Dawson's Charter Service v. Chin

ADKINS, Judge. This is a worker’s compensation case. The worker, appellee, Michael Chin, suffered an eye injury that rendered his right eye effectively useless without corrective lenses. With corrective lenses, he has 20/20 vision in that eye.

The question is whether, under those circumstances, Chin’s right eye was 100 percent disabled. Chin was employed by appellant, Dawson’s Charter Service. 1 While on the job one day, he was hammering a piece of metal. A metal fragment lodged in his right eye. The fragment was surgically removed, but a cataract developed. ⁴³⁵ This was subsequently excised, along with Chin’s right ocular lens.

Chin later underwent YAG laser capsuloplasty and was then fitted with an aphakic contact lens and eyeglasses. With the lens and glasses, the vision in his right eye was 20/20 Snellen. Chin sought worker compensation benefits. Before the Workmen’s Compensation Commission, he testified that “I can’t see a thing” with his right eye without the use of the lens and glasses.

Dr. Richard North reported that Chin’s “uncorrected vision represents a 100% loss of functional vision in that eye.” Dr. Herman K. Goldberg opined that without correction “this patient would still be medically and legally blind in that eye since it would require the use of a contact lens to make him see since the cataract has been removed.” The Commission awarded Chin temporary total disability. This is not questioned on appeal. It also found that he had a permanent partial disability because of “100% loss of vision of the right eye.” Art. 101, § 36(3)(b). It awarded serious disability benefits under § 36(4a).

Employer appealed to the Circuit Court for Montgomery County, where cross-motions for summary judgment were filed. Judge Peter Messitte denied Employer’s and granted Chin’s, thereby affirming the Commission. Employer now appeals to this court, asserting that Judge Messitte was wrong in both respects. We disagree, but before explaining why, we must address a jurisdictional problem.

Jurisdictional Problem If this court lacks jurisdiction over an appeal, we must address the issue nostra sponte. Washington Suburban Sanitary Commission v. Ross, 62 Md.App. 418, 421 , 489 A.2d 1135 (1985). Such an issue arises in this case. It is produced by the sequence of events we now recount.

On October 31, 1985, Judge Messitte had a hearing on the cross-motions for summary judgment. The pertinent docket entries read thus: ⁴³⁶ 10/31/85 # 17 Hearing on [Employer’s] Motion for Summary Judgment ... denied____ 10/31/85 # 18 Hearing on [Chin’s] Cross Motion for Summary Judgment ... granted, order to be submitted. 11/8/85 # 19 [Employer’s] Order for Appeal filed____ 12/11/85 #21 Order of Court [Messite, [sí'c] J.) that [Employer’s] Motion for Summary Judgment is Denied and that [Chin’s] Cross Motion for Summary Judgment is Granted filed. Judgment entered____ CLERK’S NOTE: FIRST SEE [S/C] BY CLERK THIS DATE. 12/11/85 # 22 Judgment entered in favor of [Chin] and costs. He * H< * * H* 12/27/85 #24 [Employer’s] order for appeal filed____ 12/30/85 # 26 Mandate from the Court of Special Appeals—December 27, 1985, Line of Dismissal [of the appeal noted on November 8] filed by counsel for [Employer’s], Appeal Dismissed, filed.

What happened here was that the order Judge Messitte signed on October 31, 1985, somehow became misplaced in the clerk’s office and was not actually docketed until December 11 (Docket Entry # 21). When counsel for Employer learned of this, he concluded that Docket Entries # 17 and # 18 did not constitute a judgment; therefore, his first appeal (Docket Entry # 19) was premature. After the order of October 31 was actually docketed and judgment formally entered (Docket Entry # 22), he noted another appeal (Docket Entry # 24). He also dismissed the first appeal, but the mandate reflecting that dismissal did not issue until December 27 and was not received by the circuit court until December 30 (Docket Entry # 26).

The problem facing us is whether what counsel thought was the actual appealable judgment—the Docket Entry of December 11— was a nullity because entered when the first appeal was ⁴³⁷ still undismissed. If so, the second appeal was from a non-judgment, and we would have no jurisdiction to hear it. Staggs v. Blue Cross of Maryland, Inc., 57 Md.App. 576, 578 , 471 A.2d 326 (1984). The first appeal was, of course, dismissed, so it could not be the basis for the exercise of our jurisdiction.

In December 1985, when the non-docketing of the October 31 order came to counsel’s attention, it was reasonable for him to conclude that the docket entries of October 31 did not amount to an appealable final judgment. As of that date, the mere granting of a motion was not thought to be such a judgment. See, e.g., Happy 40, Inc. v. Miller, 57 Md.App. 589 , 471 A.2d 333 (1984). We learned otherwise, however, on February 25, 1986, when the Court of Appeals decided Houghton v. County Commissioners of Kent County, 305 Md. 407 , 504 A.2d 1145 (1986).

In Houghton the Court construed Md.Rule 2-601 (which had become effective on July 1, 1984) and held that “an unqualified order granting a motion [that has] the effect of putting the parties out of court, is an final appealable order” despite the lack of a formal entry of judgment, once the order is docketed. 305 Md. at 412 . In the case before us, the docket entries of October 31,1985, seem to show that Chin’s cross-motion for summary judgment was granted and this had the effect of putting the parties out of court; it terminated the case. If that is so, then Employer’s initial appeal was proper and timely. But that appeal was voluntarily dismissed, and the time to appeal from that order had long passed when Employer noted its second appeal.

The second appeal, from a purported final judgment that merely restated in almost haec verba the earlier final judgment, would not be timely. See Ratcliffe v. Clarke’s Red Barn, 64 Md.App. 293, 301 , 494 A.2d 983 (1985). We would, therefore, have no jurisdiction to hear this appeal. But despite Houghton , we believe that the October 31 entries did not amount to an appealable judgment.

The Houghton court speaks in terms of “an unqualified order ⁴³⁸ ... putting the parties out of court ... [emphasis supplied].” Id. The critical entry (# 18) that reflected the granting of Chin’s cross-motion for summary judgment was not unqualified. It added the words “order to be submitted.” As we have observed, the provisions of Rule 2-601 were central to the Houghton decision. At the date of that decision (and on October 31, 1985), the pertinent language of Rule 2-601(a) was: “Upon ... a decision by the court ... denying all relief, the clerk shall forthwith enter the judgment, unless the court orders otherwise [emphasis supplied].” The direction that an order be submitted was, in effect, a direction to the clerk not to enter judgment until the order had been signed and filed.

The docket entry, therefore, was not an “unqualified” determination under Houghton , nor did it authorize or amount to the entry of judgment under Rule 2-601(a). We agree, therefore, that there was no appealable final judgment on October 31. This leads us to the Staggs problem. When, in December, judgment was entered in unequivocal terms, Dawson’s first appeal was pending and undismissed.

Did that fact deprive the trial court of power to enter an effective and appealable judgment on December 11? Under the circumstances of this case, we do not believe so. In Staggs a motion for summary judgment in favor of Blue Cross, one of several defendants, was granted. A similar motion on behalf of other defendants was denied.

Thus, only one of several claims had been adjudicated. To make the Blue Cross judgment appealable, the trial judge was required to enter final judgment on that claim and to certify that there was no just reason for delay. Former Rule 605 (present Rule 2-602). He failed to do so.

Nevertheless, Staggs and others appealed. Later, they recognized the problem and ineffectively attempted to dismiss the appeal. While the appeal was still pending, the trial court attempted to make the judgment final under former Rule 605. A second appeal was noted.

That, we held, was a nullity, because when the first appeal was entered, and ⁴³⁹ prior to its actual dismissal, the trial court lacked power “to cure the jurisdictional defect occasioned by appellants’ failure to obey Md.Rule 605 a....” 57 Md.App. at 578, 471 A.2d 326 . The correction of the jurisdictional defect in Staggs required the trial court to modify the very order that was then on appeal. It had to exercise its discretion and decide whether the case was appropriate for a 605 certification. See Canterbury Riding Condominium v. Chesapeake Investors, Inc., 66 Md.App. 635 , 505 A.2d 858 (1986).

It could not, as Staggs holds, modify the very order that was the subject of the appeal, because the appeal had deprived it of jurisdiction to do so. But the case before us is very different. Judge Messitte signed an order, on October 31, 1985, that constituted a final order under Houghton . The record suggests that the order somehow was mislaid in the clerk’s office.

When it was at last docketed, on December 11, it had not been modified, revised, or changed in any respect. The judge had exercised no jurisdiction or power over it. It said nothing more or less than the October 31 docket entries. Its filing, then, was a mere ministerial act by the clerk, and not an exercise of jurisdiction by the court.

Under these unusual circumstances, we hold that the first and only appealable judgment was properly entered on December 11. The appeal from that judgment was timely and is before us. The Merits We turn now to the merits of the case. Employer advances two reasons for reversal.

The first is that there was a genuine dispute as to a material fact—the extent to which Chin retained any use of his right eye, uncorrected by contact lens and glasses. The second is that Judge Messitte erred as a matter of law in affirming the Workmen’s Compensation Commission. If Employer is correct on either ground, we must reverse. Summary judgment may not be granted if there is a genuine dispute as to material ⁴⁴⁰ facts or if the party seeking judgment is not “entitled to judgment as a matter of law.” Md.Rule 2-501(e).

With respect to Employer’s first argument, it correctly observes that an appeal of a worker compensation case is a de novo proceeding in the circuit court. Turner v. Public Defender, 61 Md.App. 393 , 486 A.2d 804 (1985). That, however, does not mean that summary judgment is unavailable in a worker compensation