Sapero & Sapero v. Bel Air Plumbing & Heating Contractors, Inc.

Lowe, J., delivered the opinion of the Court. The beneficent effort of a trial judge to overcome a clerk’s procedural oversight which precluded appellants’ right of review by this Court provides a provocative scenario for an otherwise bland appeal. Except to the litigants, the $4,000 in controversy is not nearly as important as the possible procedural loss of appellate review. We are asked by appellants to decide if the trial judge’s factual decision was correct, but our right to hear this appeal, from the Circuit Court for Harford County, is challenged by appellee as well as the trial judge below.

We will attempt to simplify the confusing scenario by restricting the recitation of facts to the specified issues upon appeal. Because the factual issue and the procedural obstacles are interwoven, we will face the appellants’ substantive question first, obviously indicating that we will ultimately find that we have jurisdiction to hear the appeal. Upon review of the evidence, we had no difficulty in affirming the trial judge on what amounts to an attack on the sufficiency of the evidence under Md. Rule 1086. The case involves judgment creditors seeking to attach funds of appellee Irwin, 1 contended to be those of the judgment debtors.

Appellants 2 were judgment creditors of appellees, Bel Air, Inc. and of the Lovelaces 3 who had previously contracted with appellee Irwin (and others) for the purchase of real property. The sale of the property was never consummated. Seeking to satisfy their judgment, appellants sought to attach the deposit paid by the judgment debtors to ²⁵³ Irwin at the time they contracted to buy that property. Contending that upon default by the buyers they had forfeited that deposit to her, Mrs. Irwin responded with a plea of nulla bona, that she had no assets of Bel Air or the Lovelaces in her hands.

The very narrow sufficiency question justifying a very thick record extract condenses to whether the language used in a letter written by Mrs. Irwin’s attorney to the buyers (appellants’ debtors), in response to a letter advising that the buyers could not settle, was sufficient to declare and effect a forfeiture of the deposit money. After declaring the inability to settle to be a breach, and declining to consent to a rescission, there followed in the Irwin response the sentence in controversy which appellants contend was insufficient to declare a forfeiture: “Although only a partial deposit (and not the full deposit set forth in the contract) was made, Sellers will retain this deposit.” A judgment creditor seeking to attach assets by garnishment is limited to the rights of the judgment debtor as against the garnishee. Messall v. Suburban Trust, 244 Md. 502, 506-507 (1966). The issue of whether the evidence (including that language) effected a forfeiture, is therefore essential to appellants’ case.

If it did, the deposit would become funds of the garnishee who would then have no funds of the debtors for which the debtors themselves could have sued; and consequently, none subject to attachment by a creditor of the debtors. Walsh v. Lewis Swim. Pool Constr., 256 Md. 608, 610 (1970). Concisely (if elliptically) providing the historic legal background culminating in that forfeiture question, appellants point out that the common law rule is recognizably harsh: “[Wjhere the vendee of real property makes part payment on the purchase price but subsequently fails to fulfill the contract without justifiable excuse, he cannot recover the payment if the vendor is ready and willing to fulfill his part of the contract, even though the vendor may have made a profit by reason ²⁵⁴ of the default.” Great United Realty Co. v. Lewis, 203 Md. 442, 446 (1954).

This forfeiture right prevails, “even though the vendor may have made a profit by reason of the default.” Quillen v. Kelley, 216 Md. 396, 402 (1958). 4 Appellants contend, however, that because of the availability of elective remedies the default does not effect a forfeiture until the forfeiture is declared. Although the cases they cite for that principle were decided upon the specific language in the contracts in those cases, Chas. H. Steffey, Inc. v. Derr, 275 Md. 121, 125 (1975); Casey v. Jones, 275 Md. 203, 205-206 (1975), we will accept appellants’ premise for purposes of this case. In doing so, we must affirm the trial judge nonetheless.

The above quoted language in its context, together with all the other evidence in the case, was sufficient to support the factual conclusions of the factfinder. Operations Research v. Davidson, 241 Md. 550, 556 (1966). Although the factfinding judge here did not expressly state that he had concluded that a forfeiture was effected, it was implicit in his ruling in favor of appellee, especially since the issue was pointedly argued as part of appellants’ case below. But we have put the cart before the horse.

Appellee Irwin contends that we have no right to decide this case, even in her favor. The trial judge whose nunc pro tunc order gave birth to this issue, no longer holds that view; however, he has chosen consistency over prudence and invoked Md. Rule 1013 to strike the order for appeal, thereby strengthening appellee’s contention. The events leading to this state of confusion came by way of a simple oversight. The trial judge decided this case and entered judgment nisi causa on September 23, 1977, presumably causing an entry of final judgment “as of course” by the clerk upon expiration ²⁵⁵ of three days.

No motion for new trial having been filed, Md. Rule 567 a and f, appellants filed an order for appeal on September 27, 1977. There followed the series of events in which appellants have become entangled. 1) Nearly three months later, on November 22, 1977, the Circuit Court for Harford County entered “Judgment Absolute Nunc Pro Tunc as of September 29, 1977,” presumably hoping to avoid a dismissal of the appeal. 2) Four days later, on November 26,1977, we dismissed the appeal as premature, no final judgment having been entered to our knowledge. 3) On December 1,1977, notwithstanding the nunc pro tunc entry, the clerk entered anew a “Judgment Absolute ... in accordance with the Mandate of the Court of Special Appeals.” 4) On December 9,1977, appellants again filed an order of appeal. 5) Meanwhile, appellee moved to strike the December 1, 1977 docket entries and to strike or not receive the order for appeal. 6) Given the opportunity for reflection, the trial judge correctly assessed the problems and by a well thought out opinion pointed out the problems as well as his own errors. The trial judge correctly observed that he had erroneously ordered entry of the judgment nunc pro tunc. “My ruling, if allowed to stand, would have the effect of denying the Plaintiffs the right to appeal because their order for appeal, filed December 9, 1977, would have been more than thirty days after the effective date of the judgment absolute. The garnishee has urged me to pursue this result by modifying the December 1st docket entry to delete reference to a redundant second judgment absolute.

After reading the cases, I am convinced that my ruling from the bench was wrong. The statute, Courts and Judicial Proceedings Article, Section 12-301 provides that a party may appeal from a final ²⁵⁶ judgment ‘entered in a civil or criminal case by the Circuit Court’. Maryland Rule 1012.a., however, provides that the order for appeal shall be filed within thirty days from the date of the judgment appealed from, no mention being made of the question of whether or not ‘entry’ is a necessary prerequisite of a judgment absolute. The cases are not particularly helpful as to the specific problem.

Merlands Club v. Messall, 238 Md. 359 (1965) set forth the general rule, holding, in the language of the case, that the order of appeal filed ‘prior to the entry of the judgment absolute was premature and ineffective’. In that case, however, the judgment absolute was duly entered at the end of the three day period. In Aronstamn v. Coffey, 259 Md. 47 (1970), an appeal was taken before the actual entry of the judgment absolute although the clerk should have entered the judgment. The appeal was deemed premature but the Court of Appeals considered the case in order to avoid expense and delay.

In that case, however, the entry of the judgment absolute should have been made, not because of the passage of time, but because the Court overruled a motion for new trial. But again, the entry by the clerk was a ministerial act, just as it was here, yet the Court of Appeals impliedly ruled that the crucial event was the entry by the clerk. My direction of November 22, 1977, directing entry of judgment absolute as of September 29, 1977, was entered in the spirit of Keystone Engineering Corporation v. Sutter, 196 Md. 620 (1950) but, unlike the situation there, here there was no agreement of counsel and the appellate court was not aware of my action when the mandate was issued. Under the rationale of Lang v. Catterton, 267 Md. 268 (1972), it seems that a trial court may retain jurisdiction after an appeal has been entered if the retention of such jurisdiction does not affect the ²⁵⁷ status of the appeal.

The entry of November 22,1977 would have the effect of foreclosing the Plaintiffs’ right of appeal because more than thirty days would have elapsed since the rendition of judgment absolute. This being the case, I now feel that the direction of that entry may have been beyond my power. But the deed is done and the extent of a trial court’s powers can only be decided by appellate courts.” But presumably overtaken by the hobgoblin of consistency, he struck the order of appeal invoking Md. Rule 1013 and “corrected” the December 1, 1977 docket entry. “I will, nonetheless, GRANT the motion of the garnishee to strike the order for appeal, under Rule 1013, and will correct the December 1 docket entries as suggested by the garnishee. Hopefully, this will place the matter in a position for consideration by the Court of Special Appeals of the issues previously presented, in such a way as not to again cause the Plaintiffs to be thrown out of the appellate court, this time for failure to comply with the time limits of Rule 1025.” 7) Appellants prudently appealed everything. 5 To the trial judge’s erudite opinion we must add a few hindsight reflections.

That there be no further question, the right to appeal is a substantive right statutorily given from ²⁵⁸ a “final judgment entered,’’ not a final judgment rendered. That was implicit in the holding of Eastgate Associates v. Apper, 276 Md. 698 (1976) which held that there was no appellate jurisdiction when there was no entry of a final judgment. Id. at 699 . “In the instant case, the appeal was taken from the instruction granting a directed verdict. Such an instruction is equivalent to a jury