B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co.

ELDRIDGE, Judge. We granted the petition for a writ of certiorari in this case to review the Court of Special Appeals’ holding that the wording of the notice of appeal had limited the issues on appeal. The facts relevant to the procedural issue before us can be briefly stated. B & K Rentals and Sales Co., Inc., brought this action in the Circuit Court for Anne Arundel County seeking to recover damages for losses resulting from a fire.

The fire was allegedly caused by the negligence of the defendants Universal Leaf Tobacco Co. and others. 1 Both at the close of the plaintiff’s case, and at the close of all of the evidence, the trial court denied Universal’s motion for a directed verdict and allowed the case to go to the jury. The jury returned a verdict for the plaintiff B & K Rentals in the amount of $123,252.00. On January 19, 1987, the trial court granted Universal’s motion for judgment notwithstanding the verdict and entered judgment for the defendants for costs. Within ten days, on January 28, 1987, B & K Rentals filed a “Motion ¹²⁹ for Reconsideration and Motion for New Trial,” seeking reconsideration of the judgment notwithstanding the verdict and seeking a new trial under Maryland Rule 2-533.

The circuit court, on February 17, 1987, entered an order that “both motions be and the same are hereby denied.” Thereafter B & K Rentals filed a timely notice of appeal which stated: “It is respectfully requested that you enter an appeal to the Court of Special Appeals on behalf of B & K Rentals & Sales Co., Inc., Plaintiff, from this Court’s Order denying Plaintiff’s Motion for Reconsideration and Motion for New Trial, entered in this action on February 17, 1987.” In its brief in the Court of Special Appeals, B & K Rentals argued that the circuit court’s ruling on the motion for judgment notwithstanding the verdict was erroneous. B & K Rentals specifically contended, based upon the evidence, that the jury properly determined that the fire resulted from the defendants’ negligence and that the defendants were liable. B & K Rentals also claimed that the circuit judge had committed various errors during the trial. B & K Rentals sought a new trial limited to damages.

The Court of Special Appeals, however, refused to consider any of the matters raised by B & K Rentals in its brief. B & K Rentals v. Universal Leaf, 73 Md.App. 530 , 535 A.2d 492 (1988). The intermediate appellate court agreed with Universal’s argument that the notice of appeal, by appealing from the order entered February 17, 1987, and not specifically “appeal[ing] the judgment of 19 January 1987,” had limited the scope of the appeal. 73 Md.App. at 535 , 535 A.2d at 495 . The Court of Special Appeals relied upon the following dictum from its earlier opinion in Shipp v. Autoville Ltd., 23 Md.App. 555 , 560 n. 4, 328 A.2d 349 (1974), cert. denied, 274 Md. 725 (1975): “ ‘We think that if there are two or more appealable judgments in a cause, an appellant designating one would be bound by the designation.’ ” 73 Md.App. at 535 , ¹³⁰ 536-537, 535 A.2d at 495, 496 . 2 In the present case the Court of Special Appeals took the position that, if the appellant desired to appeal from the “judgment,” the appellant designated an incorrect order in the notice of appeal.

The appellate court thus stated: “This appeal from the denial of the ‘motion to reconsider’ the judgment does not serve as an appeal from the judgment,” 73 Md.App. at 537 , 535 A.2d at 496 . The court held that “the only question before this Court is whether the trial judge abused his discretion in denying the ‘motion for reconsideration’ and the motion for new trial.” 73 Md.App. at 534 , 535 A.2d at 494 . Concluding that the trial court had not abused its discretion, the Court of Special Appeals affirmed. Thereafter this Court granted B & K Rentals’ petition for a writ of certiorari which presented the following single issue: “Is the Court of Special Appeals precluded from considering the propriety of the underlying decision on the merits solely because [the notice of appeal] designates, as the judgment appealed from, the decision of the trial court upon timely post-trial motions, where such judgment is the final decision rendered by the trial court in the case ... ?” We shall answer the question in the negative and reverse.

In our view, the Court of Special Appeals’ decision is erroneous for two reasons. (1) B & K Rentals did not designate an incorrect order as the final appealable “judgment” in the case. Contrary to the position of the Court of Special Appeals, this is not a case where “ ‘there are two or more appealable judgments in a cause’ ” and the appellant designated only one of them. ¹³¹ Under the applicable rules and case law, the order designated in B & K Rentals’ notice of appeal became the only final appealable order in the case. If nothing had been done in the circuit court after January 19, 1987, the January 19th entry of judgment for the defendants for costs, pursuant to the court’s direction, would have been the final appealable judgment in this case.

See, e.g., Maryland Rule 2-601; Rohrbeck v. Rohrbeck, 318 Md. 28, 41-42, 45-46 , 566 A.2d 767 (1989); Doehring v. Wagner, 311 Md. 272, 275-276 , 533 A.2d 1300 (1987); Walbert v. Walbert, 310 Md. 657, 661 , 531 A.2d 291 (1987); Houghton v. County Com’rs of Kent Co., 307 Md. 216, 221-222 , 513 A.2d 291 (1986), and cases there cited. The subsequent motions filed by B & K Rentals, however, deprived the January 19th judgment of its finality for appeal purposes. Rule 2-533 provides, inter alia, that a party whose verdict has been set aside on a motion for judgment notwithstanding the verdict may file a motion for a new trial within ten days after entry of the judgment notwithstanding the verdict. 3 Rule 2-534 states that a motion to alter or amend a judgment, based on a court decision, may be filed within ten days of the judgment, and may be joined with a motion for a new trial. 4 The two motions filed by B & K ¹³² Rentals on January 28, 1987, were timely motions pursuant to Rules 2-533 and 2-534. Rule 8-202(c) provides, inter alia, that when a timely motion is filed pursuant to Rules 2-533 or 2-534, the notice of appeal shall be filed within 30 days after the denial or disposition of the motions. 5 Consequently, “when a motion to alter or amend an otherwise final judgment [or a motion for a new trial] is filed within ten days after the judgment’s entry, the judgment loses its finality for purposes of appeal.” Unnamed Atty. v. Attorney Griev.

Comm’n, 303 Md. 473, 486 , 494 A.2d 940 (1985). See Yarema v. Exxon Corp., 305 Md. 219 , 241 n. 19, 503 A.2d 239 (1986); Sieck v. Sieck, 66 Md.App. 37, 42-44 , 502 A.2d 528 (1986); Committee Note to Rule 8-202(c). Under Rule 8-202(c), the order which was final in this case, and from which the time for appeal ran, was the order of February 17, 1987, denying both of B & K Rentals’ motions. Being final, the February 17th order was a “judgment.” 6 It was the only final appealable judgment in the case.

Moreover, the appeal from the February 17th final judgment subjected the January 19th “judgment” to review on appeal. It is a long established principle of appellate procedure, now embodied in Rule 8-131(d), that an appeal from a ¹³³ final judgment ordinarily brings up for appellate review all earlier orders in the ease. See, e.g., Vogel v. Grant, 300 Md. 690, 701 , 481 A.2d 186 (1984); Carbaugh v. State, 294 Md. 323, 328 , 449 A.2d 1153 (1982); Lewis v. Lewis, 290 Md. 175, 184-185 , 428 A.2d 454 (1981); Montgomery Co. v. Ian Corp., 282 Md. 459, 467-468 , 385 A.2d 80 (1978); Wylie v. Johnston, et al., 29 Md. 298, 303 (1868) (explaining the reasons for the principle). Thus, the Court of Special Appeals plainly erred in holding that an appeal from the February 17, 1987, order did “not serve as an appeal from the” January 19, 1987, order.

Unlike Rule 3(c) of the Federal Rules of Appellate Procedure and many rules in other states, Maryland Rule 8-202 does not require that a notice of appeal specify the judgment or order appealed from. Nevertheless, neither reason nor authority supports the view that a recital in the notice of appeal of the order constituting the only final appealable judgment in the case somehow limits the scope of the appeal. As discussed in part (2) below, the cases have regularly held that the specification in the notice of appeal of an incorrect order as the final appealable judgment does not limit the issues on appeal. In light of this, the mere recitation of the correct final appealable order obviously should not limit the issues on appeal.

(2) As mentioned above, the current Maryland Rules do not require that a notice of appeal designate the order or judgment from which the appeal is taken. In fact, the present and prior rules of procedure in this State have not regulated the content of a notice of appeal or an “order for appeal” as it was formerly called. Therefore, Maryland cases usually have construed notices of appeal liberally and have ignored limiting language in notices of appeal, deeming it surplusage. The cases have taken the position that the purpose of a notice or order of appeal is not to designate or limit the issues on appeal.

Instead, the designation of issues on appeal is a function of the information report ¹³⁴ required by Rule 8-205, the prehearing conference under Rule 8-206(b), and the briefs. See generally, e.g., Newman v. Reilly, 314 Md. 364, 382-388 , 550 A.2d 959 (1988); MPTH Assoc. v. St. Dep’t of Assess., 302 Md. 319 , 328 n. 6, 487 A.2d 1184 (1985); Institutional Mgt v. Cutler Computer, 294 Md. 626, 628-633 , 451 A.2d 1224 (1982); Williams v. Dawidowicz, 209 Md. 77, 82 , 120 A.2d 399 (1956); Christy v. Hammond, 161 Md. 139, 144 , 155 A. 322 (1931); Sweeney v. Trust Co., 144 Md. 612, 622 , 125 A. 522 (1924); Anderson v. Stewart, 108 Md. 340, 346-348 , 70 A. 228 (1908); Lowenthal v. Rome, 57 Md.App. 728, 738 , 471 A.2d 1102 , cert. denied, 300 Md. 153 , 476 A.2d 722 (1948); Joppa Sand & Gravel Corp. v. L. Epstein & Sons, Inc., 39 Md.App. 34, 43 , 382 A.2d 1086 (1978); Johnson-Bey v. Reiger, 32 Md.App. 299, 306 , 360 A.2d 457, 461 , cert.