E-Alert Case Updates

Notice of Appeal Without Proof of Service Stricken From Record

Gaetano Lovero v. Joelma Da Silva
No. 1547 (Md. Ct. Spec. App. 2011)
by Lydia S. Hu, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In a matter of first impression, the Court of Special Appeals held that a Notice of Appeal filed without proof of service as required by MD. RULE 1-323 cannot become a part of the record and must be stricken. The intermediate appellate court was charged with deciding whether the trial court abused its discretion in determining the amount and duration of alimony awarded to the Appellee Joelma Da Silva (hereafter “Da Silva”). However, the Court did not reach that issue as the Appellant Gaetano Lovero (hereafter “Lovero”) failed to file timely a Notice of Appeal with the requisite Certificate of Service.

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.