Facey v. Facey

Roberto Facey, Sr. v. Esther Facey No. 1183, Sept. Term, 2019 Opinion by Leahy, J. Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Fraud In order to trigger the court’s revisory power on account of fraud under Rule 2-535(b), “a movant must show extrinsic fraud, not intrinsic fraud.” Jones v. Rosenberg, 178 Md. App. 54, 72 (2008). If extrinsic fraud is shown, a judgment is normally voidable, and a court’s analysis must “proceed to determine whether the appellees acted in good faith and with ordinary diligence in seeking to have the judgment vacated and whether they have a meritorious defense to the underlying judgment.” Fleisher v. Fleisher Co., 60 Md. App. 565, 570 (1984). Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Extrinsic Fraud Extrinsic fraud perpetrates an abuse of judicial process by preventing an adversarial trial and/or impacting the jurisdiction of the court. Fraud prevents an adversarial trial when it keeps a party ignorant of the action and prevents them from presenting their case, as in Wells v. Wells, 168 Md. App. 382, 399-99 (2006) and Hinden v. Hinden, 184 Md. 575, 583 (1945); or, as in Fleisher v. Fleisher Co., 60 Md. App. 565, 571 (1984), the fraud prevents the actual dispute from being submitted to the fact finder at all.

Extrinsic fraud can involve a false promise of compromise, or an attorney who fraudulently or without authority assumes to represent a party and connives at their defeat, see United States v. Throckmorton, 98 U.S. 61, 65-66 (1878). Only an “intentionally deceptive artifice” can reach the level of extrinsic fraud. Schwartz v. Merchant’s Mortg. Co., 272 Md. 305, 308 (1974); see also Payne v. Payne, 97 Md. 678, 684-685 (1903).

Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Extrinsic Fraud Extrinsic fraud is normally collateral to the issues tried in the case in which the judgment is rendered. A court will not reopen a judgment because a party discovers fraud that took place during the trial or was contained within the trial, as, for example, the alleged conspiracy to commit perjury in Schwartz, 272 Md. at 309 and Tabeling v. Tabeling, 157 Md. 429, 434-435 (1929). Even when no trial has been held, if the fraud could have been discovered at trial, it is unlikely to be considered extrinsic. See Pelletier v. Burson, 213 Md. App. 284, 291 (2013); Hresko v. Hresko, 83 Md. App. 228, 236 (1990).

Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Extrinsic Fraud > Jurisdictional Impact Extrinsic fraud that impacts a court’s jurisdiction must be fraud that either permits or prevents the court’s “procurement of the judgment,” as opposed to fraud that is “attendant upon the cause of action itself.” Mueller v. Payn, 30 Md. App. 377, 389 (1976). Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Intrinsic Fraud Intrinsic fraud relates to facts that were before the court in the original suit and could have been raised or exposed at the trial level. If a party could have discovered the fraud, but “by reason of its own neglect” it failed to exercise the “care in the preparation of the case as was required of it,” the fraud will be intrinsic. Md. Steel Co. of Sparrows Point v. Marney, 91 Md. 360, 371 (1900); see also Schwartz v. Merchant’s Mortg.

Co, 272 Md. 305, 308 (1974); Tabeling v. Tabeling, 157 Md. 429, 434-435 (1929). Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Intrinsic Fraud We hold that the circuit court did not err in determining that the fraud in this case was intrinsic and not extrinsic for three reasons: 1) it did not prevent an adversarial trial; 2) it pertained to facts contained within the original motions hearing; and 3) it did not impact the jurisdiction of the court. Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Mistake It is “well settled that ‘mistake,’ as used in Rule 2-535(b), is limited to a jurisdictional error, such as where the Court lacks the power to enter the judgment.” Claibourne v. Willis, 347 Md. 684, 692 (1997). Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Mistake Indeed, Roberto admits that no jurisdictional mistake plagues the 2011 Judgment by conceding that it is not void because the circuit court had fundamental jurisdiction to enter it.

Circuit Court for Prince George’s County Case No. CAL11-11167 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1183 September Term, 2019 ______________________________________ ROBERTO FACEY, SR. v. ESTHER FACEY ______________________________________ Leahy, Gould, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Leahy, J. ______________________________________ Filed: February 26, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-26 14:34-05:00 Suzanne C. Johnson, Clerk Well over a century since the concepts of intrinsic and extrinsic fraud were first announced by the Supreme Court in United States v. Throckmorton, 98 U.S. 61 (1878),1 many courts still find the concepts “extremely difficult to apply.” 11 Wright & Miller’s Fed. Prac. & Proc. Civ. § 2868 (3d ed. 2020). The distinction between intrinsic and extrinsic fraud has been regarded as “shadowy, uncertain, and somewhat arbitrary.” Howard v. Scott, 125 S.W. 1158, 1166 (Mo. 1910). We are now drawn into this dusky thicket by the subterfuges surrounding the dissolution of the marriage between Roberto Facey, appellant, and Esther Facey, appellee.

In 2006, attendant to the break-up of the couple’s nearly forty-year marriage, Roberto2 executed a “Promissory and Confessed Judgment Note” in favor of Esther in the amount of $75,000 (“2006 Note”). In 2008 and 2009, before any payments were made on the 2006 Note, Esther suffered a series of debilitating strokes. Soralla Facey de Otts, the couple’s daughter, was responsible for taking care of her mother and, in May 2011, filed a “Complaint for Confession of Judgment” in the Circuit Court for Prince George’s County based on the 2006 Note. Soralla’s authority to file this action resided in a power of attorney purportedly executed by Esther in 2008 (“Power of Attorney”).

In July 2011, the court issued a judgment against Roberto for $75,000 (“2011 Judgment”). Roberto responded with a “Motion to Open, Modify, or Vacate Confessed 1 The Supreme Court acknowledged in Throckmorton that “[t]he principle and the distinction here taken was laid down as long ago as the year 1702 by the Lord Keeper in the High Court of Chancery, in the case of Tovey v. Young, Pr. Ch. 193.” 98 U.S. at 67 . 2 In order to avoid confusion and meaning no disrespect, we refer to the parties and their children by their first names as they all share the same last name. Judgment” based on allegations of duress, undue influence, misrepresentation, and the statute of limitations.

The court denied Roberto’s motion. Over seven years later, in October 2018, Roberto challenged the 2011 Judgment again in a second “Motion to Vacate Judgment and Dismiss Case.” This time, he claimed that the Power of Attorney relied upon by Soralla to bring the 2011 lawsuit was fraudulent. He alleged that the document had been backdated to appear as though it was executed prior to Esther’s disability and that it did not contain Esther’s authentic signature. The circuit court held an evidentiary hearing on Roberto’s motion on January 24, 2019.

Several months later, the court issued an opinion and order denying the motion after finding that, while sufficient evidence was adduced establishing that the Power of Attorney was both fraudulently procured and a forgery, the forgery did not constitute extrinsic fraud triggering the court’s revisory power under Maryland Rule 2-535(b). Roberto noted this timely appeal and presents two questions which condense to the following: Did the trial court err in finding that the fraud in this case was intrinsic rather than extrinsic and, based on that determination, abuse its discretion in declining to exercise revisory power over the 2011 Judgment under Maryland Rule 2-535(b)?3 3 Appellant’s brief presents the following two questions: “1. Did the trial court err in holding, as a matter of law that the use of a forged Power of Attorney obtained with fraudulent intent by Soralla Facey de Otts to invoke the jurisdiction of the Court was “intrinsic fraud” not subject to the Circuit Court’s revisory power over a judgment after thirty days from its issue pursuant to Maryland Rule 2-535(b)?” (Continued) 2 We affirm the circuit court’s determination that the fraud in this case constituted intrinsic fraud and conclude that the circuit court did not abuse its discretion in declining to exercise its revisory power under Maryland Rule 2-535(b).4 BACKGROUND Esther and Roberto married on December 2, 1966 and had four children: Soralla, Jenetha, Roberto Jr. and Sabrina. On March 25, 2004, Roberto was granted an absolute divorce after the court granted his motion for default.

Approximately one-and-a-half years later, Esther moved to vacate the default judgment. That case was resolved when the parties reached an agreement that was subsequently placed on the record. As a part of this agreement, on February 22, 2006, Roberto executed the 2006 Note in favor of Esther in the amount of $75,000.00. In late 2008, Esther suffered a stroke, after which her adult children moved her from Florida to Maryland.

She suffered a second stroke in late 2009. On May 13, 2011, Soralla filed the underlying complaint for confessed judgment of the 2006 Note. The complaint named Esther as the plaintiff and stated that Soralla “brings this suit on behalf of her mother” pursuant to the Power of Attorney. The complaint alleged “2.

Did the trial court err in holding that the judgment in favor of the Plaintiff was not void ab initio, but barred by the doctrine of res judicata as a result of Roberto Facey’s failure to raise the issue of the fraudulent Power of Attorney when he first filed his Motion to Vacate in 2011.” 4 Clearly, forgeries submitted to courts are not to be condoned. This case does not probe whether any forgery should be excused. Rather, this case requires that we analyze, against the deep-rooted policy in favor of the finality of judgments, whether fraud discovered post-judgment is of the variety that allows a court to exercise its revisory powers to reopen an enrolled judgment. 3 that subsequent to the granting of that Power of Attorney, “Esther Facey suffered a stroke and is no longer competent to manage her own affairs.” The complaint further alleged that, despite demand, Roberto had not made any attempt to pay the amounts due. The Power of Attorney was attached to the complaint as “Exhibit A.” The document, allegedly witnessed on October 8, 2008, contained Esther’s purported signature.

On July 1, 2011, on the court’s instruction, the clerk issued a “Notice of Entry of Judgment by Confession” against Roberto in the amount of $75,000. First Motion to Revise Roberto filed a “Motion to Open, Modify, or Vacate Confessed Judgment” on August 1, 2011. The motion included allegations of duress, undue influence, and misrepresentation. Roberto claimed that he executed the 2006 Note based on representations made by his son that his son would make payments on the note in consideration of his signature.

Because Roberto’s son had lost his business, he was unable to keep this promise. Additionally, Roberto accused his daughters, Soralla and Jenetha, of preparing the promissory note without his review, and then urging him “to quickly sign it to ensure” the divorce. Roberto requested a hearing on his motion. Soralla filed an opposition, on Esther’s behalf, in which she asserted that the 2006 Note was required to redress Roberto’s fraud: [Roberto] obtained a default judgment of absolute divorce from [Esther] by means of a fraudulent affidavit which alleged that he could not find [Esther].

By obtaining his divorce from [Esther] by default in that manner, he was able to deprive [Esther] of her marital interest in his METRO pension. The confessed judgment note entered into herein was a settlement of the motion to vacate the default judgment of absolute divorce which would otherwise have reopened issues of marital property. 4 Ironically, and, it seems, with some augury, Soralla claimed that Roberto’s representation in his motion to revise the 2011 Judgment—that he relied on his son’s promise—was not meritorious because he failed to allege fraud: In any event, [Roberto] does not appear to argue that his son defrauded him by making knowingly false representations but, rather, that his son’s business failed and he was unable to follow through. (Emphasis in original). On November 17, 2011, a motions hearing was held on Roberto’s motion.

At the hearing, Roberto “acknowledged the existence of the [2006 Note].” The court denied Roberto’s motion. Guardianship Soralla and Jenetha petitioned the Circuit Court for Prince George’s County to appoint them as co-guardians of the person and property of Esther in 2015. After a contested hearing on February 23, 2017, the court granted the guardianship petition. Second Round On October 11, 2018, Roberto discharged another fraud claim in a second “Motion to Vacate Judgment and Dismiss Case.” In this attack on the 2011 Judgment, Roberto claimed that the “Power of Attorney which conveyed the standing of Soralla Facey de Otts to bring the [2011] lawsuit and obtain the judgment was fraudulent” because it was prepared after Esther’s stroke and had been “back dated to appear that it was executed prior to her disability.” In support of this accusation, Roberto claimed that the document did not contain Esther’s authentic signature and pointed out that the notary, Gary A. Rucker, had written on the document that his commission expired on January 10, 2013.

Because, in 5 Maryland, “Notary Commissions are valid for four years,” Roberto asserted that Mr. Rucker’s commission “could not have been granted before January 10, 2009, a date after the alleged execution [on October 8, 2008] of the Power of Attorney.” Mr. Rucker admitted, in his affidavit appended to the motion, that he did not witness the execution of the Power of Attorney by Esther. He further attested that Soralla presented the Power of Attorney to him already signed and requested that he back date it to October 2008. He protested initially, but, because Soralla was an old friend, he eventually relented. According to Mr. Rucker, neither Esther nor the witness, Gerald Marshall, was present at the time of notarization.

Citing the court’s revisory power over judgments under Maryland Rule 2-535(b) in the case of fraud, mistake, or irregularity, Roberto argued that the 2011 Judgment must be vacated because the Power of Attorney was forged. He averred that the fraudulent Power of Attorney constituted mistake and extrinsic fraud that “deprived the court of subject matter jurisdiction—Ms. Soralla Facey de Otts did not have standing to bring the Complaint on behalf of her mother, a disabled person.” On October 29, 2018, Soralla and Jenetha, as guardians of Esther’s person and property, filed an opposition denying the allegations of fraud. On January 24, 2019, an evidentiary hearing on the motion was held in the circuit court before the Honorable Leo Green. The court requested supplemental memoranda and held another hearing in March. 6 The court’s Opinion and Order, signed on April 23, 2019, was entered on June 27, 2019.5 Circuit Court Opinion The circuit court denied Roberto’s Motion to Vacate Judgment and Dismiss Case, despite finding, among other things, that sufficient evidence was adduced to convince the judge that the Power of Attorney was both fraudulently procured and a forgery.6 The opinion states: The court finds that the October 8, 2008 Power of Attorney was a writing, which by virtue of the power it was purported to grant, was a forgery.

The court also finds that the signature on the October 8, 2008 Power of Attorney was not that of Ms. Facey[]; it was a false signature and was thus a 5 Pending before the court were two related cases involving the same parties: 1) the Motion to Vacate Judgment and Dismiss Case in the underlying confessed judgment case (CAL11-111678); and 2) a separate complaint, brought by Esther’s guardians, for Sale in Lieu of Partition of the parties’ jointly-titled marital home (CAE-18-30593). The cases were consolidated on November 12, 2018. On June 27, 2019, the circuit court ordered that the former marital home be sold by a trustee and required Roberto to make the mortgage payments until the sale is complete. Roberto appealed this order.

(CSA-REG-0709-2020). 6 Judge Green recounted that, in Maryland, the term of a notary is four years and concluded: “[i]f the notary’s commission, as stamped, expired on January 10, 2013, then the commission must have been granted on approximately January 10, 2009. The Power of Attorney was purportedly executed and notarized on October [8], 2008, months before the commission would have occurred.” Also, based on Mr. Rucker’s decision to invoke his constitutional right not to testify, the court resolved that “the Power of Attorney was executed on some other date than October 8, 2008 and was not executed by Ms. Facey.” In reaching this conclusion, the judge also credited as “extremely [] believable” the testimony of Katherine Koppenhaver, who was qualified in the field of “Forensic Document Examiner.” Ms. Koppenhaver compared a number of documents signed by Esther and rendered an opinion that the signature on the Power of Attorney was fraudulent and was not the signature of Esther. After reviewing the documents and comparing them with the Power of Attorney, the court observed that “even without the expert testimony, one can see that the signature is a poor and false copy of Ms. Facey’s signature.” The court recounted Soralla’s contradictory testimony and determined that “[h]er testimony is not compelling and does little to convince the court that the Power of Attorney was executed properly.” 7 forgery or is fraudulent. Finally, after consideration of the testimony and evidence presented, the court finds that the false signature on the Power of Attorney was rendered with the intent to defraud.

Having made the predicate factual determination that the Power of Attorney was both fraudulently procured and a forgery, the court turned to the vexing question of whether the fraud constituted extrinsic fraud triggering the court’s revisory power under Md. Rule 2-535(b).7 Leading into his analysis, the judge observed that only extrinsic fraud is sufficient to reopen an enrolled judgment and then announced his determination that the forged Power of Attorney constituted intrinsic fraud. Explaining this ruling, the judge observed first that extrinsic fraud is collateral to the issues tried in a case in which a judgment is rendered, whereas intrinsic fraud pertains to the issues involved in the original action. Following an extensive recitation of the applicable caselaw, the judge reasoned that the fraud in this case was not extrinsic because, Mr. Facey was not foreclosed to contest the confessed judgment. In fact, he agreed to such a judgment in his divorce proceeding.

He agreed that he signed the Confessed Judgment Note in the first Motion to Vacate hearing . . . . Mr. Facey clearly agreed to pay $75,000 to his former wife. While the Plaintiffs, or someone else, may have forged the Power of Attorney, that forgery was an example of intrinsic rather than extrinsic fraud. Thus, it did not foreclose Mr. Facey to contest the underlying obligation of the payment in settlement of the parties’ divorce.

While there is clear fraud in this case, it was not the type that enables the court to vacate a previous judgment. 7 The judge briefly addressed the voidability of the 2011 Judgment, reviewing cases on the treatment of forged powers of attorney by Maryland courts such as Scotch Bonnett Realty Corp. v. Matthews, 417 Md. 570, 578 (2011) (citing In re Baxter, 320 B.R. 30 (Bankr. D.D.C. 2004)). Rather than articulate a conclusive finding about whether the 2011 Judgment was void ab initio, however, the court proceeded to analyze whether the fraud was intrinsic or extrinsic. 8 The judge concluded by holding that res judicata also barred Roberto from relitigating the validity of the 2011 Judgment because: 1) the second motion to revise involved the same parties; 2) the motion concerned matters that were or could have been litigated in the 2011 action; and 3) the 2011 Judgment constituted a final judgment on the merits. DISCUSSION Where fraud, mistake, or irregularity are determined to exist, we normally review the circuit court’s decision whether to grant a motion to revise a judgment pursuant to Maryland Rule 2-535(b) under an abuse of discretion standard.

See Peay v. Barnett, 236 Md. App. 306, 315 (2018); see also Wells v. Wells, 168 Md. App. 382, 394 (2006). The existence of “a factual predicate of fraud, mistake, or irregularity necessary to support vacating a judgment under Rule 2-535(b),” however, is a question of law. Wells, 168 Md. at 394 (quoting In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458 , 475 n.5, (1997)). We therefore review the trial court’s decision regarding the existence of fraud, mistake, or irregularity without deference. “The burden of proof in establishing fraud, mistake, or irregularity is clear and convincing evidence.” Jones v. Rosenberg, 178 Md. App. 54, 72 (2008).

I. Parties’ Contentions In his opening brief, Roberto argued that the 2011 Judgment was void ab initio. He averred that judgments procured by parties without legal authority are null and void and 9 are subject to being vacated at any time. Therefore, he contended, because the forged Power of Attorney was a void instrument that conveyed no authority upon Soralla to file suit, the circuit court erred in failing to vacate the judgment because it was void. In his reply brief, however, Roberto admits that the 2011 Judgment is not void because the circuit court had fundamental jurisdiction to enter the judgment.

Consequently, Roberto now urges that the 2011 Judgment is voidable, citing LVNV Funding LLC v. Finch (Finch III), 463 Md. 586, 609 (2019), for the principle that voidable judgments may be attacked directly through the court’s revisory power. Roberto further contends that the court retained its revisory power in the underlying case because the use of a forged and fraudulently-intended power of attorney as the means to file a lawsuit constituted extrinsic fraud or a jurisdictional mistake. Roberto argues that the fraud was not intrinsic because the fraudulently-obtained Power of Attorney was not used as a mechanism to defeat a defense of Roberto’s or to establish the validity of Esther’s claim. Instead, he avers, it was used solely to give Soralla standing to file the case on her mother’s behalf and, absent that act of fraud, no lawsuit could have been filed.

Therefore, he concludes, the fraud was extrinsic. Relying on Chapman v. Kamara, 356 Md. 426 (1999), Roberto also argues that the fraud effected a jurisdictional mistake. In Chapman, he explains, the court exercised its revisory power when an insurer’s attorney entered an appearance and answer in a lawsuit without notice to or authorization from the insured defendant, which left the court without personal jurisdiction over the defendant. Similarly, Roberto avers, Esther never authorized Soralla to file suit for her, and the suit was filed under an instrument procured with 10 fraudulent intent.

Therefore, Roberto insists, because the jurisdiction of the court was improperly invoked, mistake occurred. Finally, based on the above, Roberto argues that the doctrine of res judicata does not preclude the present motion to vacate because this case involves extrinsic rather than intrinsic fraud. Res judicata, he insists, does not apply to judgments obtained by extrinsic fraud. He also argues that res judicata does not bar a direct attack on a judgment, such as a motion to vacate.

Esther, as expected, defends the trial court’s determination that there was no extrinsic fraud and no other ground for the exercise of its revisory power over the 2011 Judgment. She maintains that fraud is extrinsic when it prevents an adversarial trial, but intrinsic when it is used within a trial during which the truth is distorted due to the fraud. Here, Esther notes, an adversarial trial was held in November 2011 regarding the Complaint for Confession of Judgment. Because a fair trial was held, even if the Power of Attorney was forged, it constituted intrinsic rather than extrinsic fraud.

Esther also insists that forged documents are typically deemed intrinsic fraud and that an enrolled judgment will not be disturbed even though the judgment was based on a forged document. Esther rejects Roberto’s allegation that “mistake” existed in this case because “mistake,” as contemplated by Maryland Rule 2-535(b), refers only to a jurisdictional mistake. Esther claims that the forged Power of Attorney does not affect the court’s fundamental jurisdiction, defined as jurisdiction over both the parties and the subject matter, and therefore cannot justify relief from an enrolled judgment. Because the court had jurisdiction over both Roberto and the subject matter of the action, Esther avers, 11 Roberto cannot show that there was a mistake or a jurisdictional error sufficient to trigger the court’s revisory power.

Lastly, Esther persists, res judicata bars Roberto from relitigating the motion to vacate the 2011 Judgment because it is not void. Consequently, contends Esther, it has res judicata effect because the parties to both actions are the same; the current and prior claims are identical; and there is a final judgment on the merits. Esther points out that, although he could have done so, Roberto did not raise the fraudulent nature of the Power of Attorney in his August 1, 2011 “Motion to Open, Modify, or Vacate Confessed Judgment” or at the November 2011 hearing. Therefore, because res judicata bars claims that a party could have, but did not, raise during the original proceedings, Esther avers that Roberto cannot relitigate the issue of the forged Power of Attorney.

II

Legal Framework A. Revisory Power The authority for the court’s revisory power is found in parallel provisions of the Maryland Code and the Maryland Rules. Maryland Code (1974, 2013 Repl. Vol.), Courts and Judicial Proceedings Article (“CJP”), section 6-408 provides that: For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule.

Similarly, Maryland Rule 2-535(a) provides: 12 (a) Generally. On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534. * * * (b) Fraud, mistake, irregularity. On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity. As reflected in CJP § 6-408 and Maryland Rule 2-535(b), after the initial 30-day period, the judgment becomes enrolled and the court may revise the judgment only in narrow circumstances.

Finch III, 463 Md. at 607 . In order to trigger the revisory power on account of fraud under Rule 2-535(b), “a movant must show extrinsic fraud, not intrinsic fraud.” Jones, 178 Md. App. at 72 . If extrinsic fraud is shown, a judgment is normally voidable, and a court’s analysis must “proceed to determine whether the appellees acted in good faith and with ordinary diligence in seeking to have the judgment vacated and whether they have a meritorious defense to the underlying judgment.” Fleisher v. Fleisher Co., 60 Md. App. 565, 570 (1984). However, judgments that are void ab initio are a nullity—as for example, a judgment rendered by a court lacking fundamental jurisdiction—and are subject to both direct and collateral attack.

See Tucker v. Tucker, 35 Md. App. 710, 712 , (1977) (a judgment which is “void because of a lack of jurisdiction may be collaterally attacked at any time”). We recently explained in Peay v. Barnett that, equitable considerations of ‘diligence and good faith’ do not apply to ‘jurisdictional mistakes’ [under Rule 2-535(b)] that would render a default judgment void. This conclusion holds true for a mistake involving either a mistake of ‘jurisdiction over the person—obtained by proper service of process,’ or ‘jurisdiction over the subject matter—the cause of action and the relief sought.’ 236 Md. App. 306, 324-25 (2018) (citations omitted). 13 B. Res Judicata and Collateral Attack of Enrolled Judgments A collateral attack is an “‘an attempt to impeach the judgment . . . before a court other than the one in which it was rendered, in an action other than that in which it was rendered[.]” Klein v. Whitehead, 40 Md. App. 1, 20 (1978) (citations omitted). Courts prohibit collateral attacks on enrolled judgments except in very specific circumstances.

In Finch III, the Court of Appeals underscored this point. 463 Md. at 608 . The case involved a limited liability company—LVNV Funding LLC (“LVNV”)—that was not licensed as a debt collection agency at the time it obtained numerous default judgments in its favor from a debtor class represented by respondents Larry Finch and Henry Dorsey. Id. at 597-98 . The debtors sought the “disgorgement of all sums LVNV received as a result of the judgments it improperly obtained and an injunction against any attempt to collect further amounts on those judgments.” Id. at 598 .

On LVNV’s motion, the circuit court dismissed the debtors’ complaint on the ground that it amounted to an impermissible collateral attack on enrolled district court judgments. Id. After a series of appeals, in Finch III, the Court of Appeals agreed with the circuit court, holding that the debtors’ attacks on grounds other than a lack of fundamental jurisdiction constituted impermissible collateral attacks on enrolled judgments. Id. at 611 .

The Court of Appeals explained that “[j]udgments, by and large, are meant to be final. Even the court that rendered them has but a limited ability to open and revise them.” Id. at 607 . A court that renders a judgment “has discretionary revisory power over it for only 30 days,” after which the judgment becomes enrolled and may be revised only “upon a finding of fraud, jurisdictional mistake or irregularity, which are narrowly construed.” 14 Id. at 607-08 (citations omitted). Collateral attacks, the Court further expounded, are “even more severely limited and are permitted only when the court that rendered the judgment had no jurisdiction to do so.” Id. at 608 (emphasis in original).

When a court lacks jurisdiction to enter a “judicial decree or judgment,” that judgment is void. Id. (quoting Cnty. Comm’rs of Carroll Cnty. v. Carroll Craft Retail, Inc., 384 Md. 23, 44 (2004)).

Jurisdiction, however, has a narrow meaning here. Judge Wilner, writing for the Court, elaborated that: [1] “The term ‘jurisdiction’ can have different meanings [ ] depending on the context in which it is used. It can refer to either the power of the court to render a valid decree, or the propriety of granting the relief sought.” [cleaned up]. [2] “It is only when the court lacks the first kind of jurisdiction which [ ] this Court termed ‘fundamental jurisdiction’ that its judgment is void.” [cleaned up]. [3] “[F]undamental jurisdiction refers to ‘the power to act with regard to a subject matter which is conferred by the sovereign authority which organizes the court, and is to be sought for in the general nature of its powers, or in authority specially conferred.’ . . . It is the power that the law confers on a court to render judgments over a class of cases, within which a particular case may fall.” [4] “Thus, the main inquiry in determining ‘fundamental jurisdiction’ is whether or not the court in question had general authority over the class of cases to which the case in question belongs.” [5] “[A] court still retains its ‘fundamental jurisdiction’ though its ability to exercise that power may be ‘interrupted’ or circumscribed by statute or Maryland Rule.

Indeed, this Court has repeatedly declined to hold void court or agency decisions that exceeded statutory limits but fell within the basic or fundamental jurisdiction of the court or agency.” Id. at 608-09 (quoting Carroll Craft, 384 Md. at 44-45 ). Enrolled civil judgments, then, will not be subject to collateral attack “on any ground other than the lack of fundamental 15 jurisdiction to render those judgments.” Id. at 611. The Court concluded that, even though the unlicensed debt collection agency had “no legal authority to file [the collection actions],” the district court nevertheless had fundamental jurisdiction over these actions, meaning that the judgments were not void. Id.

To be sure, the Court’s holding in Finch III does not protect judgments from direct attack. The Court was careful to note: “[a] claim that the court is without non-fundamental jurisdiction certainly may be raised as a defense in a pending action seeking the judgment or while the court retains revisory power over a judgment it has issued.” Id. at 609. Relatedly, the doctrine of res judicata, or claim preclusion, provides that “a judgment between the same parties and their privies is a final bar to any other suit upon the same cause of action.” Colandrea v. Wilde Lake Cmty. Ass’n, Inc., 361 Md. 371, 392 (2000); see generally Paul Mark Sandler & James K. Archibald, Pleading Causes of Action in Maryland 53-57 (6th ed. 2018).

In other words, res judicata means “‘a thing adjudicated,’ and generally indicates ‘[a]n affirmative defense barring the same parties from litigating a second lawsuit on the same claim[.]’” Lizzi v. Wash. Metro. Area Transit Auth., 384 Md. 199, 206 (2004) (citations omitted). In Maryland, the requirements of res judicata are: 1) that the parties in the present litigation are the same or in privity with the parties to the earlier dispute; 2) that the claim presented in the current action is identical to the one determined in the prior adjudication; and 3) that there was a final judgment on the merits. 16 Colandrea, 361 Md. at 392 . “When these three elements are present, ‘the first claim is merged into the judgment and bars the second claim.’” Weatherly v. Great Coastal Exp.

Co., 164 Md. App. 354, 369 (2005). Additionally, because a claim encompasses all rights the plaintiff has to remedies against the defendant respecting all or any part of the transaction or series of connected transactions out of which the claim arises, the doctrine of res judicata bars subsequent litigation not only of what was decided in the original litigation of the claim but also of what could have been decided in that original litigation. Id. (quoting Boyd v. Bowen, 145 Md. App. 635, 656 (2002)).

Res judicata also bars claims based on facts that could have constituted a defense or counterclaim in a prior proceeding. Green v. Ford Motor Credit Co., 152 Md. App. 32, 44, 60 (2003) (holding that a separate claim under a different statute that could have been raised as a valid defense in the first suit was barred by res judicata); see also Mostofi v. Midland Funding, LLC, 223 Md. App. 687, 694-95 (2015) (holding that, because a judgment entered against a debtor in a collection case was not a void judgment, a new claim was barred by res judicata and the judgment could not be collaterally attacked in the subsequent action). Here, Roberto contends that the underlying proceeding is a direct, rather than collateral, attack on the 2011 Judgment, as made plain by the very title of his “Motion to Vacate Judgment and Dismiss Case” under Maryland Rule 2-535(b). He contends that his direct attack is not a second lawsuit on the same claim and, therefore, is not precluded by res judicata.

Both parties misapply the doctrine of res judicata in their arguments. Roberto overlooks that once a final judgment is enrolled, res judicata applies to any subsequent actions in which the parties and the claims are the same. See Anne Arundel Cnty. Bd. of 17 Educ. v. Norville, 390 Md. 93, 110 (2005) (observing that res judicata pertains to the legal consequences of a judgment entered previously in the same case, and that, when applying res judicata, a court is concerned “simply with the final judgment and its concomitant consequences”).

Esther, in turn, fails to appreciate that the very idea of Maryland Rule 2- 535(b) is that the doctrine of res judicata does not bar the court’s power to revise an enrolled judgment if it finds mistake, irregularity or, as we examine next, extrinsic fraud.8 8 Neither the trial court’s opinion nor the briefing on appeal address whether Roberto’s claims that Soralla lacked the authority to sue on Esther’s behalf or forged the Power of Attorney should have been raised as defenses under Maryland Rule 2-323. Section (a) of the rule states that “[e]very defense of law or fact to a claim for relief in a complaint, counterclaim, cross-claim, or third-party claim shall be asserted in an answer [and] . . . [t]he answer shall be stated in short and plain terms and shall contain the following: . . . (3) the defenses enumerated in sections (f) and (g) of this Rule. In turn, section (f) specifies that “when a party desires to raise an issue as to . . .

(3) the authority of a party to sue or be sued in a representative capacity,[or]. . . (4) the averment of the execution of a written instrument, the party shall do so by negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge. If not raised by negative averment, these matters are admitted for the purpose of the pending action.” (Emphasis added). Maryland Rule 2-323(g) requires a party to set forth by “separate defenses” the defense of fraud, which must be specially pleaded.

See Liberty Mut. Ins. Co. v. Ben Lewis Plumbing, Heating & Air Conditioning, Inc., 121 Md. App. 467, 477 , aff’d, 354 Md. 452 (1999). The question in this appeal is whether Roberto demonstrated that the Power of Attorney— i.e. its execution and Soralla’s authority to sue under it—was extrinsic fraud.

As our caselaw instructs, res judicata prevents a court from opening an enrolled judgment solely on the basis of intrinsic fraud. See, e.g. Green, 152 Md. App. at 60 ; Hamilos v. Hamilos, 279 Md. 99, 104-107 (1983). Therefore, more than 30 days after a judgment is entered, whether a negative averment was waived under Rule 2-323 is irrelevant where fraud is intrinsic because intrinsic fraud cannot operate to open or revise an enrolled judgment.

Intrinsic fraud may be waived under Maryland Rule 2-323 when a court maintains “control over the judgment” within 30 days after entry. Md. Rule 2-535(a); cf. Thomas v. Cap. Med. Mgmt.

Assoc., LLC, 189 Md. App. 439, 455-457 (2009) (holding that appellants could have raised the negative averments of capacity to sue or be sued and the execution of a contract as defenses in their answer, but, because they did not, these defenses were waived). (Continued) 18 III. Extrinsic Fraud or Mistake The 2011 Judgment is an enrolled judgment and is not void ab initio because the circuit court clearly had fundamental jurisdiction over Roberto and the subject matter.9 In most circumstances, however, extrinsic fraud cannot be waived because it constitutes “fraud practised directly upon the party seeking relief against the judgment or decree,” that has “prevented [that party] from presenting all of his case to the court.” United States v. Throckmorton, 98 U.S. 61, 66 (1878). In other words, where extrinsic fraud operates to open an enrolled judgment because a party was unaware of or unable to participate in the proceeding, then it is also true that that same party could not have waived a defense in that proceeding.

We have not found a Maryland case that has squarely addressed this point, but other states have: see Britten v. Hope Enter. Found. Inc., 163 A.3d 1029, 1037-1038 (Pa. Super.

Ct. 2017) (holding that knowingly maintaining a wrongful death action on behalf of someone for whom that right of action does not exist is extrinsic fraud capable of vacating a judgment, and any challenge to appellant’s capacity to bring such a suit is not waived); Pentz v. Kuppinger, 107 Cal. Rptr. 540, 595-598 (Cal Dist. Ct. App. 1973) (holding that a widow’s refusal to amend her complaint to include specific allegations of extrinsic fraud was not fatal to her action, because her original complaint contained allegations sufficient to show extrinsic fraud); In re Cassidy’s Estate, 270 P.2d 1079, 1086 (Ariz. 1954) (holding that even though fraud was not pled with particularity, this did not stop a party from seeking to revoke probate on the basis of fraud). 9 The Maryland Code provides that: The circuit courts are the highest common-law and equity courts of record exercising original jurisdiction within the State. Each has full common-law and equity powers and jurisdiction in all civil and criminal cases within its county, and all the additional powers and jurisdiction conferred by the Constitution and by law, except where by law jurisdiction has been limited or conferred exclusively upon another tribunal.

CJP § 1-501. Maryland Rule 2-611 governs confessed judgments in the circuit court. The rule reflects that the circuit court has the power to determine whether 1) a “complaint [for a confessed judgment] complies with the requirements of section (a) of [the] Rule” and 2) the “pleadings and papers demonstrate a factual and legal basis for entitlement to a confessed judgment.” Md. Rule 2-611(a). Upon a finding that such requirements are met, “the court shall direct the clerk to enter the judgment.” Md. Rule 2-611(b).

Although no (Continued) 19 The 30 days during which a court retains revisory power over a judgment under CJP § 6- 408 and Maryland Rule 2-535(b) had long expired by the time Roberto moved to vacate the 2011 Judgment on October 11, 2018. The judgment could have been revised solely in the case of fraud, mistake, or irregularity. Md. Rule 2-535(b). As we explain, the trial court did not err in its determination that Roberto failed to demonstrate extrinsic fraud or mistake of the kind that renders enrolled judgments voidable under Maryland Rule 2- 535(b).

A. Fraud 1. Governing Precedents The consternation surrounding the distinction between intrinsic and extrinsic fraud has led some commentators to suggest that it is a “troublesome and unsound” concept that “rest[s] on clouded and confused authorities.” 11 Wright & Miller’s Fed. Prac. & Proc. Civ. §§ 2861, 2868 (3d ed. 2020). Some of this confusion traces to the Supreme Court’s ground-breaking decision in United States v. Throckmorton, 98 U.S. 61 (1878), in which the Court enunciated the Throckmorton rule allowing relief for “extrinsic” fraud collateral to the action but not “intrinsic” fraud related “to the subject matter of the action.” Id. at § 2861. “With the precedents in so confusing a state, some lower courts appl[y] the issues related to personal jurisdiction have been raised, we observe that the court had personal jurisdiction over Roberto, who is a Maryland resident and appears to have been properly served with process.

Chapman, 356 Md. at 436 . 20 Throckmorton rule, others [give] it ‘token recognition,’ and others reject[] it altogether.” Id. Maryland courts have “firmly adhered” to the Supreme Court’s original delineation between intrinsic and extrinsic fraud as announced in Throckmorton. Bland v. Hammond, 177 Md. App. 340, 351 (2007). We next examine the relevant precedent and conclude our analysis with a summary of precepts extrapolated from noteworthy cases to differentiate extrinsic from intrinsic fraud. a.

The Federal Cornerstone: United States v. Throckmorton In Throckmorton, the U.S. district attorney for the District of California sought a decree setting aside and declaring as null and void two decrees: the first by the board of commissioners of private land-claims in California concerning a land grant by the government of Mexico to a Mr. Richardson; and, the second, by the U.S. District Court affirming the commissioners’ decree and Mr. Richardson’s grant. 98 U.S. 61, 62 (1878). The district attorney argued that both decrees were obtained by fraud. Id. The alleged fraud was that, when Mr. Richardson filed his petition before the board of commissioners, he did not have “sufficient evidence of an actual grant or concession to sustain his claim” to the land.

Id. In order to remedy this defect, the district attorney averred, Mr. Richardson “made a visit to Mexico, and obtained from Micheltorena, former political chief of California, his signature . . . to a grant which was falsely and fraudulently antedated, so as to impose on the court the belief that it was made at a time when Micheltorena had power to make such grants in California.” Id. The district attorney also 21 alleged that “in support of this simulated and false document [Mr. Richardson] [] procured and filed therewith the depositions of perjured witnesses.” Id. The Supreme Court refused to vacate the decrees.

The Court acknowledged that fraud can “vitiate[] the most solemn contracts, documents, and even judgments,” but noted that there is also no question that many rights originally founded in fraud become—by lapse of time, by the difficulty of proving the fraud, and by the protection which the law throws around rights once established by formal judicial proceedings in tribunals established by law, according to the methods of the law—no longer open to inquiry in the usual and ordinary methods. Id. at 65 . And, the Court suggested, there “are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy.” Id. 10 Nonetheless, the Court admitted, there is an “exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issue in the case.” Id. In certain circumstances, the Court explained, a new suit can be “sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing,” such as [w]here the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practised on him by his opponent, as by keeping 10 The Court was referring to “interest rei publicae, ut sit finis litium, and nemo debet bis vexari pro una et eadam causa.” Throckmorton, 98 U.S. at 65 .

Respectively, these terms translate to “the general welfare requires an end to litigation” and “let no [person] be twice troubled for the same cause.” See Comment, The Rule Against Civil Actions for Perjury in Administrative Agency Proceedings: A Hobgoblin of Little Minds, 131 U. Pa. L. Rev. 1209 , 1212 (1983). 22 him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side,— these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. Id. 65-66. The Court expounded that in cases in which a court has set aside a judgment, “relief has been granted, on the ground that, by some fraud practised directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court.” Id. at 66.

On the other hand, the Court noted, the “doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed.” Id. In essence, the Court explained, the acts for which a court will “on account of fraud set aside or annul a judgment or decree, between the same parties, rendered by a court of competent jurisdiction, have relation to frauds, extrinsic or collateral, to the matter tried by the first court, and not to a fraud in the matter on which the decree was rendered.” Id. at 68 (emphasis added). The Court further observed: That the mischief of retrying every case in which the judgment or decree rendered on false testimony given by perjured witnesses, or on contracts or documents whose genuineness or validity was in issue, and which are afterwards ascertained to be forged or fraudulent, would be greater, by reason of the endless nature of the strife, than any compensation arising from doing justice in individual cases. 23 Id. at 68-69. Based on these principles, the Court pointed out that Mr. Richardson’s petition was pending in litigation for more than five years before the decree granting him the land became final.

Id at 63. The Court noted that all involved were aware of and would have been scrutinizing any issues with the grant because of the necessity of the grant to support Richardson’s claim. Id. at 63-64. Accordingly, the Court held that, because the genuineness of the land grant from the former political chief was the only question pending before the board of commissioners and the district court for many years, to reopen the judgment would be “to retry, twenty years after the decision of these tribunals, the very matter which they tried, on the ground of fraud in the document on which the decree was made.” Id. at 69.

The Court refused to reopen the judgment, reasoning that such an action could lead to further litigation that would be “endless about the single question of the validity of this document.” Id. Many courts, including the federal courts in the Fourth Circuit, continue to recognize the distinction between intrinsic and extrinsic fraud.11 See Quarles v. Miller, 86 11 Federal Rule 60(b), although similar to Maryland Rule 2-535(b), allows courts to offer relief from enrolled judgments under broader circumstances than Rule 2-535(b). Fed. R. Civ. P. 60(b)(1)-(5); see also Bland v. Hammond, 177 Md. App. 340, 356 (2007) (observing that a “comparison of the grounds provided in Federal Rule 60(b) with those afforded by Maryland Rule 2-535(b) reveals that the revisory power of a Maryland court to vacate an enrolled judgment is significantly narrower than the relief available under Federal Rule 60(b).”).

Federal courts also have the specific power to “set aside a judgment for fraud on the court.” Fed. R. Civ. P. 60(d)(3); see also Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-248 (holding that litigation fraud perpetrated by a corporation and its lawyer constituted fraud on the court because it was a “deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit (Continued) 24 F.3d 55, 57 (4th Cir. 1996); Aetna Cas. & Sur. Co. v. Abbot, 130 F. 2d 40, 43-44 (4th Cir. 1942); Chrysler Corp. v. Superior Dodge, Inc., 83 F.R.D. 179, 186 (D. Md. 1979); c.f. Great Coastal Exp., Inc. v. Int’l Broth. of Teamsters, Chauffeurs,