Harrison v. Harrison, 1232

Decision Date01 September 1995
Docket NumberNo. 1232,1232
PartiesJulie G. HARRISON et al. v. Harry HARRISON et al. ,
CourtCourt of Special Appeals of Maryland

Benjamin J. Woolery (Richard M. McGill, on the brief), Upper Marlboro, for appellants.

Gerald Solomon, Greenbelt, for appellees.

Before CATHELL, SALMON and EYLER, JJ.

CATHELL, Judge.

This is an appeal from a case involving an audit in a mortgage foreclosure proceeding. The answer to the determinative issue, however, resides in another case. We explain.

Julie G. Harrison, appellant, and Harry C. Harrison, appellee, were previously married. The parties' marital union was ended by a judgment of divorce, dated January 14, 1993. An appeal was taken in that case by Mr. Harrison on two issues, both relating to alimony; the divorce itself was not contested.

Affixed to the opinion that we issued in the prior appeal, Harrison v. Harrison [No. 586, 1993 Term, per curiam, filed Dec. 17, 1993], was what is sometimes termed a mandate. 1 It stated:

JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID ONE HALF BY APPELLANT AND ONE HALF BY APPELLEE.

Harrison, No. 586, slip op. at 7. The opinion referred to in that judgment or order only addressed the two questions raised in that appeal. The first question concerned the husband's assertion that the trial court failed to consider the effect of a pension distribution on his financial status when it awarded alimony. We agreed. As to that question, we stated in the body of the opinion: "We therefore vacate the award of alimony and remand this case for further proceedings consistent with this opinion." Id. at 4 (emphasis added). With respect to the second question raised, we held that no error had occurred and stated, "When determining the alimony award on remand, the circuit court will once again be able to consider wages from all of appellant's teaching positions." Id. at 7. Then, without further comment, the order or judgment, i.e., the "mandate," was appended to that opinion. However, rather than stating, "JUDGMENT AS TO ALIMONY VACATED," which would have reflected what we actually held in the body of the opinion, i.e., "We therefore vacate the award of alimony and remand this case for further proceedings consistent with this opinion," we inadvertently stated, "JUDGMENT REVERSED."

That occurrence gave rise to the problem to be resolved in the case sub judice. After the foreclosure sale, appellant argued below, in respect to the distribution of the surplus, that the auditor should have considered the parties to have held the property as tenants by the entireties. Appellant considered the judgment appended to our prior opinion separate from the opinion itself and argued that it resulted in a reversal of the entire judgment, including the divorce. She contended, therefore, that the parties were still married at the time of the audit. Appellees' position, which prevailed before both the auditor and the trial court, was that the parties were divorced, and, as a result of that divorce, the tenancy became, by operation of law, a tenancy in common. 2

Our review here is thus dependent upon our construction of our opinion, judgment, and mandate in the parties' prior divorce case. If we determine that the divorce itself was unaffected, then appellees prevail in the case sub judice and we must affirm. If we determine that the prior judgment of divorce was reversed, then appellants prevail, and we must reverse and remand. Hence, the issues that resolve the instant appeal and answer the questions raised thereby are not the questions stated by appellant, but are:

1. What is the effect of an appellate court's judgment, order, or mandate?

2. Can an issue or decision not presented on appeal, e.g., the judgment of divorce, generally be reversed by an appellate court that uses the type of order (or mandate) used in the prior proceeding?

1.

What is the effect of an appellate court's judgment, order, or mandate?

In respect to the somewhat unique circumstances of these two cases, the first issue above has not been extensively addressed in Maryland. Much of what Maryland law there appears to be is often intertwined with our cases that address the second question, although, even those cases do not directly answer the exact question presented here. We shall address those cases in the resolution of our question two.

A review of certain Maryland Rules is a helpful starting point for our discussion, though not completely determinative. Maryland Rule 8-606, Mandate, provides:

(a) To Evidence Order of the Court.--Any disposition of an appeal, including a voluntary dismissal, shall be evidenced by the mandate of the Court, which shall be certified by the Clerk under the seal of the Court and shall constitute the judgment of the Court.[ 3

.... (e) Effect of Mandate.--Upon receipt of the mandate, the clerk of the lower court shall enter it promptly on the docket and the lower court shall proceed in accordance with its terms.

Maryland Rule 8-604, Disposition, subsection (d), Remand, provides:

(1) Generally.--If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment ... the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. [Emphasis added.]

See Benson E. Legg et al., Maryland Appellate Practice 180-81 (MICPEL, 1989) (noting that "[a] mandate is, therefore, formal evidence of the final action of the appellate court") (emphasis added).

We note first the brief comment made by the Court of Appeals in its recent case, Powell v. Maryland Aviation Admin., 336 Md. 210, 222, 647 A.2d 437 (1994): "Ordinarily, a reversal and remand after trial for error in the trial or decision results in a retrial, unless the appellate opinion or mandate specifically limits the proceedings on remand." (Emphasis added.) The case of Klopfer v. Werber, 264 Md. 419, 286 A.2d 776 (1972), while primarily concerned with procedural matters related to the payment of costs, also discussed orders and mandates, albeit briefly. Referring to a predecessor rule, the Court noted:

Rule 876 a makes the mandate the sole formal evidence of the final actions of this Court in every case....

Rule 876 d says: "When the mandate has been transmitted the lower court shall proceed according to the tenor and directions thereof."

Id. at 421-22, 286 A.2d 776 (emphasis added).

The case of O.F.C. Corp. v. Turner, 228 Md. 105, 179 A.2d 366 (1962), as relevant here, involved a prior judgment of the Court of Appeals that affirmed the underlying judgment but remanded the case. The Court of Appeals, in the subsequent case, in explaining its intent in regard to the prior remand, quoted extensively from its prior opinion. It identified one of the substantial questions then before it as whether, upon the remand in the previous appeal, the trial court had "misconstrued the mandate of this Court." Id. at 109, 179 A.2d 366. The Court noted that the trial court had thought it had no alternative except to issue an injunction due to the language used in the mandate. The Court discussed and interpreted its prior opinion to support its holding that the mandate had been misconstrued. In doing so, the Court did not differentiate between the opinion and the mandate, considering them one and the same. Id. at 110-11, 179 A.2d 366; see also Union Trust Co. v. Harrisons' Nurseries, Inc., 181 Md. 291, 29 A.2d 668 (1943) (where the court's opinion was not distinguished from the mandate); Washington County Water Co. v. Mayor and Council of Hagerstown, 122 Md. 252, 254-55, 89 A. 500 (1914) (Washington County II ).

In Washington County II, the Court of Appeals noted that appellant was raising the following issue: "Schedule B ... is not [in] compliance with the mandate of this Court in the former appeal. The contention is, that this Court said Schedule B itself should be filed." 122 Md. at 254, 89 A. 500. The Court obviously considered its prior opinion to be part of the mandate, because the prior mandate simply stated, "Order reversed and cause remanded, with costs to the appellant. " Washington County Water Co. v. Mayor and Council of Hagerstown, 116 Md. 497, 511, 82 A. 826 (1911) (Washington County I ). The Washington County II Court then noted that "it is true that expression was used," 122 Md. at 254, 89 A. 500, but nevertheless went on to hold that what had occurred in that case in respect to Schedule B "is a full compliance with the expression in the opinion." Id. It is clear that the Court considered the mandate and its opinion to be the judgment of the Court; it did not distinguish between them.

In the more recent case of Balducci v. Eberly, 304 Md. 664, 669, 500 A.2d 1042 (1985), the Court of Appeals construed a prior judgment or mandate from this Court, rendered in Balducci v. Eberly [No. 822, 1982 Term, per curiam, filed Feb. 15, 1983], that read: "Judgment Reversed. Orders of May 5, 1982 vacated. Appellees to pay the costs." The Court also noted that our mandate did not, by its terms, award a new trial. The Court noted further that the appellant contended that our prior "opinion vacating the injunction was a final and conclusive judgment on the merits." 304 Md. at 669, 500 A.2d 1042. The Court of Appeals disagreed. Apparently referring to the term "mandate" generically, the Court stated:

[T]he key issue ... [is] whether the ... mandate contemplated a grant of a new trial....

As a preliminary matter, we find that the ... mandate is ambiguous. Where a mandate is ambiguous, one must look to the opinion and other surrounding circumstances....

In examining the expression "Judgment Reversed," we recognize that such an...

To continue reading

Request your trial
22 cases
  • EASTERN OUTDOOR ADVERTISING CO. v. Mayor and City Council of Baltimore
    • United States
    • Court of Special Appeals of Maryland
    • September 6, 2002
    ...AND TO REMAND THE CASE TO THE BOARD FOR FURTHER CONSIDERATION OF THE RECORD NOT INCONSISTENT WITH THIS OPINION. In Harrison v. Harrison, 109 Md.App. 652, 675 A.2d 1003 (1996), Judge Cathell explained for this Court the procedures that apply with respect to a While the Maryland cases and rul......
  • CARRIAGE HILLS v. MD HEALTH RESOURCE
    • United States
    • Court of Special Appeals of Maryland
    • February 25, 1999
    ...See Maryland Comm'n on Human Relations v. Downey Communications, Inc., 110 Md.App. 493, 519, 678 A.2d 55 (1996); Harrison v. Harrison, 109 Md.App. 652, 673-74, 675 A.2d 1003, cert. denied, 343 Md. 564, 683 A.2d 177 (1996). Consequently, its complaints as to the more effective alternative an......
  • Crews v. Hollenbach
    • United States
    • Court of Special Appeals of Maryland
    • June 2, 1999
    ...not consider it. See Health Servs. Cost Review Comm'n. v. Lutheran Hosp., 298 Md. 651, 664, 472 A.2d 55 (1984); Harrison v. Harrison, 109 Md.App. 652, 679-80, 675 A.2d 1003, cert. denied, 343 Md. 564, 683 A.2d 177 (1996); Md. Rule 6. At the hearing, Excalibur's counsel asked the court wheth......
  • McNeil v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...the law; the decision is expressed in the opinion; the mandate is the order issued on the decision." Id. See also Harrison v. Harrison, 109 Md.App. 652, 675 A.2d 1003 (1996) (holding that the court's opinion may be an integral part of the court's mandate when the mandate directs proceedings......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT