UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2562

September Term, 2012

___________________________________

JANICE GLENN KERSHAW

v.

JOHN HENRY KERSHAW

Meredith,

Nazarian,

Sharer, J. Frederick

(Retired, Specially Assigned),

JJ.

Opinion by Meredith, J.

Filed: February 20, 2014

This case comes to us from the Circuit Court for Prince George’s County. Janice

Kershaw, appellant, and John Kershaw, appellee, were divorced on October 30, 2007. In the

judgment of divorce, the court incorporated, but did not merge, the parties’ Property

Settlement Agreement (“the Agreement”), which provided, inter alia, for disposition of the

parties’ jointly owned property located at 206 Settlers Way, Upper Marlboro, Maryland

20774 (“the marital home”).

On May 2, 2008, Ms. Kershaw filed a Complaint for Sale [of the marital home] in

Lieu of Partition of Real Property, alleging that she had attempted to abide by the terms of

the Agreement, but Mr. Kershaw failed to cooperate. Mr. Kershaw agreed to the

appointment of a trustee to sell the property, and, on June 22, 2009, the trustee sold the home

for $310,000, producing net proceeds of $103,559.02. When the court entered an order

ratifying the sale, the court also ordered that the case should be set for a hearing “to

determine the division of the proceeds of sale.” Following a hearing, the circuit court ruled

that Mr. Kershaw had breached the Agreement, and the court ordered the proceeds from the

sale of the marital home be disbursed as follows: $96,529.51 to Ms. Kershaw; $7,029.51 to

Mr. Kershaw. Additionally, the court ordered Mr. Kershaw to pay the $500 trustee fee and

$2,500 in attorney’s fees for Ms. Kershaw’s counsel.

Mr. Kershaw noted an appeal. On July 25, 2011, in an unreported decision, we

“reverse[d] the judgment of the circuit court and remand[ed] for further findings regarding

whether there was a breach of contract, without factoring in counsel’s earlier statements to

the court.” Kershaw v. Kershaw (Kershaw I), No. 0522, Sept. Term 2010, at slip op. 21-22

(July 25, 2011). On remand, the circuit court conducted further proceedings. The court

heard additional testimony, and the parties submitted memoranda addressing the division of

sale proceeds. On January 11, 2013, the court ruled that both parties had breached the

Agreement. The court summed up its view of the case by stating: “Both parties disregarded

their obligations under the Agreement and, as a result, neither can complain of the ultimate

result. . . . [N]either party is in a position to complain of the other’s breach.” In light of this

finding, the court divided the proceeds from the sale of the marital home equally “in

accordance with the Agreement.” Ms. Kershaw then noted this appeal.

QUESTIONS PRESENTED

Ms. Kershaw presents three issues for our review:

1. Did the trial court enter an erroneous Order on January 11, 2013 that

failed to follow the mandate set forth by the Appellate Court to determine

whether the Appellee breached the Property Settlement Agreement of October

7, 2007?

2. Notwithstanding the trial court’s disregard of the Appellate Court’s

instructions on remand, did the trial court err in finding that the Appellant

breached the Property Settlement Agreement of October 7, 2007?

3. Notwithstanding the trial court’s disregard of the Appellate Court’s

instructions on remand, did the trial court err in finding that the Appellant had

failed to prove actual damages?

For the reasons stated below, we answer to the first two questions in the negative.

Because the court found no reason to deviate from the equal division agreed to in the

Agreement, there was no need to assess actual damages, and we will not address the third

question. Accordingly, we will affirm the judgment of the circuit court.

2

FACTS AND PROCEDURAL HISTORY

The underlying facts of the case have not changed since our last opinion. Accordingly,

we will quote from that opinion:

Mr. and Mrs. Kershaw were married on April 19, 1986, in Orangeburg,

South Carolina, and they have three children together. The parties voluntarily

separated on September 26, 2006, and Ms. Kershaw vacated the Marital Home.

Mr. Kershaw remained in the Marital Home until it was sold on June 22, 2009.

On October 10, 2006, Ms. Kershaw filed a Complaint for

Limited/Absolute Divorce in the Circuit Court for Prince George’s County,

asking the court to: (1) award an absolute, or in the alternative, limited,

divorce; (2) award her sole legal and physical custody of the parties’ children;

(3) award Mr. Kershaw reasonable visitation with the children; (4) order Mr.

Kershaw to pay child support; (5) award alimony, both pendente lite and

permanently; (6) grant her use and possession of the family home; (7) order

Mr. Kershaw to contribute to the mortgage and any other similar expenses

related to the family home; (8) grant an award regarding the marital property;

and (9) award her reasonable attorney’s fees and costs.

On November 20, 2006, Mr. Kershaw filed his answer and a Counter-

Complaint for Absolute Divorce, asserting that Ms. Kershaw deserted the

marriage. He requested that the court: (1) grant a limited/absolute divorce; (2)

grant him custody of the children; (3) order Ms. Kershaw to pay child support;

(4) determine the ownership of all personal and real property; (5) grant him a

monetary award; and (6) award him reasonable attorney’s fees.

On October 1, 2007, the circuit court held a hearing on the matter, and

on October 30, 2007, it issued a Judgment of Absolute Divorce. The court

incorporated the parties’ Agreement, which they had entered into the day of

the hearing. Paragraph seven of the Agreement provided, in part, the following

regarding the parties’ real property:

The parties agree that Husband shall have the option to

purchase Wife’s interest in the Marital Home for a sum equal to

one-half of the net value of the Marital Home. The net value

shall be the appraised fair market value of the Marital Home as

determined by an independent appraisal, less the outstanding

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mortgage or other liens on the Marital Home. The parties shall

agree upon an appraiser. If they are unable to agree upon an

appraiser, each party shall obtain an independent appraisal, and

the fair market value of the Marital Home shall be the average

of the parties’ appraisals. If Husband purchases the interest of

Wife in the Marital Home, Husband shall obtain refinancing of

the Marital Home within sixty (60) days, and Wife’s name shall

be excluded from any financing obligation for the Marital

Home. Wife shall execute a quitclaim deed to Husband

transferring all of her right, title and interest in the Marital

Home to Husband upon Husband’s full payment to her of

interest in the Marital Home as set forth above. . . .

In the event that Husband does not purchase Wife’s

interest in the Marital Home within sixty (60) days, the parties

agree to list the Marital Home for sale with Realtor Carolyn

Jackson. If Ms. Jackson is unavailable, the attorneys for

Husband and Wife shall mutually agree upon a real estate agent

to sell the Marital Home. The parties will sign a listing

agreement no later than December 15, 2007.

In the event of the sale of the Marital Home, the

parties agree to divide the net sales proceeds equally.

Mr. Kershaw did not exercise his buy-out option. In a letter dated

February 12, 2008, counsel for Ms. Kershaw advised counsel for Mr. Kershaw

that, because Mr. Kershaw had not exercised his buy-out option, and the

Agreement required that the Marital Home be placed on the market for sale by

December 15, 2007, she had obtained a listing agreement to sell the property.

[Footnote 1: At the hearing, the parties testified that the agreed upon realtor in

the Agreement, Carolyn Jackson, had retired and was no longer available to

sell the Marital Home.] Counsel for Ms. Kershaw attached the listing

agreement and requested that counsel and Mr. Kershaw return it, signed,

within 10 days. Counsel for Ms. Kershaw stated: “If your cooperation is not

forthcoming, I will be compelled to initiate Court action.” The listing

agreement valued the Marital Home at $399,500.

In a letter dated March 5, 2008, Mr. Kershaw indicated concerns

regarding the price, and he stated that he did not agree to the use of a lock box.

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Mr. Kershaw did not specifically object to the chosen realtor, nor did he

suggest an alternative realtor. He did not sign the listing agreement.

On May 2, 2008, Ms. Kershaw filed a Complaint for Sale in Lieu of

Partition of Real Property, asserting that Mr. Kershaw had refused to comply

with the provisions of the Agreement. She requested that the court: (1) “order

a sale in lieu of partition of the Property”; (2) “appoint a trustee to

effectuate the sale in accordance with Maryland law at the sole expense of”

Mr. Kershaw; (3) allocate equitably any proceeds resulting from the sale

between the parties pursuant to a hearing on the issue following the sale;

and (4) award her reasonable costs and attorney’s fees.

On June 12, 2008, Mr. Kershaw filed his answer, denying that he had

refused to comply with the provisions of the Agreement, or that a sale in lieu

of partition was necessary, and requesting that Ms. Kershaw’s Complaint for

Sale in Lieu of Partition of Real Property be dismissed. On March 12, 2009,

a pretrial conference was held, and the court appointed Perry [B]ecker, Esq.

as trustee to sell the Marital Home. On June 22, 2009, the Marital Home was

sold for $310,000. The net proceeds, $103,559.02, were held in escrow

pending the court’s instructions on disbursement of the funds. [Footnote 3: On

July 9, 2009, the court issued an Order ratifying the sale and ordering that a

hearing be set to determine the divisions of proceeds of sale.]

On August 21, 2009, the court held a hearing to determine the division

of the proceeds of the sale of the Marital Home. Mr. Kershaw and his counsel

appeared, but neither Ms. Kershaw nor her attorney was present. As discussed

in more detail, infra, counsel for Mr. Kershaw indicated that the parties had an

agreement to divide the proceeds equally. Based on that representation, the

court closed the case.

On September 3, 2009, Ms. Kershaw filed a Motion to Reschedule

Hearing on Division of Proceeds from Sale of Real Property. She noted that

neither she nor her counsel received notice of the August 21, 2009, hearing.

[Footnote 4: The record reflects that the Notice of Hearing sent to counsel was

returned to the court stamped “Return to Sender” by the United States Postal

Service on July 25, 2009.] Ms. Kershaw further asserted that, as a result of Mr.

Kershaw’s “failure to cooperate in the sale of the Marital Home until after a

trustee was appointed, substantial losses have occurred.” She requested that

any fees incurred for the trustee be the sole responsibility of Mr. Kershaw, and

that she be awarded reasonable attorney’s fees and costs.

5

On September 14, 2009, Mr. Kershaw filed his Objection to Motion to

Reschedule Hearing on Division of Proceeds from Sale of Real Property. He

asserted that, at no time was he unwilling to proceed pursuant to the

Agreement. Rather, he asserted, Ms. Kershaw acted in contravention of the

Agreement when she unilaterally secured a real estate agent to sell the Marital

Home. Mr. Kershaw argued that, in any event, there was no need for a hearing

on the matter because the parties had agreed in the Agreement to divide the net

sales proceeds equally. He requested, therefore, that the court: (1) rule on the

matter without requiring the parties to appear for an additional hearing; (2)

sign the Consent Order that he had prepared, providing that the net sales

proceeds be divided equally; and (3) require Ms. Kershaw to pay his attorney’s

fees should an additional hearing be required.

On November 4, 2009, the circuit court held a hearing on the issue of

division of the proceeds of the sale of the Marital Home. Ms. Kershaw testified

that when Mr. Kershaw failed to exercise his buy-out option by December 1,

2007, she contacted her attorney to arrange putting the house on the market.

Because the agreed upon realtor, Carolyn Jackson, had retired, Ms. Kershaw

selected another realtor, Michael Dobson, who was recommended to her by a

friend and who knew the area very well. Mr. Dobson provided her with a

listing agreement, which, as of January 19, 2008, included a listing price of the

Marital Home of $399,500.

Ms. Kershaw sent a copy of the listing agreement to Mr. Kershaw in

January 2008, but he did not sign it. Ms. Kershaw then filed a Complaint for

Sale in Lieu of Partition of Real Property. She testified that Mr. Kershaw did

eventually sign a listing agreement on March 4, 2009. By that date, however,

the [suggested] listing price of the Marital Home had fallen to $299,900. The

Marital Home was sold on June 22, 2009 for $310,000, and the proceeds of the

sale in the amount of $103,552.02 were held in escrow. Ms. Kershaw

requested that the court award her a larger percentage of the proceeds of the

sale of the Marital Home and attorney’s fees, and require Mr. Kershaw to pay

any trustee’s fees incurred in selling the property.

On cross-examination, Ms. Kershaw testified that she had received

several phone calls from Mr. Kershaw regarding the exercise of his buy-out

option, and that she returned his calls, leaving voice mail messages for him.

She testified that, on one occasion, Mr. Kershaw requested that she attend a

meeting with him at a mortgage company, but she did not attend because it was

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her understanding that “that [was] not the way a buy out is to occur,” and that

Mr. Kershaw had failed to coordinate the buy-out on his own.

Mr. Kershaw then testified that he attempted to buy-out his wife’s

interest in the Marital Home, by first contacting his mortgage company and

then Ms. Kershaw. He stated that he left a message for Ms. Kershaw,

requesting that she confirm a closing date that would work with her schedule,

but he did not receive a call back from her.

Mr. Kershaw received a copy of the listing agreement for the Marital

Home in February of 2008, but he had concerns regarding the valuation of the

property and the lock box, and he did not know or trust the realtor. [Footnote

5: At oral argument, counsel for Mr. Kershaw explained that Mr. Kershaw

thought the listing price should be higher.] He testified that he never attempted

to thwart the sale of the property, and he had no problem selling the property,

but he had questions regarding the listing agreement and price. Eventually, he

did sign a listing agreement. It was his understanding that, pursuant to the

Agreement, the proceeds from the sale of the property were to be divided

equally.

At the conclusion of closing arguments, the court took the matter under

advisement. On April 29, 2010, the court entered its Opinion and Order. The

court found that Mr. Kershaw breached the Agreement by “purposefully

delay[ing] listing the property and cooperating with the sale, which resulted in

a substantial decrease in the amount of net proceeds from the sale of the

property.” [Footnote 6: As indicated, the initial January 2008 listing agreement

included a price of $399,500, and the house sold for $310,000 in June 2009.

The proceeds of the sale to be distributed to the parties were $103,552.02.] It

found that Ms. Kershaw “would have received an additional $45,000 had [Mr.

Kershaw] cooperated in the listing and selling of the [Marital Home] pursuant

to the [Agreement].” Accordingly, it awarded Ms. Kershaw $96,529.51 of the

net proceeds, plus attorney’s fees in the amount of $2,500. The court ordered

that Mr. Kershaw receive $7,029.51 of the net proceeds and pay the trustee fee

in the amount of $500.

Kershaw I, supra, at slip op. 2-9 (emphasis added) (footnote omitted).

Mr. Kershaw noted an appeal to this Court, and argued that the circuit court erred in

disregarding the Agreement. Additionally, Mr. Kershaw argued that the court erred in

7

finding that he had breached the Agreement. On July 25, 2011, we handed down an

unreported opinion in which we reversed the judgment that had been entered, and remanded

the case to the circuit court. In our opinion, we ruled that the circuit court did not commit

legal error in disregarding the Agreement in favor of an equitable distribution of the sale

proceeds. Id. at slip op. 10-12. With respect to the circuit court’s ruling that Mr. Kershaw

had breached the Agreement, we observed that there was evidence in the record from which

the court could have concluded that Mr. Kershaw had breached the Agreement, id. at slip op.

12-14, but we held that the court erred in “(1) weighing counsel’s statements at the

August 21, 2009, hearing ‘heavily’ against Mr. Kershaw’s credibility; and (2) in finding that

counsel’s statements ‘demonstrated the lengths [Mr. Kershaw] would go to frustrate the sale

of the house.’” Id. at slip op. 21. As a consequence, we reversed the judgment of the circuit

court and remanded for further proceedings without addressing Mr. Kershaw’s challenge to

the award of attorney’s fees (under the Agreement). The mandate of our opinion read:

“JUDGMENT REVERSED. REMANDED FOR PROCEEDINGS CONSISTENT WITH

THIS OPINION. COSTS TO BE PAID 50% BY APPELLANT AND 50% BY

APPELLEE.” Id. at slip op. 22.1

This Court has noted that there is a technical difference between a judgment and a1

mandate. A judgment is the order which appears at the end of an appellate opinion. A

mandate is issued by the Clerk of Court after our opinion has been filed. Most courts,

however, conflate the two terms. See Harrison v. Harrison, 109 Md. App. 652, 656 n.1

(1996), cert. denied, 343 Md. 564 (1996). For purposes of this opinion, we will use the terms

interchangeably, unless explicitly noted.

8

Upon remand, Mr. Kershaw filed a motion seeking the recusal of Judge Dawson, who

had issued the April 29, 2010, order and opinion. Initially, Judge Dawson declined to recuse

himself. On December 14, 2011, the court conducted a status hearing. Ms. Kershaw argued

that the court could and should issue the same order and opinion and simply omit any

reference to counsel’s statements that affected Mr. Kershaw’s credibility. Mr. Kershaw, on

the other hand, sought an evidentiary hearing on the issue of breach of the Agreement. The

court set March 8, 2012, for a hearing on the merits.

At the outset of the March 8 hearing, the court again denied the motion for recusal.

The parties then introduced testimony and evidence regarding the disposition of the marital

home. At the conclusion of the hearing, the court took the matter under advisement and

requested proposed findings of fact and conclusions of law from the parties.

Prior to any ruling on the matter, however, on August 24, 2012, Judge Dawson entered

an order of recusal. The case was then specially assigned to Judge Davey.

On September 21, 2012, Judge Davey held a status conference. Despite Judge

Davey’s concern that he would be unable to make determinations as to credibility because

he did not preside at the March 8, 2012, hearing, the parties agreed to have Judge Davey

make a ruling based on a transcript of the March 8 hearing and a review of the record. On

October 5, 2012, the court held another status conference and reconfirmed the parties’ desire

for him to base his ruling on the transcript and the record.

9

On January 11, 2013, the court handed down an opinion and order, finding that both

Mr. Kershaw and Ms. Kershaw had breached their obligations under the Agreement to

cooperate regarding the sale of the real estate. Additionally, the court determined that Ms.

Kershaw was not entitled to a larger percentage of the sale proceeds, as had been previously

ordered, because she had unclean hands due to her lack of good faith cooperation, and,

furthermore, she had failed to prove her damages with reasonable certainty. Accordingly,

the court ordered the proceeds of the sale to be disbursed equally between the parties

pursuant to general provisions of the Agreement. Ms. Kershaw subsequently noted this

appeal.

STANDARD OF REVIEW

Rule 8-131(c) governs our review of cases tried without a jury: “[T]he appellate court

will review the case on both the law and the evidence. It will not set aside the judgment of

the trial court on the evidence unless clearly erroneous, and will give due regard to the

opportunity of the trial court to judge the credibility of witnesses.” This Court has noted,

however, that we do not defer to the circuit court on purely legal issues. Ochse v. Henry, 202

Md. App. 521, 529 (2011) (quoting Nesbit v. Geico, 382 Md. 65, 72 (2004)), cert. denied,

425 Md. 396 (2012). Indeed, “[w]here a case involves the ‘application of Maryland statutory

and case law, our Court must determine whether the lower court’s conclusions are legally

correct under a de novo standard of review.’” Id. (quoting Walter v. Gunter, 367 Md. 386,

392 (2002)).

10

In this case, however, we note that the circuit court made no determinations as to the

credibility of the testifying witnesses because Judge Davey did not hear live testimony.

Indeed, Judge Davey stated in his opinion: “[T]he parties’ request to rely on the March 8th

record deprives the Court of the opportunity to judge the credibility of the witnesses.

Therefore, the Court accepted the testimony of all witnesses as truthful and analyzed the

parties’ actions in light of their respective obligations under the Agreement.”

DISCUSSION

A. Interpretation of Kershaw I

Ms. Kershaw contends that the circuit court misinterpreted our mandate in Kershaw

I and entered an erroneous order on remand. Ms. Kershaw asserts that we limited the issues

to be considered on remand to whether or not Mr. Kershaw had breached the Agreement.

She argues that the circuit court improperly conducted a de novo trial on the entirety of the

case, in defiance of our opinion in Kershaw I. Accordingly, she contends the circuit court

did not abide by the law of the case and answered questions which were no longer open to

adjudication.

Mr. Kershaw argues that the circuit court properly interpreted our mandate and

opinion in Kershaw I. Mr. Kershaw asserts that this Court did not decide — and it was not

the law of the case — that Mr. Kershaw had breached the Agreement. Mr. Kershaw

contends that, because the previously-entered judgment was reversed, the circuit court had

11

the discretion to hear testimony and consider evidence in order to decide the appropriate

division of the sale proceeds.

Rule 8-606(e) provides, in part: “Upon receipt of the mandate, the clerk of the lower

court shall enter it promptly on the docket and the lower court shall proceed in accordance

with its terms.” Rule 8-604(d)(1) states, in pertinent part: “Upon remand, the lower court2

shall conduct any further proceedings necessary to determine the action in accordance with

the opinion and order of the appellate court.” The question in this case, then, is whether, upon

remand, the circuit court exceeded its authority to “determine the action in accordance with”

our opinion and order in Kershaw I.

In Harrison v. Harrison, this Court faced a situation similar to the one at bar. In that

case, the parties sought a divorce, and the circuit court entered a judgment of divorce that

addressed many issues between them. 109 Md. App. at 656. Mr. Harrison noted an appeal,

challenging the court’s determinations as to two issues only, both of which concerned

alimony. Id. This Court issued an unreported opinion, Harrison v. Harrison (Harrison I), No.

0586, Sept. Term 1993 (Md. Ct. Spec. App. Dec. 17, 1993), which included the following

judgment: “‘JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT

. . . FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO

BE PAID ONE HALF BY APPELLANT AND ONE HALF BY APPELLEE.’” Harrison,

We note that Rule 8-606 has been amended, effective January 1, 2014. However,2

the previous version of the rule governed the remand in this case, and the amendments made

no change to Rule 8-606(e).

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supra, 109 Md. App. at 656 (quoting Harrison I, supra, at slip op. 7). In the body of the

opinion, however, we stated: “‘We therefore vacate the award of alimony and remand this

case for further proceedings consistent with this opinion.’” Id. (quoting Harrison I, supra,

at slip op. 4).

After a subsequent foreclosure sale of the couple’s jointly-owned property, the court

distributed the proceeds as if the parties were tenants in common. Id. at 657. Ms. Harrison

noted an appeal, arguing that the Court’s judgment in Harrison I reversed the entire circuit

court judgment, meaning that the divorce was a nullity, and the parties were still married at

the time of the foreclosure sale. In her view, the court should have distributed the proceeds

as if the property was owned as a tenancy by the entireties. Id. Mr. Harrison took the

opposite position — that the parties were divorced, and the circuit court was correct in its

distribution. Id.

This Court considered previous cases addressing the effect of judgments and mandates

on further proceedings, and we came to the following conclusion:

[I]t is apparent that, in Maryland, the opinion, at the very least, may be an

integral part of the appellate court’s order or mandate when that order or

mandate provides for a remand for proceedings consistent with the opinion.

Moreover, when it is apparent from the opinion itself that a simplified “order”

or mandate, e.g., “Judgment Reversed,” is ambiguous, then the opinion may

be referred to and considered an integral part of that mandate.

Id. at 665.

Additionally, we noted in Harrison that there is a major distinction between a unitary

judgment and a multipartite judgment, and we held that, in the latter cases, a party that fails

13

to challenge an issue on appeal, waives any claim of error as to that issue. Id. at 674-75. This

Court explained that a unitary judgment is one where the issues cannot be severed from one

another, and the entire case rises or falls as a body. A multipartite judgment, however, is

severable, and the issues may rise or fall individually. Id. In such a case, “[t]hose respective

parts of a judgments final when entered below, are severed and become final for all purposes

when they are either not presented, i.e., withdrawn from appellate review, or are affirmed on

appeal.” Id. at 675 (citing 5 Am.Jur.2d Appeal & Error §§ 724, 953 (1962)). In Harrison,

we determined that the parties were divorced at the time of the foreclosure sale because

neither party sought a review of the judgment of divorce, itself, and that part of the judgment

became final thirty days after the circuit court’s opinion was filed. Id. at 680.

In this case, Ms. Kershaw contends that the sole issue before the court on remand was

the severable question of whether or not Mr. Kershaw breached the Agreement. She argues

that neither party sought appellate review of the award of damages or whether Ms. Kershaw

breached the Agreement. She asserts that the circuit court’s 2010 finding as to damages and

the implicit finding as to Ms. Kershaw’s compliance with the Agreement became the law of

the case and were not properly before the circuit court for reconsideration on remand.

The Court of Appeals has noted: “The ‘law of the case doctrine is one of appellate

procedure.’ ‘Under the doctrine, once an appellate court rules upon a question presented on

appeal, litigants and lower courts become bound by the ruling, which is considered to be the

14

law of the case.’” Reier v. State Dep’t of Assessments & Taxation, 397 Md. 2, 20-21 (2007)

(internal citations omitted).

In this case, the parties have argued for diametrically opposed application of the law

of the case. If we accept Ms. Kershaw’s arguments, then Kershaw I limited the issue on

remand to solely whether or not Mr. Kershaw breached the Agreement. The 2010 finding of

damages that resulted from the delay would stand as the law of the case, and the circuit court

on remand committed clear error in holding a hearing and reconsidering the issue of

damages. If, on the other hand, Mr. Kershaw is correct, then the circuit court appropriately

followed our opinion and mandate in Kershaw I, and we may affirm.

Having reviewed our opinion in Kershaw I, after separating comments that were dicta

from rulings that were holdings in that appeal, we conclude that only two rulings were

binding upon the circuit court upon remand. (1) As a matter of law, the Agreement did not

preclude the circuit court from making an equitable distribution of the sale proceeds; and (2)

the court could not base a finding of breach of the Agreement upon an assumption that false

information had been provided to the circuit court by Mr. Kershaw’s counsel.

Mr. Kershaw argued in Kershaw I that the circuit court’s judgment was based upon

an erroneous factual predicate. Mr. Kershaw argued that the circuit court erred when it found

that “the false information that was provided to the Court [by his counsel] weighed heavily

against [Mr. Kershaw’s] credibility and further demonstrated the lengths he would go to

frustrate the sale of the house.” We agreed. Kershaw I at slip op. 21. We observed that the

15

transcript demonstrated that the circuit court and Mr. Kershaw’s counsel had obviously

misunderstood each other, and it was error for the trial judge to discredit Mr. Kershaw’s

testimony for this reason. Id. We then stated: “Accordingly, we shall reverse the judgment

of the circuit court and remand for further findings regarding whether there was breach of

contract, without factoring in counsel’s earlier statements to the court.” Id. at slip op. 21-22

(emphasis added). We also stated, with respect to the court’s award of attorney’s fees to Ms.

Kershaw: “Because we are remanding the case for the court to reconsider whether Mr.

Kershaw breached the Agreement, we will not address the issue of attorney’s fees.” Id. at slip

op. 22.

We are persuaded that the circuit court’s ruling of April 29, 2010, was a unitary

judgment addressing the distribution of the proceeds from the sale of the marital home. The

court based its equitable award on its finding that Mr. Kershaw had breached the Agreement.

The unequal division of proceeds was based on that tainted finding. Ms. Kershaw has failed

to persuade us that our opinion and mandate in Kershaw I previously affirmed the damages

finding or the determination that Mr. Kershaw alone breached the Agreement. In our view,

the court’s determination as to the extra share of proceeds awarded to Ms. Kershaw cannot

be severed from its tainted finding that Mr. Kershaw breached the Agreement, which, in turn,

cannot be severed from the determination that Mr. Kershaw’s counsel’s statements affected

Mr. Kershaw’s credibility. We conclude, therefore, that the reversal in Kershaw I reversed

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and remanded the entirety of the distribution issue to the circuit court for further

proceedings.3

Accordingly, we conclude that the proceedings on remand did not exceed the scope

permitted by our opinion and mandate in Kershaw I.

B. Ms. Kershaw’s Breach

In the January 11, 2013, opinion, the circuit court determined that both Ms. Kershaw

and Mr. Kershaw breached obligations under the Agreement. Ms. Kershaw contends that,

even if the issue was open to consideration on remand, the court erred in finding that she

breached the Agreement. She argues that this conclusion is contrary to the facts because Ms.

Kershaw’s actions were designed to effectuate the sale of the Marital Home, pursuant to the

Agreement, in the face of Mr. Kershaw’s stalling tactics. Furthermore, she asserts that the

court erred in finding that Ms. Kershaw had unclean hands, and she asserts that this issue was

never raised before Judge Dawson, Judge Davey, or during the first appeal to this Court.

Mr. Kershaw contends that the circuit court did not err in concluding that neither party

complied fully with the terms of the Agreement. He cites evidence that the court relied upon

to support its finding of Ms. Kershaw’s non-compliance. Mr. Kershaw does not challenge

the court’s determination that he breached the Agreement, but urges us to affirm the circuit

court’s ultimate disposition.

See Harrison, supra, 109 Md. App. at 674 & n.7 (noting that reversal and/or remand3

of unitary judgments allows for a new trial or any proceeding that accomplishes the appellate

court’s instructions in the judgment).

17

This Court has noted: “Whether a party to a contract breached the terms of the

contract is generally a question of fact because it is for the fact finder to decide between

conflicting evidence regarding the party’s conduct with respect to the contract.” Weaver v.

ZeniMax Media, Inc., 175 Md. App. 16, 49 (2007) (citing 23 RICHARD A. LORD, WILLISTON

ON CONTRACTS § 63:15 (4th ed., Supp. 2006)). The interpretation of a contract, however, is

a question of law, which we review de novo. Id. at 49-50 (citing Maslow v. Vanguri, 168 Md.

App. 298, 317 (2006)).

We have defined a breach of contract “as ‘a failure, without legal excuse, to perform

any promise that forms the whole or part of a contract.’” Id. at 51 (quoting LORD, supra, at

§ 63:1). We have also recognized that there are certain implicit duties between contracting

parties, such as the duty of good faith and the duty to cooperate. See Marquis v. Marquis, 175

Md. App. 734, 753 (2007) (“‘It is well settled that, where cooperation is necessary to the

performance of a condition [in a contract], a duty to cooperate will be implied[.]’” (Quoting

Dexter v. Dexter, 105 Md. App. 678, 684 (1995))). Failure to meet this duty constitutes a

breach of contract. See Dexter, supra, 105 Md. App. at 685 (“‘Prevention or hindrance by

a party to a contract of any occurrence or performance requisite under the contract for the

creation or continuance of a right in favor of the other party, or the discharge of a duty by

him, is a breach of contract . . . .’” (Quoting Funger v. Mayor & Council of Somerset, 249

Md. 311, 330-31 (1968))).

18

The circuit court determined that Ms. Kershaw breached the Agreement because she

failed to fully cooperate with Mr. Kershaw with respect to either the buy-out provision or the

sale provision of the Agreement. Regarding the buy-out option, Mr. Kershaw testified that

he telephoned Ms. Kershaw at least twice in an attempt to arrange a buy-out of Ms.

Kershaw’s interest in the marital home. Ms. Kershaw, however, responded to only one of

the calls. The court also noted that neither party took steps to engage an appraiser as required

in the Agreement. Ultimately, the court concluded: “Neither party made any serious attempt

to facilitate a buyout and, consequently, the Court concludes that both parties failed to fulfill

their obligations related to the buyout provision.”

With respect to the sale provision, the Agreement provided for the parties to utilize

Carolyn Jackson as the real estate broker to sell the Marital Home. The Agreement also

provided that, if Ms. Jackson was unavailable — and neither party disputes her unavailability

— then the parties were supposed to agree on another real estate broker. At the hearing, Ms.

Kershaw testified that she obtained the services of Michael Dobson as a real estate broker,

based on a recommendation from a friend. Ms. Kershaw did not communicate with Mr.

Kershaw about a substitute for Ms. Jackson prior to her selection of an alternate real estate

broker. The court stated: “[N]either party, nor their counsel, made any good faith attempts

to locate and/or agree upon a listing agent.” The court also considered Ms. Kershaw’s

response — or, rather, lack thereof — to Mr. Kershaw’s concerns with the initial listing

agreement proposed by Mr. Dobson. Ms. Kershaw did not respond at all to Mr. Kershaw’s

19

desire to exclude certain appliances in the listing. The court concluded: “Despite an

obligation to communicate with each other, the Court finds that the parties flatly refused to

do so, even through counsel.”

In light of the above evidence, we are persuaded that the court’s determination that

Ms. Kershaw breached the Agreement was not clearly erroneous. There was evidence from

which the court could find that Ms. Kershaw failed to communicate with Mr. Kershaw

sufficiently to fully comply with certain conditions in the contract. Because Mr. Kershaw has

not challenged the court’s conclusion that he, too, breached the Agreement, the court’s

determination that both parties breached the agreement is affirmed.4

Because of our conclusion that the court’s finding of offsetting breaches was neither4

barred by law of the case nor clearly erroneous, it is not necessary for us to address the circuit

court’s alternative finding of unclean hands on the part of Ms. Kershaw with respect to the

duty of cooperation. Nevertheless, in the interest of completeness, we observe that we

perceive no reversible error in the circuit court’s application of the doctrine of unclean hands.

This Court has remarked: “‘The equitable doctrine of unclean hands is designed to prevent

the court from assisting in . . . inequitable conduct . . . . It is available to deny relief to those

guilty of . . . inequitable conduct with respect to the matter for which relief is sought.’” Mona

v. Mona Elec. Grp., Inc., 176 Md. App. 672, 714 (2007) (quoting Turner v. Turner, 147 Md.

App. 350, 419 (2002)) (internal citations omitted). Courts apply this equitable doctrine, not

solely to punish wrongdoing, but also because “‘it protects the integrity of the court and the

judicial process by denying relief to those persons whose very presence before a court is the

result of some fraud or inequity.’” Id. (quoting Turner, supra, 147 Md. App. at 419). “For

the clean hands doctrine to apply, ‘there must be a nexus between the misconduct and the

transaction [at issue], because what is material is not that the plaintiff’s hands are dirty, but

that (she) dirties them in acquiring the right (she) now asserts.’” Id. (quoting Turner, supra,

147 Md. App. at 420).

The circuit court determined that Ms. Kershaw had unclean hands because she failed

to fully cooperate with Mr. Kershaw and otherwise comply strictly with the requirements of

the Agreement. Accordingly, the court concluded that, for Ms. Kershaw to benefit from Mr.

Kershaw’s breach of the Agreement after she also failed to meet all requirements of the(continued...)

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C. Damages

Appellant also contends that the court erred in finding that she had failed to prove

with adequate certainty actual damages sustained as a consequence of Mr. Kershaw’s delay

in signing the first listing agreement. Ms. Kershaw asserts that the court raised for the first

time on remand the amount she claimed as damages, and neither party had previously

addressed that issue. Given our disposition of the issues above, this argument is moot; the

court would not need to consider Ms. Kershaw’s damages unless it found that Mr. Kershaw

alone breached the Agreement, and remedial relief claimed by Ms. Kershaw was not barred

by the doctrine of unclean hands.

(...continued)4

Agreement would be inequitable. We are not persuaded that the court abused its discretion

in finding Ms. Kershaw to have unclean hands. See Jones v. Anne Arundel Cnty., 432 Md.

386, 426 (2013) (Adkins, J., dissenting) (stating that appellate courts review determinations

as to unclean hands under abuse of discretion standard) (citations omitted).

Moreover, because “[t]he unclean hands doctrine ‘refuses recognition and relief from

the court to those guilty of unlawful or inequitable conduct pertaining to the matter in which

relief is sought,’” and this doctrine “protects the integrity of the court and the judicial process

by denying relief to those persons ‘whose very presence before a court is the result of some

fraud or inequity,’” this issue may be raised by the court sua sponte. Hicks v. Gilbert, 135

Md. App. 394, 400 (2000) (quoting Manown v. Adams, 89 Md. App. 503, 511 (1991),

vacated on other grounds by, 328 Md. 463 (1992)). See, e.g., Karpenko v. Leendertz, 619

F.3d 259, 266 (3d Cir. 2010); Matrix Fin. Servs., Inc. v. Dean, 655 S.E.2d 290, 294 (Ga. Ct.

App. 2007); Foster v. Foster, 655 S.E.2d 172, 177 (W. Va. 2007).

21

As the circuit court put it, “[i]n light of both parties[’] failure to comport with the

Agreement in any meaningful way, neither party is in a position to complain of the other’s

breach.” We shall, therefore, affirm the circuit court.

JUDGMENT OF THE CIRCUIT

COURT FOR PRINCE GEORGE’S

COUNTY AFFIRMED. COSTS TO BE

PAID BY APPELLANT.

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