Banegura v. Taylor
| Citation | 541 A.2d 969,312 Md. 609 |
| Decision Date | 01 September 1986 |
| Docket Number | No. 42,42 |
| Parties | Fabio K. BANEGURA v. Nacole v. TAYLOR. , |
| Court | Court of Appeals of Maryland |
Joyce Seunarine (Law Office of Benjamin L. Cardin, on the brief), Baltimore, for appellant.
Jonathan Schochor (Philip C. Federico, Kerry D. Staton and Schochor, Federico & Station, P.A., on the brief), Baltimore, for appellee.
Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH * and McAULIFFE, JJ., and SMITH, (retired, Specially Assigned).
This case involves a claim for damages for rape brought by a baby-sitter against her employer, and the effect upon this appeal of a claim for damages brought by the employer against his attorney.
Nacole V. Taylor complained to the Baltimore City Police that she was raped by Fabio K. Banegura while babysitting in his home on November 20, 1983. Criminal charges of rape and assault were brought against Banegura, and he retained Norman Burke, a Maryland attorney, to represent him. Acting upon the advice of Burke, Banegura entered an Alford 1 plea of guilty to the charge of assault and was given a sentence of four years imprisonment, the execution of which was suspended upon condition that Banegura successfully complete three years of probation.
Taylor then filed a civil action against Banegura, claiming damages for the alleged rape. Banegura was served with original process and he forwarded the pleadings and papers to Burke, with a request that Burke represent him in the case. When no answer or other pleading was filed within the time specified in the summons, an order of default was entered. Notice of the default was promptly sent to Banegura by the Clerk of the Circuit Court for Baltimore City and Banegura delivered that notice to Burke. Nothing was filed by or on behalf of Banegura within thirty days from the entry of the order of default, and Taylor requested that the court enter a judgment of default. That "judgment" was entered, without proof of damages, and the case was scheduled for a jury trial to determine the damages. On the day scheduled for trial, Banegura appeared but Burke did not. At the request of Banegura, Judge Joseph Pines held the matter over until the afternoon and, when informed that Burke still could not be found, continued the trial for two weeks, to February 14, 1985. Three days later, Burke filed a motion to strike the default. That motion was heard and denied by Judge Pines on February 11, and on February 14 the case was called for trial on the issue of damages before Judge Philip M. Fairbanks. 2 Prior to the commencement of trial, Burke again requested that the order of default be vacated, but Judge Fairbanks denied the request. Burke then conferred with Banegura, and during a chambers conference at which Banegura was not present Burke informed Judge Fairbanks that his client had elected not to participate in the trial, but would observe the proceedings from the spectators section of the courtroom. Trial took place that day and the next, and resulted in a judgment in favor of Taylor in the total amount of four million dollars. 3 Timely filed motions for a new trial or for a remittitur were heard and denied by Judge Fairbanks, after which Banegura filed an appeal to the Court of Special Appeals. In an unreported per curiam opinion, that Court dismissed the appeal as to the judgment by default, finding it untimely, and affirmed the judgment as to damages. We granted Banegura's petition for a writ of certiorari.
While his appeal was pending before the Court of Special Appeals, Banegura filed a civil action for damages against Burke in the Circuit Court for Baltimore City, alleging malpractice, breach of contract, and fraud. Burke was served, but did not answer, and after an ex parte trial before Judge Milton Allen, judgment was entered in favor of Banegura for four million dollars compensatory damages and three million dollars punitive damages. No appeal was taken from that judgment. Taylor included in her brief, filed with this Court, a motion to dismiss, contending that Banegura's prosecution to judgment of the claim against Burke precludes the further prosecution of this appeal.
Taylor's motion to dismiss the appeal is based upon the well-settled principle that "[t]he right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal." Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531 (1966). As we pointed out in Franzen v. Dubinok, 290 Md. 65, 68-69, 427 A.2d 1002 (1981), this rule of preclusion has been variously characterized as grounded upon notions of estoppel, waiver, acquiescence, acceptance of benefits, or mootness. However we may view the underpinnings of the rule, it is clear that "a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review." Id. at 69, 427 A.2d 1002.
Taylor argues that Banegura sued Burke for, among other things, allowing a four million dollar judgment to be entered against him. By so doing, she says, and by obtaining a judgment against Burke that includes the amount of the judgment Taylor obtained against Banegura, Banegura acquiesced in and relied upon the judgment he now seeks to attack. Her contention does not survive close inspection.
Banegura's action against Burke sought damages for substandard representation in the criminal case, as well as in the civil case brought by Taylor. Banegura contended that he was innocent of the criminal charges, and that his decision to plead guilty was made as a result of inadequate and incomplete advice given by Burke. Although Banegura alleged that a judgment had been entered against him in the civil case, he also complained that he had suffered damage as a result of the publicity that had resulted from the verdict in that case. Banegura specifically claimed damages for: payment of the judgment of four million dollars, attorney's fees to prosecute an appeal in the civil case, "irreparable" damage to his medical practice, loss of reputation, and the public scorn, ridicule, and abuse to which he claimed to have been subjected.
Banegura's claim against Burke for damages thus fell into two categories. One involved the existence of a four million dollar judgment against him--a potential financial liability that he made clear in his complaint he was attempting to avoid by prosecuting an appeal. The other category involved irreversible damages to his reputation and livelihood, as well as expenditures made and certain to be made. We need not decide the correctness of Taylor's contention that Banegura's recovery of a judgment that included damages in the first category would preclude the further prosecution of this appeal, because the combination of the amount of the award for compensatory damages and the explanation of damages provided by Judge Allen's written opinion leaves no doubt that the four million dollar Taylor judgment was not included in the award of damages in Banegura's action against Burke. Judge Allen said:
In assessing damages, the Court has considered the unnecessary public scorn and ridicule the Plaintiff has suffered. The Court is aware that the Plaintiff has received national news coverage as a result of the Defendant's actions. Accordingly, the Plaintiff's medical practice has suffered greatly with an approximate 75% reduction in his yearly earnings. Moreover, Dr. Banegura has lost hospital privileges at several local hospitals. Additionally, Dr. Banegura's right to practice medicine in Maryland is now threatened as a result of negative public opinion. The Court has no way of calculating the other less tangible personal sufferings but thinks these too are great. Accordingly, this Court feels compelled to award a judgment that seeks as best it can to compensate for all these damages. In addition because of the reckless nature of the Defendant's actions the Court chooses to award punitive damages in this case.
We do not know whether Banegura, in the course of proceedings before Judge Allen, abandoned his claim for damages based on the amount of the judgment against him, or whether Judge Allen decided he should not include that amount because Banegura was actively seeking to reverse the judgment on appeal. In either event, we are satisfied that the judgment obtained by Banegura against Burke did not include the amount of the judgment in the case before us, and that Banegura is therefore not precluded from the further prosecution of this appeal.
Petitioner contends that Judge Joseph Pines erred in denying his motion to strike the default "judgment." Respondent answers with alternative contentions: 1) that no timely appeal was taken from the denial of the motion to strike; and 2) that, in any event, the denial of the motion was proper.
The following chronology of events is relevant to the question of the timeliness of the appeal:
10/24/84 - Action filed
10/26/84 - Banegura served
11/29/84 - Order of default entered.
11/30/84 - Notice of default sent by clerk.
1/ 4/85 - Order of judgment by default entered.
2/ 4/85 - Motion to strike filed.
2/11/85 - Hearing on motion, and entry of order
denying motion.
2/14/ &
2/15/85 - Jury trial on damages.
2/22/85 - Motions for new trial filed.
3/22/85 - Entry of order denying post-trial motions.
4/19/85 - Appeal filed.
Respondent argues that the order of January 4, 1985, was a final judgment on the issue of liability, and that the time for appeal expired thirty days after its entry. Furthermore, she says, the filing of the motion to strike thirty days later did not extend the time for taking an appeal.
If petitioner were correct concerning the nature of the January 4 order, her analysis of the...
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