Turner v. Turner9/30/2002
judication by the Appeals Court.
We are guided by the Court of Appeals's recent decision in Downtown Brewing Company, Inc. v. Mayor and City Council of Ocean City, 370 Md. 145 (2002), a condemnation case. There, the Court dismissed the appeal because, "by its conduct," the appellant "waived" for appellate review the question of whether Ocean City had authority to condemn the property for use in a state highway project. Id. at 148. The conduct that led to the finding of waiver was the appellant's acceptance of the condemnation award, despite its challenge to the underlying proceeding. Id. at 146-47.
The Court recognized the "general rule" that "`an appellant cannot take the inconsistent position of accepting the benefits of a judgment and then challenge its validity on appeal.'" Id. at 149 (citation omitted). As the Court noted, the "general preclusion has been variously termed as waiver, estoppel, acceptance of benefits creating mootness, and acquiescence in judgment." Id. Regardless of the label, "` he right to appeal may be lost by acquiescence in, or in recognition of, the validity of the decision below from which an appeal is taken....'" Id. (quoting Rocks v. Brosius, 241 Md. 612, 630 (1966)). Such conduct is "inconsistent" with the right to appeal. Id.
Nevertheless, because the Court regards the doctrine as "a severe one," it has held that "it should only be applied to actions taken by the same litigant that are necessarily inconsistent and that a claim on appeal that one is entitled to more money is not inconsistent." Id. Of significance here, the Court expressly identified as an "exception" to the acquiescence rule those cases in which "the right to the benefit received is conceded by the opposing party or where the appellant would be entitled to the proceeds in any event." Id. at 150. In this regard, the Court cited Dietz v. Dietz, 351 Md. 683, 696-97 (1998), in which it denied a motion to dismiss the appeal in a domestic case when "only the amount of alimony awarded was contested." Downtown Brewing, 370 Md. at 150. The Court concluded, however, that the appellant in Downtown Brewing could not "shoehorn" itself into the exception, because its challenge was not confined to the sufficiency of an award. Id. at 151.
Dietz, 351 Md. 683, cited in Downtown Brewing, is instructive. In that case, the trial court ordered partial payment of a monetary award (i.e., $20,000) in thirty days, with the balance of $225,000 payable in monthly installments of $1,250 over a fifteen year period. Id. at 686. On appeal to this Court, the appellant sought an increase in the monetary award. We dismissed the appeal, however, based on the acquiescence doctrine, because the appellant had accepted partial payments of the award. See Dietz v. Dietz, 117 Md. App. 724, 741 (1997). The Court of Appeals disagreed and reversed. The Court said that, "` f applicable at all in a divorce case, the [acquiescence] bar cannot be raised where the benefits accruing to the wife, by reason of the award, provide necessary support until the final adjudication of the case.'" Id. at 695 (citation omitted).
For purposes of the acquiescence rule, the Court analogized the monthly award of payments to those made in workers' compensation, alimony, and condemnation cases. Moreover, the Court recognized that "the acquiescence doctrine `is a severe one and should not be extended.'" Id. (citation omitted). Noting that the appellee did not contest the monetary award, id. at 696, the Court said that "the acquiescence rule does not apply where there is no cross-appeal and the appellant seeks only an increase in an undisputed minimum." Id. at 695 (emphasis added).
Construing Dietz, the Court in Ch
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