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Update on Maryland Appellate Law

The Court of Special Appeals recently held that a party may not rely on procedural gamesmanship to circumvent the rule that an appellant is limited to either in banc review or an appeal from an adverse decision. In Bethesda Title & Escrow, LLC v. Gochnour, 197 Md. App. 450 (2011), the Defendant/Appellant appealed the Circuit Court’s denial of its Motion to Vacate Default Judgment and simultaneously sought in banc review of the Circuit Court’s denial of its Motion for Reconsideration of that motion. The Court of Special Appeals held that permitting such practice would afford a party two bites at the appellate apple and dismissed the appeal.

Maryland is rather unique in that it permits two forms of appellate review. A party may notice a traditional appeal to the Court of Special Appeals. Alternatively the party may seek in banc review of an adverse decision by a three-judge panel of the Circuit Court.  Article IV, §22 of the Maryland Constitution, which governs in banc review, mandates that the decision of an in banc panel is conclusive and final, and that the party that seeks review may not appeal the decision. Maryland Courts have consistently held that a party is limited to one bite at the appellate apple. A party that seeks in banc review is barred from bringing its case to the appellate courts.

Bethesda Title presented the Court of Special Appeals with a creative attempt to circumvent the “one bite at the apple” rule. A default judgment was entered against Bethesda Title. In response, it filed a Motion to Vacate Default Judgment.The Circuit Court denied the motion.  Bethesda Title noted an appeal to the Court of Special Appeals and moved for reconsideration. The Circuit Court promptly denied reconsideration. Bethesda Title then petitioned for in banc review of the denial of its Motion for Reconsideration.

Bethesda Title argued that it sought in banc review of different legal questions than those it intended to raise on appeal. Essentially, it argued that because it was seeking review of two distinct motions, and that the Circuit Court arguably needed to apply different standards in deciding those motions, separate and distinct appellate review was appropriate. Accordingly, Bethesda Title argued, the in banc panel could determine whether the Circuit court erred in denying its Motion for Reconsideration, and the Court of Special Appeals could determine if the Circuit Court erred in denying the motion underlying the Motion for reconsideration.

The Court of Special Appeals rejected Bethesda Title’s attempt to obtain dual appellate review. It held that, despite Bethesda Title’s creative attempt to distinguish the issues before the appellate court and the in banc panel, at the end of the day, in both proceedings, Bethesda Title sought to overturn the default judgment against it. Accordingly, it was entitled to a single review of its claims of error.

This decision essentially closes the door to any attempt to use Maryland’s in banc procedure to obtain a multiple reviews of dispositive holdings by the Circuit Court. While it has always been the rule that an appellant is entitled to one form of review, Bethesda Title attempted to carve out a narrow exception that even the Court of Special Appeals noted is arguably supported by an “overly literal” reading of the Constitutional provision and the case law governing in banc review. The Court foreclosed any such argument by holding that the nature of the issues before the reviewing courts determine whether a party is seeking two bites at the apple. Because Bethesda Title sought essentially the same relief in both the in banc review and the appeal, its appeal was improper, despite the fact that it nominally sought review of decisions on different motions.

Had the Court of Special Appeals permitted Bethesda Title’s appeal, it would have carved out a narrow but powerful means of attacking adverse decisions. A party would have been able to create an opportunity for dual appellate review via creative pleading before the Circuit Court.

The Court of Special Appeals, however, has made clear that issues will only be heard once, regardless of the procedure by which they reach the appellate stage. Accordingly, while in banc review may be useful in certain circumstances, utilizing such a procedure will foreclose the possibility of further appellate review. Thus, in most situations, a traditional appeal will continue to be provide the best avenue for challenging an adverse ruling.      

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