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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 5371 September Term, 1998

E. MITCHELL FRY, JR.

v.

COYOTE PORTFOLIO, LLC, SUCCESSOR IN INTEREST

Davis, Eyler, Bishop, Jr., John J., (retired, specially assigned), JJ.

Opinion by Davis, J.

Filed: October 28, 1999

On November 1, 1985, appellant E. Mitchell Fry executed a Promissory Note (Note) to pay $1,500,000 to The State of Maryland Deposit Insurance Fund Corporation (MDIF). the Note leaving a balance due of $500,000. filed suit in the Circuit Court for Appellant defaulted on In November 1995, MDIF City against

Baltimore

appellant to procure payment.

In December 1995, MDIF and appellant

reached an agreement on a payment schedule for the balance due under the Note. MDIF filed a Motion for Approval of Settlement

Agreement, and the trial court (Kaplan, J.) approved the order. On August 12, 1998, appellee Coyote Portfolio LLC purchased all of MDIF's rights, title, and interest in the MDIF-appellant Settlement Agreement. On November 18, 1998, appellee sent

appellant a ten-day notice to cure payments that were past due for the months of June and November 1998. Soon thereafter, appellee

filed a petition for the entry of consent judgments in the Circuit Court for Baltimore City. In response, appellant filed an

Opposition to Petition for the Entry of Consent Judgments, stating that appellee had no legal right to file the consent judgments. Appellee filed a Reply Memorandum in Support of Petition to Enter Consent Judgments. Appellant filed a further response to Reply

Memorandum in Support of Petition to Enter Consent Judgments. On December 22, 1998, the lower court ordered two consent judgments for $100,000 and two consent judgments for $50,000 against appellant. consent judgments. Appellant filed a motion to alter or amend Appellee filed a response to appellant's motion

- 2 to alter or amend consent judgments. appellant's motion to alter or amend The circuit court denied consent judgments, and

appellant timely noted this appeal.

Appellant presents for our

review three questions that we restate as follows: I. II. Did the circuit court err when it entered the consent judgments? Did the circuit court err when it failed to treat the consent judgments as confessed judgments thereby violating appellant's procedural due process rights?

III. Did the circuit court abuse its discretion in denying appellant's motion to alter or amend judgments? Appellee has filed a motion to dismiss this appeal, contending that, when, as in this case, a party receives the benefits of the negotiated agreement to consent to entry of judgment, he or she waives any errors in the judgment and an appeal from the judgment will not thereafter lie. We agree with the position espoused by

appellee and, consequently, dismiss this appeal.

FACTUAL BACKGROUND
Appellant was the owner and a board member of the Friendship Savings and Loan Association. On October 21, 1985, appellant and

appellee's predecessor-in-interest, MDIF, entered into an agreement wherein Friendship Savings and Loan Association paid one million dollars to MDIF. Pursuant to this agreement, appellant signed a

promissory note agreeing to pay MDIF an additional 1.5 million

- 3 dollars over ten years. Appellant paid one million dollars, but On

disputed the remaining payment of $500,000 on the Note to MDIF.

January 22, 1996, MDIF filed a lawsuit against appellant in the Circuit Court for Baltimore County to collect the remaining balance due on the Note. On March 3, 1997, appellant and MDIF reached a

Settlement Agreement (1997 Settlement Agreement) providing for a payment schedule for the $500,000 still owing from the original 1985 Agreement. Pursuant to the 1997 Settlement Agreement, appellant agreed to make a series of payments, without interest, starting in March 1997 and concluding in June 1999. The terms of the 1997 Settlement

Agreement required appellant to consent to seven judgments in the respective amounts of $50,000, $50,000, $100,000, $50,000, $50,000, and $100,000 in the event that appellant defaulted on any of his payments. As payments were made in accordance with the new

schedule, counsel for MDIF would return to counsel for appellant the corresponding consent judgment. Appellant and MDIF both

obtained legal advice from their respective attorneys in connection with the 1997 Settlement Agreement prior to signing. On March 7,

1997, the lower court approved the 1997 Settlement Agreement. On August 12, 1998, appellee purchased all of MDIF's rights, title, and interest in the 1997 Settlement Agreement. On November

18, 1998, appellee's counsel sent appellant a ten-day notice to cure since he was then in default on the June 1, 1998 $100,000 payment and the November 1, 1998 $50,000 payment. The notice

- 4 advised appellant that all of the remaining consent judgments will be entered against him unless he cured within ten days. Because

appellant failed to cure, appellee, as successor-in-interest to MDIF, filed a Petition For the Entry of Consent Judgments in the Circuit Court for Baltimore City. Appellant, in response, filed an

opposition to the petition, claiming that appellee, as MDIF's successor-in-interest, had no standing to file the petition seeking entry of the 1997 Settlement Agreement consent judgments. Soon

thereafter, appellee filed a reply and an affidavit, confirming that it had purchased all of MDIF's rights and interest in the 1997 Settlement Agreement. Subsequently, appellant filed an additional

response to appellee's reply. On December 22, 1998, the lower court entered two consent judgments for $100,000 and two consent judgments for $50,000. Appellant then filed a motion to alter or amend the consent judgments. On January 11, 1999, the court denied appellant's Appellant timely

motion to alter or amend the consent judgments. noted this appeal.

DISCUSSION
Anticipating appellee's motion to dismiss, appellant initially concedes, "Because under Maryland law, consent judgments are

intended to reflect a mutually negotiated agreement to settle a dispute, there is normally no right to appeal based on the merits

- 5 of a consent judgment." He characterizes a consent judgment as "an

enforcement mechanism to be wielded by the creditor, MDIF, if and when it decides, unilaterally and in its sole discretion, that the debtor, [appellant], is late in making payment." submits that "[t]he traditional judicial He ultimately towards

acquiescence

consent judgments is inappropriate in this case." In an effort to overcome established legal precedent that an appeal will not lie from entry of a consent judgment reflecting a negotiated settlement and, in an attempt to persuade us to reach the merits of his substantive arguments, appellant contends: 1. There was lack of consent to the entry of the consent judgments because appellant had withdrawn his consent prior to the entry of the consent judgments and MDIF had, at the time of entry of the consent judgments, assigned its rights to appellee; A consent judgment can only be filed by the filing parties and cannot be assigned prior to filing; Consent judgments "should be treated as confessions of judgment" because they were not the simultaneous product of negotiations and, as employed here, are a unilateral enforcement mechanism and deny appellant the "opportunity to prove that there were substantial and real grounds for an actual controversy as to the merits of the defense; Enforcement of consent judgments pursuant to Maryland Rule 2-612 (1999), which does not provide for notice or an opportunity to be heard, violates due process guarantees of both the United States and Maryland Constitutions;

2.

3.

4.

- 6 5. The language of the Settlement Agreement did not indicate a knowing waiver of procedural due process rights and the unequal bargaining power between MDIF and appellant precluded a finding that any waiver was voluntary; The consent judgments should be vacated because counsel for appellant "did not receive a copy of the order until almost three months after the judgments were recorded."

6.

The short answer to all of the contentions raised by appellant is that any challenge to the consent by the parties, the

effectiveness of the waiver of procedural due process, or the voluntariness of the Settlement Agreement are matters that should have been addressed at a point in time before he accepted the benefits of the Agreement, preferably during the course of the negotiations. In Franzen v. Dubinok, 290 Md. 65, 68-69 (1981), the Court of Appeals, speaking to the legal effect of a voluntary act

inconsistent with a claim of error, explained: The law of this State is clear that the "right to an appeal may be lost by acquiescence in, or recognition of, the validity of the decision below from which the appeal is taken or by otherwise taking a position which is inconsistent with the right of appeal." In conformity to this principle, we have heretofore held that the filing of a remittitur by the beneficiary, combined with the acceptance of the tendered payment of the award and causing the court record to be marked as satisfied, brings the litigation to a complete conclusion, thus barring an appeal by the judgment creditor; that no appeal lies from a consent decree; and that after an

- 7 invocation of the benefits accruing under an order of court, a party will not be heard to assail its validity. This general rule of preclusion enunciated in the [Rocks v.] Brosius [241 Md. 612 (1966)] case has been variously characterized as an "estoppel," a "waiver" of the right to appeal; an "acceptance of benefits" of the court determination, creating "mootness," and an "acquiescence" in the judgment. We think the label applied to the rule is less important than its essence -- that a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review. (Emphasis added; citations and footnote omitted.) It is well settled in Maryland, and the law generally is to the effect, that, if a party, knowing the facts, voluntarily accepts the benefits accruing to him under a judgment, order, or decree, such acceptance operates as a waiver of any errors in the judgment, order, or decree and estops that party from maintaining an appeal therefrom. Silverberg v. Silverberg, 148 Md. 682 (1925); See 4 C.J.S. Appeal and

Stewart v. McCaddin, 107 Md. 314 (1908). Error

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