, they argue, their appeal would have suffered the same fate as the husband’s appeal in Chimes . Although the Cochrans are correct that their judgment would have been paid in a manner similar to the lump sum monetary award in Chimes , the Cochrans’ argument overlooks a critical distinction between the two cases. In Chimes , by accepting the monetary award that was determined based primarily on his wife’s stock options, the husband acted at cross-purposes to his appeal challenging the equitable distribution of those same stock options. 8 Thus, the appeal in Chimes presented the exact situation the acquiescence rule is intended to prevent.

See Rocks v. Brosius, 241 ⁶⁴⁶ Md. at 630, 217 A.2d 531 (“The right to appeal may be lost by ... taking a position which is inconsistent with the right of appeal.”). By comparison, in Dietz, the wife appealed on the ground that the trial court should have categorized her husband’s farm as marital property when deciding whether to grant a monetary award, thus giving her a larger award accounting for the additional property. The wife’s acceptance of a portion of the monetary award, which did not account for the farm, was not inconsistent with this position. Accordingly, the acquiescence rule did not preclude the wife’s appeal.

See Dietz, 351 Md. at 696-97 , 720 A.2d 298 (“There is nothing inconsistent between Mrs. Dietz’s acceptance of the monetary award that was made because of Mr. Dietz’s Partnership interest and her request for an increase in the monetary award because of Mr. Dietz’s interest in different property. Under these circumstances there has been no acquiescence in the judgment____”). Conversely, the husband in Chimes was seeking to increase his share of the already-established marital property even though he had accepted the monetary award based on that property. When considered in terms of inconsistency of actions, the present case more closely resembles Dietz than Chimes , for the reasons we already have explained.

The Cochrans did not challenge the jury’s verdict with respect to their negligence and breach of contract claim; rather they sought a new trial to recover additional damages and attorney’s fees and costs under the CPA. See supra note 2; CL § 13-408 (authorizing a court to award attorneys’ fees and costs in an action for damages under the CPA). Thus, just as the wife’s acceptance of the monetary award in Dietz was not inconsistent with her claim on appeal that she was entitled to an additional monetary award based on property not included in the original calculation, the Cochrans’ acceptance of the uncontested jury award would not have been inconsistent with their position on appeal that they were entitled to additional damages based on ⁶⁴⁷ evidence not submitted to the jury, and to attorneys’ fees and costs under the CPA. Accordingly, the Cochrans would not have been “accepting] the benefits of a judgment or decree [while] questioning] its validity on appeal,” Osztreicher, 338 Md. at 534 , 659 A.2d 1278 , and thus would not have been subject to the acquiescence rule. 9 The $230,000 judgment was not contested on appeal in Cochran I and for the reasons we have explained would not have been diminished by any outcome of that appeal.

The judgment was an undisputed minimum damages award and therefore the Cochrans would not have taken a position inconsistent with their right of appeal by accepting payment of it. Therefore, the Cochrans would not have forfeited their appeal in Cochran I by accepting payment of the $230,000 judgment. ⁶⁴⁸ (0 Did Griffith make a valid tender of the judgment? The second of the two central questions addressed by the circuit court was whether Griffith made a valid tender that stopped the accrual of post-judgment interest. A tender is “an offer to perform a condition or obligation, coupled with the present ability of immediate performance, so that if it were not for the refusal of cooperation by the party to whom tender is made, the condition or obligation would be immediately satisfied.’ ” Platsis v. Diafokeris, 68 Md.App. 257, 262 , 511 A.2d 535 (1986) (quoting Chesapeake Bay Distrib.

Co. v. Buck Distrib. Co., Inc., 60 Md.App. 210, 214 , 481 A.2d 1156 (1984)). The circuit court opined, based upon Platsis, supra, that a “tender does not require ... actual payment” but instead “requires an offer to perform a condition or obligation coupled with present ability of immediate performance ...” and concluded that “that is exactly what happened [in this case].” Specifically, the court determined that Griffith’s March 8, 2007 e-mail, transmitted to counsel for the Cochrans three business days after entry of the judgment, was an unconditional tender. 10 Furthermore, relying upon Chesapeake