G-C Partnership v. Schaefer

PER CURIAM. This day we granted certiorari in the above matter. We now summarily vacate the judgment of the Court of Special Appeals, rendered with an unreported opinion, and we direct that the appeal be dismissed for want of a final judgment. The petitioners, plaintiffs in the Circuit Court for Montgomery County, are G-C Partnership and Martha B. Gudelsky.

The respondents, defendants in the circuit court, are Louis M. Schaefer, David G. Strohminger, and Paul F. Charlebois. The action was for breach of a guaranty agreement that also contained a provision under which the respondents-guarantors agreed to reimburse the petitioners “for all legal and other expenses paid or incurred in enforcing the Guaranty.” Petitioners sought damages measured by preference payments and by investment loss. As a result of an affirmance in part and a remand in part by the Court of Special Appeals in a prior appeal and as a result of a circuit court hearing on June ⁴⁸⁷ 19, 1998, on cross-motions for summary judgment, it had been determined that the petitioners were entitled to damages based on preference payments, but not to damages based on investment loss. 1 The parties then filed ten day motions which were denied on August 10, 1998, and the petitioners noted an appeal on August 25. Months after the order for appeal had been entered the circuit court held a hearing on the issue of counsel fees.

By a written order dated February 22, 1999, that was filed and docketed on March 15, 1999, the circuit court entered judgment in favor of the petitioners against the respondents in the amount of $478,611.49 “for damages plus $167,514.00 for attorney’s fees,” plus costs. That same day the judgment was indexed and recorded. On April 14, 1999, the petitioners noted a “precautionary” appeal. The appeal based on the order of appeal of April 14, 1999, is pending as a separate appeal in the Court of Special Appeals. 2 In the appellate proceedings that resulted from the 1998 order for appeal, the Court of Special Appeals, with one judge dissenting, denied the respondents’ motion to dismiss the appeal for lack of a final judgment.

That court affirmed the Circuit Court for Montgomery County. The petitioners then applied to this Court for certiorari which we have today issued solely for the purpose of addressing appealability. The majority in the Court of Special Appeals recognized that “[ajttorney’s fees pursuant to a contractual provision are ‘part of [the prevailing party’s] damage claim,’ ” citing Mattvidi Associates Ltd. Partnership v. NationsBank of Virginia, N.A., 100 Md.App. 71 , 78 n. 1, 639 A.2d 228 , 231-32 n. 1, cert. denied, 336 Md. 277 , 647 A.2d 1216 (1994) (second alteration in original). Nevertheless, the Court of Special Appeals conclud ⁴⁸⁸ ed that the defect could be cured by that court’s exercise of discretion under