Franzen v. Dubinok, 1211
| Decision Date | 13 June 1980 |
| Docket Number | No. 1211,1211 |
| Citation | 415 A.2d 621,45 Md.App. 728 |
| Parties | Marvin C. FRANZEN v. Edward Robert DUBINOK et ux. |
| Court | Court of Special Appeals of Maryland |
C. Clarke Raley, Leonardtown, with whom was George R. Sparling, Leonardtown, on the brief, for appellant.
Richard D. Fritz, Leonardtown, for appellees.
Argued before GILBERT, C. J., and MacDANIEL and WEANT, JJ.
Edward Robert Dubinok and Henrietta Dubinok, his wife, (appellees) instituted an action ex delicto in the Circuit Court for St. Mary's County, Maryland, against Marvin C. Franzen (appellant), seeking compensatory and punitive damages on account of an alleged trespass (Count 1) and nuisance (Count 2) caused by an increase and change in the natural flow of surface waters. Appellees further requested a permanent mandatory injunction requiring appellant to direct the flow of said surface waters away from appellees' property. The case was tried before a jury on September 7th and 8th, 1978, and at its conclusion a verdict was rendered for appellees in the amount of $4,000 compensatory and $7,000 punitive damages. Judgment absolute was rendered nunc pro tunc on November 9, 1978. The following "Order of Satisfaction" was filed November 6, 1978:
Please be advised that the judgment entered in the above captioned matter has been satisfied. If you would make the appropriate entry in the record of judgments, it would be appreciated.
(Signed) Richard D. Fritz, Esquire,
Attorney for the Plaintiffs" Next, on January 8, 1979, the court scheduled a hearing on the prayer in the original declaration requesting permanent injunctive relief. Appellant filed Pleas in Bar and a Motion to File Third Party Claim. The court denied these motions, heard evidence on the issue of injunctive relief and, on July 31, 1979, issued an Order granting injunctive relief.
In this appeal appellant now attacks the jury verdict and in addition alleges error in the grant of ancillary injunctive relief, as well as to the denial of his motion to file a third party claim in the injunctive proceeding. Pointing to the Order of Satisfaction, appellees have filed a "Motion to Dismiss" before this Court to challenge the appellant's attack on the jury verdict. We find the issue of error regarding the jury verdict has been rendered moot, and we therefore grant appellees' Motion to Dismiss respecting that issue.
After the jury rendered its verdict for appellees on compensatory and punitive damages an Order of Satisfaction was executed and delivered without qualification. When this Order was filed the case handled by the jury was terminated. There was nothing left to appeal.
The general rule applicable to this issue has been stated several times by this Court and the Court of Appeals. In Rocks v. Brosius, 241 Md. 612, 217 A.2d 531 (1966), the Court of Appeals wrote, at 630, 217 A.2d at 541:
"The 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."
See also State, use of Shipley v. Walker, 230 Md. 133, 186 A.2d 472 (1962); Turner v. Washington Suburban Sanitary Commission, 221 Md. 494, 158 A.2d 125 (1960), and Bowers v. Soper, 148 Md. 695, 130 A. 330 (1925). Apparently, however, the precise question here whether the voluntary payment or satisfaction of a judgment, in compliance with its terms and provisions, is a waiver of the right to maintain an appeal or writ of error to reverse it is one of first impression in Maryland. Nevertheless, the reverse question, i. e., whether acceptance of such payments acts as a waiver or release of error, estopping one afterward to maintain an appeal from such judgment, has been considered. Thus, for example, in Dubin v. Mobile Land Corp., 250 Md. 349, 243 A.2d 585 (1968), a mortgagee voluntarily accepted a check for expenses incurred in instituting foreclosure proceedings accruing to him from a decree. The decree also enjoined him from instituting any foreclosure proceedings on the mortgage for any default which occurred prior to the date of the decree. The Court held that the mortgagee's acceptance of any portion of the decree estopped him from challenging the decree on appeal. The Court stated, at 353, 243 A.2d at 587:
In Turner v. Washington Suburban Sanitary Commission, supra, the plaintiff/appellant was awarded compensatory damages. The trial judge ordered a remittitur or a new trial. The plaintiff filed a remittitur expressly reserving the right to appeal. In Kneas v. Hecht Company, 257 Md. 121, 262 A.2d 518 (1970), the plaintiff/appellant not only filed a remittitur but also accepted payment and had the judgment marked "Paid, Settled and Satisfied." In each case the Court held the appellant estopped from challenging the judgment on appeal; in Turner the Court held nugatory the attempted reservation of the right to appeal. And see Rocks v. Brosius, supra; Hardy v. Metts, 282 Md. 1, 381 A.2d 683 (1978).
As the foregoing cases demonstrate, the Court of Appeals has heretofore applied the general rule only under circumstances in which an appeal has been filed by a party following acceptance of payment tendered by another party in conformity with a judgment. We think the general rule must apply equally in cases such as this, wherein an appeal is filed by a defendant following tender of payment to a plaintiff in accordance with a judgment. In our view, both tender and acceptance of payment under these circumstances equally constitute "taking a position which is inconsistent with the right of appeal." We note that our view conforms with the weight of authority in other jurisdictions. 1 Accordingly, we hold that appellant's voluntary payment of damages to appellees in compliance with the judgment, resulting in the entry of an Order of Satisfaction on the record without qualification, acts to waive appellant's right to maintain an appeal to reverse the judgment. We now turn to consider appellant's challenge to the grant of mandatory injunctive relief.
Appellant first argues that appellees' entry of the Order of Satisfaction acted to release appellant from all claims embodied in the Declaration, thereby barring appellees from subsequently obtaining injunctive relief. We think the Order of Satisfaction did no such thing. Appellees were certainly entitled to request mandatory injunctive relief along with their Declaration at law; subtitle BF of the Maryland Rules of Procedure specifically allows this to be done. The manifest purpose of that subtitle is to provide appropriate equitable relief which, though ancillary to, is nevertheless separate and distinct from that relief obtainable at law. And in this case it is clear that the Order of Satisfaction was entered as to a judgment which addressed only the legal issues in the case; the equitable questions were never addressed during trial of the legal issues. Though perhaps it were better in this case had the trial court made it clear early on that the prayer for ancillary relief would be reserved pending resolution of the legal issues, his failure to do so was hardly fatal to the propriety of the subsequent proceedings. Entry of the Order of Satisfaction in this case did not preclude later proceedings to consider the request for injunctive relief.
Appellant also...
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