Gress v. ACandS, Inc.

³⁷⁴ MURPHY, Chief Judge. The issues in these consolidated appeals from the Circuit Court for Baltimore City arise out of pretrial orders entered by that court on March 22, 2002 and March 28, 2002 in personal injury actions asserted by Patricia A. Gress, Mary E. Mayes, Joseph and Iva Dingus, and George Van Daniker, appellants, against two categories of appellees: the “Asbestos Defendants” 1 and the “Cigarette Defendants.” 2 The circuit court dismissed without prejudice appellants’ claims against the Cigarette Defendants, and appellants now present a single question for our review: Did the trial court err in granting the Cigarette Defendants’ Motion to Dismiss or Sever and dismissing the Plaintiffs’ amended complaints without prejudice? Appellees argue that this Court should grant their Motions to Dismiss. For the reasons that follow, we shall (1) on our own initiative, pursuant to Md. Rule 8-602(e)(l)(C), enter final judgments as to appellants’ claims against the Cigarette Defendants; (2) grant the Asbestos Defendants’ motions to dismiss appeals; (3) deny the Cigarette Defendants’ motions to dismiss appeals; (4) vacate the judgments dismissing appellants’ claims against the Cigarette Defendants; and (5) remand these cases for further proceedings not inconsistent with this opinion.

Procedural History Between 1991 and 1997, appellants filed suit against the Asbestos Defendants. These claims were based on appellants’ ³⁷⁵ occupational exposure to asbestos products. In 2001, appellants filed Amended Complaints, adding claims against the Cigarette Defendants, and seeking damages for injuries and death allegedly caused by exposure to both asbestos and inhaled cigarette smoke. According to appellants, because the combination of asbestos exposure and cigarette smoking acted in “synergy” and multiplied the risk of developing lung cancer, cigarette smokers who were exposed to asbestos had a much greater chance of developing lung cancer and other disease than non-smokers who were exposed solely to asbestos.

The Cigarette Defendants moved to dismiss or sever the claims that appellants asserted against them, arguing that joinder of the Cigarette Defendants and the Asbestos Defendants was improper. During the March 22, 2002 hearing on appellees’ motions, the circuit court asked appellees what relief — dismissal or severance — they thought was more appropriate. Appellees requested dismissal, and the circuit court ruled as follows: This Court is satisfied that these cases involve two different kinds of products, two different methods of distribution, two different uses. The objective of the joinder rule in this Court’s view is to facilitate the attainment of a just, speedy and inexpensive determination of all disputes between the staying parties.

And based on these cases and the pleadings and the arguments of counsel, this Court does not believe that joining asbestos defendants with tobacco defendants in these lawsuits will accomplish these goals. Further, the joint trial this Court believes will cause confusion to the jury because a unique set of practices and procedures have developed under the asbestos docket which would be, in fact, in this Court’s view prejudicial to the cigarette defendants if they were added now to these cases. Further, the addition of the cigarette defendants would disrupt the orderly procedures that the asbestos docket now ³⁷⁶ has in place. And therefore, this Court will grant the motion to dismiss and will dismiss without prejudice with the right to refile.

Later on that day, the circuit court entered an “Order granting cigarette defendants [sic] motion to dismiss or sever in synergy cases.” On March 27, 2002, two events transpired. Appellants filed a notice of appeal from the March 22, 2002 Orders, and the Cigarette Defendants sent a letter to the circuit court in which they requested that the March 22 Orders be amended to reflect that appellants’ claims against the Asbestos Defendants had not been dismissed. On March 28, 2002, and on April 17, 2002, 3 the circuit court entered Amended Orders that dismissed without prejudice only the claims against the Cigarette Defendants. Thereafter, appellants requested that the circuit court strike the March 28 and April 17 Orders, or in the alternative, enter final judgment pursuant to Md. Rule 2-602(b)(l).

On May 31, 2002, the court held a hearing on the various motions and concluded as follows: There is no question that on March 22nd this court granted the motion to dismiss the matters, and there was also no question in this court’s mind that the court intended to dismiss the cigarette defendants and not the asbestos defendants, and that, by letter, this was brought to the court’s attention. Therefore, this court felt that the order, because it was not clear, was in fact a clerical error. It was always the court’s intention to grant the relief, only the relief that was requested in the motion. And once the court became aware of this clerical error on March 28th, 2002, it issued a new order pursuant to Maryland Rule 2-535(d). ³⁷⁷ In this court’s view, the court had the authority to do that.

Although the appeal was filed on March 27th [the notice of appeal at the circuit court], it was not docketed [by the Court of Special Appeals] until April the 11th. Now, the court agrees with Ms. McDonald and Mr. Skeen that this is the type of clerical error that 2-535(d) was designed to provide for. Now, in this court’s view, since the order of March 28th was not appealable because it was interlocutory and not final, the court then still had jurisdiction to enter an order on April 17th. However, in an abundance of caution, while the court will deny the motion to strike the March 28th order, the court will merely hold in abeyance, pending leave of the Court of Special Appeals to validate the April 17th order pursuant to 2 — 535(d).

The circuit court also denied appellants’ request that it enter a final judgment against the Cigarette Defendants. This appeal followed. Appellees’ Motions for Dismissal Appellees have moved to dismiss this case on the following grounds: (1) the March 22 Orders were not final judgments because the docket entry is deficient, and the court had no intention of dismissing appellants’ claims against the Asbestos Defendants; (2) the March 28 and April 17 Orders superseded the March 22 Orders, thereby resolving the issue of whether a final judgment had been entered in favor of the Asbestos Defendants; and (3) the orders at issue are interlocutory and not appealable at this time. Appellants argue that we should refuse to dismiss this case because (1) appellees did not file a post-judgment motion that complies with the requirements of Md. Rules 2-534 or 2-535; 4 (2) the circuit court did not correct a “clerical mistake” when it amended Orders that were consistent in all respects ³⁷⁸ with the oral ruling placed on the record during the March 22, 2002 hearing; (3) once appellants noted their appeals, the circuit court no longer had the authority to render a final judgment “non-final” by a sua sponte correction of a clerical mistake; and (4) even if the Orders at issue in this case were not certified as “final judgments” by the circuit court, 5 this Court should enter final judgments on its own initiative pursuant to Md. Rule 8 — 602(e)(1)(C).

Correcting a Clerical Mistake Md. Rule 2-535, in pertinent part, provides: Rule 2-535. Revisory power. * * * (d) Clerical mistakes. — Clerical mistakes in judgments, orders, or other parts of the record may be corrected by the court at any time on its own initiative, or on motion of any party after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so correct ³⁷⁹ ed before the appeal is docketed by the appellate court, and thereafter with leave of the appellate court. Md. Rule 2-535(d) was derived, in part, from former Rule 681, which provided that “clerical mistakes in a decree or decretal order ... may at any time be corrected by order of court upon petition, without a rehearing,” and which contemplated the “correction of clerical mistakes, deficiencies in form, inadvertent omissions or obvious mistakes as distinguished from judicial errors.” Jackson v. Jackson, 260 Md. 138, 141 , 271 A.2d 690 (1970).

In Bailey v. Bailey, 181 Md. 385 , 30 A.2d 249 (1943) the circuit court entered an order dismissing a complaint. Over three months after the order had been enrolled, the court added the words “without prejudice” to the order. On the question of whether the circuit court had the authority to amend the enrolled order, the Court of Appeals stated: As a court of equity has inherent power to correct errors in its records whereby they fail to express the truth in regard to its proceedings, it may amend a final decree after its enrollment by inserting words which were omitted by inadvertence or mistake and which are necessary to express the court’s intention and give proper effect to the remedy intended to be given. This power was recognized by the Supreme Court of Illinois as follows: “The court may, even after the expiration of the term at which a judgment was rendered, correct or amend the entry thereof so as to make it conform to the judgment which the court actually rendered. * * * Any amendments permissible under the statute of amendments and jeofails may be proper at a subsequent term, and this applies both to judgments at law and decrees in chancery.” Moore v. Shook, 276 Ill. 47 , 114 N.E. 592, 594 .

We hold that a court of equity has inherent power, upon petition or motion, to correct obvious errors in a decree or decretal order at any time, even after its enrollment.... Id. at 389, 30 A.2d 249 (emphasis added). In the cases at bar, the circuit court corrected its clerical mistakes before the appeals were docketed by this ³⁸⁰ Court. We are therefore persuaded that the circuit court had the authority to amend the Orders it entered on March 22, 2002. 6 We are also persuaded, however, that the circuit court should have certified the orders of dismissal as final judgments.

Entry of Final Judgments Md. Rule 2-602(b) authorizes a circuit court to certify as final a judgment that, “but for multi-party or multiclaim circumstances, would be final in the traditional sense.” Medical Mutual Liability Insurance Society of Maryland v. B. Dixon Evander and Associates, 331 Md. 301, 308 , 628 A.2d 170 (1993)(quoting Planning Board v. Mortimer, 310 Md. 639, 649 , 530 A.2d 1237 (1987)). As we noted in Russell v. American Security Bank, 65 Md.App. 199, 202 , 499 A.2d 1320 (1985) (citations omitted), the policy of Rule 2-602 is to promote judicial economy by avoiding “... piecemeal appeals by providing that only [when the] trial court has fully adjudicated all issues in a case will an appeal be permitted.” See also P. Neimeyer & L. Schuett, Maryland Rules Commentary at 452 (2d ed.1992). To justify the entry of an order under Rule 2-602(b)(l) the trial court must expressly determine, and articulate for the record in a written order, that there is no just reason for delay of the appeal. Tyrone W. v. Danielle R., 129 Md.App. 260, 270 , 741 A.2d 553 (1999).

The certification permitted by Rule 2-602 “... should be used sparingly so that piece ³⁸¹ meal appeals and duplication of efforts and costs in cases involving multiple claims or multiple parties may be avoided....” Maryland-Nat’l Capital Park & Planning Comm’n v. Smith, et vir, 333 Md. 3, 7 , 633 A.2d 855 (1993). The certification process is to be reserved for “the infrequent harsh case.” Allstate Ins. Co. v. Angeletti, 71 Md. App. 210, 218 , 524 A.2d 798 (1987) (quoting Panichella v. Pennsylvania R.R. Co., 252 F.2d 452, 455 (3d Cir.1958), cert. denied, 361 U.S. 932 , 80 S.Ct. 370 , 4 L.Ed.2d 353 (I960)). A common factor in the cases in which piecemeal certification has been permitted is the potential that delay of the appeal may work an economic hardship upon one or more of the parties.

Canterbury Riding Condominium v. Chesapeake Investors, Inc., 66 Md.App. 635, 652 , 505 A.2d 858 (1986) (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1 , 100 S.Ct. 1460 , 64 L.Ed.2d 1 (1980)). Whether the case involves multiple parties or multiple claims, the criteria for application of the rule are the same. Planning Board of Howard County, et al, v. Mortimer, et al, 310 Md. 639 , 530 A.2d 1237 (1987).

Moreover, successful application of the certification process requires that the trial court “... expressly determines in a written order that there is no just reason for delay....” Murphy v. Steele Software Sys. Corp., 144 Md.App. 384, 392-94 , 798 A.2d 1149 (2002). In Wilde v. Swanson, 314 Md. 80 , 548 A.2d 837 (1988), the Court of Appeals affirmed the decision of the circuit court to certify as final the dismissal of one of four defendants. In that case, a motel guest who had been assaulted by three men filed suit against the alleged assailants and the motel owner.

Id. at 80 , 548 A.2d 837 . After the motel owner filed a motion to dismiss on the ground of improper venue, the circuit court (1) dismissed the claims asserted against the owner, and (2) certified that decision as a final judgment. Id. at 83 , 548 A.2d 837 . The Court of Appeals rejected the motel owner’s argument that the dismissal of the claims against him should not have been certified for immediate appeal. ³⁸² According to the Wilde Court, (1) the claims against the motel owner and the assailants “arose out of the same transaction or occurrence;” (2) on the issues of liability and compensatory damages, the litigation would involve a substantial amount of “common proof;” and (3) if the circuit court’s ruling on venue turned out to be erroneous, the correction of that error after the trial of the victim’s case against the assailants would (in addition to “limitation problems”) have “unnecessarily multiplied the time, effort, and expense for the plaintiffs in asserting all of their claims and needlessly created collateral estoppel complexities.” Id. at 87-88 , 548 A.2d 837 .

Applying the holding in Wilde to the facts of the case at bar, we are persuaded that the circuit court had discretion to certify the orders at issue as final judgments. The reasons for certification that were discussed by the Wilde Court are equally applicable to the case at bar. Because appellants seek to hold both the Cigarette Defendants and the Asbestos Defendants liable under the “synergy theory,” the claims against both groups will involve a substantial amount of “common proof.” Moreover, it is more likely so than not so. that a jury considering only appellants’ claims against the Asbestos Defendants would be presented with evidence that appellants’ injuries were caused and/or aggravated by their use of tobacco. 7 A trial court’s time is a valuable public commodity that should not be wasted. 8 If the ³⁸³ orders of dismissal were erroneously entered, there would be a needless waste of the court’s time in addition to the extra time, effort, and expenses imposed upon the parties. Because the circuit court had discretion to certify the orders at issue as final judgments, we shall do so under the authority of Md. Rule 8-602 which, in pertinent part, provides: (e) Entry of judgment not directed under Rule 2-602.

(1) If the appellate court determines that the order from which the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2-602(b), the appellate court may ... (C) enter a final judgment on its own initiative____ Md. Rule 8 — 602(e)(1)(C), which took effect on July 1, 1988, was adopted by the Court of Appeals in a Rules Order entered on November 19, 1987. The files of the Rules Committee reflect that, in a letter dated November 3, 1987, the committee’s Reporter explained that the language of the current rule would provide the appellate court with an “option [that] will eliminate the necessity for a remand when the appellate court determines that entry of a judgment pursuant to Rule 2-602(b) would be appropriate.” We therefore hold that, under Md. Rule 8-602(e)(l)(C), an appellate court is authorized to enter a final judgment even if the circuit court did not abuse its discretion in refusing to do so, provided that (1) the appellate court is persuaded that entry of a final judgment is appropriate under the circumstances, and (2) the circuit court had discretion to enter a final judgment but did not do so. Because the appellate court applies the law in effect on the date that it files its opinion, rather than the law in effect when the circuit court made the ruling at issue, there are cases in ³⁸⁴ which a post-ruling change in — or a clarification of — the applicable law makes the entry of a final judgment under Md. Rule 8 — 602(e)(1)(C) appropriate even if the circuit court’s refusal to enter a final judgment did not constitute an abuse of that court’s discretion.

The cases at bar are such cases. It is appropriate for this Court to enter final judgments in order to decide the issue of whether appellants are entitled to join in one action their claims against the Asbestos Defendants and the Cigarette Defendants. Joinder of Asbestos Defendants and Cigarette Defendants Md. Rule 2-212 governs joinder of parties and, in pertinent, part, states: (a) When permitted. — All persons may join in one action as plaintiffs if they assert a right to relief jointly, severally, or in the alternative in respect to or arising out of the same transaction, occurrence,