Anthony Plumbing of Maryland, Inc. v. Attorney General

ELDRIDGE, Judge. The appellants in this case have raised several questions regarding the enforcement scheme of the Maryland Consumer Protection Act, Maryland Code (1975, 1983 Repl.Vol.), §§ 13-101 to 13-501 of the Commercial Law Article. But, because the order appealed from is not a final order and is not an appealable interlocutory order under Code (1974,1980 Repl.Vol.), § 12-303 of the Courts and Judicial Proceedings Article, we cannot at this time reach the questions presented. ¹⁴ On May 25, 1979, the Attorney General of Maryland and the Maryland State Board of Commissioners of Practical Plumbing (jointly referred to as the “State”) filed suit in the Circuit Court of Baltimore City against Anthony Plumbing of Maryland, Inc., Anthony Plumbing of D.C., Inc., Irving Klein, Ray Klein, Alan Bachman, Donald Cheek and Paul Damoc (jointly referred to as “Anthony Plumbing”). The State’s amended bill of complaint alleged that Anthony Plumbing had violated the Maryland Consumer Protection Act by engaging in a variety of unfair or deceptive trade practices.

The alleged unlawful practices included selling unnecessary plumbing work and obtaining waivers of consumers’ rights to cancel their repair and improvements, contracts in violation of the Maryland Door-to-Door Sales Act. 1 The State prayed for civil penalties, costs of the action and restitution, as well as injunctive and other relief. After hearing extensive trial testimony over a three-month period, the trial judge concluded that the evidence clearly and convincingly proved that Anthony Plumbing had devised, promoted, and engaged in unlawful, fraudulent, unfair and deceptive trade practices. Accordingly, the court enjoined Anthony Plumbing from engaging in these unlawful practices, awarded restitution to those consumers who had presented evidence at trial, assessed civil penalties, awarded to the State the costs of the action, and appointed a Master to hear testimony from other consumers allegedly victimized by Anthony Plumbing’s illegal activities. Anthony Plumbing took an appeal to the Court of Special Appeals, and, before any further proceedings in that court, we granted the State’s petition for a writ of certiorari.

Anthony Plumbing’s appeal does not encompass those parts of the trial court’s order imposing injunctive relief and awarding restitution. In fact, at oral argument, counsel for ¹⁵ Anthony Plumbing expressly reaffirmed the limited scope of the appeal. Anthony Plumbing is here challenging only the portions of the order appointing a Master and assessing civil penalties and costs. As to these parts of the order, Anthony Plumbing raises five issues for consideration.

First, it contends that the appointment of a Master to conduct additional evidentiary proceedings was barred by res judicata or was otherwise improper. Second, Anthony Plumbing alleges that the trial court erred in assessing the maximum civil penalty against each individual defendant for each violation of the Consumer Protection Act; the proper method for computing civil penalties, according to Anthony Plumbing, is to assess one penalty against the defendants collectively for each violation of the Act. Third, Anthony Plumbing insists that the evidence did not support the trial court’s findings that one thousand consumers were induced to purchase replacements where only repairs were necessary and that one thousand consumers were unlawfully coerced to waive their rights of contract rescission. Fourth, Anthony Plumbing asserts that the trial court erred in including in its award of costs of the action the expenses of the State’s investigation and preparation.

Finally, it argues that the Maryland Consumer Protection Act is unconstitutional because it allegedly does not contain adequate standards to prevent arbitrary enforcement of the Act. The issue of whether the order was appealable was raised sua sponte by this Court at oral argument. Anthony Plumbing contended that the order determined the rights of the parties and thus was a final judgment, appealable under § 12-301 of the Courts and Judicial Proceedings Article. The State conceded that the order may not be final but asserted that § 12-303(c)(5), insofar as it provides for appeals from interlocutory orders for the payment of money, gave this Court jurisdiction over the appeal.

We do not agree with either contention. I Of course, the right of appeal ordinarily lies from a final judgment only. Moreover, as we have reiterated many ¹⁶ times, appellate jurisdiction cannot be conferred on a reviewing court by consent of the litigants, and this Court will dismiss an appeal sua sponte when it recognizes that appellate jurisdiction is lacking. Highfield Water Co. v. Wash.

Co. San., 295 Md. 410, 414 , 456 A.2d 371 (1983); King v. State Roads Comm’n, 294 Md. 236, 241 , 449 A.2d 390 (1982); East v. Gilchrist, 293 Md. 453, 458 , 445 A.2d 343 (1982); Biro v. Schombert, 285 Md. 290, 293 , 402 A.2d 71 (1979). The thrust of Anthony Plumbing’s argument is that a final order has been rendered and that the proceedings before a special master will constitute a completely new trial. Anthony Plumbing’s characterization of this case is wholly unsound. A trial court generally will refer certain issues raised in a case to a special master in order to conserve the court’s time and resources.

A master’s duty is to engage in specific fact finding and make appropriate recommendations to the trial court. Bris Realty v. Phoenix, 238 Md. 84, 89 , 208 A.2d 68 (1965). The master’s findings do not finally dispose of the litigation in the trial court; they may be excepted to by the parties and are not binding until confirmed and implemented by the trial court. Matter of Anderson, 272 Md. 85, 101-104 , 321 A.2d 516 (1974), appeal dismissed, 419 U.S. 809 , 95 S.Ct. 21 , 42 L.Ed.2d 35 (1974), cert, denied, 421 U.S. 1000 , 95 S.Ct. 2399 , 44 L.Ed.2d 667 (1975).

See, In Re: Mark R., 294 Md. 244, 252-253 , 449 A.2d 393 (1982), and Wenger v. Wenger, 42 Md.App. 596, 602-604 , 402 A.2d 94 (1979), cert, granted, 286 Md. 755 (1979), appeal dismissed per stipulation, January 2, 1980. The trial court, therefore, necessarily retains jurisdiction over the entire case while specified matters are before the master. Accordingly, this Court has held that an order, which refers matters to a master, is not a final order for purposes of appeal. Waters v. Smith, 277 Md. 189, 194-195 , 352 A.2d 793 (1976).

See also, Hohensee v. Minear, 253 Md. 5, 6 , 251 A.2d 588 (1969); Johnson v. Hoover, 75 Md. 486, 490 , 23 A. 903 (1892); Wilhelm v. Caylor, 32 Md. 151, 161 (1870); ¹⁷ Hatton v. Weems, 10 G & J 377 (1839); Snowden v. Dorsey, 6 H & J 114 (1823). II Having determined that the trial court’s order is not final for purposes of appeal, we now turn to the State’s contention that the order is appealable under § 12-303(c)(5) of the Courts and Judicial Proceedings Article, which authorizes an appeal from an interlocutory order “for the ... payment of money . .. unless the . . . payment is directed to be made to a receiver appointed by the court.” 2 In this case there are ¹⁸ four portions of the trial court’s order concerning monetary relief. Specifically, the court assessed civil penalties, awarded costs, ordered money to be deposited with the clerk of the court to be held in escrow for costs associated with the master proceedings, and ordered the payment of restitution to those consumers who testified at trial. As previously mentioned, the payment of restitution is beyond the scope of Anthony ■ Plumbing’s appeal.

Consequently, we are concerned only with the applicability of § 12-303(c)(5) to the assessments of civil penalties, the award of costs related to the action, and the requirement that money be deposited with the clerk of the court. A. In ascertaining the scope of the phrase “order for . .. the payment of money” set forth in § 12-303(c)(5), it is appropriate to review the history of that statutory provision. 3 In Maryland prior to 1718, an appeal was permitted only from a final judgment of a court of law. A parallel right to ¹⁹ appeal from an equity decree was not then recognized. By Ch. 10 of the Acts of 1718, Maryland’s Provincial Assembly expressly provided for the right of appeal from an equity decree.

During the next 100 years subsequent statutes reaffirmed the general right to appeal a decree of a court of equity. 4 Neither the Acts of 1718 nor its successors, however, made clear whether an appeal was available only from a final decree or also from an interlocutory order in equity. It was not until 1841 that the Maryland General Assembly definitively resolved the issue. By Ch. 11 of the Acts of 1841, an appeal in equity was authorized from certain interlocutory orders, including an order for “the payment of money.” At this time, appeals from courts of law were still restricted to final judgments only. In 1962 an appeal was first authorized from an interlocutory order of a court of law.

Even then, appeals were permitted only from interlocutory orders “with regard to the possession of property with which the action is concerned or with reference to the receipt of or charging of income, interest or dividends therefrom or the refusal to modify, dissolve, or discharge such an order.” (Ch. 36, § 5, of the Acts of 1962.) Appeals at law could not be taken from interlocutory orders concerning the payment of money. The present statute, § 12-303, enacted in 1973 as part of the general recodification of the statutes relating to the judiciary, combined into one section the existing code provisions regarding interlocutory appeals. The 1973 revision was the first time that reference was made to interlocutory orders of a “circuit court” rather than to orders of a “court of equity.” According to the Revisor’s Note, 5 this change ²⁰ was a recognition that certain types of traditional equity orders, such as an injunction, could also be obtained from a court of law. As the Note makes clear, the 1973 revision was not intended to make any substantive alterations in the kinds of interlocutory orders that were appealable prior to a final judgment.

The history of § 12-303 thus indicates a legislative intent to allow interlocutory appeals only from those orders for the “payment of money” which had traditionally been rendered in equity. This is confirmed by judicial decisions. The types of orders previously held by this Court to be orders for the “payment of money” are orders for alimony, child support, and related counsel fees, Chappell v. Chappell, 86 Md. 532 , 39 A. 984 (1898), and