Breuer v. Flynn

GARRITY, Judge. This matter involves a situation wherein the Circuit Court for Prince George’s County granted certain motions, including a motion for entry of an order of default, while an appeal was pending in this court on nonappealable interlocutory rulings in the same case. The primary focus of our examination will be the jurisdictional effect of an appeal from nonappealable interlocutory orders. FACTS As the procedural history is important to an understanding of our holding, we shall set it out in detail: On July 6, 1984, appellees, James F. Flynn and others, filed a Bill of Complaint in the Circuit Court for Prince George’s County for slander.

On the same day, appellees also filed motions to enjoin the appellant, Lee F. Breuer, from making any further comments concerning the appel ⁴¹² lees in public or to any person and to preclude her from entering their homes and businesses. The court issued an ex parte injunction ordering the appellant to refrain from entering appellees’ homes and businesses, but it declined to enjoin her from speaking about the appellees, at least until she had been afforded an opportunity to be heard. The court subsequently ordered that a hearing be held on July 13, 1984, to determine whether to grant appellees’ request for an interlocutory injunction, provided that the ex parte order and complaint were served upon the appellant by July 11, 1984. Upon discovering that the appellant would be out of the country until August 22, 1984, the appellees filed a motion to extend the ex parte injunction.

The court granted the extension and postponed the hearing to September 13, 1984. On August 22, 1984, appellees served the appellant with a copy of the complaint and the court’s order granting the ex parte injunction. Thereafter, appellees filed several notices to take appellant’s deposition prior to the hearing. Instead of appearing at any of the scheduled depositions, however, appellant filed motions for a protective order.

The court either ignored or denied her motions. Upon being advised that the appellant was ill on the day set for hearing the motion for an interlocutory injunction, the court postponed proceedings until October 26, 1984. Prior to this hearing, appellant filed a motion to have Judge Robert J. Woods disqualified from presiding over the case. That motion was denied.

After considering testimony and arguments presented at the hearing on October 26, 1984, the court granted appellees’ request for an interlocutory injunction enjoining the appellant from making any further comments concerning the appellees. , On November 19, 1984, the pro se appellant appealed from all the lower court’s decisions passed prior to that date. The rulings, inter alia, included the grant of appellees’ requests for ex parte and interlocutory injunctions, the denial of her motion to disqualify the presiding judge, and the denial of her motion for protective order. Approximate ⁴¹³ ly two weeks after this appeal was noted, the lower court proceeded to dismiss appellant’s counterclaim as a sanction for her failure to appear at the hearings or to attend the depositions ordered by the court. The court then granted appellees’ motion for an order of default and costs upon finding that appellant had failed to file a responsive pleading to the complaint on or before November 13,1984, as had been ordered by the court.

On December 17, 1984, the appellant filed another appeal to this court which incorporated her previous issues, and added the claim that the lower court lacked jurisdiction to enter an order of default and judgment for costs. I. Effect of November 9th Appeal from Interlocutory Orders. The crux of appellant’s argument is that the circuit court was immediately divested of jurisdiction when she filed an appeal to this court on November 9, 1984. This appeal contested the denial of a protective order to prevent appellees from taking her pre-trial deposition; the denial of her motion to dismiss the bill of complaint and the order by the court that she answer the complaint by November 13, 1984; the denial of her motion for Judge Woods to recuse himself; the grant of appellees’ motion for interlocutory injunction, and the court’s order that she be deposed by the appellees on November 15, 1984.

The answer to the argument depends on whether these orders were appealable. It is well settled that ordinarily a party may appeal to this court only after a final judgment has been entered in a civil or a criminal case by a circuit court. Md.Ct. & Jud.Proc.Code Ann. § 12-301 (1984 Repl.Vol.). Prior attempts to determine whether a judgment is final have led to the general rule that in order to be appealable, a “judgment must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.” U.S. Fire Ins. v. Schwartz, 280 Md. 518, 521 , 374 A.2d 896 (1977), quoted in Cant v. Bartlett, 292 Md. 611, 614 , 440 A.2d 388 (1982). ⁴¹⁴ Where a judgment is not so final as to either preclude a party from fully defending his interests in the pending law suit or conclude the question of liability, the judgment is considered interlocutory and normally nonappealable unless it falls within those exceptions specifically enumerated in Md.Cts. & Jud.Proc.Code Ann., § 12-303. 1 Appellant’s first issue on appeal challenges the trial court’s decision to deny her motion for a protective order to ⁴¹⁵ prevent the appellees from taking her pre-trial deposition.

As the order of the trial court permitting the taking of the pre-trial deposition is an interlocutory order not specifically mentioned in § 12-303 of the Courts article, the appeal of this issue was prematurely taken. Faulk v. State’s Attorney For Harford County, 299 Md. 493, 509 , 474 A.2d 880 (1984); Price v. Orrison, 261 Md. 8, 9 , 273 A.2d 183 (1971); Kardy v. Shook, J., 237 Md. 524, 534 , 207 A.2d 83 (1965); Alford v. Comm’r of Motor Vehicles, 227 Md. 45, 47 , 175 A.2d 23 (1961). Appellant also contends that the lower court erred in denying her motion to dismiss and in compelling her to file an answer to appellees’ bill of complaint. It is apparent that these orders neither finally determined the pending lawsuit nor restricted the appellant’s ability to properly defend her rights and interests.

Furthermore, Maryland Rule 1009 expressly provides that “[a]n appeal shall not be allowed from an order denying a motion to dismiss for failure to state a claim upon which relief can be granted, but the order shall be reviewable upon appeal from the final judgment.” The appellant claims that the trial judge’s refusal to disqualify or recuse himself from the proceeding prejudiced her case. Certainly the trial judge’s refusal to disqualify himself has in no way precluded the appellant from fully defending her interests or concluded the question of her liability and thus in this context is not a final judgment. Cf. Peat & Company v. Los Angeles Rams, 284 Md. 86, 91 , 394 A.2d 801 (1978) (court’s denial of motion to disqualify attorney was not a final judgment).

Nor was this decision the type of interlocutory order from which a party may immediately enter an appeal. ⁴¹⁶ Appellant challenges the propriety of the trial court’s issuance of the ex parte injunction due to its failure to require appellees to post bond and its error in extending the injunction beyond its statutory time restraints. These rulings are clearly interlocutory for the reasons explained in the next paragraph. They are also moot because the ex parte injunction was supplanted by the interlocutory injunction. Appellant also contends that the court erred in denying her motion to dissolve the ex parte injunction and in granting appellees’ request for an interlocutory injunction.

Although a party may enter an immediate appeal from an order of the circuit court denying a motion to dissolve an ex parte injunction or granting an interlocutory injunction, such an appeal is allowed only if the appellant has first filed an answer in the cause, Md.Cts. & Jud.Proc.Code Ann., § 12-803(3)(i) and (ii); Martin v. United States, Tile and Composition Roofers, Damp and Waterproof Workers Association, 189 Md. 383 , 56 A.2d 28 (1947). The appellant has neither filed an answer to appellees’ motions requesting the injunctions nor an answer to the bill of complaint. From our review of the collateral rulings which were appealed on November 9th, we hold that those rulings are not included among the interlocutory orders statutorily allowed to be appealed prior to final judgment. 2 This returns us to the fundamental question of the effect of the November 9th appeal on the trial court’s jurisdiction. In Stewart v. State, 282 Md. 557, 573 , 386 A.2d 1206 (1978), the Court of Appeals held that the “general rule is ⁴¹⁷ that the perfecting of an appeal brings the subject matter thereof within the exclusive jurisdiction of the appellate court and suspends the authority of the trial court over it during the pendency of the appeal; that the trial court lacks jurisdiction to take any further action in the case with respect to the subject matter of, or affecting, the proceeding until the receipt of the mandate of the appellate court after the appeal has been heard and decided.” See Lewis v. Lewis, 290 Md. 175 , 428 A.2d 454 (1981) (after party entered an appeal to the Court of Special Appeals, trial court lacked power to certify its order as a final judgment, nunc pro tunc, pursuant to Rule 605a); Lang v. Catterton, 267 Md. 268 , 297 A.2d 735 (1972) (where lower court lacked jurisdiction to enter an order nunc pro tunc for final judgment under Rule 605a (2-602) after an entry of the appeal); Staggs v. Blue Cross of Md., 57 Md.App. 576 , 471 A.2d 326 (1984) (circuit court’s attempt to enter final judgment after appellants prematurely noted an appeal