FARRAGUT VILLAGE CONDOMINIUM ASSOCIATION v. Bowling

CHARLES E. MOYLAN, Jr., J, Retired, Specially Assigned. The appellant is Farragut Village Condominium Association Section III. The appellee, Jean Ann Bowling, has been an owner of a unit within the condominium complex since 1973. Aggrieved at the alleged failure of Bowling to pay her monthly assessment fees since July of 2000, the Condominium, on November 1, 2004, sent Bowling a Notice of Intent to Create a Condominium Lien on her unit.

Bowling’s counterattack of November 29, 2004, is the subject matter of this appeal. On that day, Bowling filed in the Circuit Court for Anne Arundel County a Complaint to Determine Probable Cause for the Establishment of a Lien against her. She also filed an extensive counterclaim, alleging 1) a breach of contract; 2) the conversion of insurance proceeds; 3) disparagement of property and interference with a business relationship; and 4) fraud, misrepresentation, and bad faith. The Condominium did not make timely answer to the complaint.

The Order of Default Accordingly, on February 1, 2005, Bowling requested an Order of Default, pursuant to Maryland Rule 2-613(b). Judge Paul A. Hackner entered an Order of Default on February 11, 2005. Rule 2-613(b) provides, in pertinent part: (b) Order of default. If the time for pleading has expired and a defendant has failed to plead as provided by ³⁷⁸ these rules, the court, on written request of the plaintiff, shall enter an order of default.

(Emphasis supplied). The Motion to Vacate the Order of Default The Condominium was given proper notice of the Order of Default by the clerk’s office pursuant to Rule 2-613(c). The Condominium then had 30 days within which to move to vacate the order. Subsection (d) covers not only the timing of such a motion to vacate but also the required contents of such a motion.

(d) Motion by defendant. The defendant may move to vacate the order of default within 30 days after its entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim. (Emphasis supplied).

On March 8, 2005, within the prescribed 30-day period, the Condominium filed a Motion to Vacate Entry of Order by Default. On March 18 Bowling filed an Opposition to Motion to Vacate, and on March 28 the Condominium filed a Response to Bowling’s Opposition. On May 5, 2005, Judge Paul G. Goetzke passed an Order denying the Condominium’s Motion to Vacate the Order of Default. When Is a Default Judgment Final?

The Condominium argues strenuously that both prongs of Rule 2-613(d) were satisfied. Bowling argues, equally strenuously, that Rule 2-613(d) was not satisfied, or at least that Judge Goetzke had it within his discretion so to find. At this point, however, we find, nostra sponte and without any assistance from appellant or appellee, that it is unnecessary for us to consider the adequacy of the Condominium’s Motion to Vacate. The subsequent events make clear that we are dealing with a premature appeal from a non-appealable interlocutory order.

On May 13, the Condominium filed a motion to Strike Improper Service and/or In the Alternative a Motion to Re ³⁷⁹ consider and a Motion for New Trial. Bowling filed an Opposition to the Condominium’s alternative motions, and, on June 3, 2005, Judge Goetzke denied the Condominium’s motion. As part of that same Order, a “Judgment by Default” (obviously as to liability only, notwithstanding the grandiose sweep of that label) was entered against the Condominium, and the court further ordered “that the above-captioned case shall be scheduled for a hearing on damages only before any judge.” Four days later, on June 10, 2005, the Condominium filed its notice of appeal. This appeal was taken before the hearing on damages ordered by Judge Goetzke could even be scheduled, let alone conducted.

This ostensible appeal is, therefore, from an interlocutory order, not yet ripe lor appellate review. Niemeyer and Schuett, Maryland Rules Commentary, Rule 2-613, p. 474, points out that a default judgment is not appealable until the question of “relief is adjudicated” and made part of the final judgment. No order or proceeding under this rule is appealable until entry of judgment. The order for default is not a judgment and is not appealable.

It is a determination of liability. Only when the relief is adjudicated and entered as a judgment does