Facey v. Facey, No. 1183
| Court | Maryland Court of Special Appeals |
| Writing for the Court | Opinion by Leahy, J. |
| Parties | ROBERTO FACEY, SR. v. ESTHER FACEY |
| Decision Date | 26 February 2021 |
| Docket Number | No. 1183 |
ROBERTO FACEY, SR.
v.
ESTHER FACEY
No. 1183
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2019
February 26, 2021
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Fraud
In order to trigger the court's revisory power on account of fraud under Rule 2-535(b), "a movant must show extrinsic fraud, not intrinsic fraud." Jones v. Rosenberg, 178 Md. App. 54, 72 (2008). If extrinsic fraud is shown, a judgment is normally voidable, and a court's analysis must "proceed to determine whether the appellees acted in good faith and with ordinary diligence in seeking to have the judgment vacated and whether they have a meritorious defense to the underlying judgment." Fleisher v. Fleisher Co., 60 Md. App. 565, 570 (1984).
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Extrinsic Fraud
Extrinsic fraud perpetrates an abuse of judicial process by preventing an adversarial trial and/or impacting the jurisdiction of the court. Fraud prevents an adversarial trial when it keeps a party ignorant of the action and prevents them from presenting their case, as in Wells v. Wells, 168 Md. App. 382, 399-99 (2006) and Hinden v. Hinden, 184 Md. 575, 583 (1945); or, as in Fleisher v. Fleisher Co., 60 Md. App. 565, 571 (1984), the fraud prevents the actual dispute from being submitted to the fact finder at all. Extrinsic fraud can involve a false promise of compromise, or an attorney who fraudulently or without authority assumes to represent a party and connives at their defeat, see United States v. Throckmorton, 98 U.S. 61, 65-66 (1878). Only an "intentionally deceptive artifice" can reach the level of extrinsic fraud. Schwartz v. Merchant's Mortg. Co., 272 Md. 305, 308 (1974); see also Payne v. Payne, 97 Md. 678, 684-685 (1903).
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Extrinsic Fraud
Extrinsic fraud is normally collateral to the issues tried in the case in which the judgment is rendered. A court will not reopen a judgment because a party discovers fraud that took place during the trial or was contained within the trial, as, for example, the alleged conspiracy to commit perjury in Schwartz, 272 Md. at 309 and Tabeling v. Tabeling, 157 Md. 429, 434-435 (1929). Even when no trial has been held, if the fraud could have been discovered at trial, it is unlikely to be considered extrinsic. See Pelletier v. Burson, 213 Md. App. 284, 291 (2013); Hresko v. Hresko, 83 Md. App. 228, 236 (1990).
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Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Extrinsic Fraud > Jurisdictional Impact
Extrinsic fraud that impacts a court's jurisdiction must be fraud that either permits or prevents the court's "procurement of the judgment," as opposed to fraud that is "attendant upon the cause of action itself." Mueller v. Payn, 30 Md. App. 377, 389 (1976).
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Intrinsic Fraud
Intrinsic fraud relates to facts that were before the court in the original suit and could have been raised or exposed at the trial level. If a party could have discovered the fraud, but "by reason of its own neglect" it failed to exercise the "care in the preparation of the case as was required of it," the fraud will be intrinsic. Md. Steel Co. of Sparrows Point v. Marney, 91 Md. 360, 371 (1900); see also Schwartz v. Merchant's Mortg. Co, 272 Md. 305, 308 (1974); Tabeling v. Tabeling, 157 Md. 429, 434-435 (1929).
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Intrinsic Fraud
We hold that the circuit court did not err in determining that the fraud in this case was intrinsic and not extrinsic for three reasons: 1) it did not prevent an adversarial trial; 2) it pertained to facts contained within the original motions hearing; and 3) it did not impact the jurisdiction of the court.
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Mistake
It is "well settled that 'mistake,' as used in Rule 2-535(b), is limited to a jurisdictional error, such as where the Court lacks the power to enter the judgment." Claibourne v. Willis, 347 Md. 684, 692 (1997).
Enrolled Judgment > Revisory Power > Opening or Vacating Judgment > Grounds > Mistake
Indeed, Roberto admits that no jurisdictional mistake plagues the 2011 Judgment by conceding that it is not void because the circuit court had fundamental jurisdiction to enter it.
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Circuit Court for Prince George's County
Case No. CAL11-11167
REPORTED
Leahy, Gould, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.
Opinion by Leahy, J.
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Well over a century since the concepts of intrinsic and extrinsic fraud were first announced by the Supreme Court in United States v. Throckmorton, 98 U.S. 61 (1878),1 many courts still find the concepts "extremely difficult to apply." 11 Wright & Miller's Fed. Prac. & Proc. Civ. § 2868 (3d ed. 2020). The distinction between intrinsic and extrinsic fraud has been regarded as "shadowy, uncertain, and somewhat arbitrary." Howard v. Scott, 125 S.W. 1158, 1166 (Mo. 1910). We are now drawn into this dusky thicket by the subterfuges surrounding the dissolution of the marriage between Roberto Facey, appellant, and Esther Facey, appellee.
In 2006, attendant to the break-up of the couple's nearly forty-year marriage, Roberto2 executed a "Promissory and Confessed Judgment Note" in favor of Esther in the amount of $75,000 ("2006 Note"). In 2008 and 2009, before any payments were made on the 2006 Note, Esther suffered a series of debilitating strokes.
Soralla Facey de Otts, the couple's daughter, was responsible for taking care of her mother and, in May 2011, filed a "Complaint for Confession of Judgment" in the Circuit Court for Prince George's County based on the 2006 Note. Soralla's authority to file this action resided in a power of attorney purportedly executed by Esther in 2008 ("Power of Attorney"). In July 2011, the court issued a judgment against Roberto for $75,000 ("2011 Judgment"). Roberto responded with a "Motion to Open, Modify, or Vacate Confessed
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Judgment" based on allegations of duress, undue influence, misrepresentation, and the statute of limitations. The court denied Roberto's motion.
Over seven years later, in October 2018, Roberto challenged the 2011 Judgment again in a second "Motion to Vacate Judgment and Dismiss Case." This time, he claimed that the Power of Attorney relied upon by Soralla to bring the 2011 lawsuit was fraudulent. He alleged that the document had been backdated to appear as though it was executed prior to Esther's disability and that it did not contain Esther's authentic signature.
The circuit court held an evidentiary hearing on Roberto's motion on January 24, 2019. Several months later, the court issued an opinion and order denying the motion after finding that, while sufficient evidence was adduced establishing that the Power of Attorney was both fraudulently procured and a forgery, the forgery did not constitute extrinsic fraud triggering the court's revisory power under Maryland Rule 2-535(b).
Roberto noted this timely appeal and presents two questions which condense to the following:
Did the trial court err in finding that the fraud in this case was intrinsic rather than extrinsic and, based on that determination, abuse its discretion in declining to exercise revisory power over the 2011 Judgment under Maryland Rule 2-535(b)?3
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We affirm the circuit court's determination that the fraud in this case constituted intrinsic fraud and conclude that the circuit court did not abuse its discretion in declining to exercise its revisory power under Maryland Rule 2-535(b).4
Esther and Roberto married on December 2, 1966 and had four children: Soralla, Jenetha, Roberto Jr. and Sabrina. On March 25, 2004, Roberto was granted an absolute divorce after the court granted his motion for default. Approximately one-and-a-half years later, Esther moved to vacate the default judgment. That case was resolved when the parties reached an agreement that was subsequently placed on the record. As a part of this agreement, on February 22, 2006, Roberto executed the 2006 Note in favor of Esther in the amount of $75,000.00.
In late 2008, Esther suffered a stroke, after which her adult children moved her from Florida to Maryland. She suffered a second stroke in late 2009.
On May 13, 2011, Soralla filed the underlying complaint for confessed judgment of the 2006 Note. The complaint named Esther as the plaintiff and stated that Soralla "brings this suit on behalf of her mother" pursuant to the Power of Attorney. The complaint alleged
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that subsequent to the granting of that Power of Attorney, "Esther Facey suffered a stroke and is no longer competent to manage her own affairs." The complaint further alleged that, despite demand, Roberto had not made any attempt to pay the amounts due.
The Power of Attorney was attached to the complaint as "Exhibit A." The document, allegedly witnessed on October 8, 2008, contained Esther's purported signature. On July 1, 2011, on the court's instruction, the clerk issued a "Notice of Entry of Judgment by Confession" against Roberto in the amount of $75,000.
Roberto filed a "Motion to Open, Modify, or Vacate Confessed Judgment" on August 1, 2011. The motion included allegations of duress, undue influence, and misrepresentation. Roberto claimed that he executed the 2006 Note based on representations made by his son that his son would make payments on the note in consideration of his signature. Because Roberto's son had lost his business, he was unable to keep this promise. Additionally, Roberto accused his daughters, Soralla and Jenetha, of preparing the promissory note without his review, and then urging him "to quickly sign it to ensure" the divorce. Roberto requested a hearing on his motion.
Soralla filed an opposition, on Esther's behalf, in which she asserted that the 2006 Note...
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