Eubanks v. FIRST MT. VERNON LOAN

• Decision Date: 02 April 1999
• Docket Number: No. 579,579
• Citation: 726 A.2d 837,125 Md. App. 642
• Parties: Beth S. EUBANKS v. FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOC., INC.
• Court: Court of Special Appeals of Maryland

726 A.2d 837

125 Md. App. 642

Beth S. EUBANKS v. FIRST MOUNT VERNON INDUSTRIAL LOAN ASSOC., INC.

No. 579, Sept. Term, 1998.

Court of Special Appeals of Maryland.

April 2, 1999.

Michael J. Shelton (Shelton and Maddox, on the brief), Rockville, for appellant.

Phillip L. Felts (Schuman, Kane, Felts & Everngam, Chartered, on the brief), Bethesda, for appellees.

Argued before DAVIS, EYLER and SONNER, JJ.

EYLER, Judge.

This case presents the question, one of first impression in Maryland's appellate courts, whether an action against forcible detainer is an action under Maryland Code, Real Property ("RP") § 8-402, such that rent escrow relief may be awarded under RP § 8-118. The action was filed by the record owner of real property seeking possession of the property from one alleged to be unlawfully in possession. The Circuit Court for Anne Arundel County ordered, pursuant to the rent escrow provisions contained in RP § 8-118, that, pending a jury trial in that court, the person in possession pay into the registry of the court $1,500 per month for use and possession of the property, and further ordered, pursuant to RP § 8-402(b)(3), that the possessor file a bond in the amount of $5,000 with the clerk of the court as security for any damages found to be due. We affirm the judgment of the circuit court ordering the payment of rent escrow, but reverse the judgment with respect to the bond.

I. Facts

On April 17, 1995, appellant, Beth S. Eubanks, borrowed $239,000 from appellee, First Mount Vernon Industrial Loan Association. The loan was evidenced by a note secured by a deed of trust on certain real property owned by appellant. After appellant defaulted on the loan, the parties negotiated and entered into a forbearance agreement. Pursuant to its terms, appellant delivered into escrow a deed in lieu of foreclosure. When appellant breached the agreement, the deed was delivered to appellee, and on September 9, 1997, appellee recorded it among the Land Records of Anne Arundel County. Appellant remained in possession of the property during the above transactions.

Appellee filed suit in the District Court for Anne Arundel County seeking possession. Count One was an action against forcible detainer, and Count Two was an action for ejectment. Appellant elected a jury trial, and on October 14, 1997, the case was transferred from the district court to the Circuit Court for Anne Arundel County.

On October 6, 1997, prior to the transfer of the district court suit, appellant filed her own suit against appellee in the Circuit Court for Anne Arundel County, with an election for jury trial. Appellant alleged various acts of deception by appellee, in violation of State and Federal law, and sought rescission of the deed in lieu of foreclosure and monetary damages. On December 16, 1997, the two cases were consolidated, and an order was entered directing that all further pleadings and motions be filed in the case originally filed in circuit court.

On October 24, 1997, in the case transferred from district court, appellee filed a motion for a protective order requiring appellant to pay money into a court supervised escrow account on a monthly basis for use and possession of the property. On October 30, 1997, in the same case, appellee filed a motion in limine, in which appellee recited that appellant had challenged title to the property before the district court and, citing RP § 8-402(b)(3), requested a ruling that appellant not be permitted to offer any evidence challenging title without posting a bond as provided for in that section. On February 9, 1998, the circuit court entered an order in which it (1) required appellant to pay $1,500 per month into an escrow account for the use and occupancy of the property, pursuant to RP § 8-118, retroactive to the date of the original request for relief in the district court (October 8, 1997) and continuing during the pendency of the litigation, and (2) required appellant to post a bond in the amount of $5,000, pursuant to RP § 8-402(b)(3).¹

II. Appealability of the Judgment

The circuit court certified its order as a final order for the purposes of appeal under Rule 2-602(b). That Rule permits a trial court in certain instances to order the entry of a final judgment "as to one or more but fewer than all of the claims or parties." Rule 2-602(b)(1). The judgment, however, "must be dispositive as to an entire claim or party before it may be certified as final and appealable." Huber v. Nationwide Mutual Ins. Co., 347 Md. 415, 420, 701 A.2d 415 (1997). The term "claim," as used in the Rule, refers to a complete, substantive cause of action. See Medical Mutual v. B. Dixon Evander & Assocs., 331 Md. 301, 308-09, 628 A.2d 170 (1993)

; East v. Gilchrist, 293 Md. 453, 458-59, 445 A.2d 343 (1982) (interpreting Rule 605 a, predecessor to current Rule 2-602); Suitland Dev. v. Merchants Mortgage, 254 Md. 43, 54, 254 A.2d 359 (1969) (same).

Appellee's complaint originally stated causes of action in forcible entry and detainer and ejectment, the latter of which was dismissed by consent. The only issues on appeal have to do with the propriety of the interlocutory order regarding rent escrow and a bond—the forcible entry and detainer claim is still pending. Consequently, the circuit court lacked authority to certify its judgment as final for purposes of appeal, and we do not have jurisdiction over the appeal under Rule 2-602(b).

For the reasons set forth below, however, we exercise jurisdiction over the appeal pursuant to Maryland Code, Courts and Judicial Proceedings ("CJ"), § 12-303(1) (1998).² Section 12-303 provides in pertinent part:

A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:

(1) An order entered with regard to the possession of property with which the action is concerned or with reference to the receipt or charging of the income, interest, or dividends therefrom, or the refusal to modify, dissolve, or discharge such an order.

The rent escrow and peculiar type of bond ordered by the circuit court in this case both fall within the category of judgments immediately appealable under CJ § 12-303(1).

Initially, we note that the precise meaning of CJ § 12-303(1) is ambiguous, as is the applicability of the statute to the order in this case. The statute apparently grants to an aggrieved litigant the right to take an immediate appeal from an interlocutory order that is injunctive in nature and decides on an interim basis the right to possession or the income from property. The right of immediate appeal from injunctions is expressly granted in other subsections of the same statute, however. See CJ § 12-303(3)(i)-(iii). It is also clear that not every order is appealable that merely refers to the receipt or charging of income, interest, or dividends from property.

The Court of Appeals recently reaffirmed the principle that "[w]here the meaning of the plain language of the statute, or the language itself, is unclear, `we seek to discern legislative intent from surrounding circumstances, such as legislative history, prior case law, and the purposes upon which the statutory framework was based.'" Blitz v. Beth Isaac, 352 Md. 31, 39-40, 720 A.2d 912 (1998) (quoting Lewis v. State, 348 Md. 648, 653, 705 A.2d 1128 (1998)). Furthermore, the language of a statute, where possible, should not be read so as to render other portions of the statutory scheme "meaningless, surplusage, superfluous, or nugatory." GEICO v. Insurance Comm'r, 332 Md. 124, 132, 630 A.2d 713 (1993). See also DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 445, 677 A.2d 73 (1996)

. In order to reveal the present meaning and applicability of the language of CJ § 12-303(1), we find it necessary to trace the genesis and development of that language.³

Before the language of CJ § 12-303(1) was first adopted, the Legislature had permitted immediate appeals from certain interlocutory orders of equity courts affecting the possession of property or the income derived from property. See Md.Code (1957), art. 16 §§ 90, 129; Md.Code (Flack 1951), art. 16 §§ 232, 233. Such orders were immediately appealable in the same manner as injunctions.⁴See id.; Md.Code (1957), art. 5 § 7(a)-(b); Md. Code (Flack 1951), art. 5 § 31. Article 16, § 129 of the Maryland Code (1957), titled, "Orders pendente lite regarding possession of property or income," provided:

The court may, at any stage of any cause or matter concerning property, real or personal, on application, or of its own motion, pass such order as to it may seem fit, with regard to the possession of the same, pendente lite, or the receipt of the income thereof, on such terms preliminary thereto (as to security, etc.,) as to it may seem just, subject to the same right to move for its discharge, and the same right of appeal as is given in § 90.

Section 90 permitted appeals "in such manner and on such terms as is now allowed in cases of injunctions." Md.Code (1957), art. 16 § 90. Thus, courts of equity had broad power under § 129 to pass orders determining interim rights to property or the income derived therefrom pending a trial on the merits of the claim, but any exercise of this power was subject to immediate appellate review.

In Baker v. Baker, 108 Md. 269, 70 A. 418 (1908), the Court of Appeals invoked this statutory scheme to exercise jurisdiction over an appeal from an order appointing a receiver to protect real property pending a final judgment with respect to the property. See Baker, 108 Md. at 271-73, 70 A. 418 (interpreting the Maryland Code (1904), article 16 § 192, a substantively identical predecessor to Maryland Code (1957), article 16 § 129). Baker involved a suit in equity for a sale of real property in lieu of partition in part against Isabel Baker, holder of two mortgages on the property, by certain heirs claiming interests in the property. See id. at 271, 70 A. 418. A portion of the property was occupied by Isabel Baker,...