Kamara v. Edison Bros. Apparel Stores, Inc.

JAMES R. EYLER, Judge. The sole issue presented by this appeal is whether the Circuit Court for Prince George’s County erred in striking a notice of appeal on the ground that it had been untimely filed. Finding no error, we shall affirm the judgment of the circuit court. In doing so, we hold that Rule 1-203(c), providing additional time for service by mail, does not apply to the period for noting an appeal under Rule 8-202(a).

Factual Background On November 5, 1997, appellant, Zainab Kamara, on behalf of herself and her minor son, Abdul Kamara, filed a complaint ³³⁵ in the Circuit Court for Prince George’s County against various defendants, including appellees, Lerner Corporation, Wayne Quick, Otha Smith, and Yolanda Chase. 1 The complaint contained several counts, in which appellants alleged negligence and various intentional torts. To resolve the issue before us, it is necessary only to set forth a portion of the procedural history of the case. On January 13, 1999, summary judgment was entered in favor of all defendants, including appellees. On January 15, 1999, appellant filed a motion to alter or amend the judgment.

On February 3, 1999, the court denied that motion. On March 8, 1999, appellants filed a notice of appeal to this Court. On April 2,1999, pursuant to Rule 2-535, appellants filed a motion to revise judgment, requesting that the order entered February 3, 1999, denying appellants’ motion to alter or amend judgment, be vacated. The motion was based on alleged irregularity, because the clerk’s office failed to send a copy of the February 3, 1999 order to counsel for the parties, as required by Rule 1-324.

Appellees filed motions to strike the March 8 notice of appeal, and on May 4, 1999, the court granted the motions. On May 28, 1999, appellant filed a second notice of appeal, which brings the case before us. The question before us is whether the circuit court erred in striking the notice of appeal filed on March 8, 1999. Discussion Appellants argue that Rules 8-202 and 1-203(c), when read together, allot a party thirty-three days to file an appeal from a final judgment.

See Md. Rules 8-202 and 1-203(c)(2000). The order denying appellant’s motion to revise judgment was entered on February 3, 1999. Appellants assert that the last day to file a timely appeal was March 8, 1999, thirty-three days later. We disagree. ³³⁶ Rule 8-202 provides the time frame in which a notice of appeal must be filed.

Rule 8-202(a) states: Generally. Except as otherwise provided in this Rule or by law, the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken. In this Rule, “judgment” includes a verdict or decision of a circuit court to which issues have been sent from an Orphans’ Court. Md. Rule 8-202(a)(emphasis added).

Rule 8-202(c) outlines when an appeal must be filed if a party files a ten-day motion under Rules 2-532, 2-533, or 2-534. It states: Civil action—Post judgment motions. In a civil action, when a timely motion is filed pursuant to Rule 2-532, 2-533, or 2-534, the notice of appeal shall be filed within 30 days after entry of (1) a notice of withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2-532 or 2-534. A notice of appeal filed before the withdrawal or disposition of any of these motions does not deprive the trial court of jurisdiction to dispose of the motion.

Md. Rule 8-202(c)(emphasis added). It is not disputed that appellant filed a motion to alter or amend judgment under Rule 2-534 within ten days of the entry of judgment, thus extending the time for appeal until 30 days after the court ruled on the motion to alter or amend, which occurred on February 3, 1999. See Stephenson v. Goins, 99 Md.App. 220, 225 , 636 A.2d 481 (1994)(citing Unnamed Attorney v. Attorney Grievance Com., 303 Md. 473, 486 , 494 A.2d 940 (1985), rev’d on other grounds by 313 Md. 357 , 545 A.2d 685 (1988)). Rule 8-202 specifically uses the word entry.

Since action is not required to be taken after service, Rule 1-203(c) does not apply. Rule 1-203(c) states: Additional time after service by mail. Whenever a party has the right or is required to do some act