Eastgate Associates v. Apper

Gilbert, C. J., delivered the opinion of the Court. This appeal involves a new wrinkle in an old suit. On January 13,1972, Leonard Apper and his wife, Beverly Apper, filed suit in the Circuit Court for Washington County asseverating that Leonard Apper sustained personal injury on or about February 11,1969 as a result of the negligence of Eastgate Associates and others. 1 Beverly Apper claimed loss of consortium. Eastgate filed a third-party claim against Harold L. Jones, trading as Jones’ Wallpaper, Linoleum & Tile Service. 2 Because a recitation of the facts of the ³⁸⁵ negligence action is not necessary to a discussion of the issue here involved, we shall delete reference to them.

A full recitation of the factual background of the negligence claim may be found in Apper v. Eastgate Associates, 28 Md. App. 581 , 347 A. 2d 389 (1975), rev‘d on jurisdictional grounds, 276 Md. 698 , 350 A. 2d 661 (1976). On November 26,1974, the case was called to trial before a jury in the circuit court, and, at the conclusion of the Appers’ evidence, the trial judge granted a directed verdict in favor of Eastgate. The Appers noted an immediate appeal to this Court. We pointed out in Apper v. Eastgate Associates, 28 Md. App. at 585 , 347 A. 2d at 392 , that no judgment had been entered on the verdict, and, hence, there was nothing to appeal.

In short, we observed that the appeal was premature. We then invoked Maryland Rule 1071 and discussed .. the facts and the applicable law in the light of the substantial merits of the case.. . We did so because we believed that we would thereby “save judicial time and unnecessary expense” and that “our action” would be “in the best interest of the administration of justice.” In our discussion, we determined that the granting of a directed verdict was unwarranted because the doctrine of res ipsa loquitur was applicable to the case. Speaking through then Chief Judge Orth (now an Associate Judge of the Court of Appeals), we concluded the opinion by saying: “We have, as we indicated, discussed the facts and the applicable law in the light of the substantial merits of the case even though the appeal is premature.

We noted that we would fashion a result to give due recognition to those substantial merits. Although we must dismiss the appeal, we remand the case with direction that judgment be entered in favor of appellees for costs. For a period of thirty days after the entry of judgment, the trial court has revisory power and ³⁸⁶ control over it. Rule 625, § a.

Upon a proper and timely motion, the trial judge should strike the judgment and order a new trial. We observe that the order entered by this Court and the opinion on which the order is passed shall be conclusive as to the points finally decided thereby.” Id. at 595, 347 A. 2d at 397-98 (footnote omitted). Eastgate sought and obtained a writ of certiorari to the Court of Appeals. While recognizing that both the Court of Appeals and this Court had “... previously utilized Rules 871 and 1071 respectively in issuing a mandate on the merits of a case where there was no appealable order and hence no jurisdiction in the appellate court...”, the Court of Appeals decided that we were without jurisdiction to opine upon the merits of the case. 276 Md. at 703-04 , 350 A. 2d at 664-65 .

Our dismissal of the Appers’ appeal was deemed to be correct, but our explication on the merits turned out to be a gratuitous utterance, devoid of substantive meaning. The case was remanded to us with explicit instructions that we vacate our mandate, which commanded the circuit court to conduct further proceedings in accordance therewith, and that we dismiss the appeal. On March 10, 1976, we complied fully with the mandate of the Court of Appeals. Seven days later, the trial judge entered judgment on the verdict of November 26,1974.

The Appers then moved, pursuant to Md. Rule 625 a, to “Set Aside Judgment.” Following a response thereto by Eastgate and argument of counsel, Judge Paul W. Ottinger, on April 7, 1976, granted the Appers’ motion, struck the judgment entered on March 17, 1976, and ordered a new trial. Eastgate appealed, posing the question, “Did the trial Court err in setting aside the judgment previously entered in favor of the Appellants and granting the Appellees a new trial under Md. Rule 625 ... [?]” The Appers reply that Eastgate may not appeal from the striking of a judgment and the granting of a new trial pursuant to Md. Rule 625 a, inasmuch as such an order is interlocutory and not appealable. We agree, for the reasons ³⁸⁷ stated infra, with the Appers that the matter is interlocutory and not appealable. Md. Rule 625 a provides: “For a period of thirty days after the entry of a judgment, or thereafter pursuant to motion filed within such period, the court shall have revisory power and control over such