Cant v. Bartlett

Smith, J., delivered the opinion of the Court. We shall hold in this case that the order of a trial judge permitting substitution of the personal representative of a deceased litigant as plaintiff in an action for libel was not an appealable final order. Hence, we shall affirm the order of the Court of Special Appeals dismissing the appeal from the trial judge’s action. Because, however, it would be a waste of time for these parties to go back, try the case, and then learn on appeal that the action abated by the death of the plaintiff, we shall set forth the basis of our view that the trial judge erred when he permitted substitution of the personal representative of the deceased.

J. Kemp Bartlett sued Geoffrey D. Cant and F. Carvel Payne in the Circuit Court for Anne Arundel County. Only an action for libel remained in the suit after demurrers to certain counts were sustained. Bartlett died. Thereafter, a motion was made to substitute his personal representative as the party plaintiff.

Cant and Payne opposed the motion, ⁶¹³ contending that the defamation action had abated by the death of Bartlett. They appealed to the Court of Special Appeals. Upon motion of Mrs. Bartlett, who is the personal representative, the intermediate appellate court dismissed the appeal on the ground that it was not an appeal from a final order. We then granted the writ of certiorari in order that we might address the issue.

I Appealability At issue here is whether the circuit court’s order of substitution and revival is a final judgment for the purposes of appeal within the meaning of Maryland Code (1974) § 12-301, Courts and Judicial Proceedings Article. That section provides in pertinent part: "Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil . .. case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law.. ..” There is no contention here that the appeal comes within one of the exceptions set forth in § 12-302. Likewise, there is no claim that the order here is from one of the interlocutory orders listed in § 12-303 from which an appeal is permitted.

The leading case of Peat & Co. v. Los Angeles Rams, 284 Md. 86 , 394 A. 2d 801 (1978), sheds considerable light on what constitutes an appealable final judgment. That case involved an accounting firm’s motion to require the withdrawal of a Baltimore City law firm from further representation of the Rams. The circuit court denied the motion. An appeal then was taken to the Court of Special Appeals, which dismissed the appeal as not permitted by law.

When the case reached us, we dealt with the issue of whether the order refusing to disqualify the law firm from further participation in the proceedings was a "final judg ⁶¹⁴ ment” within the contemplation of § 12-301. We noted in that case that the General Assembly in § 12-101 (f) of the Courts and Judicial Proceedings Article had defined "final judgment” as "a judgment, decree, sentence, order, determination, decision, or other action by a court.. . from which an appeal, application for leave to appeal, or petition for certiorari may be taken.” Judge Digges pointed out for the Court, however, that, "as this definition implies, it is ultimately for this Court to decide which judgments or orders are final and therefore appealable under section 12-301. Warren v. State, 281 Md. [179], 183, 377 A. 2d [1169], 1171 [(1977)].” 284 Md. at 91 . Quoting United States Fire Ins. v. Schwartz, 280 Md. 518, 521 , 374 A.2d 896 (1977), overruled, Department of Public Safety v. LeVan, 288 Md. 533 , 419 A.2d 1052 (1980), we said that the prior attempts of this Court to determine if a particular trial court action is appealable do not always involve questions readily capable of delineation.

The underlying policy of the final judgment rule is that piecemeal appeals are disfavored. Accordingly, we have stated that as a general rule an appealable judgment is one that "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.” 280 Md. at 521 . In the course of the discussion in Peat & Co. we said that the trial court’s refusal to disqualify the attorneys in question had in no way precluded Peat & Co. from fully defending its interest in the pending law suit, or concluded the question of its liability. We held that in that context the order was not a final judgment. 284 Md. at 91 .

The Court addressed the argument that the circuit court’s order was appealable as a "collateral order,” which is an exception to the final order requirement. Citing the Court’s application of the collateral order exception in Stewart v. State, 282 Md. 557, 571 , 386 A.2d 1206 (1978), and Jolley v. State, 282 Md. 353, 357 , 384 A.2d 91 (1978), Judge Digges reiterated for the Court in Peat & Co. the ambit of the exception: ⁶¹⁵ "The concept is narrow in scope, however, for, as the Supreme Court has articulated, if the order is to come within the 'small class’ of cases included in the final judgment rule under Cohen it must meet four requirements: '[T]he order must [(1)] conclusively determine the disputed question, [(2)] resolve an important issue [,(3) be] completely separate from the merits of the action, and [(4)] be effectively unreviewable on appeal from a final judgment.’ Coopers & Lybrand v. Livesay, 437 U. S. 463, 468 , 98 S. Ct. 2454 , 57 L.Ed.2d 351 (1978) (footnote omitted); see Cohen v. Beneficial Industrial Loan Corp., 337 U. S. [541,] 546 [, 69 S. Ct. 1221 , 93 L. Ed. 1528 (1949)].” 284 Md. at 92 . As indicated, we deemed the circuit court’s order refusing disqualification as not immediately appealable. In support of this conclusion, Judge Digges noted for the Court: (1) the potential floodgate effect incident to appeals concerning the propriety of a trial court’s ruling on particular facts; (2) that the question of whether to disqualify counsel was one addressed to the discretion of the trial court; and (3) the absence of sufficient import to warrant immediate appellate review because serious and unsettled questions were not presented.

Id. at 96-97 . We also declined application of the interlocutory appeal statute. Id. at 98 . As recently pointed out in Lewis v. Lewis, 290 Md. 175, 182 , 428 A.2d 454 (1981), and Pappas v. Pappas, 287 Md. 455, 460 , 413 A.2d 549 (1980), generally it is only those interlocutory orders specified in § 12-303, Courts and Judicial Proceedings Article, which are immediately appealable.

Thus, as was stated in In re Buckler Trusts, 144 Md. 424 , 125 A. 177 (1924), a decree or an order, to be appealable, "must be so far final as to determine and conclude the rights involved in the action. . . .” 144 Md. at 427 (emphasis added). At issue in that case was the appealability of a decree appointing substituted trustees pursuant to a deed of trust, and an order striking from the files a document submitted in opposition to that appointment. In dismissing the ⁶¹⁶ appeal, the Court observed that the appellant had no direct interest in the subject matter of the litigation and that the appellant improperly intervened. Id. at 427-28 .

Nothing in the order and decree appealed from precluded a proper proceeding to enforce or to defend the rights and interests at stake. Id. at 428 ; see Rowe Co. v. Rowe, 154 Md. 599, 604 , 141 A. 334 (1928) (order directing intervention was interlocutory and nonfinal; thus order was not immediately appealable). Finality for the purposes of appeal requires settlement of the rights of the parties. D. C. Transit Systems v. S.R.C., 259 Md. 675, 682 , 270 A.2d 793 (1970); Concannon v. State Roads Comm., 230 Md. 118, 125 , 186 A.2d 220 (1962); and Hopkins v. Easton Nat.

Bank, 171 Md. 130, 135 , 187 A. 874 (1936). Examination of the plethora of case law bearing on the question of finality for the purposes of appeal produces the following catalog: Clark v. Elza, 286 Md. 208, 211-13 , 406 A.2d 922 (1979) (order denying motion to enforce oral settlement of tort action, albeit not final, nonetheless was appealable as within the collateral order exception); Schlossberg v. Schlossberg, 275 Md. 600, 606-15 , 343 A.2d 234 (1975) (order which did not finally determine proper parties and issues to be tried, or send issues from an orphans’ court to a law court for trial was not final and thus not immediately appealable); Ventresca v. Weaver Brothers, 266 Md. 398, 402-03 , 292 A.2d 656 (1972) (order striking an enrolled judgment divested a substantial right and thus was immediately appealable); Griffin v. St. Mary’s College, 258 Md. 276, 279 , 265 A.2d 757 (1970) (order sustaining demurrer to petition for writ of mandamus with leave to amend was not a final judgment or immediately appealable); Lawrence v. Dept. of Health, 247 Md. 367, 371-72 , 231 A.2d 46 (1967) (denial of plaintiffs motion for summary judgment was not a final order from which an appeal might be taken); Commissioner v. Steudl, 233 Md. 543, 545 , 197 A.2d 432 (1964) (order striking declaration but granting leave to amend within a specified period of time did not conclude rights of the parties on the facts of that case or constitute a final judgment); Concannon, 230 Md. at 119-25 (order ⁶¹⁷ granting the State Roads Commission leave to amend its petition to condemn and the accompanying plat was an appealable final order because it determined substantial rights of the property owners); Eisel v. Howell, 220 Md. 584, 586-90 , 155 A.2d 509 (1959) (denial of order denying challenge to jurisdiction and staying proceedings to permit arbitration did not settle or conclude rights of any party and thus was not appealable); and Bonner v. Celanese Corporation, 193 Md. 132, 135 , 66 A.2d 400 (1949) (trial court’s granting or refusing a motion for a new trial was not an appealable final order). When one turns to cases from foreign jurisdictions, the nonappealability of the revivor order in this case becomes more apparent. In Mackaye v. Mallory, 79 F. 1 (2d Cir. 1897), the court addressed the appealability of an order reviving a suit upon the plaintiffs death.

It viewed the order as merely a continuation of an original suit, saying: "A decision is final, in the sense in which an appeal from it is permitted, when it decides and disposes of the whole merits of the cause as between the parties to the appeal, reserving no further questions or directions for the future judgment of the court; so that to bring the cause again before the court for decision will not be necessary. When a bill of revivor is dismissed, as this would practically determine the original cause by leaving it in a situation in which no further proceedings could be had in it, doubtless an appeal would lie in favor of the party seeking a revival; but, if the revival is allowed, the order or decree allowing it does not finally dispose of the cause, and can be reviewed, if it becomes necessary, by an appeal from the final decree therein.” Id. at 2 (citing cases). In dismissing the appeal, the court then concluded: "In the present case there was no decree upon the bills of review, and the orders are merely interlocutory orders in the cause, and are strictly analogous to an order in a suit at law entered on a ⁶¹⁸ suggestion upon the record admitting the legal representative of a deceased party to continue the action.” Id. The Supreme Court of Alabama was faced with a situation strikingly similar to the circumstances now before us in Land v. Cooper, 244 Ala. 141 , 12 So. 2d 410 (1943).

Although the court determined there was no appealable final order, it decided the ultimate issue, as do we here, finding that the litigation had been abated by the death of the sole complainant and could not be revived. In that case an administrator was substituted as a party plaintiff for the deceased original plaintiff. The court held, "The order of the trial court substituting the appellees as parties complainant in lieu of L. M. Cooper is not such an order or decree as will support an appeal.” 244 Ala. at 142 . On this subject, see Annot., 167 A.L.R. 261 (1947).

There is a distinct split of authority around the country on the issue of an order granting or denying revival. A revivor order is simply not the kind of order contemplated by this Court as deserving the right to immediate appeal. In addition to the disfavored status of piecemeal litigation and appeals, this Court, as well as courts from other jurisdictions, has repeatedly emphasized that the determination or conclusion of a party’s rights is a necessary predicate of appealability. The revivor order here has not finally determined either party’s rights, is not within the collateral order exception otherwise permitting immediate appeal, does not affect an absolute constitutional right, does not divest substantial rights of the parties, and is amenable to correction upon appeal after a final judgment has been entered.

The trial court’s order determined only that Mrs. Bartlett as personal representative may now prosecute her deceased husband’s libel action. We say that the order is amenable to correction upon appeal because Rule 887 provides that on appeal from a final judgment "every interlocutory order which has previously been entered in the action shall be open to review by this Court, unless an appeal has theretofore been taken from ⁶¹⁹ such interlocutory order and been decided on the merits by this Court.” Rule 1087 provides for such appeal in similar language relative to the Court of Special Appeals. On the other hand, if a trial judge were to deny a motion to revive an action, that would be an appealable final judgment since, to borrow the language used by Chief Judge Bruñe for the Court in Concannon, 230 Md. at 125 , that order would deprive the parties "of the means of proceeding further to enforce the right which they assert. ...” Cant and Payne contend there is another reason that this order should be appealable. They say that the order in question was beyond the jurisdiction of the trial court and hence appealable.

We do not see it that way. Circuit courts are courts of general trial jurisdiction, described in some of our older cases as the successors to the King’s Bench. The fact that in this instance the trial judge erred in his conception of what was authorized does not make the order beyond the jurisdiction of the court. Recently, in Brown v. Baer, 291 Md. 377 , 435 A.2d 96 (1981), Judge Eldridge said for the Court: "|W]e have held that merely because a trial court’s order violates a statute or a rule does not render the order beyond the court’s jurisdiction and a nullity; instead, it is only subject to reversal on a direct appeal.” 291 Md. at 387 (citing cases).

Also, see generally the discussion in Stewart v. State, 287 Md. 524, 526-29 , 413 A.2d 1337 (1980). II Propriety of the revival Pursuant to the provisions of Rule 885 and in accordance with the procedure we followed in Equitable Tr. Co. v. State Comm’n, 287 Md. 80 , 411 A.2d 86 (1980), we shall express our views on this abatement issue for the guidance of trial courts generally and in the interest of judicial economy insofar as this particular case is concerned. Cant and Payne contend here that Maryland Rule 220 a 4 and Code (1974) § 6-401 (a), Courts and Judicial Pro ⁶²⁰ ceedings Article, do not permit revival of this action.

Rule 220 a 4 states, "Where a party to an action for slander shall die, the action shall abate as to such party.” Section 6-401 (a) says, "A cause of action at law, whether real, personal, or mixed, except slander, survives the death of either party.” Cant and Payne suggest: "The key issue in this case is not whether libel is historically or conceptually different from slander. Rather, the question is whether, in a century-old jurisdictional statute, use of the term 'slander’ was intended generically so as to include written slander as well as oral.” The matter of the survival of actions was explained for the Court at some length by Chief Judge McSherry in Stewart v. United Elec. L. & P. Co., 104 Md. 332 , 65 A. 49 (1906). In that instance an administrator brought suit to recover damages for the wrongful death of his decedent. 1 Chief Judge McSherry there said for the Court: "At the common law the right of action arising from an alleged wrongful act and negligence of the character charged in the narr. before us would have abated upon the death of the person thus injured.

It was a principle of the common law, that if an injury were done either to the person or property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom or by whom, the wrong was done. So fixed was this rule that it crystallized into a maxim. It was considerably altered, however, by the Statute of 4 Edw., 3 C. 7, de bonis asportatis in vita testatoris, which though in force in Maryland prior to the adoption of the Act of 1798, ch. 101 (Kennerly’s ex v. Wilson, 1 Md. 107 ), has no appli ⁶²¹ cation to this case. Where the cause of action was founded on any malfeasance or misfeasance was a tort, or arose ex delicto — where the declaration imputes a tort done either to the person or property of another, and the plea must be not guilty, the rule was actio personalis moritur cum persona.

Note 1, Wheatley v. Lane, 1 Wms. Saund. 216. But statutes have been adopted in Maryland as well as in many, if not most, of the States of the Union, and fashioned after similar enactments in England, which have materially changed the common law rule; and the question involved on this record comes down to the inquiry as to whether the legislation of this State has abrogated that rule as it would have applied to this case; since if the rule has not been abrogated or modified it will defeat the pending action. Now, there are two distinct lines of legislation on this subject, both of which are in force though adopted at widely different periods of time.

The one, beginning with the Act of 1785, ch. 80, has relation to the survival of certain personal actions instituted in the lifetime of the plaintiff but which would have abated at the common law upon his death; the other, the Act of1852, ch. 299, almost a literal transcript of Lord Campbell’s Act (9 and 10 Vic., ch. 93), gives a right of action under certain conditions to designated relatives of a deceased person, but not to his personal representatives, when death has been caused by a wrongful act or by negligence.” 104 Md. at 333-34 (emphasis in original). Judge Robinson put it a bit more succinctly in Ott v. Kaufman, 68 Md. 56 , 11 A. 580 (1887), when he said for the Court: "At common law personal actions of every kind abated on the death of the sole plaintiff or sole defendant, and if the action was founded on contract a new action would lie against the executor or administrator. But if the action was founded on a ⁶²² tort, for a wrong committed by the defendant, it did not survive, the maxim being ’actio personalis moriturcumpersona.’ Hambly v. Troth, Cowp. 374; Wheatley v. Lane, 1 Saund. 216a; Wentworth v. Cock, 2 Per. & Dav. 251. "In the language of Lord Mansfield the wrong and the wrong doer were buried together.” 68 Md. at 57-58 .

The reaction of the present generation of attorneys and judges might well be that slander refers to words which are spoken while libel refers to words which are written and, thus, that the contention of Cant and Payne is without merit. However, Cant and Payne claim that slander "was commonly used as a term encompassing all forms of defamation.” They point to works such as 36 Corpus Juris Libel and Slander [§ 4]2, at 1145 (1924), and 1 J. Poe, Pleading § 179 (4th ed. 1906), as using "slander” to refer to both oral and written defamation. As a matter of fact, they could very well have referred to C.J.S. and to a later edition of Poe. For instance, it is said in 53 C.J.S. Libel and Slander § 1 (b) (1948): "The word 'slander’ is the general and original word for all kinds of defamation; and at an early day in the history of the common law the term applied both to oral and written defamations of character.

In this sense it has been defined to be the defaming of a man in his reputation by speaking or writing words from whence any injury in character or property arises, or may arise to him of whom the words are used. However, in modern