Metropolitan Mortg. Fund, Inc. v. Basiliko

• Decision Date: 12 June 1980
• Docket Number: No. 134,134
• Citation: 288 Md. 25,415 A.2d 582
• Parties: METROPOLITAN MORTGAGE FUND, INC. v. George BASILIKO et ux.
• Court: Maryland Court of Appeals

Page 25

288 Md. 25

415 A.2d 582

METROPOLITAN MORTGAGE FUND, INC. v. George BASILIKO et ux.

No. 134.

Court of Appeals of Maryland.

June 12, 1980.

Robert A. Wallace, Burtonsville, for appellant.

Leonard C. Collins, Washington, D.C., for appellees.

Argued before SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

In the present case, we face a narrow question: On appeal from a final judgment entered following a full trial of the general issue, may the correctness of a pretrial denial of a summary judgment, other than for abuse of discretion, be reviewed? Our short answer is no.

Petitioner Metropolitan Mortgage Fund, Inc. in November 1972 made a loan of $2,407,600 to Crown Oil and Wax Company. This indebtedness was evidenced by two notes and secured by a deed of trust on real property owned by the borrower in Montgomery County, Maryland. As additional security, payment of the notes was guaranteed by John J. and Connie Gilece, as well as by the respondents, George and Sophia Basiliko. When, upon default, foreclosure of the deed of trust produced an alleged deficiency of $189,059.22, suit claiming that amount was filed by Metropolitan in the Circuit Court for Montgomery County against the Gileces and the Basilikos. This action sounded in contract and declared on the common counts, as well as on a special count alleging breach of the written payment guarantee agreements. Accompanying the narr. filed by the petitioner was a summary judgment motion which, as required by Maryland Rule 610 a 3, was supported by an affidavit. In response, the defendants filed, in addition to pleas, affidavits in opposition to the plaintiff's summary judgment request. Later, when Metropolitan substituted a second motion for summary judgment (supported by a new affidavit reducing its claim to $139,531.22 and interest), the defendants again responded with an affidavit by which they purported to allege the existence of a dispute with respect to relevant facts between the parties. A third such motion was filed by Metropolitan and remained unanswered at the time the trial judge effectively denied all the summary judgment motions on November 4, 1976. This action of the trial court was followed nearly seven months later by the Basilikos filing an additional plea (not objected to) denying execution by them of the note payment agreements. At a non-jury trial on the merits, the trial judge, based on factual findings that included a determination that the Basilikos had not signed the two note payment guarantee agreements, entered judgment in favor of Metropolitan against the Gileces for $120,649.51, but in favor of the Basilikos for costs with respect to petitioner's claims from them On Metropolitan's appeal to the Court of Special Appeals from this judgment in favor of the Basilikos, that court affirmed; we granted certiorari restricted, however, to determining the scope of appellate review of the denial of a summary judgment motion following the entry of a final judgment on the merits.

Although neither Maryland Rule 610, regulating summary judgment procedure in this State, nor the prior decisions of this Court, respond specifically to the query posited here, there does exist considerable authority which, with seeming unanimity, supplies the answer to the issue as it pertains to the federal counterpart of our rule. In this regard, therefore, it is appropriate that we once again recall that this State's summary judgment procedure was adopted from a similar federal rule. Consequently, interpretations of Fed.R.Civ.P. 56 are very persuasive as to the meaning of Md. Rule 610. White v. Friel, 210 Md. 274, 285, 123 A.2d 303, 308 (1956); Frush v. Brooks, 204 Md. 315, 321, 104 A.2d 624, 626 (1954). See in addition the Explanatory Notes of the Reporter to the second report of the Court of Appeals Standing Committee on Rules of Practice and Procedure, dated August 19, 1947, printed as an appendix in the Maryland Code (1939, 1947 Cum. Supp.), p. 2093, at 2113-14. For a comprehensive discussion of Md. Rule 610, see C. Brown, Summary Judgment in Maryland, 38 Md.L.Rev. 188 (1979).

The federal authorities to which we allude make plain that whereas a "court cannot draw upon any discretionary power to grant summary judgment" (6 Pt. 2 Moore's Federal Practice P 56.15(6), at 56-601 (2d ed. 1980)), it, ordinarily, does possess discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for the entry of such a judgment have been met. Virgil v. Time, Inc., 527 F.2d 1122, 1131 n. 15 (9th Cir. 1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976); Western Chain Co. v. American Mut. Liability Ins. Co., 527 F.2d 986, 990 (7th Cir. 1975); Williams v. Howard Johnson's, Inc. of Washington, 323 F.2d 102, 104-05 (4th Cir. 1963); Safeway, Inc. v. Johnson, 311 F.2d 387, 388 (5th Cir. 1962); National Screen Serv. Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962); Fine v. City of New York, 71 F.R.D. 374, 375 (S.D.N.Y.1976); John Blair & Co. v. Walton, 47 F.R.D. 196, 197 (D.Del.1969); Continental Can Co. v. Crown Cork & Seal, Inc., 39 F.R.D. 354, 356-57 (E.D.Pa.1965); Turner v. McWhirter Material Handling Co., 35 F.R.D. 560, 563 (N.D.Ga.1964); Anthony Grace & Sons, Inc. v. United States, 345 F.2d 808, 810 (Ct.Cl.1965), rev. on other grounds, 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); 6 Pt. 2 Moore's Federal Practice, PP 56.15(6), at 56-601; 56.23, at 56-1390-91 (2d ed. 1980); 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 2728, at 554-55 (1973 & 1980 Supp.).

It is essential to the entry of a summary...