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IN THE COURT OF APPEALS OF MARYLAND

No. 63 September Term, 2009 _________________________________________

CATHERINE A. MORELAND JOHNSON v.

JAMES MICHAEL JOHNSON

__________________________________________ Bell, C. J. Battaglia Greene *Murphy Adkins Barbera Eldridge, John C. (Retired, Specially Assigned)

JJ. __________________________________________ Opinion by Eldridge, J. _________________________________________ Filed: December 14, 2011 *Murphy, J., now retired, participated in the hearing and conference of this case while an active member of this Court but did not participate in the decision and adoption of this opinion.

The controversy in this case is between the trustee of an inter vivos trust, petitioner Catherine A. Moreland Johnson, and her stepson, respondent James Michael Johnson, who is a "beneficiary" of the trust.1 The trust was described by the Court of Special Appeals as follows (Johnson v. Johnson, 184 Md. App. 643, 647-648, 967 A.2d 274, 276-277 (2009), footnotes omitted):

"The Johnson Family Trust was created on August 25, 2004, by Edward R. Johnson and Catherine A. Moreland Johnson, his wife. They were named as `Trustors' and `CoTrustees' and they established the Trust, according to its express language, with the intent that, while they were both living, they would each equitably own an undivided one-half interest in all property subject to the Trust. This was to be accomplished by the use of the federal gift tax exemption for transfers between husband and wife. Trust property, which was listed in an attached `Schedule A,' constituted the `Trust Estate' and, due to its gifting provisions, the beneficial interest of the first Trustor to die was to be exactly equal to that of the surviving Trustor. Trust, Article I. "On February 14, 2006, Edward was the first to die. Pursuant to the Trust instrument, the Trust Estate was then to be divided into two shares. Trust A was to be created to take advantage of the federal estate tax exclusion and other tax provisions. The remaining portion of the decedent's interest was to be distributed to an irrevocable Trust B. Trust, Article IV.

The exact status of James, and whether he has standing, appear to be among the disputed issues in this case. The petitioner refers to James as "a potential contingent beneficiary" (petitioner's brief at 5), and the respondent James refers to himself as "a remainder beneficiary." We shall, for convenience, refer to James simply as a "beneficiary." Our use of this term is not intended to represent any expression of our views on any disputed issue.

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"The surviving Trustor (Catherine) is entitled to the income and potentially all of the principal of Trust A during her lifetime, if needed for her health, maintenance, reasonable comfort and support. She has a power of appointment to dispose of the undistributed income and principal of Trust A by her Last Will and Testament. If the power is not exercised, upon her death, the Trust A corpus is to be added to Trust B and distributed according to its terms. "Catherine has the same lifetime entitlement to the income and to principal of Trust B if needed for her health, maintenance, or support. She has a limited power of appointment over the Trust B estate which authorizes her to leave it to one or more of any children and/or other descendants of both Trustors in such shares as she may deem appropriate. Trust, Article IV. If Catherine does not exercise this limited power, distribution of the Trust B corpus is governed by the Trust's Article VI, which expressly names Edward's son, James, as a beneficiary, if he survives Catherine."

After Edward's death, James twice asked Catherine for an accounting of the trust, but Catherine did not answer his requests. James then instituted the present action by filing in the Circuit Court for Calvert County a "Petition For Court Assumption of Jurisdiction of [The] Trust Estate And Related Relief." James

requested, inter alia, that the court assume jurisdiction over the trust and require that Catherine file an accounting. After Catherine's response, a hearing, and an opinion by the court, the Circuit Court issued the following order:

"ORDERED, that the Petition for Court Assumption of Jurisdiction of a Trust Estate and Related Relief is hereby

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GRANTED, and it is further "ORDERED, that Respondent Catherine A. Moreland Johnson provide an accounting of the Johnson Family Trust to Petitioner James Michael Johnson . . . ."

Catherine noted an appeal from the above-quoted order, and thereafter she filed in this Court a petition for a writ of certiorari prior to oral argument in the Court of Special Appeals. This Court denied the petition, noting that the case was "[p]ending in the Court of Special Appeals." Johnson v. Johnson, 404 Md. 660, 948 A.2d 72 (2008). The Court of Special Appeals, in a reported opinion, affirmed the Circuit Court's order, Johnson v. Johnson, supra, 184 Md. App. 643, 967 A.2d 274. Catherine again filed in this Court a petition for a writ of certiorari, and this time the petition was granted. Moreland Johnson v. Johnson, 409 Md. 47, 972 A.2d 861 (2009). The petitioner Catherine has raised issues concerning the status of James, whether he has a right to an accounting, and whether the Circuit Court's order contravenes the terms of the trust. Neither the parties nor the courts below have raised any issue concerning the appealability of the Circuit Court's order. Nevertheless, an order of a circuit court must be appealable in order to confer jurisdiction upon an appellate court, and this jurisdictional issue, if noticed by an appellate court, will be addressed sua sponte. See, e.g., Stachowski v. State, 416 Md. 276, 285, 6 A.3d 907, 912 (2010) ("Although none of the parties raised a jurisdictional issue in these cases, this Court is obligated to address sua sponte the issue of whether we can exercise jurisdiction"); Miller & Smith v. Casey PMN, 412 Md. 230, 240, 987 A.2d 1, 7 (2010)

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("[P]arties cannot confer jurisdiction on our Court, and we must dismiss a case sua sponte on a finding that we do not have jurisdiction"); In re Nicole B., 410 Md. 33, 62, 976 A.2d 1039, 1055-1056 (2009) ("[A] party in the trial court must file a timely notice of appeal, from an appealable judgment, in order to confer upon an appellate court subject matter jurisdiction over that party's appeal. * * * `Where appellate jurisdiction is lacking, the appellate court will dismiss the appeal sua sponte,'" quoting Eastgate Associates v. Apper, 276 Md. 698, 701, 350 A.2d 661, 663 (1976)); Biro v. Schombert, 285 Md. 290, 293, 402 A.2d 71, 73 (1979) ("[N]either side has questioned the jurisdiction of the Court of Special Appeals to review the judgment in this case. However, . . . we believe that the Court of Special Appeals lacked jurisdiction to entertain the appeal. Therefore . . . , without considering the merits of the question presented by petitioner, we shall vacate the judgment of the Court of Special Appeals and remand the case to that court with directions to dismiss the appeal"). When petitioner's counsel was asked at oral argument whether the Circuit Court's order was appealable, he responded by stating that the order was appealable as a final judgment. See Maryland Code (1974, 2006 Repl. Vol.),

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