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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1454 September Term, 2007

HIYAB, INC. ET AL.

v.

OCEAN PETROLEUM, LLC. ET AL.

Zarnoch, Graeff, Wilne r, Alan M ., (Retired, Specially Assigned), JJ.

Opinion by Graeff, J.

Filed: October 31, 2008

HEAD NOTE : Hiyab, Inc ., et al. v. Ocean Petroleum , LLC., et al. , No. 1454, Sept. Term 2007. CIVIL PROCEDURE; FINAL JUDGMENTS; INTERVENTION; APPELLATE JURISDICTION; MA RYLAND RULE 2-214; MARY LAND RU LE 8-202. A trial court's order denying a motion to intervene is a final appealable order, and a prospective intervenor must note an appeal within 30 days of the denial of that motion. An appellate court does not have jurisdiction to consider an appeal from the denial of a motion to intervene where the prospective intervenor failed to note a timely appeal from the denial of the motion to intervene but instead noted an appea l from the la wsuit's fina l judgmen t, which occurred more than 30 days after denial of the motion to intervene.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1454 September Term, 2007

HIYAB, INC. ET AL.

v.

OCEAN PETROLEUM, LLC. ET AL.

Zarnoch, Graeff, Wilne r, Alan M ., (Retired, Specially Assigned), JJ.

Opinion by Graeff, J.

Filed:

On September 28, 2005, Ocean Petroleum, LLC, appellee, filed a civil action in the Circuit Court fo r Prince G eorge's C ounty alleging two caus es of action against six defendants, including Al Binaa Tradin g & Construction, LLC ("Al Binaa"). Appellants, Hiyab, Inc., a Maryland corporation, and Woldensie Asfaha, Hiyab, Inc.'s owner (collectively "Hiyab"), who were no t parties to this law suit, filed a mo tion for leav e to file a cross-claim for indem nification ba sed on its ownership interest in Al Bina a. Hiyab app eals from the order denying this motion, arguing that the trial court should have permitted Hiyab to intervene in this case. For the reasons set forth belo w, we shall dismiss this appeal as untimely. FACTUAL AND PROCEDURAL BACKGROUND On November 25, 2002, Sahara Investment, LLC ("Sahara"), a company that operates retail gasoline stations, and George Jaalouk, Elias N. Jaalouk, and Salwa Jaalouk (collectively "the Jaalou ks") execu ted three m otor fuel supp ly contracts with Ocean Petroleum, LLC, a wholesale distributor of motor fuels and other petroleum products. George and Elias Jaalouk are officers and directors of Sahara, Al Binaa, and Zeydouni Investme nt, LLC (" Zeydouni" ). The con tracts secured a supply of gasoline to three gasoline stations located in Baltimo re, Seat Plea sant, and Pasadena, Maryland. Al Binaa owned the gasoline station in Sea t Pleasant. The fuel supply contracts provided that Ocean Petroleum would begin delivering gasoline to these three stations on March 1, 2003.1

The facts relating to the underlying dispute were taken from the Complaint filed by Ocean Petroleum.

1

Ocean Petroleum, as an inducement to enter the motor fuel supply contracts, agreed to lend money to the Jaalouks and their associated corporate entities. On November 25, 2003, as a result of this agreement, the Jaalouks, Al Binaa, and Zeydouni issued a promissory note fo r $250 ,000.00 to Oce an Petr oleum . On September 28, 2005, after payments were not made on the moto r fuel supp ly contracts and on the promissory note, Ocean Petroleum filed a two count complaint in the Circuit Court for Prince George 's County alleg ing: (1) breac h of contra ct; and (2) "suit on the note," a collection action on the promissory note. The breach of contract claim alleged that the Jaalo uks and Sahara failed to make payments on the motor fuel supply contracts. This claim is not at issue o n appeal. T he claim o n the prom issory note allege d that the Jaalouks, Sahara, Al Binaa, and Zeydouni defaulted by failing to make payments on the promissory note. On January 16, 2007, Zeydouni f iled a notice th at it had filed for Chapter 11 Ba nkrup tcy. On March 6, 2007, H iyab filed a mo tion, captioned a s "Motio n for Lea ve to File Crossclaim for Indemnification," against the defendants in the lawsuit. The motion provided: 1. 2. 3. Count II of the complaint alleges that the Prom issory Note inv olved in the case is an obligation of Al Binaa. Mova nts purchased a 50% membership interests in Al Binaa on January 1, 2004 [.] At the time that M ovants purchased this membership interest, they were not informed, nor do they have any knowledge, of the existence of any claim against Al Binaa by Ocean Petroleum. Likewise, Movants did not have any knowledge related to the

4.

-2-

5. 6. 7. 8. 9.

allegations in the Complaint at Paragraph 20,[2] to the effect that the other defenda nts transferre d the opera tions of A l Binaa from other locations to [the] Sheriff Road location. Mova nts discovered that Al Binaa was indebted to Ocean Petroleum when its supply of petroleum products was cut off by Ocean Petroleum. The Promissory Note in this case should not be charged against the Membership Interest of Hiyab or Asfaha. The failure of th e other defendants to disclose the existence of the [p]rom issory No te unde r the circ umstan ces am ounts to fraud. The Movants are entitled to be indemnified against any judgment which would be entered against Al Binaa in these proceedings. The Movants have good cause for late filing of this Crossclaim because the juices of th e debt was concealed from Movants when they purchase d their Me mbership Interest.

Hiyab requested permission to file a cross-claim. Nowhere in the motion is there a request to intervene in the lawsuit. Hiyab also appended a cross-claim to the motion, which provided : 1. 2. 3. On January 1, 2004, Crossclaimants [sic] purchased a 50% M embersh ip Interest in Defendant Al Binaa Trading and Construction LLC. At the time of this purchase, Cross claimants were not made aware that Al Bin aa had any debt outstan ding to the plain tiffs. All defendants had an obligation to inform C ross claiman ts at the time of the purchase of their M embership Interest that there was a balance due an d owin g to the p laintiff.

2

Paragraph twenty of the complaint provides as follows: Defend ants Sahara and the Jaalouks declined to accept Ocean Petroleum's proposal [to restructure their monetary obligations]. In lieu of acceptance, they closed the Pasadena and Bel Air Road Stations and, without the approval or consent of Ocean Petroleum, transferred operation of the Seat Pleasant Station to another individu al or entit y. Each of the motor fuel supply agreements prohibit the assignment of the Buyer's obligations without the express consent of Ocean Petrole um. -3-

20.

4.

5. 6.

The failure and refusal of the defendants to properly inform the Cross claimants of this claim constituted a breach of contract for the purchase of the M embersh ip Interest. The failure and refusal of defendants to properly inform Cross claimants of this claim constituted a fraud against Cross claimants. In addition to re lief that Cros s claimants may be entitled to unrelated to these proceedings, Cross claimants are entitled to full complete and unconditional indemnity by the defendant's [sic] other than defendant Al Binaa against any and all claims of Ocean Petroleum.

On April 3, 2007, the cou rt denied H iyab's motion. A court clerk su bsequen tly docke ted this o rder on April 1 0, 2007 . On July 23, 2007, following a bench trial, the court found the defendants liable on both claims and entered two separate judgments against the defendants. With respect to the breach of contract claim, the court found the Jaalouks and Sah ara jointly and se verally liable for $499,899.46. With respect to the claim on the promissory note, the court found the Jaalou ks, Al B inaa, an d Saha ra jointly an d sever ally liable f or $91 ,063.58 . On August 22, 2007, Hiyab noted an appeal to this Court con testing the circuit court's "denial of the Motion for Leave to File Crossclaim for Indemnification." On August 29, 2007, Ocean Petroleum filed a motion in the circuit court to strike Hiyab's notice of appeal on the grounds that Hiyab was not a party to the lawsuit. On October 22, 2007, the court ordered as follows: This Court, having considered the motion of plaintiff Ocean Petroleum, LLC, to strike the notice of appeal of Hiyab, Inc. and Woldensie Asfaha in the instant action, the opposition of Hiyab, Inc. and Woldensie Asfaha thereto, and the record herein, and the Court having found good grounds to strike said notice, it is this 16th day of October, 2007 hereby ORDERED, that the mo tion of Ocean Petroleum, LLC to strike the -4-

notice of a ppeal of Hiyab, Inc . and Wo ldensie A sfaha is G RAN TED; a nd it is further ORDERED, that the notice of appeal of Hiyab, In c. and W oldensie Asfah a is here by STR ICKE N. On February 4, 2 008, this Court vacated the circuit court's order striking the notice of appeal, explaining that Maryland Rule 8-203(a) "does not grant the circ uit court auth ority to strike an appeal because it is not allowed by law. A motion to strike an appeal on that basis must be b rought be fore this Co urt." Although the appeal was re instated, this Court ordered "that Appellee's Motion to Dismiss Appeal by Hiyab, Inc. et al., filed in this Court be and is hereb y DENIE D WIT HOU T PRE JUDIC E to seek th at relief again after the date on which the record on appeal is filed in this Court." Appellee did n ot file a subsequent motion to dism iss in this C ourt. DISCUSSION In the motion to dismiss filed in the circuit court, Ocean Petroleum argued that Hiyab could not appeal because Hiyab was not a party to the lawsuit and it was not aggrieved by its decision. Hiyab countered that a prospec tive party who seeks to interv ene in a law suit may appeal the circuit court's denial of that motion. That is true, but the timeliness of such an appeal is the critical issue in this case. We shall dismiss this appeal because we conclude that the a ppeal w as not f iled time ly. The Maryland R ules provid e that a "notice o f app eal shall b e file d within 30 days after entry of the judgment or order from which the appeal is taken." Md. Rule 8-202(a). The requirement "that an ord er of appe al be filed within thirty days of a f inal judgm ent, is -5-

jurisdictional; if the requirement is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed." Houghton v. County Com'rs of Kent County , 305 Md. 407, 413 (1986). Although the parties did not brief the jurisdictional q uestion raised in this case, we must add ress this issue because appellate "jurisdiction cannot be conferred by consent of the parties." Pearlstein v. Maryland Deposit Ins. Fund, 79 Md. Ap p. 41, 48 (1989). The question in this case is when a final, appealable judgment was entered as to Hiyab, and, the refore, w hen the time ex pired fo r filing a notice o f appe al. In other words, is a prospective intervenor required to file a timely notice of appeal from the denial of the motion to intervene, or can the prospective intervenor wait until after a judgment is entered against all the parties to th e lawsuit? We conclude that, if we characterize the motion filed by Hiyab as a motion to intervene , Hiyab was required to f ile a notice of appeal w ithin 30 days of the trial court's denial of the motion. Thus, the time to note an appeal expired on May 10, 2007, 30 days after the order was docketed on April 10, 2007. Consequently, the notice of appeal filed on August 22, 2007, was untimely, and we shall dismiss this case pursuant to Md . Rule 8-602(a)(3). Maryland Code (2006 Repl. Vol.),

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