Kemp-Pontiac-Cadillac, Inc. v. S & M CONSTR. CO., INC.

Moore, J., delivered the opinion of the Court. The appellee, S & M Construction Co., Inc. (S & M), instituted suit against the appellant, Kemp-Pontiac-Cadillac, Inc., upon the corporation’s confessed judgment note. Prior to trial, with leave of court, an “Amended Narr” was filed in which the corporate appellant’s president,. William G. Kemp, was also named a party defendant.

The latter’s individual liability was based upon alleged fraud in providing a false financial statement ⁵¹⁷ which induced S & M to make the loan for which the confessed judgment note was received. Judgment in the amount of $66,500 was entered below against both defendants after a nonjury trial (Shure, C. J., presiding). This appeal seeks to challenge only the judgment against Mr. Kemp, and is based upon a single contention — that upon the evidence adduced, the lender (appellee) could not have relied upon the financial statement which was admittedly false. 1 Appellants are met, however, with a motion to dismiss the appeal, contained in the appellee’s brief, on grounds of noncompliance with Maryland Rule 1028 (Printed Record Extract in Civil Cases). For the reasons stated, we exercise our discretion to grant the motion.

I Record Extract — Applicable Maryland Rules The Maryland Rules pertaining to appeals to this Court (Rules 1000-1099) 2 include provisions for dismissal (a) by the court on its own motion and (b) by the court on motion of any party upon any one of eight grounds specified in Rule 1035, § b. These grounds include: “5. The contents of the printed record extract do not comply with section b. of Rule 1028 (Printed Record Extract in Civil Cases). 7. The style, contents, size, format legibility or method of reproduction of a brief, appendix or printed record extract does not comply with section a. of Rule 1031 (Style and Contents of Brief).” A record extract is not required in criminal cases and was not required in civil cases in appeals to this Court until July ⁵¹⁸ 1, 1975, the effective date of Rule 1028.

This rule is at once precise and comprehensive as to the form and content of the printed extract, the procedure to be followed by the parties in its preparation, and the penalties for its violation — including dismissal of the appeal, § i. 3 The following specifications as to form are mandated in § a: 1) The appellant shall print the record extract either as an appendix to his brief or as a separate volume. (If printed as a separate volume, Rule 1028, § h requires that it be printed in “clear, legible type and on good paper,” 8V2 x 11 inches, 30 copies to be filed with the clerk at the time the appellant’s brief is filed.) If printed as an appendix, the brief should have the inscription, “Appellant’s Brief and Appendix.” 2) The portions printed shall be arranged in the order in which they appear in the record and shall be copied verbatim. 3) Asterisks or other appropriate devices shall be used to indicate omissions in testimony or exhibits. 4) Reference to the pages of the record and transcript shall be made and the date of filing each paper printed shall be given “at the head of the copy.” 5) Whether the extract is printed as an appendix to the brief or bound separately, there must be a Table of Contents (as provided in Rule 1031, Style and Contents of Brief) giving references to: a. The initial pages on direct, cross and redirect examination of each witness, and ⁵¹⁹ b. the initial page of each pleading, exhibit or other paper printed, each document to be identified by a descriptive phrase and also, if an exhibit, by its exhibit number. 6) The pages of the transcript, as reproduced, shall be consecutively renumbered. 7) Any photograph, document or other paper shall be included in all copies of the appendix or printed record extract but may be photographically or mechanically reduced so long as legibility is not impaired. (8) The size, style, format and binding of the appendix or printed record extract shall be the same as those prescribed for a brief by Rule 1031, § a.

Similarly, Rule 1028, § b. dictates the content of printed record extract. It must contain “such parts of the record as may reasonably be necessary for the determination of the questions presented by the appeal.” Specifically it shall include: “(a) The judgment appealed from, together with the opinion or charge of the lower court, if any. (b) So much of the evidence, pleadings or other parts of the record as is material to any question the determination of which depends upon the sufficiency of the evidence, pleadings or other matter contained in the record to sustain any action, ruling, order or judgment of the lower court. (c) Such other parts of the record as may be designated by the parties pursuant to section c. of this Rule.” [By a separate subsection, Rule 1028, § g., provision is made for an agreed statement of undisputed facts which may be included in the printed extract as all or a part of the statement of facts in the appellant’s brief.

If the facts are disputed, or if agreement upon a statement of undisputed ⁵²⁰ facts is not possible, the parties may by stipulation summarize the. testimony of any witnesses or the contents of any exhibits. Such stipulation may be included in the printed extract “in lieu of the testimony and exhibits summarized therein.”] That there shall be early communication between appellant’s counsel and counsel for the appellee in the designation of the parts of the record to be printed, is also clearly mandated. Thus Rule 1028, § c. 1. provides that the parties shall by stipulation agree on the parts of the record to be included, “whenever possible.” This provision imposes on appellant’s counsel the obligation in the first instance to contact appellee’s counsel in order to achieve agreement. 4 If after this undertaking by appellant the parties are unable to agree, the following procedural steps are prescribed by Rule 1028, § c. 2: (a) Appellant is required within 10 days after filing the record in this Court, to deliver to appellee a written statement of the parts of the record he proposes to print. (b) Appellee' is required, within 10 days after that, to deliver to appellant a written statement of any additional parts of the record the appellee desires to be included.

(c) Within 10 days thereafter, appellant may deliver to appellee a statement of any additional parts of the record he proposes to include in view of the parts designated by the appellee. As a curb upon excessive or improper record designations by the appellee, the Rule also provides that appellant may, upon 2 days’ notice, require the appellee to secure the payment of the estimated cost of printing such portions of the record designated by appellee as appellant deems not material to the questions presented. Rule 1028, § d. On the ⁵²¹ other hand, if appellee fails to secure the aforesaid payment or if, for any reason, the printed record extract does not contain a part of the record deemed material by the appellee, the latter may print such portions as an appendix to his brief.

Rule 1028, § e. A statement of the reasons for printing such material must, however, be made and parties and counsel are expressly cautioned that the cost of printing “may be withheld or divided” under Rule 1082, § c. (Awarding of Costs). Finally, appellant may include in an appendix to his reply brief such additional part of the record as he deems material in view of the “matter contained in the appellee’s brief or appendix.” Rule 1028, § f.

In this instance also, a statement of the reasons for its inclusion must be made and the parties and counsel are cautioned that the cost of printing it may be withheld or divided. Severe sanctions for violations of Rule 1028, § a. (Appellant to Print) and § b. (Contents) are provided by Rule 1028, § i.

With respect to both, the prescribed penalties include dismissal of the appeal. For a violation of § a., the court may make “any other appropriate order” including an order for the reprinting of an improperly printed appendix or printed extract, at the expense of counsel responsible for the violation. For a violation of § b., in addition to dismissal, the court may require that additional portions of the record be printed or otherwise furnished or make “any other appropriate order.” These rules are to promote the orderly and effective administration of justice. They are to be read and carefully followed by appellate counsel.

Whether to dismiss the appeal or not in the event of violation of the above rules, rests in the discretion of this Court. As previously indicated, the court may act sua sponte or upon motion of any party. As provided in Rule 1036, a motion to dismiss an appeal may either be filed separately or in appellee’s brief. (Oral argument on a motion to dismiss in advance of argument on the merits is not permitted unless directed by order of this Court, Rule 1037, § c.) If the motion is filed separately, time limitations are prescribed.

Thus, on the grounds relied upon in the instant case, had appellee’s motion been separately ⁵²² filed, the time limitation would have been 10 days from the filing of appellant’s brief