LOVERO v. Da Silva

WOODWARD, J. Appellant, Gaetano Lovero, asks this Court to decide whether the Circuit Court for Dorchester County erred or abused its discretion in determining the amount and duration of alimony awarded to appellee, Joelma Da Silva. We are precluded from deciding that issue, however, because Lovero did not file a timely notice of appeal from the circuit court’s judgment. Accordingly, we shall dismiss this appeal for lack of jurisdiction. BACKGROUND The Circuit Court for Dorchester County granted Lovero a Judgment of Absolute Divorce from Da Silva on July 29, 2009, and the clerk of the court entered the judgment on the docket on July 31, 2009.

In that judgment, the court ordered, inter alia, Lovero to pay indefinite alimony of $300.00 per month to Da Silva. On August 28, 2009, a Notice of Appeal was delivered to the clerk of the circuit court. The Notice of Appeal states, in its entirety: ⁴³⁷ NOTICE OF APPEAL GAETANO LOVERO, Appellant, by and through the Law Offices of Ronald C. Brigerman, Jr., LLC and Ronald C. Brigerman, Jr., his attorney, files this Notice of Appeal relative to the Order of this Court, dated July 29, 2009. A copy of the said Order is attached hereto.

Respectfully submitted on this 28th day of August, 2009. /s/_ Ronald C. Brigerman, Jr. Law Offices of Ronald C. Brigerman, Jr., LLC 319 High Street, Suite 200 P.O. Box 442 Cambridge, MD 21613 (410) 901-9998 Attorney for Appellant The Notice of Appeal did not include a certificate of service or an admission or waiver of service, as is required by Maryland Rule 1-323. Nevertheless, the docket entries for this case indicate that the Notice of Appeal was filed on August 28, 2009. Lovero also did not serve a copy of the Notice of Appeal upon the attorney of record for Da Silva. On September 4, 2009, Lovero filed an Amended Notice of Appeal with the clerk of the circuit court.

The Amended Notice of Appeal states, in its entirety: AMENDED NOTICE OF APPEAL GAETANO LOVERO, Plaintiff, by and through the Law Offices of Ronald C. Brigerman, Jr., LLC and Ronald C. Brigerman, Jr., his attorney, files this Notice of Appeal relative to the Order of this Court, dated July 29, 2009. A copy of the said Order is attached hereto. /s/--- Ronald C. Brigerman, Jr. Law Offices of Ronald C. Brigerman, Jr., ⁴³⁸ LLC 319 High Street, Suite 200 P.O. Box 442 Cambridge, MD 21613 (410) 901-9998 Attorney for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Amended Notice of Appeal was mailed to Melissa R. Kilmer, Esq., Legal Aid Bureau, Inc., Ill High Street, Salisbury, MD 21801 on this 4th day of September, 2009. /a/_ Ronald C. Brigerman, Jr. Attorney for Plaintiff Counsel for Da Silva received a copy of the Amended Notice of Appeal on September 8, 2009. Also on September 8, 2009, the clerk’s office entered both the Notice of Appeal and the Amended Notice of Appeal on the docket. 1 On September 14, 2009, Da Silva filed in the circuit court a motion to strike Lovero’s notices of appeal pursuant to Maryland Rule 8-203(a)(l), in which motion she argued that Lovero did not file a notice of appeal within thirty days after entry of the Judgment of Absolute Divorce. Lovero filed a response to Da Silva’s motion on September 28, 2009, arguing that neither the Maryland Rules nor Maryland case law provided a basis for striking the appeal.

On September 30, 2009, the circuit ⁴³⁹ court denied Da Silva’s motion to strike without any explanation. Thereafter, on December 11, 2009, Da Silva filed in this Court a motion to dismiss Lovero’s appeal under Maryland Rule 8-602(a)(3). 2 Lovero filed an answer to the motion on January 5, 2010. 3 By order dated January 7, 2010, this Court denied the motion to dismiss, without prejudice to Da Silva’s right to seek the same relief in her brief. In a footnote to that order, this Court recognized the novelty of the question presented in Da Silva’s motion: The motion essentially contends that a timely filed appeal is ineffective ab initio if it lacks proof of service and/or that the appeal should be stricken. The parties’ respective memoranda do not address the effect, if any, of Md. Rule 8-201(a) (“The clerk shall enter the notice on the docket.”) upon Md. Rule 1-323 (“The clerk shall not accept ... [.]”).

No known reported Maryland case appears to have addressed the precise issue being raised here. Should the consequence of a clerk’s allegedly erroneous acceptance of a timely but technically defective notice of appeal be analogous to Frank v. Storer, 308 Md. 194, 207 [ 517 A.2d 1098 ] (1986) (“Where, as here, the clerk does not enforce the provision but accepts the instrument for record, the validity of the instrument is unaffected and its recordation operates as constructive notice.”)? Resolution of this apparent issue of first impression is best determined by a panel of this Court after consideration of the parties’ respective briefs and arguments. DISCUSSION In her brief, Da Silva renews her motion to dismiss pursu ⁴⁴⁰ ant to Rule 8-602(a)(3). 4 Da Silva asserts that, because the Notice of Appeal did not include proof of service as required by Rule 1-323, the clerk did not have the authority to accept and enter the Notice of Appeal as “filed” on August 28, 2009.

Specifically, according to Da Silva, Rule 1-323 directs the clerk not to accept for filing a paper that requires service if there is no certificate of service. Citing Bond v. Slavin, 157 Md.App. 340, 352 , 851 A.2d 598 (2004), Da Silva contends that “a notice of appeal is filed on the date that the notice is received by the clerk’s office, ‘except for notices of appeal that fail to comply with the certificate of service requirement of Md. Rule 1-323.’ ” Da Silva concludes that, under Bond , it is clear that “a [njotice of [a]ppeal cannot be filed on the date that the notice was received if it does not include a certificate of service,” and thus Lovero’s Notice of Appeal “could not have been entered as filed on August 28, 2009.” Regarding this Court’s order dated January 7, 2010, Da Silva argues that Rule 1-323 establishes a prerequisite for every pleading that is filed in court, and if there is no compliance with Rule 1-323, the requirement under Rule 8-201(a) that the clerk enter the notice on the docket simply does not apply. Da Silva also distinguishes Frank v. Storer, 308 Md. 194 , 517 A.2d 1098 (1986), from the instant case on the grounds that the clerk in Frank had no duty to enforce the Real Property Article when accepting and recording a document, while in this case the clerk is required by Rule 1-323 to enforce the proof of service requirement. Finally, Da Silva asserts that Lovero’s Amended Notice of Appeal, filed on September 4, 2009, should be deemed untimely because it was filed four days after the expiration of the 30-day period prescribed in Rule 8-202(a).

Lovero responds that his Notice of Appeal was timely filed. Lovero concedes that his Notice of Appeal did not contain a ⁴⁴¹ certificate of service, as required by Rule 1-323, and that he did not serve a copy of the Notice of Appeal upon Da Silva’s attorney of record, as required by Rule l-321(a). Nonetheless, Lovero asserts that the docket entries properly reflect that his Notice of Appeal was filed on August 28, 2009, which was within the 30-day filing period required for a notice of appeal under Rule 8-202(a). According to Lovero, even if the clerk erred by failing to reject the Notice of Appeal because of a lack of a certificate of service, such error did not invalidate the appeal.

Furthermore, Lovero contends that under Frank , the acceptance and docketing of the Notice of Appeal by the clerk’s office “provide[d] constructive notice to any persons interested in the status of the case, and whether an appeal was noted.” I. We begin our analysis with Rule 8-202(a), which reads: Rule 8-202. Notice of appeal — Times for filing. (a) 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. The plain language of Rule 8-202(a) requires that the notice of appeal be “filed within 30 days after entry of the judgment or order.” (Emphasis added). The Court of Appeals has stated repeatedly that this requirement of Rule 8-202(a) is jurisdictional. Ruby v. State, 353 Md. 100, 113 , 724 A.2d 673 (1999); Houghton v. Cnty.

Comm’rs, 305 Md. 407, 413 , 504 A.2d 1145 (1986); Institutional Mgmt. Corp. v. Cutler Computer Concepts, Inc., 294 Md. 626, 629-30 , 451 A.2d 1224 (1982). “Failure of an aggrieved party to so file terminates its right of appeal and the appellate court acquires no jurisdiction to hear that matter.” Ruby, 353 Md. at 113 , 724 A.2d 673 ; see Nationwide Mut. Ins. Co. v. Regency Furniture, Inc., 183 Md.App. 710 , 740 n. 16, 963 A.2d 253 (2009) (stating that ⁴⁴² “failure to file a notice of appeal within the 30-day deadline of Rule 8-202(a) is a jurisdictional defect”).

In Clinton Petroleum Services, Inc. v. Norris, 271 Md. 665, 667 , 319 A.2d 304 (1974), the order of appeal was filed more than 30 days after the passage of the order from which the appeal was taken. The Court of Appeals stated: “This provision is mandatory. Thus, we have no alternative but to dismiss the appeal.... ” Id. The “mandatory” parts of Rule 8-202(a) are two-fold.

First, the notice of appeal must be “filed.” Second, the filing must be within the specified 30-day time period. In the case sub judice, it is undisputed that Lovero’s Notice of Appeal was delivered to the clerk of the circuit court on August 28, 2009, which was within 30 days after the entry of the judgment from which the appeal was taken. The question to be resolved by this Court is whether the Notice of Appeal was “filed” within the meaning of Rule 8-202(a) on August 28, 2009. In Cave v. Elliott, 190 Md.App. 65, 75 , 988 A.2d 1 (2010), this Court set forth the definition of “filed” under the Maryland Rules as articulated by the appellate courts of Maryland.

We stated: In Cherry v. Seymour Brothers, 306 Md. 84 , 507 A.2d 613 (1986), the Court of Appeals stated: “[A] paper is said to be ‘filed’ when it is delivered to the proper officer and received by him to be kept on file. In modern usage, the ‘filing’ of a paper consists in placing it in the custody of the proper official who makes the proper indorsement thereon.” Id. at 92 , 988 A.2d 1 (alteration in original) (quoting Levy v. Glens Falls Indem. Co., 210 Md. 265, 273 , 123 A.2d 348 (1956)). In Bond v. Slavin, 157 Md.App. 340, 351 , 851 A.2d 598 (2004), this Court observed that the “date that a pleading or paper is ‘filed’ is the date that the clerk receives it....

A pleading or paper is filed by actual delivery to the clerk....” (Citation and internal quotations omitted) (alterations and emphasis in original). Id. ⁴⁴³ Corresponding to the delivery of a pleading or paper to the clerk is the duty of the clerk to record any such pleading or paper as filed and entered on the docket of the case in question. See Md.Code (1974, 2006 RepLVoL), § 2-201(a)(S) of the Courts & Judicial Proceedings Article (“C.J.”). This duty has been classified as “ministerial” and described as follows: Except as otherwise expressly provided by law, therefore, the clerk has no discretion in the matter and no right to make a judicial determination of whether the paper complies with the Rules or ought to be filed.

If the paper has not been presented timely or if it suffers from some other deficiency, it is subject to being stricken by the court, usually upon motion of a party objecting to the paper, but so long as it is properly presented, the clerk must accept and file it. Dir. of Fin. v. Harris, 90 Md.App. 506, 513 , 602 A.2d 191 (1992). Examples of deficiencies in a pleading or paper that have been held not to prevent the acceptance and filing thereof by the clerk include the lack of a proper caption on an original document, Cherry, 306 Md. at 92 , 507 A.2d 613 , the incorrect name of the court and docket number, Cave, 190 Md.App. at 75-76 , 988 A.2d 1 , and a certificate of service that failed to comply with Rule 1-321, Harris, 90 Md.App. at 514 , 602 A.2d 191 (pro se party stated that he served his motion on his mother instead of on the City Solicitor). In sum, “[ujnder most circumstances, [ ] regardless of how defective or deficient the pleading or paper is, the clerk may not reject it ..., but rather should leave it to the court and the parties to determine the sanction for the defect or deficiency.” Paul V. Niemeyer, Linda M. Schuett, John A. Lynch, Jr., & Richard W. Bourne, Maryland Rules Commentary 48-49 (3d ed. 2003) (“Maryland Rules Commentary ”).

The only exception to the duty of the clerk to file a pleading or paper, regardless of a defect or deficiency, is the requirement of Rule 1-323 that the “clerk shall not accept for filing” a ⁴⁴⁴ pleading or paper requiring service that does not contain “an admission or waiver of service or a signed certificate showing the date and manner of making service.” See Hams, 90 Md.App. at 513 , 602 A.2d 191 (stating that “[t]he only exception ... is the direction in Md. Rule 1-323 not to accept a paper that lacks an admission or waiver of service or a certificate showing the date and manner of service”). Rule 1-323 states: Rule 1-323. Proof of service. The clerk shall not accept for filing any pleading or other paper requiring service, other than an original pleading, unless it is accompanied by an admission or waiver of service or a signed certificate showing the date and manner of making service.

A certificate of service is prima facie proof of service. In Harris, 90 Md.App. at 511-12 , 602 A.2d 191 , this Court reviewed the history of Rule 1-323: Rule 1-323 is derived ultimately from Rule 1(a)(2), Part Two, V, of the General Rules of Practice and Procedure, adopted by the Court of Appeals and approved by the General Assembly pursuant to 1939 Md. Laws, ch. 719, § 35A. Rule 1(a)(2) provided, in relevant part, that a paper “shall not be received and filed by the clerk of the court unless accompanied by an admission or proof of service of a copy thereof upon the opposite party or his attorney of record in accordance with this rule.” [ ] Other parts of the Rule prescribed how service was to be made. That Rule was carried over into the Maryland Rules of Procedure as Rule 306 a.2., which stated that “[t]he clerk shall not accept or file any paper requiring service other than an original pleading unless it is accompanied by an admission or proof of service of a copy thereof upon the opposite party, or his attorney of record.” [ ] Until the 1984 revision of the Maryland Rules, the Rule remained in that form----Another section of Rule 306, § d, dealing with the effect of a certificate of service, provided that the certificate “showing the date thereof and the man ⁴⁴⁵ ner of making the same in accordance with this Rule, shall be prima facie proof of such service.” In adopting current Rule 1-323, the Court combined those two sections into one.

The result is the current language obliging the clerk to reject a paper unless it is accompanied by a certificate “showing the date and manner of making service.” This is followed by the statement that a certificate of service is prima facie proof of service. (Emphasis added) (emphasis in original omitted). It is important to note that in each iteration of the rule the clerk is directed not to “file” any paper or pleading requiring service that does not contain the appropriate proof of service. See Rule 1-323 (“The clerk shall not accept for filing....”); Rule 306 a.2.

(“The clerk shall not accept or file ....”); and Rule 1(a)(2) (a paper “shall not be received and filed by the clerk ... ”). The use of the word “shall” in a rule means that the conduct proscribed is mandatory. See Rule 1-201(a); 5 Owens v. Prince George’s Cnty. Dep’t of Soc.

Servs., 182 Md.App. 31, 43-44 , 957 A.2d 191 (adopting the view that the use of the word “shall” with respect to commands found in the Maryland Rules is mandatory), cert. denied, 406 Md. 746 , 962 A.2d 372 (2008); Tranen v. Aziz, 59 Md.App. 528, 534 , 476 A.2d 1170 (1984) (explaining that the term “shall” in a rule “is presumed mandatory ..., denoting an imperative obligation inconsistent with the exercise of discretion” (citation and quotations omitted)), aff'd, 304 Md. 605 , 500 A.2d 636 (1985). Therefore, it is clear that in adopting Rule 1-323, and its predecessors, the Court of Appeals intended that a pleading or paper requiring service that did not contain the appropriate proof of service was not to become a part of any court ⁴⁴⁶ proceeding by being “filed” in the court file of such proceeding. This intent of the Court is consistent with the purpose of Rule 1-323. The authors of Maryland Rules Commentary articulate the purpose of Rule 1-323 as follows: [O]ur adversary system requires that all parties be notified of communications with the court to allow the court to hear arguments of all parties before making a decision or taking an action.

This rule, therefore, directs the clerk to reject any pleading or paper that does not show on its face that the parties have been served and therefore notified. Maryland Rules Commentary, at 49. In a broader sense, Rule 1-323 serves the function of assuring the court that procedural due process is accorded to the parties at every step of the litigation process. Because every paper or pleading filed in a case after the original pleading involves either a request to the court to take a specified action or notification of an action or position taken by a party, due process requires that each party be notified thereof.

Rule l-321(a) embodies this principle by requiring that, “[ejxcept as otherwise provided in these rules or by order of