HEK Platforms & Hoists, Inc. v. Nationsbank

ON MOTION FOR RECONSIDERATION MARVIN H. SMITH, Judge, Retired, Specially Assigned. HEK Platforms and Hoists, Inc. (“HEK”) appeals from a judgment of the Circuit Court for Baltimore County adverse to its claims against ORIX Credit Alliance, Inc. (“ORIX”). We shall affirm the judgment of the trial court — and resist the ⁹² temptation to dismiss the appeal because of a totally inadequate record extract. We explain.

FACTS HEK manufactures and markets scaffolding equipment for use by the construction industry. While it has an office in Baltimore County, its principal place of business is in Georgia. On May 10, 1994, HEK entered into a sales contract (“the 1994 transaction”) with the Proceres Companies, Inc. (“Pro-ceres”), which was headquartered in Howard County, Maryland. The contract was memorialized by a “Conditional Sales Contract Note,” which reflected that Proceres agreed to pay HEK or any assignee of HEK $230,112.00 in 36 monthly installments in exchange for seven “platforms” and “all attachments and accessories thereto.” By the terms of the note, HEK or its assignee was to retain title to the equipment until the note was paid in full.

Proceres executed a guaranty of the note, as did Proceres’s president, J. Wickham Zimmerman, and vice president, James V. Blimmel. The purchase by Proceres was, financed by ORIX. Thus, when Proceres executed the “Conditional Sales Contract Note” payable to HEK, HEK simultaneously executed an “Assignment” of the note to ORIX. Under the terms of the “Assignment,” ORIX was to pay $200,000.00 to HEK upon delivery of the scaffolding equipment to Proceres.

HEK purported to deliver the equipment to Proceres on May 23, 1994. On June 1, 1994, in order to perfect its purchase money security interest in the equipment, ORIX prepared financing statements and drafted checks for filing with the Maryland State Department of Assessments and Taxation (“SDAT”) and the Clerk of the Circuit Court for Howard County. The financing statement filed with SDAT was stamped “RECORDED” on June 1, 1994. The statement filed with the Circuit Court for Howard County, however, was not date-stamped until June 17,1994.

Sometime after May 23, 1994, Proceres informed both HEK and ORIX that some of the equipment that had been delivered ⁹³ was damaged, and that HEK had failed to deliver 300 of the “mast bolts” that were necessary to the construction of the scaffolding. ORIX refused to pay HEK the $200,000.00 due on the “Assignment” until the situation was rectified, and HEK agreed to repair or replace the damaged parts and to deliver the 300 bolts. Although Proceres was able to construct some of the scaffolding immediately upon the delivery of May 23, 1994, all of the scaffolding could not be constructed until late June or early July, when the additional bolts were delivered and the damaged parts were repaired or replaced. ORIX paid HEK for the “Assignment” by check dated July 5, 1994.

In October and November of 1996, Proceres failed to make payments to ORIX. ORIX therefore believed it had the right to “repossess” the scaffolding equipment. Rather than do so itself, however, ORIX, through its Baltimore branch manager, John Frank, contacted HEK’s sales manager, Dennis Morgan, and later HEK’s president, Eric Schmidt. The men negotiated a deal (“the 1996 transaction”) whereby HEK was to pay ORIX $73,926.00 — the remaining amount owed to ORIX by Proceres — in exchange for ORIX’s right to the equipment.

In a November 19,1996 letter to Frank, Schmidt summarized the agreement as follows: I would like to confirm the following information that has been related to me through communications between ORIX Credit Alliance and HEK Platforms & Hoists regarding reassignment of the May 10,1994, Conditional Sale Contract Note from The Proceres Companies, Inc. (Buyer) to HEK Platforms & Hoists, Inc. (Seller). This contract note had been assigned to ORIX Credit Alliance, Inc., on May 10, 1994. 1. ORIX Credit Alliance is reassigning the contract note to HEK Platforms & Hoists at a discount rate because the note is in default. 2. The Proceres Companies have been notified of the default status of the note. ⁹⁴ 3.

The Proceres Companies have failed to correct the default. Therefore, the note has been accelerated, the balance is due and payable, and the equipment is subject to repossession by the terms of the agreement. 4. The Proceres Companies have communicated to ORIX Credit Alliance that ORIX should come and get the equipment as it is on the wall 75 ft in the air. 5. ORIX Credit Alliance has a secured interest in the equipment by the terms of the contract note.

HEK wed the $73,926.00 to ORIX on November 22, 1996. On Sunday, November 24, 1996, HEK work crews went to Proceres’s job site in Tyson’s Corner, Virginia and retrieved the scaffolding equipment. The work crews immediately transported the equipment to HEK’s office in Atlanta, Georgia. On Monday, November 25, however, counsel for HEK received a phone call and, later, a telefaxed letter from counsel for Nationsbank.

Counsel for Nationsbank asserted that Na-tionsbank had “a blanket lien on all of Proceres’ assets,” that ORIX had failed to properly perfect its purchase money security interest in the scaffolding equipment in question, and that Nationsbank therefore had the superior claim. Counsel for Nationsbank asserted that Nationsbank had a buyer for the equipment and demanded that HEK return it immediately- That same day, HEK’s president, Schmidt, received, via Federal Express, a writing from ORIX’s Baltimore branch manager, Frank, that memorialized the transaction that had occurred the previous week. The writing, which was captioned “Assignment,” consisted of a preprinted form dated November 22,1996 and signed by Frank. It stated: THE UNDERSIGNED, ORIX CREDIT ALLIANCE, INC., Assignor, hereby assigns to HEK Platforms and Hoists, Inc. (hereinafter called “Assignee”), without recourse and without any representations and warranties, express, implied, or statutory, all of its right, title and interest in and to the following contract or agreement: ⁹⁵ CONDITIONAL SALE CONTRACT NOTE, dated May 10, 1994 with HEK Platforms & Hoists, Inc. As Seller and The Proceres Companies, Incorporated As Buyer.

It is a condition of this Assignment, and Assignee by accepting this Assignment hereby agrees that Assignor and its respective successors shall be and are hereby unconditionally released by Assignee, its successors and assigns from any and all claims, liabilities and obligations arising out of and/or in connection with the above described contract or agreement. Schmidt contacted Frank about Nationsbank’s claim, and Frank told him that “there must be some mistake” and that he “would have to check into it.” Subsequently, Proceres sent a letter to ORIX and to its other creditors, expressing its apparent belief that “Nationsbank ... has a first priority blanket lien on all assets of [Proceres].” Nationsbank, meanwhile, continued to press for the return of the scaffolding equipment. In February of 1997, before Frank or anyone else connected with ORIX responded to Schmidt’s concerns regarding the superiority of ORIX’s purchase money security interest, HEK filed suit in the Circuit Court for Baltimore County against Nationsbank and ORIX. HEK sought, inter alia., —a declaratory judgment that Orix’s purchase money security interest in the equipment was superior to Nations-bank’s blanket lien, —in the event that Nationsbank had the superior interest, a determination that ORIX breached the warranty of title in the “assignment and sale” of the scaffolding equipment to HEK, —in the event that Nationsbank had the superior interest, a determination that ORIX breached the “assignment and sale” contract with HEK “by selling goods that were not free of any such security interest,” and —in the event that Nationsbank had the superior interest, a determination that ORIX negligently misrepresented that it had the superior interest. ⁹⁶ In March of 1997, HEK amended its complaint.

To the counts set forth in the original complaint, the amended complaint added, inter alia, a count against ORIX for fraud. 1 In April of 1997, before trial commenced, HEK transported the scaffolding equipment from Atlanta to Maryland, where it was to be sold at auction by Nationsbank. Just prior to the auction, however, HEK purchased the equipment from Nati-onsbank for $75,000.00 and agreed to dismiss Nationsbank from the case. HEK did file a document on April 16, 1999, by which it dismissed, with prejudice, Nationsbank as a defendant. 2 HEK then transported the equipment back to Atlanta and sold it for $140,000.00. A court trial took place on March 3 and 4, 1998.

Despite what it had urged in its amended complaint, HEK posited that Nationsbank, rather than ORIX, had the superior security interest in the equipment and that HEK was therefore entitled to recover against ORIX. At the close of HEK’s case in chief, the trial court granted ORIX’s motion for judgment as to the counts alleging fraud and negligent misrepresentation. At the close of the entire case, the court entered judgment in favor of ORIX as to the remaining counts as well. The court determined that ORIX, rather than Nationsbank, had the ⁹⁷ superior security interest.

Although it was not necessary, under the amended complaint, for the court to make any further findings, the court added that the breach of warranty of title count was not supported by Natíonsbank’s claim that it had a superior lien, and that the breach of contract count must fail because the count assumed that there had been a sale of equipment when what had really occurred was a reassignment of contract rights. HEK timely moved to revise the judgment, but the court denied the motion without comment. ISSUES In this appeal, HEK argues, in essence, that: I. The trial court erred in finding that ORIX had a security interest superior to that of Nationsbank, II. The trial court erred in granting judgment in favor of ORIX as to negligent misrepresentation, III.

The trial court erred in determining that the 1996 transaction was an assignment of chattel paper rather than a sale of goods, and in determining that the breach of contract count could not stand if the transaction was an assignment, and IV. The trial court erred in determining that Nations-bank’s claim of a superior interest could not support the breach of warranty of title count. We find no merit in any of these arguments and affirm the judgment of the trial court. Because HEK’s arguments as to negligent misrepresentation and breach of contract are premised on the assumption that Nationsbank held the superior security interest, and because we affirm the trial court’s determination that the superior interest was held by ORIX, we need not and shall not address HEK’s second and third arguments.

We shall address HEK’s contention that the 1996 transaction was a contract of sale rather than an assignment of chattel paper in our discussion as to the breach of warranty of title claim. ⁹⁸ DISCUSSION RECORD EXTRACT The record extract supplied in this case is woefully deficient. Maryland Rule 8-501(c) states, in pertinent part, that “[t]he record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal.... ” It will quickly be perceived by reference to the questions presented that for a determination of the issues presented we need a substantial part of that which was before the trial judge. Nevertheless, the record extract in this case contains no testimony. It likewise contains none of the pleadings.

It contains no docket entries. It does not contain the judgment appealed from except on the motion to exercise revisory power over the judgment. The responsibility of preparing a proper record extract rests squarely on the appellant. See Md. Rule 8-501(a).

In light of HEK’s failure to shoulder its responsibility, we are sorely tempted to dismiss its appeal. 3 Dismissal of this appeal would be well within the proper exercise of this Court’s discretion. Prior to July 1, 1993, section (l) of Rule 8-501 authorized appellate courts to “dismiss the appeal or make any other appropriate order” in response to an appellant’s failure to file a proper record extract. Both this Court and the Court of Appeals “repeatedly dismissed appeals where an appellant’s record extract or appendix was patently insufficient for a determination of the questions raised.” Prime Contractors, Inc. v. M. & C.C. of Baltimore, 241 Md. 55, 57 , 215 A.2d 214, 216 (1965). We made clear that we were “not required to ferret out from the record those materials which counsel should have printed in the [extract].” Eldwick Homes Assoc. v. Pitt, 36 Md.App. 211, 212 , 373 A.2d 957, 957 , cert. denied, 281 Md. 736 (1977). ⁹⁹ Effective July 1, 1993, the Court of Appeals transferred section (l) of Rule 8-501 to section (m), and softened it to read: Ordinarily, an appeal will not be dismissed for failure to file a record extract in compliance with this Rule.

If a record extract is not filed within the time prescribed by Rule 8-502, or on its face fails to comply with this Rule, the appellate court may direct the filing of a proper record extract within a specified time and, subject to Rule 8-607, may require a non-complying attorney or unrepresented party to advance all or part of the cost of printing the extract. The appellate court may dismiss the appeal for non-compliance with an order entered under this section[ 4 ] See 20 Md. Reg. 665 , 698-99 (Issue 8, April 16, 1993) (emphasis added). The Court added to section (c), which sets forth the required contents of a record extract, the sentence: “The fact that a part of the record is not included in the record extract shall not preclude a party or the appellate court from considering it.” Id. These changes were expressly “directed at reducing the voluminousness of record extracts and at alleviating problems caused by ... over inclusion ... of material in record extracts.” 19 Md. Reg. 2249 , 2266 (Issue 26, December 23, 1992) (One Hundred Twenty-Second Report of the Standing Committee on Rules of Practice and Procedure).

In short, the Court hoped to deter over-inclusion of materials by lessening the chances of dismissal for under-inclusion. Nothing in Rule 8-501(c) or (m), as revised, suggests that an appellate court is no longer entitled to dismiss an appeal for under-inclusion where the omissions are egregious, however. 5 Indeed, min ¹⁰¹ utes of the Court of Appeals’ Standing Committee on Rules of Practice and Procedure — which recommended the 1998 changes to Rule 8-501 to the Court — reflect that the Committee believed that an appeal could still be dismissed if the omission of materials was the result of bad faith or if the appellant could not have reasonably believed that the omitted materials were unnecessary. Moreover, Rule 8-602(a)(8) continues to provide, as it provided prior to the 1993 revision of Rule 8-501, that “[o]n motion of on its own initiative, the Court may dismiss an appeal [if] ... the ... content ... of a ... record extract does not comply with Rule ... 8-501.... ” We are convinced that it was not reasonable for HEK to believe that it was unnecessary to include in the record extract those portions of the trial transcript concerning facts in dispute and the decision of the trial judge. Nor could HEK have reasonably believed that it was unnecessary to include a copy of the amended complaint.

We are satisfied, in light of counsel’s comments at oral argument, that the under-inclusion by HEK was not the result of bad faith, however. We recognize, moreover, that the under-inclusion might have been rectified had counsel for ORIX either informed HEK that the omitted items should be included in the extract or unilaterally included the items in the appendix to ORIX’s brief. See Md. Rule 8-501(a) and (e). Likewise, the under-inclusion might have been rectified by order of this Court had this Court had the luxury of reviewing the briefs and record extract sufficiently in advance of argument.

See Md. Rule 8-501(m). HEK has provided numerous citations to the transcript. Thus, while this Court must shoulder the burden of reproducing and distributing to the judges the relevant transcript pages, the relevant pages can, at least, be readily located. We shall therefore entertain the appeal despite the violation of Rule 8-501 (c).

We caution the appellate bar that we may not be so accommodating in the event of future violations. ¹⁰² SUPERIOR SECURITY INTEREST HEK sought, in the amended complaint, a declaratory judgment that ORIX’s security interest in the scaffolding equipment was superior to that of Nationsbank. All of the other counts in the amended complaint were contingent upon a finding by the trial court that Nationsbank’s interest was superior. HEK nevertheless dismissed Nationsbank from the case prior to trial. Although HEK did not amend the amended complaint, it then argued at trial that Nationsbank had the superior interest.

HEK is now in the awkward position of appealing the trial court’s determination that the security interest of ORIX was superior — the determination that, with its amended complaint, HEK requested that the trial court make. Thus, for the purpose, we hope, of ending this controversy, we shall assume arguendo that HEK is entitled to appeal from the exact determination that it sought in its amended complaint, and shall conclude that the determination was proper. We do not consider whether HEK may be estopped by its own pleading from arguing as it does. Cf.

Cloverfields Improvement Assoc., Inc. v. Seabreeze Properties, Inc., 280 Md. 382, 403-04 , 374 A.2d 906 , 907-09 (1977) (discussing binding nature of judicial admissions in per curiam denial of motion to reconsider opinion reported at 280 Md. 382 , 374 A.2d 906 ). At the time of the transaction, § 9-401 of the Commercial Law article provided, in pertinent part: (1) The proper place to file in order to perfect a security interest is as follows: (c) ... in the office of the Maryland State Department of Assessments and Taxation and in addition, if the debtor has a place of business in only one county of this State, also in the office of the clerk of the circuit court of such county, or, if the debtor has no place of business in this State, but resides in the State, also in the office of the clerk of the circuit court of the county in which he resides ... ¹⁰³ By 1994 Laws of Maryland, chapter 720, the General Assembly amended § 9 — 401(l)(c) to require filing only with SDAT. See Md.Code (1975, 1997 Repl.VoL, 1999 Cum.Supp.), § 9-401(l)(c) of the Com. Law I Art. By its own terms, chapter 720 was to “take effect July 1, 1995,” and “[i]t is a basic rule of statutory construction that ‘[a] statute is presumed to have prospective effect only unless there is a clear legislative intent that the statute operate retroactively.’ ” Scroggins v. Dahne, 335 Md. 688, 694 , 645 A.2d 1160, 1163 (1994) (citation omitted).

Thus, the parties do not dispute that, in order to perfect its purchase money security interest, ORIX was required to file with both SDAT and in Howard County, where Proceres had its offices. See generally Code (1975, 1997 RepLVoL), § 9-107(b) of the Com. Law I Art. (indicating that a purchase money security interest may be “[t]aken by a person who by making advances ... gives value to enable the debtor to acquire rights in or the use of collateral if such value is in fact so used”). HEK contends that the scaffolding equipment was delivered to Proceres on May 23, 1994, and that, in accordance with Code (1975, 1997 RepLVoL), § 9-312(4) of the Com.

Law I Art., ORIX had 20 days from that date to perfect its purchase money security interest. HEK concedes that ORIX filed the appropriate documents with SDAT on June 1, 1994— well within the 20-day limit — but argues that the Howard County filing did not take place until June 17 and thus was untimely. HEK argues that the trial court’s determination that ORIX had the superior security interest was therefore clearly erroneous. HEK acknowledges that, although the trial court did not explain the basis for its determination, the court must have determined either that ORIX did file its financing statement and filing fee in Howard County within 20 days of May 23, 1994, or that delivery did not occur on May 23 but at some later point.

Because we find that the court could have proper ¹⁰⁴ ly reached either conclusion, we reject HEK’s contention that the court’s determination was erroneous. —Filing within 20 Days of May 23, 1994— There is no dispute that the financing statement and check for the Howard County filing were not date stamped by the Clerk of the Court until June 17, 1994. That date, however, is not necessarily the date of filing. Section 9-403(1) of the Commercial Law article provides: “Presentation for filing of a financing statement and tender of the filing fee or acceptance of the statement by the filing officer constitutes filing under this title.” Code (1975, 1997 RepLVol.), § 9-403(1) of the Com. Law I Art. ORIX presented no direct evidence as to when it actually presented the financing statement and tendered the check.

There was circumstantial evidence, however, that this occurred on or about June 1,1994. The checks that accompanied the financing statements filed with SDAT and in Howard County were consecutively numbered and were both dated June 1, 1994. ORIX’s Baltimore branch manager, John Frank, testified at trial that the filings were handled pursuant to standard procedures, which meant: We would have cut the checks, attached them with the respective financing statement and mailed them to the appropriate authority, in this case, the Department of Assessments and Taxation and the Clerk of the Circuit Court for Howard County. The statement and check sent to SDAT were stamped “received” on June 1, 1994.

Frank indicated that he did not know the cause of the delay between the June 1 mailing and the June 17 date-stamping in Howard County, but indicated it was