Nnoli v. Nnoli

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In the Circu it Court for M ontgom ery County Misc. Petition No. 10021 IN THE COURT OF APPEALS OF MARYLAND No. 149 September Term, 2004 EMMANUEL NNO LI v. NINA NNOLI Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinio n by Rak er, J. Filed: October 17, 2005 In this action, petitioner Emmanuel Nnoli asks this Court to decide whether the trial court erred in refusing to quash a warrant for his arrest issued by the Circuit Court for Montgom ery Coun ty. Because the denial of the Motion to Quash the warrant is a nonapp ealable interlocutory order, we shall reverse the judgment of the Court of Special Appea ls and rem and to that c ourt with ins tructions to dis miss the ap peal. I. This case has a long and tortured history in the cou rts of this State, beginning in 1988. Nina Nnoli, respondent, filed for divorce from petitioner in 1988 in the Circuit Court for Montgom ery County. On March 17 1992, the Circuit Court awarde d custody of the Nno li s two minor children, A udrey and E ileen, to respondent. At the time of the custody award, the children were in Nigeria with petitioner s extended family. Petitioner refused to return the children to respondent as ordered by the Circuit Court, and respondent then filed a petition for contempt against petitioner fo r his failure to return the children to her custody. On April 21, 1992, th e Circu it Cour t held a h earing o n respo ndent s conte mpt pe tition. Petitioner did not appear at the hearing, but was represented by counsel. Th e court found p etitioner in civil contempt for failure to deliver custody of the children to respondent in accordance with the custody award and issu ed a bo dy attachm ent for p etitioner . The contempt Order permitted petitioner to purge the contempt by returning the children to the custody of the court. The court also found petitioner s counsel in contempt for failure to divulge petitioner s location or telephone number and incarce rated him for several ho urs until he provided petitioner s number. Petitioner ap pealed the c ontempt O rder to the C ourt of Sp ecial Appeals , arguing that the Circuit Court lacked jurisdiction to issue the underlying award of custody. In an unreported opinion, the Court of Special Appeals affirmed. On May 13, 1993, petitioner was apprehended on the body attachment and brought before the Circuit Court. The Circuit Court ordered petitioner to remain in custody until he complied with the pu rge provisio n and rem anded him to the custod y of the Sheriff. Petitioner then filed a m otion to aba te the contempt Order and release him from custody. The court denied this motion. Petitioner then filed a petition for a writ of habeas corpus in the Circuit Court, with respondent as the only named defendant. The Circuit Court granted the petition and relea sed p etitio ner f rom custody. Respondent appealed the grant of the habeas petition to the Court of Special Appeals, and petitioner appealed the denial of the mo tion to abate the contempt Order. The Court of Special Appeals reversed the grant of the habeas petition, and af firmed the den ial of the motion to abate the con tempt O rder. Nnoli v. N noli, 101 Md. A pp. 243, 646 A .2d 1021 (1994 ). The Circuit Court reinstated the contem pt Order a nd reissued the body attach ment; petitioner was apprehended again in Octob er 1994 . On December 12, 1994, petitioner filed a second petition in the Circuit Court for Montgomery County for a writ of habeas corpus, naming as defendant John Galley, Director of the Mon tgomery County Deten tion Center, where petitioner was then being held. Respondent s motion to intervene was granted on December 15, 199 4. After several continuances, petitioner supplemented his habeas petition -2- with letters he wrote to his family in Nigeria req uesting return of the children, an d letters written purportedly by his family indicating that they had no intention of returning the children . On September 13, 1995, the Circuit Court held a hearing on the habeas petition. At the hearing, respondent s co unsel opined that petitioner and his family were conspiring to keep the children from respondent and to obtain petitioner s release from incarceration, and that the letters were fabrications intended to further these ends. Respondent s counsel requested the opportunity to offer evidence to prove these allegations. Th e Circuit Court denied his re quest and gra nted the h abea s petition , ther eby re leasing p etitio ner f rom custody. Respondent noted a timely appeal to the Court of Special Appeals. In an unreported opinion, that court vacated the Circuit Court s grant of the habeas petition and remande d to the Circuit Court for further proceedings. The court based its ho lding on tw o ground s: first, that the Circuit C ourt erred because it failed to make clear the grounds for its grant of the habeas petition, and s econd, tha t, to the extent th at the Circu it Court relied on the letters petitioner offered in support of his habeas petition, it erred by refusing to permit respondent to offer evidence that the letters were not genuine. We denied his petition for writ of certiora ri to this C ourt. Nnoli v. N noli, 344 Md. 118 , 685 A.2d 452 (1996). On remand to the Circuit Court, respondent filed a request for issuance of a bench warrant, body attachment, and order of incarceration against petitioner. On August 8, 1996, the Circuit Court granted this motion, reinstated the contempt finding and purge provisions -3- set out in the April 21, 1992 contempt Ord er, and directed the Sheriff to apprehend, take into custody, and incarcerate petitioner. The c ourt ordere d a hearing to be held in accordance with the opinion of the Court of Special Appeals upon apprehension of petitioner. On January 28, 2000, petitioner filed in the Circuit Court a motion to dismiss the arrest warrant issu ed against p etitioner pursu ant to the August 1996 Order. In his motion, petitioner argued that the arrest warrant should be dismissed because the children had returned to the United States and were living with respondent. The Circuit Court held a hearing on the m otion o n Apr il 5, 2000. Petitioner s counsel appeared at the hearing, but petit ione r did not a ppear pe rson ally. The court denied the motion , indicating tha t it would not consider the motion if petitioner did not appear personally before the court. Petitioner then sought a writ of mandamus from this Court, which this Court denied on July 17, 2002. We turn now to the issue before this Court, petitioner s attempt to appeal the Circuit Court s denial of h is motion to quash the warrant for his arrest. After denial of his petition for a writ of mandamus, petitioner filed on May 22, 200 3 a second mo tion in Circuit Court challenging the 1996 arrest warrant issued for him after his second habeas petition was remanded to the Circuit Court. This motion, captioned as a Motion to Quash Arrest Warra nt, is the subject of the instant appeal. In this motion, petitioner argued that the arrest warrant should be quashed bec ause the ch ildren were now bo th emanc ipated, mak ing it impossible for him to s atisfy the purge provision se t forth in the A pril 1992 contem pt Order, and revived by the Circuit Court s August 1996 Order. The Circuit Court held a hearing on -4- this motion on July 7, 2003. Petitioner again failed to appear personally, and was represented by counsel at the hearing. During the hearing, petitioner s counsel indicated that he was prepared to offer birth certificates to prove that the children were e manc ipated. Once again, the Circuit Court indicated that it would not address the issue of whether petitioner lacked the present ability to purge unless he appeared personally in compliance with the arrest warrant. The Circ uit Court thus did no t permit petition er s counse l to offer the birth certificates into evidence , and denie d the motio n to quash the warran t. Petitioner noted a timely app eal to the Court o f Spec ial App eals. In an unreported opinion, the Court of Special Appeals affirmed, holding that, because petitioner had not appeared before the court, the Circu it Court did not have an y evidence before it from which it could conclude that petitioner lacked the present ability to perform the purge provision. Petitioner filed a petition for a writ of certiora ri, and w e grante d his pe tition. Nnoli v. N noli, 385 M d. 511, 8 69 A.2 d 864 ( 2005) . II. Before this Court ca n reach the merits of this appeal, we consider whether the Order of the Circuit Court denying petitioner s Motion to Quash the Warrant for his arrest is an appealable Order. It is important to note that petitioner is not appealing from an order -5- holding him in contempt, but rather from the Circuit Court s denial of a motion to quash a warrant fo r his arrest. 1 The general rule as to appeals is that, subject to a few, limited exceptions, a party may appeal only from a final judgment. Md. Code (1974, 2002 Repl. Vol., 2004 Cum . Supp.), § 12-301 of the Courts and Judicial Proceed ings Article 2 ; Salvagno v. Frew, 388 Md. 605, ___, 881 A.2 d 660, 66 6 (2005); In re Samone H., 385 Md. 282, 297, 869 A.2d 370, 379 (2005). Section 12 -301, Rig ht of appeal from final judgments Generally, provides as follows: Except as provided in § 12-302 of this subtitle, a party may appeal from a final judgment entered in a civil or criminal case by a circuit cour t. The right of appeal exists from a final judgment entered by a court in the exercise of original, sp ecial, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law. In a criminal case, the defendant may appeal even though imposition or execution of sentence h as been su spended . In a civil case, a plaintiff who has accepted a remittitur may cross-appeal from the final judgm ent. 1 Although in 1996, respondent requested the Circuit Court to issue both a body attachment and a bench warrant, the Circuit Court s Order did not specify whether it was issuing a body attachment, bench warrant, or both, but simply directed that petitioner be taken into custody. Although petitioner s motion was fashioned as a challenge to an arrest warrant, and not a body attachment, is of no significance, as bench warrant and body attachmen t may be used interchangeably to refer to orders directing law enforcement to take a person into custody and bring the person be fore the court. See Wilson v. Sta te, 345 Md. 437, 450, 693 A.2d 344, 350-51 (1997) (issuance of body attachments or bench warrants is a traditional m ethod for c ompelling attendance in court of witnesses who fail to appea r in response to subpo enas). 2 All subsequent statutory citations in this opinion will be to Md. Code (1974, 2002 Repl. Vol., 2004 Cum. Supp.), Courts and Judicial Proceedings Article. -6- Section 12-302(b ) provides th at § 12-301 does not apply to appeals in contempt cases, which are governed by § 12-304. To constitute a final judgmen t, the trial court s determination must either decide and conclude the rights of the parties involved or deny a party the means to prosecute or defend rights and interests in the su bject m atter of th e proce eding. See In re Samone H., 385 Md. at 297-98, 869 A.2d at 379 (quoting Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773 (1989)). We look to whether any further order was to be issued or whether any further action was to be taken in a case to determine whether an order or ruling is a final, appe alable judgmen t. Id. at 298, 869 A.2d at 3 79. A n order that is not a final judgment is an interlocutory order and ordinarily is not appealable unless it falls within one of the statutory exceptions set forth in § 12-303. See In re Damon M., 362 Md. 429, 434, 765 A.2d 624, 62627 (20 01). There are three exceptions to the fina l judgment rule: appeals fro m interlocutory orders permitted by statute, appeals permitted under M d. Rule 2-602, and appeals permitted under the common law co llateral or der doc trine. Salvagno, 388 Md. at ___, 881 A.2d at 666. The Order denying the motion to quash the arrest warrant is not a final judgment, and it does not meet any of these exceptions. Thus, it is not appealable. The ruling of the Circuit Court was not a final judgment because it did not determine and conclude the rights of the parties involved in the proceeding, or deny a party the means to prosecute o r defend h is or her rights a nd interests in the sub ject ma tter of th e proce eding. -7- In Re Billy W., 386 Md. 675, 688, 874 A.2d 423, 431 (2005) (internal citation and quotation omitted). The Circuit Cou rt Order denying petitioner s motion to quash the warrant did not determine and conc lude the righ ts of the partie s involved because it d id not, and c ould not, constitute a ruling on the underlying issue of the propriety of the contempt Order that petitioner was seeking to a ttack collaterally in h is habeas p etition pend ing before the Circuit Court. Rather, it simp ly affirmed tha t the Circuit Court s August 1996 Order issuing the arrest warrant for petitioner after its previous Order releasing petitioner was vacated by the Court of Special Appea ls and the ca se was rem anded fo r further pro ceedings w as correct. 3 Neither did the Order deny petitioner the means to prosecute his rights or interests in the proceeding. As the Circuit Court indicated at the hearing on petitioner s motion, the court was prepared to consider petitioner s contention that h e lacked the present ability to perform the purge provision in the conte mpt Ord er. Thus, pe titioner was a ble to prose cute his rights 3 Although the 19 92 Circuit Court arrest warrant related to the contempt Order issued in the divorce proceeding, the basis of the 1996 arrest warrant was not a separate finding of contempt by the Circuit Court at that time, but rather was the mandate of the Court of Special Appea ls vacating the Circuit Court s initial judgment granting petitioner s habeas petition and releasing him f rom incarc eration. W hile we do not reach th e merits of th e Circuit Court s ruling on the motion, for purposes of illustrating that petitioner s challenge to the arrest warrant is distinct from a challenge to the contemp t Order, w e note that the Circuit Court was bound by the law of the case to deny the motion to quash the warrant, as the warrant was issue d to effec tuate the ma ndate of th e Court o f Special Appeals vacating the Circuit Court s gra nt of petitioner s habeas p etitio n and conseq uent rele ase f rom custody. See Scott v. State , 379 Md. 170 , 183, 840 A.2d 7 15, 723 (2003) (u nder law of the case doctrine, litigants and lower courts are b ound on remand b y rulings of ap pellate courts in the same case). -8- to challenge the contempt Order, as he simply had to comply with the terms of the warrant in order to do so. Petitioner can point to no statute expressly permitting this appeal. Although § 12-301 incorporates § 12-302, which provides that contempt cases are governed by § 12-304, the Circuit Court s ruling does not fit within those statutory provisions. Section 12-304(a) provides for appeals in contempt cases, and states in pertinent part as follows: Any person may appeal from any or der or judg ment pass ed to preserve the power or vindicate the dignity of the court and adjudging him in con tempt of c ourt, including an interlocutory order, remedial in nature , adjudging any person in contemp t, wheth er or no t a party to th e action . Petitioner is not appea ling from a n order ad judging h im in conte mpt and th erefore ca nnot fit within this section.4 It is not appealable under § 12-304. 4 This is not a case where the action of the Circuit C ourt was beyond the c ourt s jurisdiction. The Circ uit Court ha d fundam ental jurisdiction to issue the arre st warrant, as it was iss ued to e ffectu ate a co ntemp t order. See § 1-202(a) (granting to courts the power to punish for contempt of court or to compe l complian ce with its co mmand s in the manner prescribed by Title 15, Chapter 200 of the Maryland Rules ). Md. Rule 15-2 07(c)(2) pe rmits a court to enter an order directing a sheriff or other peace officer to take custody of and bring [an] alleged contemnor before the court if the alleged contemnor fails to appear pers onally. Thus, this case is not one whe re a court s lack of fundamental jurisdiction to issue an order makes the order a fina l judgmen t or puts it within the scope of one of the three exceptions to the final judgment rule. See Board of Educ. v. Bradford, 387 Md. 353, 384-85, 875 A.2d 703, 721-22 (2005) (noting that, although lack of fundamental jurisdiction to issue an order does not create a se parate fourth exception to the final judgment rule, orde rs exceeding the scope of the trial court s fundamental jurisdiction may sometimes be final judgments or fall w ithin one of the three exce ptions to the final judgmen t rule). -9- An order that is not a final judgment is an interlocutory order and ordinarily is not appealab le unless it falls w ithin an excep tion to th e final o rder do ctrine. Salvagno, 388 Md. at ___, 8 81 A.2d at 666. Section 12-3035 provides for appeals from certain interlocutory 5 Section 12-303 provides as follows: A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case: (1) An order entered with regard to the possession of property with which the action is con cerned or w ith referenc e to the receipt or charging of the income, interest, or dividends therefrom, or the refusal to modify, dissolve, or discharge such an order; (2) An order granting or denying a motion to quash a writ of attachment; and (3) An order: (i) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellan t has first filed h is answer in the cause; (ii) Refusin g to dissolve an injunction, b ut only if the appellant has first filed his answer in the cause; (iii) Refusing to grant an injunction; and the right of appeal is not prejudiced by the filing of an answer to the bill of co mplaint or p etition for an injunction on behalf of any opposing party, nor by the taking of depositions in reference to the allegations of the bill of complaint to be read on the hearing of the application for an injunction; (iv) Appointing a receiver but only if the appellant has first filed his answer in the cause; (v) For the sale, conveyance, or delivery of real or personal property or the payment of money, or the refusal to rescind or discharge suc h an order, unless the delivery or payment is directed to be made to a receiver ap pointed by the court; (vi) Determining a question of right between the (contin ued...) -10- orders. Th e Order o f the Circu it Court in the instant case does not fit within any provision of § 12-303 and is not appealable as an interlocutory order. Although the purge provision in the contem pt Order permitte d petitioner to purge him self of con tempt by return ing his children to the custody of the court, this fact does not bring the O rder denying Petitioner s motion to q uash the arr est warran t within the scope of § 12-303(3)(x), which provides that an interlocutory ord er in a civil case is appea lable if it is an ord er [d]epriv ing a paren t, grandpa rent, or natural guardian of the care and c ustody of his child, or changing the terms of such an order. Even if this aspect of the purge provision would place a ruling on the contempt Order within the scope of § 12-303(3)(x), the Circuit Court s denial of the motion 5 (...continued) parties and directing an account to be stated on the principle of such determination; (vii) Requiring bond from a person to whom the distribution or delivery of property is directed, or withholding distribution or delivery and ordering the retention or accumulation of property by the fiduciary or its transfer to a trustee or receiver, or deferring the passage of the court's decree in an action under Title 10, Chapter 600 of the Maryland Rules; (viii) Deciding any question in an insolvency proceeding brought under Title 15, Subtitle 1 of the Commercial Law Article; (ix) Granting a petition to stay arbitration pursuant to § 3-208 of this article; (x) Depriving a parent, grandparent, or natural guardian of the care and custody of his child, or changing the terms of such an order; and (xi) Denying immunity asserted under § 5-525 or § 5-52 6 of this article. -11- to quash the warrant w as not a ruling on the underlying co ntempt O rder. Secon d, even if it were, it would not have changed the terms of the original Order, and hence would not be appealab le under § 12-30 3(3)(x) . See In re Samone H., 385 Md. at 316, 869 A.2d at 390 (holding that an order denying a mother s request to alter a permanency plan adopted in a child in need of assistance case was not appealable under § 12-303(3)(x) because the order denying the mother s requ est did not change the term s of the original order). Under Md . Rul e 2-6 02(b ), in c ertai n circum stances, a party may a ppeal from a judgment not disposin g of an en tire action and one that is no t otherwise a final judg ment. 6 This Rule applies to a ctions involv ing multiple c laims or mu ltiple parties in w hich a 6 Md. Rule 2-602 provides as follows: (a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or thirdparty claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a fin al judgme nt; (2) does not terminate the action as to any of the claims or any of the parties; and (3) is subject to revision at any time before the entry of a judgm ent that adjud icates all of the claims by and against all of the parties. (b) When Allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order th e entry of a fina l judgmen t: (1) as to one or more but fewer than all of the claims or parties; or (2) pursuant to Rule 2-501 (f)(3), for some but less than all of the amount requested in a c laim seeking money relief only. -12- judgment is entered as to fewer than all the parties involved or all the claims in the action. Quartertime Video v. Hanna, 321 Md. 59, 64, 580 A.2d 1073, 1075 (1990). Under this Rule, if the trial court finds expressly in a written order that there is no just reason for delay, the court can order e ntry of a final jud gment as to fewer tha n all of the cla ims or parties in the action. We have often noted that the discretion afforded under this Rule is of limited nature, and is to be reserved for the very infrequen t harsh case. Smith v. Lead, 386 Md. 12, 24-25, 871 A.2d 545, 552 (2005) (quoting Diener Enterprises v. Miller, 266 Md. 551, 556, 295 A.2d 470, 473 (1972)). The purpose of limiting this discretion is to prevent piecemeal appeals, which, beyond being inefficient and costly, can create significant delays, hardship, and procedural problems. Id. at 25, 871 A .2d at 553. R ule 2-602 is inapplicab le to the appeal before us. Even if, hypothetically, the judgment of the Circuit Court somehow fit within the Rule, the trial court did no t enter a written order expressly determining that the denial of the motion to quash the warrant is appealable. Rule 2-602 is not applicable to the instant case. Finally, the collateral order doctrine does not provide a basis for this appeal. The collateral order doctrine treats as final and appealable interlocutory orders that (1) conclusive ly determine the disputed question; (2) resolve an important issue; (3) resolve an issue that is comp letely separate from the merits of the action; and (4) would be effectiv ely unreview able on ap peal from a final judg ment. Dawkins v. Baltimore Police, 376 Md. 53, 58, 827 A.2d 115, 118 (2003). Th e collateral ord er doctrine is a very narrow exception to -13- the final judgment rule, and each of its four requirements is very strictly applied in Maryland. Id. at 58-59, 827 A.2d at 11 8. In particular , the fourth p rong, unre viewability on appeal, is not satisfied except in extraordinary situations. Shoemaker v. Smith, 353 Md. 143, 170, 725 A.2d 549, 563 (1999) (quoting Bunting v . State, 312 Md. 472, 482, 540 A.2d 805, 809 (1988 ) (per cu riam)). This case does not present an extraordinary situation. In essence, by moving to quash the arrest warrant, petitioner is reinitiating and attempting to relitigate his challenge to the contempt Order without appearing before the Circuit Court in accordance with its 1996 Order. The me re fact that an order den ies a claim of a right to avoid participating in some aspects of the legal proceedings in the trial court does not mean the order presents an extraordinary situation satisfying the fou rth pron g of the collatera l order d octrine. See, e.g., Dawkins, 376 Md. at 64-65, 827 A.2d at 121-22 (holding tha t, as a general rule, trial court orders rejecting immunity defenses do not present extraordinary circumstances making them unreview able on appeal, and hen ce are not appealable under the collateral order doctrine); In re Foley, 373 Md. 627, 635-36, 820 A.2d 587, 592-93 (2003) (holding that fourth prong of collateral order doctrine was not satisfied in case of discovery order permitting medical examination, even though order may not be reviewable on appeal from a final judgmen t if party chal leng ing o rder prev ails in underlyin g act ion). The Ord er de nying the motion to quash the arrest warrant does no t present an extraordinary situation sufficient to satisfy the fourth prong of the collateral order doctrine m erely because it denied petitioner s claim that -14- he had a right to avoid participation in an aspect o f the proce edings be low by reinitiating his challenge to the contemp t Order w ithout com plying with the Circuit Co urt s Order to appear person ally befor e the co urt. The Or der of the C ircuit Court for Montgomery County was not appealable and the appeal should be dismissed. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. C ASE REM ANDE D T O T H AT COURT WITH INSTRUCTIONS TO DISMISS THE APPEAL AND TO REMAND THE CASE TO THE CIRCUIT COURT FO R MONTGOMERY COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY PETITIONER. -15-

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