In Maryland, a party can inadvertently waive its right to appeal by accepting the benefits of the judgment.

by | Feb 27, 2018 | Firm News, General Info | 0 comments

In Maryland, a plaintiff that prevails at trial may inadvertently waive its right to appeal by accepting the benefits of a judgment.

Stewart A. Sutton twice had an adverse party’s appeal dismissed based upon the application of the acquiescence rule.  The acquiescence rule bars a party from taking the “inconsistent position of accepting the benefits of a judgment and then challenging its validity on appeal”.  Turner v. Turner, 147 Md.App. 350, 381 (2002).  Accordingly, the “right to appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or otherwise taking a position which is inconsistent with the right of appeal”. Rocks v. Brosius, 241 Md. 612, 630 (1966); Suburban Development Corp. v. Perryman, 281 Md. 168, 171 (1977) (holding that a litigant cannot “both voluntarily accept the benefits of a judgment or decree and then later be heard to question its validity on appeal”).

Stated another way, “one cannot ‘have his cake and eat it too’ by accepting the rewards of those portions of the decree he finds palatable while reserving the right to contest the balance”.  Kircherer v. Kircherer, 285 Md. 114, 117 (1979).

Stewart A. Sutton successfully represented a Montgomery County property owner who had lost her home in tax foreclosure case.  The trial court vacated the judgment foreclosing the property owner’s right to redeem her real property.  The property owner then redeemed her home by paying the taxes, premiums, costs, and attorney’s fees that she owed to the tax sale purchaser; and the tax sale purchaser deposited her checks.

The tax sale purchaser then filed an appeal to challenge the vacation of the judgment foreclosing the property owner’s right to redeem her property.  Stewart A. Sutton on behalf of the property owner moved to dismiss the tax sale purchaser’s appeal on the grounds that it had accepted the benefits of the judgment.

In an unreported opinion, the Court of Special Appeals agreed: “Katana waived its right to appeal the December 21, 2016, order vacating the judgment foreclosing Ms. Brunson’s right of redemption when it later accepted benefits that flowed from the judgment. Katana accepted a refund of the funds it had paid to the county. And Katana also received the payment of interest — some at a rate of 20% per annum — on funds it had advanced. It is undisputed that Katana negotiated the checks that were tendered in payment of the reimbursements and interest. We conclude that Katana has therefore waived its right to appellate review of the judgment it has challenged on appeal, and the appeal must be dismissed”.  See

Even if Katana had not waived its appellate rights by accepting the benefit of the judgment, the Court of Special Appeals would have affirmed the lower court’s decision to vacate the judgment on the grounds that the property owner had never been served with process in the underlying tax foreclosure litigation, thereby depriving the trial court of jurisdiction: “In the interest of completeness, we note that, even if we did not dismiss the appeal based upon Katana’s acquiescence, we would have affirmed the judgment of the circuit court vacating the foreclosure judgment for lack of jurisdiction. There was adequate evidence before the circuit court to support the court’s conclusion that Ms. Brunson had not been personally served. Further, as Ms. Brunson argued in her motion to vacate, neither Katana nor Fedhop sought an order of court to permit service via publication pursuant to Maryland Rule 2-122(a), which permits such service only upon a showing “that reasonable efforts have been made in good faith to locate the defendant.” There was evidence before the circuit court that showed that Ms. Brunson would have been located if “reasonable efforts” had been exerted by someone who wanted to locate her. Cf. St. George Antiochian Orthodox Christian Church v. Aggarwal, 326 Md. 90, 104 (1992) (The Court of Appeals rejected tax sale purchaser’s claim of adequate efforts to locate owner, stating that the purchaser’s limited search reflected “the type of manifest indifference which we have held cannot be countenanced without offending concepts of due process in a case of this kind.”)





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