Balducci v. Eberly

Citation500 A.2d 1042,304 Md. 664
PartiesLarry S. BALDUCCI et al. v. Henry M. EBERLY et ux. 14 Sept. Term 1985.
Decision Date04 December 1985
CourtCourt of Appeals of Maryland

Michael F. Dooley (Joseph P. McMahon, on brief), Riverdale, for appellant.

Joseph F. McBride (Joseph F. McBride, P.A., on brief), Silver Spring, for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.

COUCH, Judge.

I

On February 21, 1975, Henry and Delores Eberly (mortgagors/appellees) executed a deed of trust on real property located in Prince George's County to secure payment of two notes totalling $80,000 with a seven percent per annum interest rate. The appellants, Larry S. Balducci and Joseph P. McMahon, were named as trustees. Under the terms of that agreement, the mortgagors promised to pay the indebtedness and "all taxes, assessments, water rates and other governmental or municipal charges...." 1

The controversy which is the subject of the present appeal began when the mortgagors received a letter, dated December 29, 1981, from trustee McMahon which called for "an acceleration under the existing deed of trust because of ... (their) failure to make payments as required thereunder." The total amount claimed to be due was $71,524.31. The mortgagors submitted statements to McMahon which showed that their principal and interest payments were current.

McMahon then sent a letter dated January 27, 1982 to the mortgagors in which he stated that although they were not in default of principal and interest payments, the taxes had not been paid for 1980-81 or 1981-82. 2

The mortgagors, in an attempt to resolve the matter by February 5, 1982, paid the taxes due on the property on February 4, 1982. On March 24, 1982, the trustees filed in the Circuit Court for Prince George's County an order to docket a foreclosure action. 3 All principal and interest payments and taxes were current at the time of the filing of the foreclosure action.

On April 6, 1982, the mortgagors filed a motion for "Ex Parte and/or Interlocutory Injunction," pursuant to Md. Rule W76 b, seeking to enjoin the foreclosure action. On that date, Judge Levin signed an order enjoining the foreclosure until April 13, 1982, the date of the hearing on the petition for interlocutory injunction. Judge Levin also signed an order granting the interlocutory injunction "until such time as a hearing is held on the merits hereof." There is no indication that a hearing was held before that order was signed. 4

On April 13, 1982, the court (Mason, J.) granted the petition for interlocutory injunction and on May 5, 1982, signed an order which made the injunction permanent as to all defaults alleged to have occurred prior to the date of the hearing. The trustees appealed to the Court of Special Appeals. That court, in an unreported per curiam opinion dated February 15, 1983 reversed the lower court and vacated the injunction. Balducci v. Eberly, No. 822, September Term, 1982. 5

Thereafter, the trustees resumed foreclosure proceedings. The mortgagors filed another petition for "Ex Parte and/or Interlocutory Injunction" to enjoin that foreclosure. On May 2, 1983, the court (Mason, J.) held a hearing at which, according to that court, the mortgagors were "well armed with testimonial and documentary evidence to support their position." However, the court, by decree dated January 11, 1984, dismissed the petition on the ground that it was barred by the doctrine of res judicata.

The mortgagors appealed to the Court of Special Appeals. On December 11, 1984, that court reversed the lower court's holding of res judicata, enjoined further foreclosure proceedings and further held that: (1) payment of delinquent taxes before commencement of the foreclosure action bars acceleration and foreclosure, and (2) the unconditional acceptance by the trustees of the principal and interest payments following notice to them that the taxes had been paid is inconsistent with a claim that a default exists. Eberly v. Balducci, 61 Md.App. 80, 484 A.2d 1043 (1984). We granted the writ of certiorari to address issues of public importance. 6 We shall affirm the decision of the Court of Special Appeals.

II

(1)

The initial issue before us is the effect of the mandate rendered by the Court of Special Appeals in its opinion in this case, dated February 15, 1983. That mandate reads: "Judgment Reversed. Orders of May 5, 1982 vacated. Appellees to pay the costs." Balducci v. Eberly, No. 822, September Term, 1982. A new trial was not awarded in this judgment, by its terms.

Appellants (trustees) contend that the Court of Special Appeals' February 15, 1983 opinion vacating the injunction was a final and conclusive judgment on the merits, the effect of which was to establish a res judicata bar to the attempts by the Eberlys in seeking further injunctive relief. Unfortunately for the appellants we do not view the February 15 opinion as having any such effect. Moreover, we find we need not consider the issue of res judicata in light of the view we have taken of that opinion. We explain.

We perceive the key issue as being whether the February 15 mandate contemplated the grant of a new trial so as to allow the mortgagors to present evidence to sustain their burden regarding the propriety of granting the injunction. If it did, then the trial court erred in construing that opinion and mandate as constituting a res judicata bar to appellees' petition for further injunctive relief. 7

As a preliminary matter, we find that the February 15 mandate is ambiguous. Where a mandate is ambiguous, one must look to the opinion and other surrounding circumstances to determine the intent of the court. Couser v. State, 256 Md. 393, 396, 260 A.2d 334, 336 (1970); see Pettiford v. State, 8 Md.App. 560, 569, 261 A.2d 216, 221 (1970); Barber v. State, 16 Md.App. 235, 241-242, 295 A.2d 814, 817 (1972) (ambiguous jury verdict); Cf. Mayne v. State, 45 Md.App. 483, 487, 414 A.2d 1, 4 (1980).

In examining the expression "Judgment Reversed," we recognize that such an expression in and of itself does not prohibit the interpretation that a new trial is intended. In Couser, this Court was faced with the question of whether a mandate of the Court of Special Appeals which read "Judgment Reversed" had the effect of amounting to an acquittal of the criminal defendant. The defendant contended that if that mandate did not preclude a new trial (and, therefore, did not constitute an acquittal), a subsequent change in the mandate which provided for a new trial would violate the fifth amendment guarantee against double jeopardy. Judge Finan for this Court opined that the original mandate issued by the Court of Special Appeals was ambiguous. He further noted that several cases were found to hold that a mandate phrased "Judgment Reversed" did not of itself amount to an acquittal nor prohibit the interpretation that a new trial was intended. Couser, 256 Md. at 396, 260 A.2d at 336 (emphasis supplied). See, e.g., Cobb v. Snow, 14 Utah 2d 170, 380 P.2d 457 (1963); United States v. Reina, 172 F.Supp. 113 (S.D.N.Y.1959); see also United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Tateo, 377 U.S. 463, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); and Spriggs v. United States, 225 F.2d 865 (9th Cir.1955), cert. denied, 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830 (1956). At least one state has held that the reversal of a judgment without direction is tantamount to remand for a new trial. State v. Percy, 81 S.D. 519, 137 N.W.2d 888 (1965). See Laithe v. McDonald, 7 Kan. 254 (1871). 8

We find the general principle enunciated in Couser to be particulary applicable to the instant appeal. Our opinion in George v. Farmers' and Merchants' Bank, 155 Md. 693, 142 A. 590 (1928) offers further guidance. In George, this Court initially reversed a judgment of a ruling by the trial court; the mandate following the opinion being: "Judgment Reversed, with costs to the appellant." See Farmers' and Merchants' Bank v. Harper, 151 Md. 358, 137 A. 702 (1926). The judgment was affirmed on reargument. (See 153 Md. 128, 137 A. 702). Neither judgment contained an award of a new trial, in terms. On subsequent appeal from a judgment on the verdict, Judge W. Mitchell Digges noted:

"The omission of the words 'new trial awarded,' ... was a clerical omission or oversight on the part of the court. This is clearly indicated by the opinions in the previous cases, because those opinions show that the purpose and intention of this court was that a new trial should be had, in which the defense of forgery would be excluded. This purpose would be entirely frustrated if the judgment and mandate of this court could not be corrected to conform with that intent." Farmers' and Merchants' Bank, 155 Md. at 697, 142 A. at 591.

Still further direction can be gleaned from Messall v. Merlands Club, Inc., 244 Md. 18, 222 A.2d 627 (1966), cert. denied, 386 U.S. 1009, 87 S.Ct. 1349, 18 L.Ed.2d 435 (1967). In that case involving the doctrine of res judicata, the appellee contended that: "Only the final judgment itself may be considered in applying the principle of res judicata. The opinion, being irrelevant and obiter dicta, has no force or effect." This Court responded by stating: "In our judgment a more correct statement of the law will be (that): '... [R]ecourse may be had to the opinion of the court in a former action to ascertain what was in the mind of the court when judgment was rendered, especially where there is only a general finding; ...' " Messall, 244 Md. at 37, 222 A.2d at 637. 9

Therefore, in light of Couser and Farmers' and Merchants' Bank, as well as Messall, we feel justified in concluding that the ambiguous mandate before us may be read in light of its opinion and the surrounding circumstances of the case as a whole. We now find it necessary to look not only to the opinion of the Court of Special Appeals issued February 15, 1983 in which...

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