Leese v. Department of Labor, Licensing & Regulation

EYLER, Judge. We have been called upon to decide the issue of appealability on many occasions, and this case presents yet another variation of the same issue: the effect of a trial court’s order granting a motion to revise a judgment executed before, but docketed after, a notice of appeal is filed. Facts It is not necessary to recount the underlying facts in detail because, in large part, they are irrelevant to the issue presented. After being discharged from her employment, appellant, Esther Leese, applied for unemployment benefits.

After unsuccessfully pursuing administrative appeals, appellant filed a petition for judicial review in the Circuit Court for Baltimore City from an adverse determination by the Department of Labor, Licensing and Regulation, appellee. The trial court affirmed the administrative determination by order dated January 25, 1995 and filed on January 26, 1995. Appellant filed a motion for reconsideration on February 3, 1995, within ten days of the entry of the order, in accordance with Rule 2- ⁴⁴⁴ 534. The trial court denied the motion by order dated April 11, 1995 and filed on April 13, 1995.

Appellant then filed a second motion on April 24, 1995, captioned as a “Motion to Reconsider Appellant’s Original Motion For Reconsideration.” The second motion was filed within ten days after entry of the order denying the first motion and purported to be another motion under Rule 2-534. In an order dated May 4,1995, the trial court granted appellant’s second motion to reconsider, reversing the administrative agency’s determination. This order was not docketed until May 31,1995. In the interim, on May 11, 1995, appellant, apparently unaware of the execution of the May 4 order, noted an appeal to this Court.

Question Presented Appellant presents three questions, but in essence, the sole question before us is the effect of the order dated May 4 and docketed on May 31,1995. Discussion Appellant’s ultimate objective is to protect the order dated May 4, an order that appellee has refused to recognize. Appellee contends that the order is a nullity because it had no effect until docketed and its docketing on May 31 did not make it effective because the trial court had no jurisdiction at that time, having lost it when the appeal was noted. Appellee, citing Falcinelli v. Cardascia, 339 Md. 414, 430 , 663 A.2d 1256 (1995), contends that the final judgment was the judgment entered on April 13, 1995, and that the second motion for reconsideration, even though filed within ten days subsequent to the denial of the first motion, did not extend the time for appeal.

Appellant argues that her notice of appeal filed on May 11 was premature, asserting that the second motion extended the time for appeal and, relying on Rule 8-202(c), asserts that the trial court retained jurisdiction to grant appellant’s second ⁴⁴⁵ motion for reconsideration. 1 Appellant concludes that the May 31 judgment is final and binding on appellee because appellee failed to note a cross-appeal. Alternatively, appellant argues that the trial court retained authority to revise the judgment based upon general principles of law and equity. We first point out that appellant’s second motion did not extend the appeal time pursuant to Rule 8-202(c). To interpret the rule in that manner would permit a party to extend the time for appeal ad infinitum based on the filing of successive motions within ten days after denial of the immediately preceding motion.

Regardless of how appellant captioned the April 24 motion, the second motion for reconsideration was effectively a motion pursuant to Rule 2-535 and not within the ambit of Rule 8-2Q2(c). See Pickett v. Noba, Inc., 114 Md.App. 552 , 691 A.2d 268 (1997). Even though the motion is treated as one made under Rule 2-535, the order dated May 4 is not void, as urged by appellee. Appellee fails to take into account that the order in question was executed prior to the filing of the notice of appeal; consequently, the authorities cited are not on point.

In Unnamed Attorney v. Attorney