MAS Assoc. v. Korotki

MAS Associates, LLC, et al. v. Harry S. Korotki, Nos. 54 & 59, September Term, 2020 PROCEEDINGS ON REMAND – AUTHORITY OF TRIAL COURT – Court of Appeals held that trial court’s action on remand in reopening counts of unjust enrichment and violation of Maryland Wage Payment and Collection Law and awarding monetary judgments in favor of Respondent, against Petitioners, was not consistent with opinion and mandate issued by Court of Appeals. Both counts had been conclusively decided against Respondent at trial and in favor of Petitioners and were not at issue on appeal in Court of Special Appeals or on review before Court of Appeals. Trial court’s judgments against Respondent with respect to unjust enrichment and wage payment claims were final enrolled judgments. Court of Appeals concluded that because Respondent never sought appellate review of judgments either in Court of Special Appeals through filing of appeal or cross-appeal or in Court of Appeals through filing of conditional cross-petition for writ of certiorari, claims could not be reopened and Respondent could not receive benefit of opinion indicating that partnership did not exist.

In addition to finality of judgments against Respondent and circumstance that Respondent failed to seek appellate review of judgments, trial court lacked authority to take any action on remand with respect to one Petitioner who had not been found liable at trial on any count in complaint brought by Respondent and, as such, had not participated in any appellate proceedings. For all of these reasons, trial court erred on remand in entering judgments in favor of Respondent against Petitioners on counts of unjust enrichment and violation of Maryland Wage Payment and Collection Law. Court of Appeals reversed judgments of trial court and remanded to that court with instructions to vacate judgments against Petitioners and to reinstate original judgments in favor of Petitioners. Circuit Court for Baltimore County Case No. 03-C-11-010759 Argued: June 3, 2021 IN THE COURT OF APPEALS OF MARYLAND Nos. 54 & 59 September Term, 2020 ______________________________________ MAS ASSOCIATES, LLC, ET AL. v. HARRY S. KOROTKI ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. McDonald and Hotten, JJ., concur. ______________________________________ Filed: August 4, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-08-04 14:17-04:00 Suzanne C. Johnson, Clerk It is not uncommon for this Court to remand a case to the Court of Special Appeals with a mandate instructing our colleagues to reverse the judgment of a circuit court and remand the case to that court for “further proceedings consistent with this opinion.” This case concerns proceedings in a trial court after our issuance of an opinion with such a mandate.

In this instance, we address the question of whether the trial court’s action on remand in reopening two counts of a complaint and awarding a monetary judgment in favor of the plaintiff (the respondent in this case) on the counts—which had been conclusively decided against the plaintiff at trial and which were not at issue on appeal because the plaintiff never sought appellate review of the judgments either in the Court of Special Appeals through the filing of an appeal or a cross-appeal or in this Court through the filing of a conditional cross-petition for a writ of certiorari—was consistent with the opinion issued by this Court. This is the second time in two years that the parties, MAS Associates, LLC (“MAS”), Petitioner/Cross-Respondent,1 and Harry S. Korotki (“Harry”),2 Respondent/Cross-Petitioner, are before us in a case concerning the question of whether a partnership, operating through MAS, was created. In MAS Assocs., LLC v. Korotki, 465 Md. 457, 462-63, 473 , 214 A.3d 1076 , 1079, 1085 (2019), this Court addressed the question of whether competent material evidence existed to support a finding by the Circuit 1 In this case, Saralee Greenberg (“Saralee”) is also a Petitioner/Cross-Respondent. 2 In the first case, the parties referred to each other using first names. See MAS Assocs., LLC v. Korotki, 465 Md. 457 , 463 n.2, 214 A.3d 1076 , 1079 n.2 (2019).

For consistency with our earlier opinion, we do the same. Court for Baltimore County, at a bench trial, that three people3 including Harry intended to form a general partnership and that Harry was entitled to an award of damages on a declaratory judgment count seeking a determination that the partnership existed and the buyout price of his partnership interest. We held that the answer to the question was “no” and reversed the circuit court’s finding and award of damages. See id. at 463, 214 A.3d at 1079.

Specifically, we held that Harry had “failed to provide competent material evidence demonstrating [an] intent to form a partnership.” Id. at 463, 214 A.3d at 1079. Accordingly, we held that the circuit court’s finding to the contrary—i.e., that the parties intended to form a partnership—was clearly erroneous and we reversed and remanded the case to the Court of Special Appeals, with instructions to remand to the circuit court “to adjust the damage award in a manner consistent with th[e] Opinion.” Id. at 494, 214 A.3d at 1097. Our mandate stated: Judgment of the Court of Special Appeals reversed as to finding of partnership. Case remanded to that Court with instructions to reverse the judgment of the Circuit Court for Baltimore County and remand to the circuit court for further proceedings, consistent with this opinion.

Costs to be paid by Respondent. Id. at 494, 214 A.3d at 1097 (bolding and some capitalization omitted). On remand, rather than vacating the monetary award to Harry for the buyout price of his partnership interest, the circuit court reopened two counts that Harry brought in the original complaint—unjust enrichment and violation of the Maryland Wage Payment and Collection Law—that had previously been adjudged at trial against Harry in favor of the 3 The other two people were Joel Wax and Mark Greenberg, who were defendants in the trial court proceeding. -2- defendants, including Petitioners in this case. Harry had never appealed the circuit court’s determination against him with respect to the two counts at any time.

Nonetheless, on remand, the circuit court entered judgments in favor of Harry on the two counts against Petitioners in the amount of $572,766.83 (later modifying the judgments to a total of $572,705.08). Petitioners and Harry both noted appeals. Thereafter, Petitioners filed in this Court a petition for a writ of certiorari and Harry filed a conditional cross-petition. We granted the petition and conditional cross-petition.

See MAS Assocs., LLC v. Korotki, 472 Md. 313 , 245 A.3d 992 (2021).4 Against this background, we must consider whether the circuit court erred on remand in reopening the unjust enrichment and wage payment counts and in awarding Harry damages against Petitioners on the claims. We hold that the answer is unqualifiedly yes. Accordingly, we reverse the judgments of the circuit court and remand the case to that court with instructions to vacate the instant judgments against Petitioners on the counts of unjust enrichment and violation of the Maryland Wage Payment and Collection Law and to reinstate the original judgments in favor of Petitioners. 4 Ten days after this Court granted the petition and conditional cross-petition, the circuit court issued an opinion and order that minimally adjusted the prejudgment interest amount of the judgments. Both Petitioners and Harry again noted appeals.

Petitioners also again filed in this Court a petition for a writ of certiorari, raising the same issue as raised in the earlier granted petition, and Harry again filed a conditional cross-petition, raising the same three issues he had raised in the earlier granted conditional cross-petition. We granted the petition and conditional cross-petition and ordered that the case be set for argument on the same day as the earlier granted petition and conditional cross-petition. See MAS Assocs., LLC v. Korotki, ___ Md. ___, ___ A.3d ___, 2021 WL 1257085 (Md. Mar. 26, 2021). -3- BACKGROUND Underlying Factual and Procedural History With respect to the underlying factual and procedural history of this case, we need not recreate something that already exists. Instead, we set forth the history of the case as recently expressed in MAS Assocs., 465 Md. at 463-73 , 214 A.3d at 1079-85: Three Separate Entities Harry Korotki (“Harry”), the plaintiff in the trial court, has worked in the mortgage industry in various capacities since 1991.

In 1999, after the company he worked for suffered a “financial crisis,” Harry had to “start over” and opened Savings First Mortgage, LLC with another individual. In 2002, this individual dissociated from Savings First, and Harry became the sole owner. By 2009, business was “very challenged,” with banks “not as liberal with [credit] lines,” which resulted in it becoming more difficult for “loan officers to go out and sell loans,” and thereby negatively impacting profitability. Joel Wax (“Joel”), a defendant in the trial court proceeding, was the sole owner of Greentree Mortgage Corporation.

Greentree also experienced “economic difficulties” beginning around 2009. Mark Greenberg (“Mark”), also a defendant, had also been in the mortgage industry for a significant amount of time. In 1999, after working for various other mortgage companies, Mark and his wife, Saralee Greenberg (“Saralee”), started MAS Associates, LLC (“MAS”). Saralee became a member of MAS, with a controlling 91% share of interest, and Mark became the manager and CEO and held no ownership interest.

MAS was involved in three different lines of business: originating home purchase and refinancing loans, selling home improvement loans, and servicing high-risk loans. MAS was also struggling with business losses in 2009. Initial Conversations About Combining Entities In August 2009, with both of their businesses losing money, Harry and Joel engaged in negotiations with the intent to merge their companies and increase profitability. At one point, Joel mentioned drafting a “partnership agreement” and it seems the parties anticipated sharing profits, with Harry stating that “50% of what we can generate together is a whole lot more money -4- that [sic] 100% of what we are making individually.” During these conversations, Joel also stated that, “as partners,” he “agree[d] that everything should be equitable.” Nevertheless, Harry and Joel’s planned merger was put on hold when, in September 2009, Ken Venick (“Ken”), a member of MAS Associates, LLC who held a 9% share of interest, and Mark, expressed interest in “getting involved” in the merger.

While Saralee never authorized Mark to sign for her regarding ownership decisions nor did she give him power of attorney, he “represented [her] full interests” in the management of MAS. Under this newly proposed scenario, it was suggested that Equity Mortgage Lending, a registered tradename for MAS Associates, LLC, was the optimal entity for “everyone to fall into . . . .” The parties concluded that Equity Mortgage Lending was the ideal surviving entity because it had a “good track record” in the industry and fewer “legacy liabilities.” The four men then embarked anew on discussions regarding how their three companies might sensibly “merge as one business” and the potential ramifications of such an action. A September 30, 2009 letter from Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC (“Gordon Feinblatt”), a law firm serving as “regulatory counsel” to all three entities, described this plan as one “to join forces and establish a business together in some to-be- determined manner.” As part of this initial effort, Harry sent an October 1, 2009 email to a large mortgage loan originator seeking to apply for a warehouse credit line for Equity Mortgage Lending. Harry characterized his interest in this new association as being a “[one-third] owner along with two other partners.” Attempt to Become Members of MAS Associates, LLC Harry, Joel, and Mark held a meeting on October 13, 2009 to discuss their proposed business structure.

They were joined by Elliott Cowan (“Cowan”) and Marjorie Corwin (“Corwin”), the regulatory attorneys from Gordon Feinblatt, who had taken on the task of creating a “neutral” draft of the parties’ business arrangement. After the meeting, Cowan prepared and circulated a summary of the meeting for review by Harry, Joel, Mark, and their personal legal representatives. This document represents the first unambiguous indication that Harry, Joel, and Mark intended to become members of MAS Associates, LLC, d/b/a Equity Mortgage Lending, replacing Saralee and diminishing Ken’s ownership percentage. During the meeting, the parties discussed the “goal” of ownership in MAS, and contemplated ownership percentages consisting of Harry at 33 1/3%, -5- Joel at 33 1/3%, Mark at 30 1/3%, and Ken at 3%.

Functionally, this would mean that Saralee, and to a lesser degree Ken, would transfer their interest in MAS to Mark, who would in turn transfer membership interest to Harry and Joel. The MAS Associates, LLC Amended and Restated Operating Agreement, adopted in April 2004 (“2004 Operating Agreement”), controlled the operation of MAS during this time. According to Section 9.1 of the 2004 Operating Agreement, such a transfer required a majority vote of the members. The summary of the meeting indicated that the potential arrangement structured the deal into an “Interim Period” and a “Post-Interim Period.” During the Interim Period, Harry and Joel were to be “employees of the Company” subject to for-cause termination and “entitled to receive W-2 compensation equal to 1/3 of the profits of the ‘origination division’ of the Company . . . .” Their respective companies—i.e., Savings First and Greentree—were to be liquidated and their mortgage lending licenses surrendered.

Significantly, the parties never discussed “what would happen if the conditions for Harry and Joel to obtain substantial ownership [were] not obtained by the end of the Interim Period.” According to Joel, the Interim Period was intended to be a time during which transitional issues, such as licensing and operations, could be ironed out. In November 2009, Equity Mortgage Lending arranged to purchase much of Savings First’s physical inventory. The parties also made plans to combine staff, and, in December 2009, they moved under one roof. During this time, Saralee authorized Harry, Joel, and Mark to be signatories on five Equity Mortgage Lending bank accounts.

The Bank of America paperwork formalizing this transaction denotes Mark as MAS’s President and lists both Harry and Joel as Vice Presidents. Harry, Joel, and Mark also agreed to split the legal fees incurred as a result of combining their companies. On November 25 and 27, 2009, Cowan emailed new drafts of the agreements to Harry, Joel, Mark, and their respective attorneys. The first document, which Cowan termed the “definitive agreement,” outlines the interim period, before Harry, Joel, and Mark were to become members.

We will refer to this agreement as the Interim Agreement. The second document—which we term the Operating Agreement Outline—contemplates each of the parties’ obligations post-membership. This draft of the Interim Agreement, similar to the provisions outlined in the initial meeting summary, provided that, as of November 30, 2009, Savings First and Greentree would surrender their licenses and discontinue originating loans and that Harry and Joel would be employees of the -6- company for the “duration of the Approval Period.” Again, the agreement stated that Harry and Joel were “entitled to receive W-2 compensation”; “one-third (1/3) of the total economic benefits enjoyed in the aggregate by Mark, Saralee, Ken, Harry, and Joel”; equivalent benefits; and “commission splits on loan originations.” The nature of the parties’ relationship to MAS d/b/a Equity Mortgage Lending during this interim period is central to the litigation. Harry characterizes their association as a partnership.

And it is true that, at various times via email and in other documents, the parties referred to each other as partners, and Harry’s description of the parties as partners regularly went unchallenged. Still, during his testimony, Joel described himself as an “employee of MAS Associates.” In fact, he understood that one of the reasons Harry and he were employees, and not owners, was to prevent personal creditors from going after company assets. Cowan also testified that it was his “understanding that Harry and Joel were to be employees during the interim period.” He stated that “the entire concept of the interim period was built around an employment relationship that[,] after the approvals were obtained and whatever other conditions there were[,] would change into a different relationship.” Each party was to make a $150,000 payment to Mark, who would then gift the $450,000 to Saralee, who would make a capital contribution to MAS d/b/a Equity Mortgage Lending in that amount. The 2004 Operating Agreement defines “capital contribution” as “the total amount of cash and the fair market value of any other assets of value contributed . . . to the Company by a Member . . . .” (Emphasis added.) Thus, Harry, Joel, and Mark, not being MAS members, could not make direct capital contributions under the terms of the operating agreement, making an indirect route necessary to complete such a transaction.

The parties indeed made these payments, although not necessarily in the precise manner described above. On December 1, 2009, Cowan encouraged the parties to come to a final agreement by pressing them to meet. He again circulated amendments to the final documents on December 15, 2009 and recommended that the parties finalize and sign each of the documents by December 22, 2009. As of late- January 2010, no agreement had been reached and Ken’s attorney was still raising significant areas of disagreement between the parties.

In response to these comments, Mark’s attorney circulated amended agreements on January 20, 2010, stating that “so far as we are concerned, you may circulate all documents for signature.” On February 8, 2010, Cowan again circulated the most recent versions of the -7- various agreements—including the Interim Agreement, the Operating Agreement Outline, and various indemnity agreements. Nevertheless, the documents remained unsigned. Harry testified that, after receiving the February 8 email from Cowan, Mark approached Harry and Joel to discuss setting the Interim Agreement “on the side” and focusing on the Operating Agreement Outline. Harry stated that “as of that date going forward we treated each other as owners and members.” Around this same time, the business began experiencing losses, and Harry testified that Joel, Mark, and he “agreed that [they] were in it for a third no matter what,” referring to potentially covering quarterly business shortfalls.

During their testimony, Joel and Mark disputed the notion that the parties ever agreed to conduct themselves per the Operating Agreement Outline. They claimed to have agreed to operate under the Interim Agreement until they were making enough money to pay for the lawyers to finish the Operating Agreement Outline. All agree that, over the course of the next several months, the parties looked for ways to “make [the business] work” by cutting overhead expenses and closing more loans. After two months with no action on the matter, Cowan again emailed Harry, Joel, Mark, and their attorneys on April 13, 2010.

Cowan stated that he wanted to “take this opportunity to urge everyone to finalize and sign the transaction documents.” He also presciently noted that in “the absence of signed documents, sorting out everyone’s respective rights and obligations will be very difficult, to say the least.” Harry testified that he was “not aware” of any action taken as a result of this email. Mark testified that the reason the Interim Agreement was never signed was because the business was not doing well, and the parties did not want to spend more money on attorney’s fees. Joel attributed the failure to finalize the Interim Agreement largely to Ken and his attorney. The warehouse lines persisted as a source of friction.

The parties seem to have intended to share exposure for these credit lines to some degree, but there was disagreement as to how to achieve equity. In late-October 2010, Harry emailed Mark and Joel to “remind” them that he could not “put [his] name on anything more than [one-third] of [a] [$]7.5 million” credit line. Again, in mid-November 2010, the parties had a conversation regarding another warehouse credit line. Via email, Harry once more expressed his discomfort with signing jointly and severally with Joel and Mark, as Harry believed this would expose his greater assets to creditors.

Harry stated that he would be willing to indemnify one-third of all business liabilities, but nothing more. -8- Mark responded to Harry’s concerns by insisting that any “obligations need to be the same for all,” and reminded the parties that there must be “equity regarding potential liabilities or the structure can not be equal.” Joel characterized Harry’s refusal to co-sign the credit lines as “chang[ing] the game in the middle” by refusing to join the others in guaranteeing these lines. Still, the parties looked for a way around this issue by asking Harry to set aside sufficient assets as collateral for his one-third indemnity share, or alternatively finding a non-member ongoing role for Harry. Cowan opined that, while it would be unusual for a typical employee to be expected to guarantee a line of credit, such a circumstance might not be unusual when that employee is expected to become an owner. By the end of June 2010, Equity Mortgage Lending had begun to turn a profit and the parties decided to begin drawing a salary of $10,000 per month each.

Harry described this distribution as an “advance on year end profits.” Profits continued into the months of July, August, September, and October. At the end of the year, Harry, Joel, and Mark received W-2 forms from MAS. Harry was paid a total of $325,552 in 2010—Harry characterized this amount as a combination of salary, various profit distributions, and commissions. Though there is some disagreement as to the details regarding the negotiations, it appears the parties eventually settled on a 25/12.5/12.5 percentage split for commissions—with the party originating the loan receiving the larger portion.

The other half of the gross profit was paid to the company. After the year-end distribution of commissions and other income, Harry and Joel agreed to each contribute an additional $125,000 to increase Equity Mortgage Lending’s net worth to $1,000,000. These payments were again paid to Saralee as a loan, who would in turn make a capital injection into the company in the same amount. The loans were to be paid back in 30 days, or at the completion of the audit for which the capital injection was made.

In a February 15, 2011 email, Harry requested to be reimbursed for this loan, and Mark replied that the parties needed to “sit down and discuss.” Harry explained that he agreed to allow the money to remain in the company and maintains that he still has not been repaid for his $275,000 in contributions. Yet, according to Mark, the parties made these loans “as managers” and he testified there was no agreement that the money would be paid back. Likewise, Joel thought of these loans as “the cost of admission” into the company. Promissory notes for these loans were drafted but never signed.

As of November 22, 2010, the parties still contemplated becoming members, or “owners,” of MAS and anticipated signing the Interim Agreement by the end of the year. In a December 10, 2010 email to Joel and Mark, Harry -9- asserted that he had no problem signing the various agreements that had gone unsigned, but again brought up his dissatisfaction with the warehouse loans. In late-January 2011, Saralee, Ken, Joel, and Mark opened a $10 million warehouse line of credit. Once again, Harry refused to sign onto a joint-and- several obligation and only agreed to indemnify the parties for up to one- third of the obligation.

Around this time, Harry began frequently missing work and other obligations, such as scheduled meetings with Joel and Mark. This made it difficult for the parties to make decisions about the business, especially regarding the warehouse line and potential indemnification agreements for Harry. Harry’s Resignation In March 2011, Harry resigned from his position with Equity Mortgage Lending. He indicated that this was pursuant to his doctor’s recommendation following months of mental health concerns, including depression and severe anxiety.

In an email dated March 20, 2011, Harry set forth an accounting of his requested compensation given his resignation—$275,000 reimbursement for loans paid to Saralee, commission from an in-progress loan closing, payment of health insurance premiums for two years, and, in the case of the sale of the company, 25% of the proceeds in year one and 15% in year two. He did not think it would be “fair” to ask for any additional cut of sale profits. Harry testified that he subsequently met with Joel and Mark, who agreed to repay the $275,000 in loans, but the terms of such a repayment remained unresolved. Harry spent the first half of April 2011 attempting to arrange a meeting with Joel and Mark to discuss the specifics of his departure.

Eventually, Harry became frustrated with their inability to meet, and, on April 13, he emailed Mark and Joel stating that he was “retracting” his initial offer and turning the issue “over to [his] attorneys.” Harry’s attorneys filed a complaint on October 28, 2011 in the Circuit Court for Baltimore County. While none of the agreements were ever signed, Joel and Mark both testified that they ultimately signed an extension of the Interim Agreement before it was set to expire on November 30, 2012 and that it governed their conduct at the time of the hearing. Procedural Posture In his complaint, Harry raised multiple claims. Most relevant here, however, are his claims for breach of contract and his request for a declaratory judgment asking for, inter alia, a determination of “the buyout price of his partnership interest” and a demand that the partners pay such price. - 10 - The trial court first issued its opinion from the bench.

Regarding the breach of contract claim, the court stated that there could be no breach because there was no contract. Specifically, the court held that “there was never any meeting of the minds as to either the interim agreement or the operating agreement.” Nonetheless, the trial court found that a partnership existed between the parties. It determined that the parties’ conduct “exhibited what a partnership is” when they made management decisions together and contributed money equally. Consequently, the court awarded Harry $1,097,866-$793,000 base value, $260,712 in interest, and $44,154 for commissions without interest. *** Mark and Joel appealed the decision to the Court of Special Appeals.

In an unreported opinion, the intermediate appellate court affirmed the trial court’s ruling, holding that Harry, Joel, and Mark “entered into a joint venture for the short period of time between not signing the Agreement, and when they could not agree on the terms of a merger, or sign a new interim agreement.” MAS Assocs., LLC v. Korotki, No. 228, Sept. Term 2015, 2018 WL 4575140 , at ²⁰ (Md. Ct. Spec. App. Sept. 21, 2018). Joel and Mark petitioned for certiorari in this Court, and we granted their petition. (Alterations and ellipses in original) (footnotes omitted).

When the case first reached this Court, the posture of the matter was that the circuit court had found that a partnership existed and awarded Harry a monetary judgment on the declaratory judgment count. The Court of Special Appeals had affirmed, holding that Harry, Joel, and Mark entered into a joint venture for a short period of time. Joel, Mark, and MAS had filed a petition for a writ of certiorari in this Court, which we granted to answer the sole question of whether a partnership existed. Harry did not file a cross- petition as to any issue.

MAS Assocs., LLC v. Korotki In an opinion issued on August 8, 2019, we held that the record lacked “the - 11 - necessary competent material evidence to conclude that the parties intended to form a partnership.” MAS Assocs., 465 Md. at 494 , 214 A.3d at 1097. In so holding, we first addressed Joel and Mark’s contention that MAS could not be the vehicle for a separately formed partnership because MAS already existed as a lawfully formed LLC and the parties were working toward amending the operating agreement to become members of the LLC, not partners. See id. at 479, 214 A.3d at 1088. We explained that although it may be possible to construct a scenario in which the existence of a partnership and an LLC are not “mutually exclusive phenomena[,]” that is not what occurred here.

Id. at 478, 214 A.3d at 1088. We determined that “the parties never abandoned their efforts to become members of MAS.” Id. at 482, 214 A.3d at 1090. As such, we determined that any action consistent with the mutual understanding to become members of an LLC could not fairly contribute to the existence of an implied partnership. See id. at 482, 214 A.3d at 1090.

We next addressed “factors courts commonly look at to evaluate partnership intent[,]” specifically, management and control of the entity and capital contributions to the entity. Id. at 482, 486, 214 A.3d at 1090, 1093. As to management and control, we concluded that, “[w]hen the parties at issue [were] also actively engaged in the process of negotiating to become members of an LLC, evidence of equal control and joint decision- making authority is not evidence of the parties’ intent to form a partnership.” Id. at 486, 214 A.3d at 1092. As to capital contributions, we determined that the circuit court erred as a matter of law in characterizing “capital contributions to MAS as capital contributions to an unnamed partnership” because such a conclusion would only be “possible if the LLC and partnership are considered the same entity,” which would be in contravention of - 12 - applicable law.

Id. at 489, 214 A.3d at 1094. We concluded that the evidence and applicable law required a finding that Harry’s, Joel’s, and Mark’s “payments were loans to Saralee, not capital contributions to an alleged new entity” and “[a] loan is not evidence of partnership intent.” Id. at 489, 214 A.3d at 1094. We also addressed the sharing of profits and losses and concluded that Harry had failed to establish that the $5,000 twice-monthly payments he received “should be considered profit sharing, rather than a salary, which can be a share of gross revenue.” Id. at 490, 214 A.3d at 1095. We stated that the payments were compensation and did not “contribute to any presumption of partnership.” Id. at 491, 214 A.3d at 1095.

We explained that “both MAS and the parties treated their income as wages, not profits, in line with the written contemplations of the parties during their negotiations to become LLC members. Receipt of wages does not support a finding of partnership.” Id. at 492, 214 A.3d at 1096. In addition, we stated that the evidence demonstrated that “Harry never intended to be equally liable for the debts of the purported partnership[.]” Id. at 492, 214 A.3d at 1096. In conclusion, we summarized our determination that there was insufficient evidence of the intent to form a partnership as follows: Harry had the burden of producing sufficient facts to conclusively demonstrate the parties’ intent to form a partnership.

Evidence of equal control and joint decision-making authority, under these circumstances, does not support a conclusion of partnership. Further, the trial court erred as a matter of law when it classified Harry’s $275,000 in payments to Saralee as capital contributions, as opposed to loans. Nor can the wages the parties received be considered profits, here. First, any presumption of partnership based on profit sharing is undone by the parties’ expressed, simultaneous, and unabandoned intent to become members of MAS and their treatment of - 13 - the payments as wages.

Payments classified as wages are not supportive of partnership. Moreover, Harry actively resisted being held jointly and severally liable for the debts of the purported partnership. For these reasons, even reviewed in the light most favorable to Harry, the record still lacks the necessary competent material evidence to conclude that the parties intended to form a partnership. Id. at 493-94, 214 A.3d at 1097.

We held that the circuit court’s “finding to the contrary was clearly erroneous,” and reversed and remanded to the Court of Special Appeals, with instructions to remand to the circuit court “to adjust the damage award in a manner consistent with th[e] Opinion.” Id. at 494, 214 A.3d at 1097. The mandate stated: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AS TO FINDING OF PARTNERSHIP. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AND REMAND TO THE CIRCUIT COURT FOR FURTHER PROCEEDINGS, CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT.

Id. at 494, 214 A.3d at 1097 (capitalization in original) (bolding omitted). Motions for Reconsideration This Court’s initial slip opinion included a misstatement of fact in the “Procedural Posture” section of the background. In this section, the opinion included a sentence incorrectly stating that the circuit “court also found in favor of Harry on the unjust enrichment and wage payment claims.”5 It is undisputed that the circuit court had ruled against Harry on both the unjust enrichment and wage payment claims, and entered judgment in favor of the defendants as to those two counts. In the initial slip opinion, in the first sentence of the “Procedural Posture” section, 5 this Court also stated: “In his complaint, Harry raised multiple claims, including an unjust enrichment and wage payment claim.” - 14 - On August 23, 2019, MAS, Mark, and Joel filed a motion for reconsideration, requesting correction of two aspects of the opinion.

Specifically, the petitioners requested that this Court delete or otherwise clarify the reference to the circuit court having found in favor of Harry on the unjust enrichment and wage payment claims, as that was an incorrect statement because they (the petitioners) had prevailed on the claims. The petitioners advised that, other than with respect to Harry’s request for a declaratory judgment as to the existence of a partnership, they had prevailed in the circuit court on all of the claims brought by Harry, namely, claims for fraud, constructive fraud, gross negligence, breach of contract, unjust enrichment, and violation of the wage payment statute. The petitioners pointed out that Harry did not cross-appeal or file a cross-petition for a writ of certiorari as to the circuit court’s rulings against him with respect to the other six claims and asserted that the circuit court’s rulings on the claims were final. In addition to seeking correction of the misstatement of fact concerning the unjust enrichment and wage payment claims, the petitioners requested that this Court amend the mandate to state “that the Court of Special Appeals is instructed to reverse the entire judgment of the Circuit Court for Baltimore County and to direct the Circuit Court for Baltimore County to dismiss all claims against all Defendants.”6 Harry filed a motion for reconsideration too, seeking that this Court reconsider its determination that there was a lack of evidence of the intent to form a partnership. 6 In addition, MAS, Mark, and Joel requested that the citation to Md. Code Ann., Corps. & Ass’ns (1992, 2014 Repl.

Vol.) § 4A-202(a) in one location in the slip opinion be changed to Md. Code Ann., Corps. & Ass’ns (1992, 2014 Repl. Vol.) § 9A-202(a) for accuracy, which request we granted. - 15 - On September 30, 2019, this Court issued an order denying Harry’s motion for reconsideration and granting in part and denying in part the motion for reconsideration filed by MAS, Mark, and Joel. Specifically, this Court granted the petitioners’ motion for reconsideration by deleting in its entirety the sentence from the opinion that had stated that “[t]he court also found in favor of Harry on the unjust enrichment and wage payment claims.”7 We declined, however, to change the mandate. Proceedings on Remand In accordance with the unchanged mandate, on October 11, 2019, the Court of Special Appeals issued the following Order: Pursuant to the September 30, 2019 mandate of the Court of Appeals of Maryland, which reversed our September 21, 2018 judgment finding that there was a partnership, it is this 11th day of October, 2019, by the Court of Special Appeals, ORDERED that the September 21, 2018 mandate of this Court is vacated; and it is further ORDERED that the judgment of the Circuit Court for Baltimore County is reversed, and the case is remanded to that court for further proceedings consistent with the opinion of the Court of Appeals.

On remand, on November 13, 2019, MAS, Mark, and Joel (the defendants) filed in the circuit court a motion to enter judgment, requesting that, to the extent that it had not already been done, judgment be entered on the docket in their favor on all seven counts of the complaint brought by Harry. The defendants pointed out that, at the close of Harry’s 7 We also deleted the clause “including an unjust enrichment and wage payment claim” from the first sentence under the “Procedural Posture” section of the opinion so that the sentence reads only: “In his complaint, Harry raised multiple claims.” - 16 - case, the circuit court dismissed the first three counts brought by Harry (fraud, constructive fraud, and gross negligence claims) and that, at the close of all of the evidence, the circuit court entered judgment in favor of the defendants and against Harry on three other counts (breach of contract, unjust enrichment, and wage payment and collection claims). According to the defendants, the only surviving count was Harry’s declaratory judgment claim alleging the existence of a partnership. The defendants explained that Harry did not file an appeal or cross-appeal regarding any of the judgments entered against him as to the other six counts, meaning that the six counts “were conclusively resolved and permanently extinguished by operation of law” and that the judgments on those counts were not before either the Court of Special Appeals or this Court and were not open for reconsideration on remand.

Harry filed a response to the motion, arguing that this Court found that he had loaned $275,000 as a creditor and earned commissions as an employee, not a partner, and that this Court reversed the circuit court’s judgment and remanded the case with instructions to adjust the damages award consistent with the opinion. Harry found significant that in ruling on the motion for reconsideration this Court had rejected the request to dismiss all of the claims and left the instruction to the circuit court “as originally mandated.” According to Harry, the circuit court was required to “adjust the damage award so that [he was] adequately compensated for his unpaid loan and commissions.” Harry asserted that the notice of appeal filed by the defendants simply noted an appeal “without limitation and put at issue each and every interlocutory order that constituted the final judgment, not just the decision in favor of [Harry] on the” declaratory judgment count. - 17 - On December 16, 2019, the circuit court held a hearing on the motion to enter judgment. After hearing argument from the parties, the circuit court denied the motion, ruling from the bench in pertinent part as follows: In its opinion, the Court of Appeals said the trial court erred as a matter of law . . . when it classified Harry’s $275,000 in payments to Sara Lee as capital contributions as opposed to loans nor can the wages the parties receive be considered profits here. Payments classified as wages are not supportive of partnership.

For these reasons and even re[vie]wed in the light most favorable to Harry, the record lacks the necessary competent material evidence to conclude that the parties intended to form a partnership. Therefore, we hold that the trial [c]ourt’s findings to the contrary was clearly erroneous and reverse and remand to the Court of Special Appeals with instructions to remand to the Circuit Court for Baltimore County to adjust the damage award in a matter [sic] -- in a matter [sic] consistent -- let me read that again -- in a matter [sic] consistent with this opinion. The parties each filed motions for reconsideration of the opinion, including the Defendants’ request of the Court to amend its mandate so that the Court of Special Appeals is instructed to reverse the entire judgment of the Circuit Court for Baltimore County and to direct the Circuit Court for Baltimore County to dismiss all claims against all Defendants. The Court of Appeals opted not to do that.

The case law requires me to take the mandate and the entire opinion and read them consistently in an attempt to determine what it is the Court of Appeals wants me to do. I have read the Court of Appeals’[s] decision countless times in an attempt to determine what the Court of Appeals wants me to do in this case. And I cannot come to any conclusion, other than to consider [Harry]’s claims for repayment of loan and wages. I am, therefore, denying the Defendants’ Motion to enter Judgment.

I am instructing the parties that they will -- I’m not having a new trial. I am not doing it. . . . I would like you all to brief the issue as to what, if any, effect -- when, if any, amount is owed by Sara[l]ee to [Harry] as a result of the loan, the terms of that loan that are in the record, as well as whatever facts support - 18 - a wage claim that are in the record. In response to questions from the defendants’ counsel seeking clarification of the ruling, the circuit court stated that it was reopening the unjust enrichment and wage claims “[f]or purposes of briefing” because it believed “that’s what the Court of Appeals [was] requiring [it] to do.” The circuit court advised that it would “entertain the repayment of the loan based upon the unjust enrichment and wage claim” and that the claims were “only open for purposes of determining damages[.]” In response to a question from Harry’s counsel noting that the loan from Harry was to Saralee and asking whether the briefing on the unjust enrichment claim and the loan should be as to all defendants or just Saralee, the circuit court responded that the briefing would be “limited to” Saralee because “I only know what they are telling me to do or what I think they are telling me to do.” The circuit court was apparently referring to what it believed to be an instruction from this Court.

On December 20, 2019, the circuit court issued a hearing notice, scheduling a hearing on Harry’s “Claim for Damages” for June 17, 2020. On the same day, the circuit court issued a scheduling order setting forth the briefing schedule. On January 17, 2020, MAS, Mark, Saralee, Wax Properties, and Joel filed in this Court a petition for a writ of mandamus and/or writ of prohibition, requesting that this Court issue a writ of mandamus or prohibition ordering the circuit court judge to void the December 16, 2019 oral ruling and accompanying order and to immediately halt the proceedings initiated in the circuit court on remand. The petitioners requested that this Court order the circuit court judge to enter judgment in their favor on the partnership count and to close the case with no damages being assessed against them.

The petitioners - 19 - contended that a writ of mandamus and/or writ of prohibition was necessary because the circuit court exceeded its authority and was without jurisdiction to reopen the two counts (the unjust enrichment and wage payment claims) that had been finally adjudicated in their favor five years earlier and that Harry had never appealed or otherwise challenged. In addition, the petitioners argued that a writ of mandamus or prohibition was necessary because the circuit court lacked jurisdiction to enter judgment against a former party (Saralee) who had judgment granted in her favor after trial on all counts and who had not been a party to the case for nearly five years at that point, i.e., Saralee had not been a party to the case on appeal to the Court of Special Appeals or before this Court. The circuit court judge filed an answer to the petition. Harry filed a motion to intervene and an answer to the petition.

The petitioners filed in the circuit court a motion to stay the proceedings, requesting that the circuit court stay proceedings in the case pending a decision by this Court on the petition for a writ of mandamus and/or prohibition. Harry filed a response, arguing that the motion to stay should be denied. The petitioners also filed in this Court a motion to stay the circuit court proceedings pending resolution of the mandamus action, and the circuit court judge filed a response in opposition. On March 27, 2020, this Court issued an order denying the petition for a writ of mandamus and denying Harry’s motion to intervene and the petitioners’ motion to stay as moot.

The remand proceedings continued in the circuit court. On February 18, 2020, Harry had filed in the circuit court a brief in support of damages. Harry contended that he was “entitled to his wages along with prejudgment interest at 6% per year from the date of - 20 - his termination – March 11, 2011 – plus treble damages, and attorney’s fees” and that, as to the loans, he was “entitled to the principal – $275,000 – along with pre[]judgment interest at 6% per year from the date each of the two loans were made.” MAS, Mark, and Joel filed an opposition to Harry’s brief in support of damages, arguing that Harry had no legal ground for seeking damages against them. On May 19, 2020, the circuit court issued a “Memorandum Ruling,” which stated, in relevant part, that the only remaining count to be resolved was a declaratory judgment count under the Maryland Uniform Declaratory Judgments Act (“the MUDJA”)8: After review and consideration of Plaintiff’s Brief in Support of Damages, Defendants’ Opposition, and the Opinion and Mandate issued by the Court of Appeals in the foregoing matter, this Court holds that the only remaining count to be resolved is Plaintiff’s claim under the Maryland Declaratory Judgment Act (“MDJA”).

Since Plaintiff did not file a cross appeal for the dismissals of the unjust enrichment and wage payment claims, they cannot be relitigated. See Taylor v. Wahby, 271 Md. 101, 110 (1974) (“[A] judgment or decree from which no appeal has been taken may not be reversed for the benefit of one who did not appeal even though in regard to him the judgment or decree was both erroneous and injurious.”). Furthermore, the Opinion and Mandate did not reopen those claims. Therefore, the only surviving claims asserted by Plaintiff are those contained in Count 6 of the Complaint (Declaratory Judgment).

Thus, the relevant and dispositive issues to be addressed are as follows: (1) Whether this Court has discretion and authority, under the MDJA, to grant Plaintiff, a former employee of MAS Association, LLC[], monetary relief for any wrongfully withheld wages; (2) Whether this Court has discretion and authority, under the 8 The circuit court referred to the Act as the “Maryland Declaratory Judgment Act (‘MDJA’).” The correct name of the Act is the Maryland Uniform Declaratory Judgments Act. See Md. Code Ann., Cts. & Jud. Proc. (1974, 2013 Repl.

Vol.) §§ 3-401 to 3-415. - 21 - MDJA, to grant Plaintiff monetary relief based on the grounds of unjust enrichment; (3) Whether the MDJA permits this Court to recognize Plaintiff as a creditor, and if so, whether this Court has personal jurisdiction over the alleged debtor such that this Court has discretion and authority to grant monetary relief; and (4) If the answer to any of the above issues is in the affirmative, is there enough evidence to support such a finding, and what, if any, are the damages to be awarded?[9] (First alteration in original). The circuit court ordered the parties to submit memoranda on the issues and ordered that a remote hearing be held on August 5, 2020. On May 22, 2020, the circuit court issued an amended order, reaffirming the content of the May 19, 2020 Order but expanding the issues to include the following: “Whether, pursuant to the only remaining count in this matter, this Court has personal jurisdiction over Saralee Greenberg such that, if warranted, a judgment of damages may be entered against her[.]” (Italics omitted). Harry filed a brief in response to the memorandum ruling and amended order, requesting that the circuit court adjust the damage award to include $275,000 plus prejudgment interest from the date the loans were made and the full amount of unpaid commissions and profit plus treble damages and attorney’s fees.

The defendants filed an opposition, contending that the circuit court did not have authority to award damages to 9 The declaratory judgment claim brought by Harry in the complaint sought partnership damages under the Maryland Revised Uniform Partnership Act, not the MUDJA. The applicability of the MUDJA appears to have been raised by the circuit court sua sponte. No issue as to the MUDJA had been raised by the parties at any prior time, and this Court did not address any issue as to the MUDJA in MAS Assocs. - 22 - Harry under the MUDJA. The defendants pointed out that Harry never brought a claim under the MUDJA in his complaint but instead pled a limited declaratory action under the Maryland Revised Uniform Partnership Act, i.e., not a declaratory judgment action under the MUDJA.

In addition, the defendants explained that the circuit court had no personal jurisdiction over Saralee, as she had been dismissed as a party by the court in 2015 and was not a party to any of the proceedings on appeal. On August 5, 2020, the circuit court conducted a remote hearing on the matter. On November 6, 2020, the circuit court issued an opinion and order, ruling that the earlier rulings in favor of the defendants on the unjust enrichment and wage claims were “no longer consistent with the law of this case” and stating that, in accordance with this Court’s “opinion and the findings of law therein, the judgments entered on March 3, 2015 are now reversed as to” the unjust enrichment and wage payment claims. The circuit court vacated the judgments as to the unjust enrichment and wage payment claims.

The circuit court entered judgment in favor of Harry against Saralee, who had not participated in any of the appellate proceedings, and MAS, jointly and severally, on the unjust enrichment claim “in the principal amount of $275,000.00, plus prejudgment interest in the amount of $159,304.20 through November 5, 2020, plus $45.21 per day until judgment is entered.” The circuit court entered judgment in favor of Harry against MAS on the wage payment claim “in the amount of $90,292.62, plus prejudgment interest in the amount of $48,169.63 through November 5, 2020, plus $14.84 per day until judgment is entered.” In total, the circuit court entered judgment in favor of Harry in the amount of $572,766.83. The circuit court entered judgment in favor of the defendants against Harry - 23 - on count six, the declaratory judgment claim.10 The following day, November 6, 2020, notices of recorded judgments against MAS and Saralee and in favor of Harry were issued. On November 30, 2020, MAS and Saralee, Petitioners in this case, noted an appeal to the Court of Special Appeals. On December 9, 2020, Harry noted an appeal to the Court of Special Appeals.

On December 11, 2020, MAS and Saralee filed in this Court a petition for a writ of certiorari, raising the following issue: Did the trial court exceed this Court’s decision and Mandate in MAS Assocs. by (1) entering judgment on two counts -- unjust enrichment and wage payment -- that were never appealed after the 2015 trial and were the subject of a final, enrolled judgment; and (2) entering judgment against a former party who was beyond the trial court’s jurisdiction? On December 29, 2020, Harry filed in this Court a conditional cross-petition for a writ of certiorari, raising the following three issues: 1. In adjusting damages awarded under the Maryland Wage and Collection Law, did the trial court abuse its discretion in finding no bona fide dispute and awarding no attorney’s fees or treble damages? 2. In adjusting damages awarded under unjust enrichment, [did] the trial court abuse its discretion in calculating prejudgment interest from the date of [Harry]’s resignation rather than the date he made the loan? 3.

Did the trial court err[] by not declaring judgment or adjusting damages under the Revised Uniform Partnership Act or the Maryland Declaratory Judgment Act? 10 In ordering that the judgments entered with respect to the unjust enrichment and wage payment counts were vacated and in awarding damages to Harry on those counts, the circuit court acknowledged that this Court reversed the award of damages to Harry under the Maryland Revised Uniform Partnership Act, Md. Code Ann., Corps. & Ass’ns (1975, 2014 Repl. Vol.) §§ 9A-101 to 9A-1305. In so ruling, the circuit court recognized that Harry did not bring a claim under the MUDJA and contradicted its earlier determination that the unjust enrichment and wage payment claims could not be reopened. - 24 - On January 6, 2021, MAS and Saralee filed a motion to dismiss the conditional cross- petition. On February 8, 2021, this Court denied the motion to dismiss and granted the petition and conditional cross-petition.

See MAS Assocs., 472 Md. 313 , 245 A.3d 992 . Ten days later, on February 18, 2021, the circuit court issued an opinion and order that minimally adjusted the prejudgment interest amount of the November 6, 2020 judgments. On February 19, 2021, the Clerk’s Office of the circuit court issued notices of modification of judgment indicating that the judgments entered on November 6, 2020 had been vacated.11 On the same day, new notices of recorded judgments were issued. The only difference between the November 6, 2020 judgments and the February 19, 2021 judgments is that the amount of prejudgment interest awarded is slightly reduced.

With respect to the judgment in favor of Harry against Saralee and MAS, jointly and severally, on the unjust enrichment claim, the prejudgment interest amount of $159,304.20 was reduced to $159,258 (a reduction of $46.20) and with respect to the judgment in favor of Harry against MAS on the wage payment claim, the prejudgment interest amount of $48,169.63 was reduced to “$48,154.4553” (a reduction of approximately $15.17). On February 23, 2021, MAS and Saralee noted an appeal to the Court of Special 11 Prior to the circuit court issuing notices vacating the judgments entered on November 6, 2020, Petitioners had noted an appeal and filed a petition for a writ of certiorari and Harry had noted an appeal and filed a conditional cross-petition with respect to the November 6, 2020 judgments. This Court granted the petition and conditional cross- petition and the matter is now before us in Case No. 54. Although the notices of modification of judgment from the Clerk’s Office indicate that the judgments ordered on November 6, 2020 were vacated, neither party has indicated or requested that we treat Case No. 54 as moot. - 25 - Appeals as to the judgments docketed on February 19, 2021.

On February 25, 2021, Harry noted an appeal to the Court of Special Appeals. On February 26, 2021, MAS and Saralee filed in this Court a second petition for a writ of certiorari and a request to consolidate appeals, raising the same issue as in the earlier petition. On March 12, 2021, Harry filed in this Court a conditional cross-petition for a writ of certiorari, raising the same issues as in the earlier conditional cross-petition. On March 26, 2021, this Court granted the petition and conditional cross-petition and ordered that the case be set for argument on the same day as the earlier granted petition and conditional cross-petition.

See MAS Assocs., LLC v. Korotki, ___ Md. ___, ___ A.3d ___, 2021 WL 1257085 (Md. Mar. 26, 2021). DISCUSSION12 The Parties’ Contentions MAS and Saralee contend that the circuit court “[g]rossly [m]isinterpreted” this Court’s opinion and mandate in MAS Assocs. by reopening the unjust enrichment and wage payment claims. MAS and Saralee point out that because Harry lost on six counts of the complaint (including the unjust enrichment and wage payment claims) at trial in 2015 and did not appeal the circuit court’s determinations and lost the only other count of the complaint (the partnership count) before this Court, there were no counts left to litigate on remand. MAS and Saralee argue that this Court’s instruction to “adjust the damage award” 12 Because we hold that the circuit court erred by entering judgment in favor of, and awarding damages to, Harry on the unjust enrichment and wage payment claims, we do not reach the three issues raised by Harry in the conditional cross-petitions concerning an adjustment of the damages award. - 26 - could only have referred to damages that were entered on the partnership count at the trial, as those were the only damages entered after the trial, and the instruction could only have meant, in light of the reversal of the judgment in Harry’s favor, to reduce the damages to zero.

MAS and Saralee contend that the circuit court lacked the authority to reopen final enrolled judgments entered after trial and revive two counts of the complaint when the judgments with respect to the counts were never appealed or cross-appealed. MAS and Saralee point out that, at trial, the circuit court had granted judgment in favor of Saralee on all counts against her and that Saralee was not a party to the appeal or the proceedings before this Court. As such, MAS and Saralee argue that the circuit court exceeded this Court’s mandate by entering judgment against a former party (Saralee) over whom it no longer had jurisdiction. Finally, MAS and Saralee contend that the remand proceedings conducted by the circuit court were unjust and fundamentally unfair.

Harry responds that the entry of judgment in March 2015, awarding him over $1 million and interest at a rate of 10% per annum from March 10, 2011 to the date payment is made, was the only final appealable judgment in the case. Harry contends that “[t]his Court’s decision with regard to the counts based upon unjust enrichment and wage payment were interlocutory orders, not final judgments” and, as such, “no cross-appeal was necessary or appropriate.” In addition, Harry maintains that Maryland Rule 8-131 “explicitly authorizes this Court to consider whatever issues it deems necessary[.]” Harry argues that, in MAS Assocs., this Court reversed the entire judgment in the case and “[n]o part” of