Anthony v. Clark

JOHN F. McAULIFFE, Judge Specially Assigned,

dissenting.

I agree that the order of November 4, 1991, dismissing Clark’s petition to caveat, was a final order. I would hold, however, that the order of November 27, 1991, by which the orphans’ court granted Clark’s motion for reconsideration, *599recited the court’s complete reconsideration of the motion, including new matter not previously considered, and again ordered the dismissal of the caveat, was a new final order from which a timely appeal was taken.

The majority holds that the orphans’ court “purported” to grant the motion for reconsideration, and said it had reconsidered the matter, but that it really did not do so—it in fact denied the motion for reconsideration. See 335 Md. 579, 597, 644 A.2d 1070, 1079 (1994). That is simply not so.

The orphans’ court acted precipitously, and in violation of Maryland Rule 6-122, when it granted the personal representative’s motion to dismiss Clark’s caveat without allowing Clark 20 days to answer the motion. Clark brought this to the court’s attention by his timely filed answer, which reached the court one day after the entry of the order of November 4, and by his motion for appropriate relief, filed two days thereafter. In his answer, Clark argued that issues generated by his caveat had not been addressed by the orphans’ court when judicial probate was granted. He also pointed out to the court that § 5-207(b) of the Estates and Trusts Article, Maryland Code (1974, 1991 Repl.Vol.), provides that when a petition to caveat is filed after judicial probate “the matter shall be reopened and a new proceeding held as if only administrative probate had previously been determined.” By his motion for appropriate relief, Clark informed the court that it had erred by not affording him 20 days in which to answer the motion to dismiss, as required by Rule 6-122.

The orphans’ court obviously recognized its error. It treated Clark’s answer as a motion to reconsider, and it granted the motion and reconsidered the issue. The orphans’ court specifically noted that it was now taking into consideration the new matters contained in Clark’s answer. This is not a denial of a motion for reconsideration. It is most assuredly, by *600definition, by statement of the orphans’ court, and by admission of the personal representative,1 a reconsideration.

The legal effect of the action of the orphans’ court was to grant the motion for reconsideration; to reconsider the motion to dismiss, including in its consideration new matter not previously considered; and to enter a new opinion and order, again granting the motion to dismiss. The two orders are different, even though the ultimate action is the same. The difference may be demonstrated by examining what might have been considered in an appeal taken from each order. An appeal taken from the order of November 4 could have addressed the court’s error in ruling on the , motion without allowing Clark an opportunity to respond.2 An appeal from the second order granting the motion could not have addressed that issue because the Orphans’ Court cured its earlier oversight by reconsidering the matter after Clark had filed his answer.

Moreover, if Clark had appealed only from the November 4 order he may have encountered difficulty arguing on appeal issues generated by his answer, because he had not presented them to the lower court before that court initially decided the motion. See Maryland Rule 8-131 (a) (providing that “[o]rdinarily, the appellate court will not decide any ... issue [other than jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court ...”). An appeal from the new order clearly encompasses the issues raised by Clark in his answer, because they were considered, albeit after November 4, by the orphans’ court.

The intent of the lower court should be given effect even if the language used by that court is imprecise. Hanley v. *601Stulman, 216 Md. 461, 467-68, 141 A.2d 167 (1958); Hancock v. Stull, 199 Md. 434, 436-37, 86 A.2d 734 (1952). In legal effect, the orphans’ court vacated its November 4 order to cure its error, and entered a new order after a de novo consideration of the issues. If it did not do so, and the majority is correct in its assertion that the court denied Clark’s motion for reconsideration, Clark’s appeal from that order should be upheld on the ground that the orphans’ court abused its discretion in refusing to reopen and reconsider a dismissal entered in violation of Rule 6-122 and without affording Clark an opportunity to respond. Of course, that is not what happened—the orphans’ court did reconsider and did enter a new order, based on new considerations, and an appeal should lie from that order.

The Court of Special Appeals was correct in holding that the appeal was timely. I would permit the appeal and reach the merits of the case.

CHASANOW J., joins in this opinion.

. In her brief at page 12, the personal representative states: ‘‘The court did just what Mr. Clark asked. It treated his answer as a motion for reconsideration, and reconsidered [the Order of November 4], including his answer.”

. Dismissal of the caveat involved substantial rights, and Clark no doubt would have argued deprivation of due process as well as a violation of the Rule. See Phillips v. Venker, 316 Md. 212, 557 A.2d 1338 (1989); Baker v. Miles & Stockbridge, 95 Md.App. 145, 620 A.2d 356 (1993).