Carey v. CHESSIE COMPUTER, SERVICES, INC.

KRAUSER, J. This workers’ compensation case has a complicated procedural history, having bounced back and forth between the Workers’ Compensation Commission (“Commission”)and the Circuit Court for Baltimore County several times; each time acquiring another layer of proceedings and each time evading resolution. ²³⁴ It is now before us on an appeal filed by the claimant, Carole J. Carey, (appellant). Ms. Carey’s appeal is from an order of the Baltimore County Circuit Court, granting summary judgement in favor of her employer, Chessie Computer Services, Inc., and, its insurer, Reliance Insurance Company (appellees). By granting that motion, the circuit court, in effect, overturned all previous Commission and court rulings in favor of appellant on the ground that they were based on an earlier Commission ruling, which, according to that court, “became of no effect upon the impleader of the Subsequent Injury Fund.” On appeal, appellant challenges that ruling on a variety of grounds, claiming, among other things, that the circuit court lacked jurisdiction to review the earlier Commission order and was barred from so ruling by the doctrine of res judicata and Maryland Rule 7-203(a), which creates a thirty-day period within which a petition for judicial review must be filed. Notwithstanding the number of issues raised by appellant, they are reducible to one question: What effect does a motion to implead the Subsequent Injury Fund (“Fund”) have on circuit court proceedings and any past actions taken by that court or the Commission before the impleading of the Fund?

For the reasons that follow, we hold that the impleading of the Fund does not affect the validity of an existing award of compensation made by the Commission. That award will remain in full force and effect until the Commission has had the opportunity to conduct a rehearing on all issues, with the Fund participating as a party, and has issued a new award or superseding order. If the Fund declines to participate in that rehearing or is dismissed as a party, the Commission may permit any existing award of compensation or order of the Commission to stand without conducting the proceedings that the impleading of the Fund would have required. We further hold that no motion, requesting leave of court to implead the Fund, is required by the Labor and Employment Article (L.E.), § 9-807 of the Maryland Code Annotated (1991, 1999 Repl.Vol., 2001 Supp.), and that such a motion, if filed, should ²³⁵ be granted without delay or may itself be treated as an impleader of the Fund.

Furthermore, when the Fund is im-pleaded, all proceedings before the circuit court must cease, including judicial consideration of pending motions. Once the Fund is impleaded, the case must be remanded to the Commission to permit the Fund to participate as a party. The Commission at that time may consider the propriety of the impleader. BACKGROUND Appellant filed a claim with the Commission alleging that, on August 3, 1992, she sustained injuries to her neck, back, and knees while working for appellee Chessie Computer Services, Inc. Two of the injured areas — the neck and lower back — had previously been injured while she was working for another employer, and she had filed a claim under the Federal Employers’ Liability Act (FELA) for the prior injury.

Following the filing of her workers’ compensation claim, appellant chose not to pursue that claim at that time; instead, she sought redress under Title 45 of the FELA. When her FELA claim was dismissed by the United States District Court for the District of Maryland, appellant turned her attention to her claim before the Commission. A hearing was held before the Commission on November 7, 1996. Eleven days later, on November 18, 1996, the Commission issued a decision in which it found that appellant had “sustained an accidental injury arising out of and in the course of employment” and that appellant’s disability was “the result of the aforesaid accidental injury.” Consequently, the Commission ordered appellees to pay appellant “compensation for temporary total disability ... less credit for wages paid,” and medical expenses.

The Commission also ordered that “from the Compensation herein awarded” appellant’s lawyer was “entitled to an Attorney Fee in the amount of $5,166.60.” Dissatisfied with the Commission’s decision, appellees filed a petition for judicial review in the Circuit Court for Baltimore County on December 18, 1996. The petition claimed simply ²³⁶ that the Commission had “erroneously awarded the Claimant benefits.” On October 11, 1997, appellant filed a motion for summary judgment. Instead of filing an answer to that motion, appel-lees moved to implead the Fund 1 pursuant to L.E. § 9-807. One month later, on November 12,1997, a hearing was held in the circuit court before the Honorable John G. Turnbull, II, on both motions.

At that hearing, appellees argued that when they filed their motion to implead the Fund, the court “was divested of jurisdiction” and therefore could not “consider the motion for summary judgment.” They urged the court to suspend proceedings immediately, asserting that the court was required to do so by L.E. § 9-807, and to remand the matter to the Commission so that it could be re-heard with all parties present, including the Fund. In response, appellant urged the court to grant her motion for summary judgment before remanding the case to the Commission to avoid “another year or so of litigation based on a subsequent appeal by the Employer from a further decision of the Workers’ Compensation Commission after remand.” In addition, appellant maintained that, if the court granted her summary judgment before it granted appellees’ motion to implead, it would “have no affect [sic] whatsoever on the Subsequent Injury Fund” because the Fund would still “have the right to have the matter heard at the Commission level” and there the Fund could “raise the questions] of accidental injury ... [and] compensability of the claim.” Because “the motion [for summary judgment] was filed prior to the motion to implead,” and the court had not yet granted the motion to implead, Judge Turnbull ruled that the court still had jurisdiction over the matter and would consider the summary judgment motion first. After noting the failure ²³⁷ of appellees to file an answer to the motion for summary judgment, Judge Turnbull granted appellant’s motion for summary judgment, then granted appellees’ motion to implead the Fund and ordered that the matter be remanded to the Commission. Because the order in which Judge Turnbull ruled on the motions at issue is important, we quote his words: The Claimant’s motion for summary judgement filed October 10, 1996 paper number fifteen thousand is granted.

The motion to implead filed October 14, 1996, paper twenty thousand is granted. The case is remanded to the Commission for further proceedings. Appellees then filed a motion to alter or amend judgment. That motion was denied on December 11, 1997.

Two years later, on December 23, 1999, a hearing was held before the Commission. Although it had been impleaded, the Fund did not participate in that hearing, and neither the record filed in this Court nor the briefs submitted by the parties provides any explanation for the Fund’s absence. Nonetheless, the Commission heard argument on issues that it believed did not involve the Fund, namely, whether appellees had failed to comply with the 1996 Commission decision granting appellant temporary total disability benefits and, if so, whether they should be penalized for failing to comply with that award. In its decision, dated January 18, 2000, the Commission found that appellees had “failed to pay the Order of the Commission dated November 18, 1996,” and that that failure had resulted in an underpayment to appellant of $38,866.28.

Consequently, the Commission ordered appellees to pay appellant “an additional 20% percent penalty for non-payment of the award” and an additional attorney’s fee of $400.00 to appellant’s attorney. Once again, on February 16, 2000, appellees filed a petition for judicial review in the Circuit Court for Baltimore County. In that petition, appellees claimed that both the November 18, 1996 and the January 18, 2000 decisions of the Commission had “erroneously awarded the Claimant benefits, erroneously awarded attorneys’ fees, and erroneously awarded a penalty.” In response, appellant filed a partial motion to dismiss seeking dismissal of appellees’ request for judicial review of the No ²³⁸ vember 18, 1996 Commission decision. On May 31, 2000, appellees filed a motion for summary judgment.

The day after appellees filed that motion, Judge Turnbull granted appellant’s partial motion to dismiss. Then, on June 21, 2000, the Honorable John O. Hennegan, also of the Baltimore County Circuit Court, granted appellees’ motion for summary judgment. In granting that motion, Judge Henne-gan found that the November 18, 1.996 award of the Commission “became of no effect upon the impleader of the Subsequent Injury Fund.” He then reversed the Commission’s decision of January 18, 2000, and ordered that the matter be remanded to the Commission “for further proceedings including, but not limited to compensability and benefits issues with full participation by all parties, including the Subsequent Injury Fund.” Appellant filed a motion for reconsideration and, after that motion was denied, noted this appeal. DISCUSSION Appellant contends that Judge Hennegan erred in granting summary judgment in favor of appellees, in declaring that the November 18, 1996 Commission decision was “of no effect,” and in reversing the January 18, 2000 Commission decision, which was based on the 1996 decision.

To further explain, the 1996 Commission decision had ordered appellees to pay appellant monthly compensation for the temporary total disability she sustained; the 2000 Commission decision that followed ordered appellees to make the payments required by the 1996 decision, which the Commission found they had not done, and penalized them for failing to do so. Appellant’s argument has four components: First, appellant maintains that “there was no case pending before [Judge Hennegan] with respect to the appeal of the decision of the Workers’ Compensation Commission dated November 18, 1996” at the time he made his ruling, because Judge Turnbull had previously granted appellant’s partial motion to dismiss as to that issue. She therefore argues that Judge Hennegan had no jurisdiction to issue the order in question. Second, appel ²³⁹ lant asserts that appellees’ “appeal of the November 18, 1996 order of the Workers’ Compensation Commission was ... barred by limitations,” because that “appeal” was filed “beyond the 30 day period allowed for [an] appeal of a decision of the [Commission]” under Maryland Rule 7-203.

Third, appellant contends that the portion of appellees’ petition for review that sought review of the Commission’s 1996 decision was barred by res judicata, because it “was in effect asking the Circuit Court for Baltimore County to rescind its prior Order of November 13, 1997,” which granted summary judgment to appellant and thereby affirmed the Commission’s 1996 decision. And fourth, appellant asserts that “[t]he order of the Workers’ Compensation Commission of January 18, 2000 was correct.” As stated earlier, this matter is before us on an appeal from an order granting summary judgment in favor of appellees. “Summary judgment may be invoked to prevent an unnecessary trial in a worker compensation appeal, just as in any other action.” Dawson’s Charter Serv. v. Chin, 68 Md. App. 433, 440 , 511 A.2d 1138 (1986). As in any other action, it is appropriate when “there is no genuine dispute as to any material fact and ... the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(e). In considering a grant of summary judgment we “review[ ] the same material from the record and decide[ ] the same legal issues as the circuit court.” Lopata v. Miller, 122 Md.App. 76, 84 , 712 A.2d 24 (1998).

In doing so, “we do not accord deference to the trial court’s legal conclusions.” Id. at 83 , 712 A.2d 24 . The standard for reviewing the granting of a summary judgment motion is “whether the trial court was legally correct.” Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). We begin our analysis with appellant’s jurisdictional argument. Appellant contends that Judge Hennegan had no jurisdiction to grant summary judgment in favor of appellees, given Judge Turnbull’s earlier order granting appellant’s partial motion to dismiss.

Judge Turnbull’s order meant, accord ²⁴⁰ ing to appellant, that “there was no case pending before [Judge Hennegan] with respect to the appeal of the decision of the Workers’ Compensation Commission dated November 18, 1996.” Appellant’s argument, however, ignores the fact that this was not the only issue raised by appellees’ petition for judicial review and therefore it was not the only one before Judge Hennegan. In that petition, appellees sought review of both the 1996 and the 2000 decisions of the Commission. Thus, Judge Turnbull’s order dismissing appellees’ action for judicial review of the Commission’s 1996 decision did not adjudicate all of the claims in that petition. Consequently, it was not a final judgment, and was therefore subject to revision by Judge Hennegan.

We explain. Maryland Rule 2-602(a) states in part that: [A]n order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action ... or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment; (2) does not terminate the action as to any of the claims or any of the parties; and (8) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. In short, “Rule 2-602(a) makes clear that an order that does not adjudicate all of the claims in an action, or that adjudicates less than an entire claim ... is not a final judgment and may be revised at any time before the entry of a final judgment.” Gertz v. Anne Arundel County, 339 Md. 261, 272-73 , 661 A.2d 1157 (1995). We now apply that rule to appellant’s claim that Judge Hennegan was deprived of jurisdiction by Judge Turn-bull’s dismissal of appellees’ claim as to the 1996 Commission decision.

In the instant case, Judge Turnbull’s order of June 1, 2000, granted appellant’s motion for partial summary judgment and denied appellees’ request in their petition for judicial ²⁴¹ review of the Commission’s 1996 decision. As previously mentioned, in that petition for review, appellant also sought review of the Commission’s 2000 Award. Consequently, Judge Turnbull’s order lacked finality because it did “not adjudicate all of the claims in [the] action” and was therefore subject to revision “at any time before the entry of a final judgment.” Gertz, 339 Md. at 272-73 , 661 A.2d 1157 . Thus, contrary to appellant’s assertion, Judge Hennegan did not lack jurisdiction to address the Commission’s 1996 decision even though Judge Turnbull had previously granted appellant’s partial motion to dismiss as to that decision.

Indeed, “ ‘as a general principle, one judge of a trial court ruling on a matter is not bound by the prior ruling in the same case by another judge of the court; the second judge, in his discretion, may ordinarily consider the matter de novo.’ ” Gertz, 339 Md. at 273 , 661 A.2d 1157 (quoting State v. Frazier, 298 Md. 422, 449 , 470 A.2d 1269 (1984)). We turn next to appellant’s claims that appellees’ “appeal” of the 1996 decision was “barred by limitations” because it was filed “beyond the 30 day period allowed for [an] appeal of a decision of the [Commission]” under Md. Rule 7-203, and because Judge Hennegan’s review of that violated the doctrine of res judicata. We find both contentions unpersuasive. Maryland Rule 7-203 governs the time for filing a petition for judicial review of an administrative agency decision in a circuit court and states in part: (a) Generally.

Except as otherwise provided in this Rule or by statute, a petition for judicial review shall be filed within 30 days after the latest of: (1) the date of the order or action of which review is sought; (2) the date the administrative agency sent notice of the order or action to the petitioner, if notice was required by law to be sent to the petitioner; or (3) the date the petitioner received notice of the agency’s order or action, if notice was required by law to be received by the petitioner. ²⁴² Unfortunately, appellant misconstrues the nature of a petition for judicial review. She incorrectly refers to appellees’ petition for judicial review as an “appeal.” It is not. “[A]n action for judicial review of an administrative decision is an original action ... not an appeal.” Kim v. Comptroller of the Treasury, 350 Md. 527, 534 , 714 A.2d 176 (1998). The difference is crucial here. Unlike “[t]he time requirements for filing appeals,” which are “ordinarily treated as jurisdictional,” the time requirements for filing a petition for judicial review are not.

Id. at 535-36 , 714 A.2d 176 . In fact, “the thirty-day period under Rule 7-203 is ... considered in the nature of a statute of limitations.” Colao v. County Council, 109 Md.App. 431, 445 , 675 A.2d 148 , aff'd, 346 Md. 342 , 697 A.2d 96 (1997). And statutes of limitation “are generally waivable, including the 30-day time limit for filing a petition for judicial review.” Kim, 350 Md. at 536 , 714 A.2d 176 . Indeed, according to the Committee note to Rule 7-203, a challenge to the timeliness of a petition for judicial review “must be specifically raised either by preliminary motion under Rule 7-204 or in the answering memorandum filed pursuant to Rule 7-207” or it is waived.

See also Colao, 346 Md. at 362 , 697 A.2d 96 (stating that “it is incumbent on a defendant/respondent to raise limitations timely as an affirmative defense and that the failure to do so constitutes a waiver of that defense”). And that is precisely what occurred here. Appellant did not raise the timeliness issue in the court below and therefore her argument has been waived. Appellant further argues that Judge Hennegan’s review of the Commission’s 1996 decision violated the doctrine of res judicata.

Specifically, appellant contends that appellees’ petition for judicial review of the Commission’s 1996 decision “was in effect asking the Circuit Court for Baltimore County to rescind its prior Order of November 13, 1997,” which granted summary judgment in favor of appellant and thereby affirmed the Commission’s 1996 decision. We disagree. The doctrine of res judicata “precludes the relitigation of matters that have been fully and fairly litigated and ²⁴³ finally decided between parties, by a tribunal of competent jurisdiction.” Murray International Freight Corp. v. Graham, 315 Md. 543, 547 , 555 A.2d 502 (1989). Res judicata has three elements: “(1) the parties in the second litigation are the same, or in privity, with the parties in the earlier case; (2) the second suit presents the same cause of action as the first suit; and (3) the first suit produced a final judgment on the merits in a court of competent jurisdiction.” Roane v. Washington County Hosp., 137 Md.App. 582, 590 , 769 A.2d 263 (2001).

It is as to the third element that appellant’s res judicata argument fails. Judge Turnbull had no authority to grant appellant’s motion for summary judgment. Once the motion to implead was before Judge Turnbull, he was required to grant it pursuant to L.E. § 9-807 and then remand the case to the Commission. L.E. § 9-807 provides: (a) In General. — In any case involving payment from the Subsequent Injury Fund, the Commission or any party in interest shall: (1) give written notice to the State Treasurer or the attorney for the Subsequent Injury Fund that the Subsequent Injury Fund is or may be involved in the case; and (2) implead the Fund, in writing, as a party.

(b) Time of impleading. — (1) The Subsequent Injury Fund may be impleaded at any stage of the proceedings: (i) before the Commission; or (ii) on appeal.