Harkins v. August

Per Curiam. The Court raised sua sponte (Rule 835 a 2) the issue of whether or not the appellants had a right of appeal in the instant case from an order of the lower court sustaining demurrers to those counts in a declaration sounding in contract, without leave to amend, in an alleged medical malpractice action and ¹¹⁰ which order also granted judgment on the contract counts in favor of two of the three defendants. The order expressly stated that the judgments were without prejudice to the plaintiffs to maintain their action against all defendants as to those counts in the declaration sounding in tort. All counts in the declaration were based on the same cause of action.

The appellants (plaintiffs below) were proceeding concurrently under alternate theories of their case in both contract and tort, as is permissible (Rule 313). The appellees (defendants below) contended that in essence an action for medical malpractice is predicated on the wrongful act of the practitioner and the dominating factor in tortious conduct which absorbs any seeming breach of implied warranty. The lower court, persuaded by the argument that there could be no breach of implied warranty to support an action ex contractu in a malpractice case, sustained the defendants’ demurrers and rendered judgment in their favor on the contract counts. The appellants filed this appeal although their action on the tort counts is still alive with the attendant possibility of recovering all that they may have been entitled to under the stricken counts, albeit on a different theory.

We think this appeal is premature in that the order appealed from is not final. An appeal at law is allowed only from a final judgment or determination. Code (1968 Repl. Vol.), Art. 5, sec. 1.

Rule 605 a, modeled after Rule 54(b) F.R.C.P. provides that “Where more than one claim for relief is presented in an action * * * the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all of the claims shall not terminate the action as to- any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” (Emphasis supplied.) ¹¹¹ There was a judgment in the instant case which adjudicated less than all the claims arising out of the same cause of action; however, there was no express determination that there was no just reason for delay in rendering judgment. We therefore think, considering Rule 605 a and the whole declaration, that the judgment on the contract counts in this case, leaving the tort counts remaining, was in effect an interlocutory judgment as to the determination of the cause of action. The