Atlantic Food & Beverage Systems, Inc. v. City of Annapolis, 969
| Citation | 70 Md.App. 721,523 A.2d 648 |
| Decision Date | 01 September 1986 |
| Docket Number | No. 969,969 |
| Parties | ATLANTIC FOOD & BEVERAGE SYSTEMS, INC., et al. v. CITY OF ANNAPOLIS. , |
| Court | Court of Special Appeals of Maryland |
Samuel J. Brown (Daniel J. Mellin, Hillman, Brown & Darrow, on the brief), Annapolis, for appellants.
Jonathan A. Hodgson, City Atty., Annapolis, for appellee.
Argued before GILBERT, C.J., and WILNER and BISHOP, JJ.
This appeal is "from the Opinion and Order" of the Circuit Court for Anne Arundel County "dated June 11, 1986." According to the docket, on that date the court "Ordered, that the Motion to Alter or Amend Judgment and the Motion to Take Additional Testimony be and they are hereby denied." Because we dismiss this appeal on procedural grounds, we will not set out either the facts or the issues raised.
The following are the pertinent docket entries:
Esq., S.J. Brown, Esq. & R.T.
Wright, Esq. by the Judge's Secretary).
1986 Feb. 28 Correspondence filed. Re: Request
for Hearing.
1986 Feb. 28 Motion for Leave to Present Additional
Testimony filed.
that the decision of the City of Annapolis
Board of Appeals, as embodied
in its Opinion dated May 8, 1985, from
which the appellants have appealed to
this Court, is affirmed, and it is further
ORDERED, that appellants shall
pay the costs of these proceedings.
. . .
1986 May 2 Case called for Hearing on Motions in
Open Court before Judge James C.
Cawood, Jr. Case heard concurrent
with #1110801. Counsel heard.
Court held sub curia.
1986 July 7 Copy of Notice of Appeal filed.
1986 July 10 Notice of Cross Appeal filed.
The Order of June 11, 1986 disposed of Motions filed on February 28, 1986. The record extract does not contain a copy of the Motion to Take Additional Testimony, so that Motion is not before us. Spivey v. Harris, 64 Md.App. 619, 498 A.2d 281 (1985). The Motion to Alter or Amend Judgment is before us. This motion pertains to a "judgment contained in [the court's] opinion dated February 21, 1986...." There was no judgment filed on February 21, 1986. The final judgment of the court, which affirmed the decision of the City of Annapolis Board of Appeals, was filed on March 3, 1986, three days after the motions referred to above were filed. Md. Rule 2-534 authorizes the court, in an action tried by the court, to alter or amend its judgment "on motion of any party filed within ten days after entry of the judgment...." (emphasis supplied). This is a post-judgment rule. Just as an appeal is not permitted from an opinion of the circuit court, Eastgate Associate v. Apper, 276 Md. 698, 701-02, 350 A.2d 661 (1976); Montauk Corporation v. Seeds, 215 Md. 491, 502, 138 A.2d 907 (1958), a motion to alter or amend a judgment is not permitted after an opinion. There was no judgment on February 28, 1986, when the motion was filed, therefore the motion was not permitted by law and there was nothing on which the circuit court had to rule. The action of the circuit court on July 11, 1986 was a nullity from which no appeal is permitted. Appellants were placed on notice on March 17, 1986, three days after their motion was filed. Their failure to take any corrective action was fatal. The trial judge was in error when he ruled that the Motion to Alter or Amend was timely filed.
Although procedurally similar, the instant case stands in a posture substantially different from Houghton v. County Commissioners of Kent County, 305 Md. 407, 504 A.2d 1145, motion to reconsider denied, 307 Md. 216, 513 A.2d 291 (1986). In Houghton, plaintiffs filed a three count complaint in the Circuit Court for Kent County. On January 21, 1985, the court granted defendants' motion to dismiss counts I and III and entered into the docket an order that made no reference that a final judgment had been rendered, but simply stated: "Memorandum Opinion and Order on Defendants' Motion to Dismiss and Order of Court filed." Two days later, on January 23, 1985, the plaintiffs filed a notice voluntarily dismissing count two of their complaint. On the same day, the notice of appeal was entered on the docket, although the word "judgment" was still absent from the docket entry.
This Court, sua sponte, dismissed the appeal on the ground that no final judgment had been entered. The Court of Appeals, however, reversed, holding that "an unqualified order granting a motion to dismiss or strike the plaintiff's initial pleading, thereby having the effect of putting the parties out of court is a final appealable order." Houghton, 305 Md. at 412, 504 A.2d 1145. In reaching this conclusion, the Court recognized that the quality of the trial court's action was sufficient to finalize the case regardless of the form of the docket entry. Specifically, the Court stated that it matters not whether the words "final judgment" appear in the docket so long as the trial court's decision, which is the subject of the appeal, has the effect of terminating the litigation thus "putting the parties out of court." Id.
The circumstances in the instant case are the exact opposite of those existing in Houghton. Here the trial court reached an initial determination in its February 21, 1986 Opinion and directed the attorneys to prepare the necessary orders. In contrast to Houghton, the quality of the trial court's action was not sufficient to "put the parties out of court." Before a final judgment could be qualitatively achieved, orders had to be prepared by attorneys and then entered into the docket. When appellants filed this action to alter or amend a judgment on February 29, 1986, those orders had still not been prepared and entered into the docket. 1 Accordingly, such a motion, without a final order, was premature.
These circumstances closely resemble those arising in Felger v. Nichols, 30 Md.App. 278, 352 A.2d 330 (1976), in which the trial judge granted a motion for summary judgment and signed a document which read in part "Motion for Summary Judgment Granted." Stapled to this document was a note, "Counsel will prepare order." No judgment was entered on the docket. We held that the appeal was premature.
In the case sub judice the opinion of the trial judge of February 21, 1986 closed with the following:
The docket entry of February 21, 1986, supra, provided The court's written affirmance of the decision before it on appeal is analogous to the signed document in Felger which documented the court's granting of the Motion for Summary Judgment. The note in Felger providing "Counsel will prepare order" and the court's direction in the case sub judice that counsel was to prepare the orders are sufficiently similar for Felger to be supportive of our holding in this case.
Former Rule 2-601(a) provided:
When Entered.--Upon a verdict of a jury or upon a decision by the court allowing recovery only of a sum certain or costs or denying all relief, the clerk shall forthwith enter the judgment, unless the court orders otherwise. Upon a special verdict of a jury or upon a decision by the court granting other relief, the court shall promptly approve the form of the judgment, and the clerk shall then enter it.
Effective July 1, 1986, section (a) was amended as follows:
Upon a general verdict of a jury or upon a decision by the court allowing recovery only of costs or of a [DELETED: [sum certain]] [ADDED: specified amount of money] [DELETED: [or costs]] or denying all relief, the clerk shall forthwith enter the judgment, unless the court orders otherwise. Upon a special verdict of a jury or upon a decision by the court granting other relief, the [DELETED: [court shall promptly approve the form of the judgment, and the]] clerk shall [DELETED: [then]] enter [DELETED: [it]] . 2
Whether the former rule, in effect at the time of the opinion and docket entries in this case, or the current rule is applied, the result would be the same. Applying the language in the former rule that "the clerk shall forthwith enter the judgment, unless the court orders otherwise" to the facts of this case leads to the conclusion that the court's request that counsel prepare the orders would prevent the forthwith entry of the judgment by the clerk. We see no substantive difference between the former and the current rule since the language, "the clerk shall enter the judgment as directed by the court" is the positive way of saying "the clerk shall forthwith enter the judgment, unless the court orders otherwise." 3
Appellant filed a motion pursuant to Maryland Rule 2-534, which provides:
In an action tried by the court, on motion of any party filed within ten days after entry of judgment, the court may open the judgment to receive additional evidence, may amend its findings or its statement of reasons for the decision, may set forth additional findings or reasons, may enter new findings or new reasons, may amend the judgment, or may enter a new judgment. A motion to alter or amend a judgment may be joined with a motion for new trial.
(emphasis added). A close comparison of the language of the Maryland rule and its federal...
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