On July 31, 2009, the Circuit Court for Dorchester County
entered judgment ordering that Lovero pay $300.00 per month in alimony to the Da
Silva. On August 28, 2009, Lovero filed a Notice of Appeal with the Clerk of the
Circuit Court without a certificate of service or admission or waiver of service
as required by Md. Rule 1-323. Lovero concedes that he did not file the Notice
of Appeal upon the attorney of record for Da Silva.
On September 4, 2009, Lovero filed an Amended Notice of
Appeal with the Clerk of the Circuit Court and included the Certificate of
Service. Counsel for the Da Silva received a copy of the Amended Notice of
Appeal on September 8, 2009. Also on September 8, 2009, the Clerk entered
both the Notice of Appeal and the Amended Notice of Appeal on the docket.
On September 14, 2009, Da Silva filed a Motion to
Strike Lovero’s Notices of Appeal arguing that the notices were not filed
within thirty (30) days after entry of judgment as required by Md. Rule
8-203(a)(1). The trial court denied the Motion to Strike without an
explanation.
On December 11, 2009, Da Silva filed in the Court of
Special Appeals a Motion to Dismiss Lovero’s appeal on the basis that the
notices of appeal were filed more than thirty (30) days after the judgment
was entered. The Court denied the Motion to Dismiss but allowed Da Silva to
seek dismissal in her Appellant brief.
Da Silva argued that because the Notice of Appeal did
not include a Proof of Service, the Clerk of the Circuit Court for
Dorchester County did not have the authority to accept the Notice of Appeal
as filed. Md. Rule 1-323 directs the Clerk not to accept for filing a paper
that requires service if there is no Certificate of Service. The duty to
accept the filing has been classified as ministerial, meaning the Clerk may
not exercise discretion in determining whether a paper complies with the Md.
Rules for filing. The Clerk must generally accept papers for filing and
allow the Court to determine the appropriateness of the filings upon motion
by the parties. For example, if a particular paper is not presented timely
or has some other deficiency, only the Court may strike the paper, but the
Clerk must accept it. Examples of deficiencies in pleadings or papers that
have been held not to prevent the acceptance in filing include: an incorrect
name of the court and docket number; certificate of service that failed to
comply with Md. Rule 1-321; and a paper that lacks the proper caption on the
original document.
One exception to the duty of the Clerk to file a pleading or paper
regardless of deficiency or defect is the requirement in Md. Rule 1-323 that
the Clerk accept for filing pleadings and papers unless there is an omission
or waiver of service or signed certificate showing the date and manner
making service.
After reviewing previous iterations of Rule 1-323, the
intermediate appellate court concluded that it was clear that the
legislature intended that a pleading or paper offered for filing contain
Proof of Service before becoming part of the record. Accordingly, the Court
of Special Appeals held that pleadings and papers that are required to be
served by Rule 1-321 cannot become a part of the court proceeding unless
there is proof of service.
Here, Lovero’s Notice of Appeal filed on August 28,
2009, without the Certificate of Service, should not have been accepted for
filing. As the filing did not comply with Rule 1-321, and because it was not
served on the other party, the defective notice of the appeal was not
“filed” within the meaning of Rule 8-202(a)(b). As such, Lovero’s Notice of
Appeal was stricken from the record.
Additionally, because the amended notice was filed on
September 4, 2009, more than thirty (30) days after the entry of judgment
from which the instant appeal was taken, the Court of Special Appeals denied
jurisdiction.
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