Brown v. Prince George's County

Lowe, J., delivered the opinion of the Court. The briefs in this appeal tell us that the appellants sued Prince George’s County, its Acting Chief of Police, and two of its police officers for assault. The two officers filed a countersuit; the County and Chief of Police demurred. Appellants also demurred to the counter-claim.

Although we are told that "... the Court verbally granted the Demurrer of defendant Prince George’s County and denied plaintiffs’ demurrer to the counter-claim,” ⁷¹⁹ appellants supplied no extract of the record and included in its appendix only the counter-claim of the two officers and a Memorandum of the Court dated May 12, 1980, denying a motion to reconsider and certifying "that there is no just reason to delay appeal of the matters decided at the hearing on this matter held March 27, 1980. See Rule 605 (a).” If that is all that was done by the court, it is questionable whether there is a final judgment from which to appeal in either of the two issues raised by appellants. It is certainly clear that the overruling of appellants’ demurrer to the counter-claim is not a final judgment from which an appeal may be taken. Inter-City Co. v. Balto.

County, 218 Md. 80, 84-85 (1958); Montgomery County, Etc. v. Donnally, 195 Md. 442, 449 (1950); See, also, Md. Rule 345 (d). There is no authority by rule or otherwise for a trial judge to make such a ruling a final, appealable judgment. That alone is reason to dismiss appellants’ second issue asserting error by the court in overruling their demurrer. We note further, however, that the rule upon which appellants rely for this appeal in its entirety has not been complied with, as seemingly required by its precise language.

"Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” Md. Rule 605 (a). ⁷²⁰ In this case it appears from the docket entry that the clerk entered final judgment on behalf of Prince George’s County and Chief Vasco on April 2, 1980, which was over a month before the court certified on May 12,1980 that there was "no just reason to delay appeal” in its memorandum denying reconsideration. There is notably absent, however, "an express direction for the entry of judgment” as to Prince George’s County and the Chief of Police under the authority provided the court by the rule. The perfunctory entry of final judgment, pursuant to Md. Rule 345 (e), does not amount to an "express direction” by the trial court as required by Md. Rule 605 (a).

Parish v. Milk Producers Ass’n, 250 Md. 24, 96-98 (1969), aff'd, 261 Md. 618 , cert. denied, 404 U.S. 940 (1971). If such "express direction” is elsewhere in the record it is not indicated in the extract. Since there is a "final judgment” indicated by docket entry and a certification by the judge substantially complying with the rule, we will not address sua sponte an issue not raised on appeal — despite our concern with from when appellants’ appeal time should have been counted. Because we will dismiss for other reasons, we will assume without deciding that his order of appeal on May 23, 1980 was punctual.

Pursuant to Md. Rule 1035 (b) (5), we shall dismiss this appeal as moved by appellees for appellants’ failure to comply with Md. Rule 1028. That rule requires that appellants provide record extracts and that they contain such parts of the record as may reasonably be necessary for the determination of the questions presented by the appeal. Other than their query relating to an overruled demurrer to the counter-claim, which is not an immediately appealable judgment, the only question asked by appellants is: "May Prince George’s County be held liable for the malicious acts of its police officers?” That rhetorical question underlay the granting of a demurrer to appellants’ declaration without leave to amend, but appellants did not provide us either with the declaration or the demurrer, contrary to Md. Rule 1028 (b) (1) (b) which ⁷²¹ calls for all pleadings material to the determination of the issue before us. More importantly, appellants did not provide us with the judgment appealed from, as indicated above, nor with the opinion of the court, which we are told was orally expressed giving reasons for having sustained appellees’ demurrer.

Md. Rule 1028 (b) (1) (a). The opinion of the court was extremely crucial in this case, as indeed were the arguments at