Deborah S., Kehoe, Shaw Geter, JJ.
Deborah S., J.
estate case is in the unusual posture of being on its third
level of court review. Hartford Fire Insurance Company
("Hartford"), the appellant, is the surety on a
$20, 000 personal representative bond obtained by Vanessa
Sims, the former personal representative of the Estate of
Robert L. Sanders ("Estate"), the appellee. In a
proceeding to which Hartford was not on notice, the
Orphans' Court for Baltimore City entered an order
finding that Sims had misappropriated $13, 566.23 in Estate
assets. When Sims failed to repay the Estate, Charleen Price,
the present personal representative of the Estate, brought an
action against the bond in that court. After a hearing in
which Hartford participated, the orphans' court entered
an order condemning the bond for $13, 566.23.
appealed the orphans' court's judgment to the Circuit
Court for Baltimore City. In a trial de novo, the
court entered judgment condemning the bond for $3, 256.96.
The Estate obtained review of that judgment by a three-judge
in banc panel of the circuit. The in banc court reversed the
trial court and entered judgment against Hartford, condemning
the bond for $13, 566.23. After the in banc court denied a
motion to alter or amend, Hartford noted this appeal.
October 28, 2002, Robert L. Sanders died without a will. He
had been a plaintiff in ongoing asbestos-related litigation
that continued after his death. Princess Sanders, his infant
daughter, was his sole heir. Charleen Price is Princess's
opened a small estate to receive settlement payments in the
asbestos-related litigation, which were expected to be made
periodically for some time into the future.On April 14, 2003, the Orphans' Court
for Baltimore City appointed Price and Vanessa Sims,
Sanders's sister, co-personal representatives of the
Estate. The Law Firm of Peter T. Angelos ("Angelos
Firm") represented Sanders and, after his death, the
years went by. On March 18, 2011, Sims filed a petition to
remove Price as co-personal representative. By order of May
9, 2011, the orphans' court granted the petition and
named Sims as the sole personal representative of the Estate.
The record does not reveal the basis for Price's removal.
March 18, 2013, at the suggestion of the Angelos Firm, Sims
obtained from Hartford the $20, 000 personal
representative's bond central to this case. The bond was
filed with the register of wills on March 20, 2013. Five
months later, on August 28, 2013, the Angelos Firm filed a
motion in the orphans' court to withdraw its appearance
for the Estate. In support, it asserted that, on July 12,
2012, Sims had misappropriated $2, 500 from the Estate and
since then had repeatedly refused to return the funds to the
Estate. The orphans' court granted the motion on
September 3, 2013. Three days later, on September 6, 2013,
Price filed a petition to remove Sims as personal
Apparently with Sims's consent, the orphans' court
issued an order on January 8, 2014, docketed the next day,
removing her as personal representative and appointing Price
as successor personal representative ("January 2014
Order"). The January 2014 Order stated that Sims
"shall turn over to the Successor Personal
Representative [Price], within five (5) days of the date of
this order, all known assets, property, and records
pertaining to [the] [E]state." Sims did not do so.
22, 2014, Price filed a petition for the return of the Estate
assets allegedly misappropriated by Sims. The orphans'
court issued a show cause order directing Sims to appear on
July 21, 2014, to account for the missing Estate funds.
Hartford was not notified of the petition or the show cause
July 21, 2014 hearing, the court received evidence and found
that Sims had misappropriated $13, 566.23 from the Estate. It
authorized Price to bring an action against the bond if Sims
did not pay that sum to the Estate within 30 days. These
rulings were memorialized in an order entered on July 28,
2014 ("the July 2014 Order"). Sims filed a timely
motion for reconsideration, which was denied. She did not pay
$13, 566.23 to the Estate within the 30-day timeframe, or at
all, and did not appeal the July 2014 Order.
August 25, 2014, Price filed a petition to condemn the bond.
Two days later, the orphans' court issued an order
directing Hartford to show cause in writing why the petition
should not be granted. The order was served on counsel for
Hartford. Hartford responded and an evidentiary hearing on
the petition to condemn the bond was scheduled and went
forward on November 3, 2014. On November 10, 2014, the
orphans' court entered an order finding that Sims had
"misappropriated estate funds as stated in this
Court's [July 2014 Order]"; condemning the bond for
$13, 566.23; authorizing Price to recover that sum from
Hartford as surety; and entering judgment in favor of
Hartford against Sims for that sum ("November 2014
of Orphans' Court's November 2014 Order to Circuit
Court for Baltimore City
section 12-502 of the Courts and Judicial Proceedings
Article, Md. Code (1973, 2013 Repl. Vol.) ("CJP"),
a final judgment of the orphans' court may be appealed to
the circuit court. Such an appeal
"shall be heard de novo by the circuit court[,
]" CJP section 12-502(a)(1)(ii), and "shall be
treated as if it were a new proceeding and as if there had
never been a prior hearing or judgment by the orphans'
court." Id. at § 12-502(a)(1)(iii).
"The circuit court shall give judgment according to the
equity of the matter." Id. at §
12-502(a)(1)(iv). To take an appeal to the circuit court, an
"order for appeal" must be filed with the register
of wills "within 30 days after the date of the final
judgment [of the orphans' court] from which the appeal is
taken." Id. at § 12-502(b)(1).
November 20, 2014, Hartford noted a timely appeal of the
orphans' court's November 2014 Order to the Circuit
Court for Baltimore City. The circuit court held a trial
de novo on January 27, 2015. The Estate took the
position that the bond should be condemned for the full $13,
566.23 misappropriated by Sims. Hartford took the position
that the bond only could be condemned for sums
misappropriated by Sims after the March 18, 2013 date of the
bond and before Sims was removed as personal representative,
and those sums were less than $13, 566.23.
objection, the Estate moved into evidence copies of the
orphans' court's May 9, 2011 Order removing Price as
personal representative; the bond; the orphans'
court's January 2014 Order removing Sims as personal
representative; and the orphans' court's July 2014
Order finding that Sims had misappropriated $13, 566.23 in
assets from the Estate. It also introduced a spreadsheet, to
which the parties had stipulated, showing the
asbestos-related litigation payments made to the personal
representative(s) of the Estate from March 29, 2004, to
February 26, 2014. The gross settlements totaled $33, 794,
but after attorneys' fees and litigation costs were
deducted, the net payments received by the Estate came to
$22, 106.20. The spreadsheet reflected
that from March 18, 2013 (the date of the bond) to January 8,
2014 (the date Sims was removed as personal representative),
three asbestos-related litigation net payments were made to
Sims as personal representative: 1) $2, 847.50, on June 10,
2013; 2) $237.93, on August 7, 2013; and 3) $171.53, on
November 18, 2013.
called Sims as a witness. She identified a check she signed
on July 19, 2013, for $2, 847.50, on the Estate's bank
account, payable to "Charleen Price for Princess
Sanders, minor." ("July 2013 Check"). The
"memo" line on the check reads "Pfizer Global
Settlement Dist." The check is attached to an August 5,
2013 letter to Price from counsel with the Angelos Firm,
stating that it "represents a distribution to [Princess]
as the sole heir of" the Estate. The July 2013 Check
with attached letter was moved into evidence without
objection, and Sims then was asked, in vague terms, whether
there also were checks written for $237 and $171 during the
period from March 18, 2013, until January 8, 2014. She
responded yes. (No such checks were produced or offered into
cross-examination, Sims was shown a document entitled
"6th Supplemental Schedule - B" that was
filed in the orphans' court on March 19, 2013. She
acknowledged that she signed the document on March 5, 2013.
In Paragraph 1, the document reports that the Estate has
"Total Gross Assets" of $25, 250.97, comprised of
$10, 971.72 in "Assets previously reported" and
$14, 279.25 in "Partial asbestos-related assets[.]"
An attached addendum breaks down the "Partial Asbestos
Related Settlements" by date and amount received, from
November 2009 to December 2012.
closing argument, the Estate's lawyer asserted that 1)
the July 2014 Order of the orphans' court, establishing
that Sims misappropriated $13, 566.23 from the Estate, was a
final judgment that was not timely challenged on appeal; 2)
only the orphans' court's November 2014 Order
condemning the bond for $13, 566.23 was timely appealed and
before the circuit court in the trial de novo; and
3) the sole issue in the appeal from the November 2014
Order-the amount for which the bond would be condemned-was
conclusively determined by the July 2014 Order. Therefore,
the correct outcome was an affirmance of the orphans'
court's November 2014 Order condemning the bond for $13,
lawyer responded that the bond only could be condemned for
the amount misappropriated by Sims between the date of the
bond and the date she was removed as personal representative;
and that, according to Sims's testimony, she wrote three
checks on the Estate's account during that time-for $2,
847.50, $237.93, and $171.53-totaling $3, 256.96. He
maintained that there was no evidence that those sums were
misappropriated at all, but if they were, they were the
maximum amount for which the bond could be condemned.
Therefore, the correct outcome was a reversal of the
orphans' court's November 2014 Order and a judgment
completely in favor of Hartford or a judgment condemning the
bond for $3, 256.96 at most.
rebuttal, counsel for the Estate argued that the $20, 000
penalty sum for the bond covered all the funds that should
have been in the Estate when Sims was personal
representative, not just the funds she misappropriated after
the date of the bond and before she was removed as personal
closing arguments, the trial judge announced that because the
appeal was de novo, she would not accept the
orphans' court's July 2014 Order as proof that Sims
had misappropriated $13, 566.23 from the Estate. She stated
that she "really [did not] know" how the
orphans' court had arrived at that number, and it was the
Estate's burden to produce evidence to show that Sims had
misappropriated that amount from the Estate. At that point,
counsel for the Estate sought to move into evidence "the
numbers that [he] submitted" in the orphans' court
to support the $13, 566.23 misappropriation figure.
Counsel for Hartford objected to any additional evidence
being taken, because the parties had rested and closing
arguments were finished. The objection was sustained.
trial judge proceeded to make findings on the amount of
Estate funds, if any, the Estate had proven Sims had
misappropriated. After commenting that she had reviewed the
exhibits, she recounted what had ensued in the orphans'
court, as shown in the record of that court underlying the
November 2014 Order. She took note of the Angelos Firm's
August 29, 2013 motion to strike appearance on the ground
that Sims had taken $2, 500 from the Estate checking account
for her own use on July 12, 2012, and the firm's
unsuccessful efforts to have her repay the Estate; and that
the motion had been granted on September 3, 2013. The judge
further recited that in Price's petition to return Estate
funds, she alleged that on January 10, 2014, Sims had
withdrawn $2, 847.50 from the Estate checking account without
permission and for her own use.
trial judge found that the spreadsheet showed that the
asbestos-related litigation payments to the Estate totaled
$33, 794. She further found that the
spreadsheet showed a "check written" for $2,
847.50 while Sims was the sole personal representative of the
Estate; and that the July 2013 Check was written for
"the exact same amount."
judge stated that she did not see "any check or the
reasons why there was 237.93 for August 7th, 2013" and
that "there was a check in the amount of 171.53, that
was November 18th, 2013." The judge could not tell
"why [those checks] were written."
the trial judge determined:
[T]here's been no testimony in evidence how, through this
accounting, [from the period of
March 18, 2013 to January 8, 2014, there's no evidence
that supports that Ms. Sims specifically misappropriated
Estate funds of 13, 566.23.
Rather, the total amount that I see is 2, 847.50, plus
237.93, plus 171.53 equals 3, 256.96. That is the total
amount that, based on the testimony and the evidence, this
Court can find that Ms. Sims misappropriated while she was
the Personal Representative of the Estate of Robert L.
Sanders, between March 18, 2013 to January 8, 2014.
the trial judge ruled that the relevant time period for
determining whether the bond would be condemned was from
March 18, 2013, to January 8, 2014, and the only evidence
before the court was that Sims misappropriated $3, 256.96
during that time. On those bases the court entered an order
condemning the bond for $3, 256.96.
By In Banc Panel of the Circuit
the trial court entered its order, the Estate filed a timely
notice for in banc review by a three-judge panel of the
circuit. The parties filed memoranda, and the in banc court
held a hearing on June 16, 2015. On September 16, 2015, it
docketed a memorandum opinion and order reversing the trial
court's judgment and condemning the bond for $13, 566.23.
banc court reasoned that the July 2014 Order was a
"final judgment" of the orphans' court that was
not appealed and consequently was a conclusive determination,
binding on Hartford in the action against the bond, that Sims
had misappropriated $13, 566.23 from the Estate. The de
novo appeal to the circuit court, being taken from the
orphans' court's November 2014 Order condemning the
bond for $13, 566.23, only concerned the amount for which the
bond would be condemned, not whether Sims had misappropriated
funds from the Estate. The Estate was not required to prove
in the de novo appeal that Sims had misappropriated
funds from the Estate. Moreover, the bond applied
retroactively, under Brown v. Murdock, 16 Md. 521
(1861), and properly was condemned for the entire $13, 566.23
misappropriated by Sims regardless of whether some of the
Estate funds were misappropriated before the date of the
bond. Although not dispositive, but relevant to our analysis
infra, the in banc court concluded that the Estate
had waived its alternative argument that Hartford was liable
on the bond for the full amount misappropriated by Sims,
including misappropriations that predated the bond, because
Sims failed to turn over the funds that should have been in
the Estate when she was removed as personal representative.
September 24, 2015, Hartford filed a motion to alter or amend
the judgment of the in banc court, citing Rule 2-534. It
argued that the in banc court had erred as a matter of law in
holding that the bond could apply retroactively to
misappropriations pre-dating the March 18, 2013 date of the
bond and asked that the in banc court revise its judgment
accordingly. On October 6, 2015, the Estate filed an
opposition. On October 22, 2015, the in banc panel entered an
order, docketed four days later, denying Hartford's
motion. Hartford noted this appeal on November 17, 2015.
OF REVIEW AND QUESTIONS PRESENTED
explained, an appeal to the circuit court from a final
judgment of the orphans' court is de novo. So
here, the January 27, 2015 trial in the circuit court was a
substitute for the November 3, 2014 evidentiary hearing in
the orphans' court that resulted in the November 2014
IV, section 22 of the Maryland Constitution, as implemented
in civil cases by Rule 2-551, grants a party against whom a
decision was made by the circuit court a right to in banc
review by a three-judge panel of the circuit. The in banc court "functions 'as
a separate appellate tribunal[.]'" Bienkowski v.
Brooks, 386 Md. 516, 553 (2005) (quoting Board v.
Haberlin, 320 Md. 399, 406 (1990)). For the party
seeking it, in banc review serves as a substitute for an
appeal to this Court. Haberlin, 320 Md. at 406. For
that reason, the role of the in banc court is not to
reconsider the decision of the trial court. Dabrowski v.
Dondalski, 320 Md. 392, 396 (1990). Instead, it is to
engage in appellate review of the trial court's decision.
Azar v. Adams, 117 Md.App. 426, 429 (1997)
("[T]he in banc panel sits to review the
findings of the trial court and, as such, sits in an
who seeks and obtains in banc review "has no further
right of appeal." Md. Rule 2-551(h). That does not
preclude another party from taking an appeal to this Court,
however. Specifically, a party who did not seek and obtain in
banc review may appeal from the judgment of the in banc
court, to the extent the judgment otherwise is appealable.
case at bar, the Estate lost Hartford's de novo
appeal to the trial court; sought and obtained in banc review
of the trial court's judgment; and prevailed before the
in banc court, which reversed the trial court's judgment.
If the Estate had not prevailed before the in banc court, its
right to appeal to this Court would have been foreclosed.
Hartford, which had prevailed before the trial court in the
de novo appeal, did not seek and obtain in banc
review and, having lost before the in banc panel, could note
a further appeal to this Court.
questions Hartford presents in this appeal are phrased in
terms of our reviewing the judgment of the in banc court and,
more particularly, the decisions underlying that judgment, as
opposed to the judgment of the trial court. Before addressing
the questions, we must ascertain our standard of review and
determine from that whether the questions should be rephrased
to focus on the rulings by the trial court as opposed to the
decision of the in banc court.
appellate tribunal, the in banc court "is subordinate to
this Court just as we are subordinate to the Court of
Appeals." Azar, 117 Md.App. at 433. See
also Langston v. Langston, 136 Md.App. 203, 221 (2000)
(stating "[i]f the in banc panel functions like an
intermediate appellate court, then our role is akin to the
Court of Appeals, in the sense that we provide an additional
level of appellate review"), aff'd on other
grounds, Langston v. Langston, 366 Md. 490
(2001). Thus, it is helpful to examine the reviewing roles of
this Court and the Court of Appeals in a case that comes
before the former and then the latter on the same issue.
"scope of review" for both Maryland appellate
courts, set forth in Rule 8-131, is identical, with the
exception of certain limitations the Court of Appeals imposes
upon itself by virtue of the issues on which it grants
certiorari. See Md. Rule 8-131(b). For an action
tried without a jury, "the appellate court, " that
is, either the Court of Appeals or this Court, "will
review the case on both the law and the evidence" and
"will not set aside the judgment of the trial court on
the evidence unless clearly erroneous, and will give due
regard to the opportunity of the trial court to judge the
credibility of the witnesses." Md. Rule 8-131(c). In
other words, ordinarily, whether this Court is reviewing a
ruling that comes before us on appeal from the trial court,
or the Court of Appeals is reviewing the same ruling that
comes to it on a grant of a petition for certiorari, after
review by this Court, ultimately it is the judgment of the
trial court that is under review.
with this concept, the same standards of review apply to
appeals in both courts. When a pure question of law comes
before either this Court or the Court of Appeals, the
standard of review is de novo, that is, neither
Court gives any deference to the trial court's
interpretation of the law. See Nesbit v. Gov't Emps.
Ins. Co., 382 Md. 65, 72 (2004); Walter v.
Gunter, 367 Md. 386, 392 (2002). This means,
necessarily, that when the Court of Appeals grants certiorari
to review a legal issue decided by the circuit court and
addressed by this Court on appeal, it will not defer to this
Court's decision. To be sure, the Court of Appeals may
consider our reasoning and explain why it agrees or disagrees
with it; and its mandate will affirm, reverse, or otherwise
dispose of this Court's judgment. But ordinarily its
decision will come down to whether the trial court's
ruling was legally correct.
when this Court has decided whether a factual finding by a
trial court was or was not clearly erroneous, our decision
will not be entitled to deference on further review by the
Court of Appeals, because our decision is itself a legal
ruling. Appellate courts do not make factual findings or
substitute the factual findings they would rather the trial
court have made for the non-clearly erroneous factual
findings that were made. In other words, we are not making
findings of fact but are making a legal assessment as to
whether the trial court's factual finding satisfies the
clearly erroneous standard of appellate review. See
Md. Rule 8-131(c); Agency Ins. Co. v. State Farm Mut.
Auto Ins. Co., 193 Md.App. 666, 671-72 (2010);
Thomas v. Capital Mgmt. Assocs., LLC, 189 Md.App.
439, 453 (2009). A decision by this Court that a trial
court's factual finding was or was not supported by
competent and material evidence in ...