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From the Listserve Edited by Louise A. Lock


Louise A. Lock received her J.D. from the University of Baltimore School of Law and an L.L.M. in Health Law from the Widener University School of Law. She serves on the MTLA’s Board of Governors and␣ is a member of the President’s Club as a Founder.␣ She practices with the firm Louise A. Lock, P.A. Her practice concentrates in the areas of medical malpractice, drug products liability and personal injury.


APPEALS


Sent by Member: “Anne J. A. Gbenjo” annegbenjo@juno.com Does a Notice of Appeal of an order denying a Motion to Alter and Amend automatically cover the order granting a Motion for Summary Judgment or does the Notice of Appeal have to mention the order granting the Motion for Summary Judgment? Alternatively, if a Notice of Appeal only mentions the order denying a Motion to Alter and Amend Judgment, is there a deadline in which to amend the Notice and add the (previous) order grant- ing the Motion for Summary Judgment? Thanks a million in advance.


Sent by Member: “Charles E. Matz” matz@comcast.net


A timely notice of appeal from a final judgment brings up for appellate review ALL earlier orders in the case. Further, lan- guage in the Notice of Appeal that purports to limit the scope of appellate review (e.g., “Plaintiff appeals the Circuit Court’s denial of his Motion to Alter or Amend Judgment”) will be regarded as “surplusage” that will NOT prevent the appellate court from reviewing an earlier order (such as the granting of a motion for summary judgment). See B & K Rent- als & Sales Co. v. Universal Leaf Tobacco Co., 319 Md. 127 (1990). There is a dif- ferent rule if the appeal is filed after the denial of a Motion to REVISE the judg-


ment (under Rule 2-535) that was filed more than 10 days after entry of the judg- ment. In that case, the appeal is from the denial of the motion, and the issue before the appellate court is whether the Circuit Court “abused its discretion” in denying the motion. See Wormwood v. Batching Sys- tems, 124 Md. App. 695, cert. denied, 354 Md. 113 (1999). Any motion that is filed within 10 days after entry of the judgment will be deemed a motion to alter or amend the judgment (not a motion to revise), regardless of how the motion is captioned. See Sieck v. Sieck, 66 Md. App. 37 (1986). A motion to alter or amend tolls the ap- peal period and prevents the judgment from becoming final. An appeal from the denial of a motion to alter or amend brings up all earlier orders in the case.


From: “Michael J. Jacobs” mike@jacobsbarney.com Anne —To build off of Charles’ char- acteristic scholarly insights, I would add that in terms of the timing of the filing of a notice of appeal in an instance in which a timely 10-day post trial motion has been filed, this area can be a minefield for the lawyer. I don’t have the case reference, but I believe that if the notice of appeal is filed before the post trial motion is ruled upon & there is no further notice of appeal filed after disposition of the motion, the pro- spective appellant may lose the right to appeal. Be very careful if you get into those timing issues since there is at least one


get published. . .


Do you have an idea for an article that you would like to see published in MTLA’s Trial Reporter? Would you like to see one of your briefs converted into an article?


YOU CAN!


Contact Robert Lembo at 410-539-4336


30 Trial Reporter


reported decision which undoubtedly caused counsel to notify his or her carrier of a problem.


From:


Charles Matz: matz@comcast.net In Edsall v. Anne Arundel County, 332


Md. 502 (1993), the Court held that a notice of appeal filed prior to the with- drawal or disposition of a motion for new trial, JNOV, or to alter or amend is effec- tive. Mike Jacobs may be referring to Atlantic Food & Beverage Systems v. City of Annapolis, 70 Md. App. 721, cert. denied, 310 Md. 274 (1987), in which the Court of Special Appeals held that a motion to alter or amend a judgment that is filed before the entry of the judgment is not a valid motion and does not toll the appeal period. To follow up on my previous post, see also the second appearance of the B & K Rentals case at the Court of Appeals (324 Md. 147 (1991)) on the rule that language in the notice of appeal that pur- ports to limit the scope of the appeal is regarded as surplusage. Anyway, if you have to brief this issue, make sure that you review BOTH Court of Appeals decisions in the B & K Rentals case, so that you have the right citation for the right principle. The case was before the Court of Appeals twice.


MAMSI LIENS


From: “Lee”


lje@steelmanlaw.com Listmates: I have received correspon-


dence from MAMSI advising of its lien against my client’s unresolved MVA/P.I. claim. A Lien and Assignment of Proceeds agreement was attached to the notice which, aside from seeking an assignment all proceeds obtained in our case to cover the costs of treatment, also authorizes the release of information pertaining to my client’s auto insurance, PIP benefits and the like. I have no intention of signing such an agreement, notwithstanding the notice letter’s threat to “retain counsel to


(Continued on page 34) Spring 2003


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