Lang v. Catterton

Smith, J., delivered the opinion of the Court. In Smiley v. Atkinson, 265 Md. 129 , 287 A. 2d 770 ²⁷⁰ (1972), we adopted the opinion of Judge Powers of the Court of Special Appeals in that same case, 12 Md. App. 543 , 280 A. 2d 277 (1971), in which it was held that the filing of an appeal from a nonappealable interlocutory-order did not divest the trial court of jurisdiction. We shall here refine and interpret that holding in the process of dismissing this appeal. This case boils down to a dispute between two individuals and their labor union.

Appellants, George E. Lang, Jr., (Lang) and Forrest A. Sours (Sours), claim they were hired as millwright general foreman and foreman, respectively, by a contractor for its millwright work on construction of the new main post office in Baltimore. They both claimed to be members in good standing of Local No. 101, United Brotherhood of Carpenters and Joiners of America. Appellees, Benjamin A. Catterton (Catterton) and David Meadows (Meadows), are described as president and business agent, respectively, of that local union. Lang and Sours allege that Meadows and Catterton visited Walter Kentch, field superintendent for their employer, and advised him that if Lang and Sours “were put on the job . . . [Catterton and Meadows] would see to it that there would not be an adequate supply of carpenters and millwrights for said job, and that any men supplied would not be competent to handle said job; that there would be ‘trouble’ on the job; that . . .

Meadows, as business agent, would make himself unavailable to resolve disputes; that the job would be continually disrupted, and that the said Walter Kentch might be subjected to bodily harm.” It is also claimed that Catterton and Meadows advised Kentch that Lang “was incompetent and incapable of serving as millwright foreman” on the job. Lang and Sours sued Catterton and Meadows for tortious interference with their contract, claiming they were denied employment as a result of the actions of the defendants. Lang also sued in slander. A motion raising preliminary objections was filed under Maryland Rule 323 a (1).

It claimed that the Na ²⁷¹ tional Labor Relations Board had exclusive jurisdiction over the subject matter “under Sections 7 and 8 of the National Labor Relations Act, as amended, 49 Stat. 452 , as amended; 29 U.S.C., Sec. 157 , 158”; that the plaintiffs had previously submitted the matter to that board by filing a charge alleging the acts which were alleged in the declaration; and that the plaintiffs were “required to exhaust their intraunion remedies available under the Constitution and Laws of the United Brotherhood of Carpenters and Joiners of America before the instant action [would] lie.” In a comprehensive opinion Judge Sodaro in the Superior Court of Baltimore City held that the motion should be granted with reference to the claims for tortious interference with contract, but he denied the motion as to the slander claim. The appeal here is from that action. Catterton and Meadows noted that in this matter there was no “express determination that there [was] no just reason for delay” and no “express direction for the entry of [a final] judgment” under Maryland Rule 605 a. Accordingly, in this Court they moved under Rule 835 b (1) for dismissal of the appeal. 1 Appellants state that “their right of appeal from the decision of the lower court dismissing the tortious interference claims does not depend on compliance with Maryland Rule 605 (a),” giving three reasons, (1) that under Code (1957) Art. 5, § 1 a party may appeal “from any final judgment or determination of a court of law in any civil suit or action” and that “[t]he accepted test for the operative phrase . . . ‘final judgment or determination’ ” was said in McCormick v. St. Francis DeSales Church, 219 Md. 422 , 149 A. 2d 768 (1959), to be “when it puts the plaintiff out of court and denies him the means of further prosecuting his case against the moving parties”; (2) that as to Sours his entire claim was dismissed, thus constituting a final order within the meaning of Art. 5, § 1; and (3) that Judge Sodaro passed an order nunc pro tunc on September 15, 1972, entering a final judgment. ²⁷² (i) An attempt to establish the original order of Judge Sodaro as an appealable final judgment “would be about as futile as shoveling smoke,” to use the language of Judge McWilliams for the Court in Suitland Dev. v. Merchants Mort., 254 Md. 43, 53 , 254 A. 2d 359 (1969).

It would be at variance with the prior holdings of this Court under Rule 605 a and of numerous federal courts under its federal counterpart, Fed. R. Civ. P. 54(b). The right of appeal is not denied, but the time for taking the appeal is regulated in the interest of judicial administration and to prevent piecemeal appeals. (ii) The argument relative to Sours overlooks the latter part of Rule 605 a and the broad language there used.

The rule states: “In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all 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.” The situation with reference to Sours is analogous to that where there has been a suit against an individual, he in turn has brought a third-party claim, and there has been a determination of the original suit unfavorably to the defendant without a determination of the third-party claim and without compliance with Rule 605 a, precisely the situation which existed in Brooks v. Ford Motor Credit Co., 261 Md. 278 , 274 A. 2d 345 (1971). There Judge Singley said for the Court: “Once Brooks had impleaded Archway, he could not separate the original claim from the ²⁷³ third-party claim for purposes of appeal without complying with the provisions of Rule 605 a . . . . “Rule 605 a is virtually identical with Federal Rule 54 (b), Picking v. State Finance Corp. . . . 257 Md. 554 [, 263 A. 2d 572 (1970),] and cases cited at 557, which has been generally read to mean that in the absence of the certification of the trial judge, an adjudication of one of the claims in a third-party suit is not a final judgment from which an appeal will lie.” Id. at 281-82. (iii) Lang and Sours printed as an appendix to their reply brief an order passed by Judge Sodaro on September 15, 1972. It reads: “The Court having, by memorandum opinion dated March 7, 1972, held, inter alia, that Defendants’ Motions Raising Preliminary Objection should be granted with respect to Count I of the claim of George E. Lang, Jr., and in the claim of Forrest A. Sours; “And the Court further expressly determining that there is no just reason for delay in the disposition of said claims, “It is, by the Superior Court of Baltimore City, this 15th day of September, 1972, ORDERED “1.

That the Defendants’ Motions Raising Preliminary Objection be granted with respect to Count I in the claim of George E. Lang, Jr. and in the claim of Forrest A. Sours and that said claims are dismissed nunc pro tunc as of March 7, 1972; and “2. That final judgment be and it is hereby entered in favor of Defendants as to Count I in the claim of George E. Lang, Jr. and in the ²⁷⁴ claim of Forrest A. Sours, costs to be paid by Plaintiffs. s/ ANSELM SODARO, Judge. “Order of Final Judgment consented to: s/ COSIMO C. ABATO, Date 9/15/72 s/ ANTHONY A. ABATO, JR., Date 9/15/72 Attorneys for Defendants. s/ STEPHEN H. SACHS, Date 9/15/72 Attorney for Plaintiffs.” There are three reasons for rejecting this belated attempt to comply with Rule 605 a, the first two of which may be stated succinctly. a. It is elementary that this Court does not consider any matter not in the record certified to it by the lower court from whence it comes. Although Judge Sodaro’s order is printed in the appendix to the appellant’s reply brief, no one has taken the trouble to have such order certified to us by the Superior Court of Baltimore City by way of supplementation of the record.

It is not before us. b. It must be remembered that this was an action at law and, therefore, unlike equity actions, an order entered in open court may be reflected in docket entries without being reduced to writing. The docket entries show the granting on March 7 of the motions raising preliminary objections to the tortious interference with contract claims. It will be observed from an examination of the September 15 order that although it purported to grant ²⁷⁵ the motions relative to those claims — a redundant act— and to dismiss those claims nunc pro tunc as of March 7, the order entering final judgment was not entered nunc pro tunc.

Thus, the situation is but little different from that in Merlands Club v. Messall, 238 Md. 359 , 208 A. 2d 687 (1965). There the appeal was filed on July 27 after a judgment nisi on July 24. The judgment absolute was not entered until July 28. Since the appeal there was entered before the final judgment, it was dismissed as not having been from a final judgment.

If the September 15 order were properly before us, it too would have entered a final judgment after the order for appeal and thus this appeal, even considering that order, would not be from a final judgment. c. We shall consider this case as though the record had been supplemented by the passage of an order nunc pro tunc for a final judgment. That there may be no misunderstanding from the fact that the order was passed by consent, let us once again reiterate that jurisdiction may not be conferred upon this Court by consent of the parties. In Smiley , as we previously have indicated, we adopted the opinion of the Court of Special Appeals.

In that case there was a motion for physical examination of the plaintiff and a motion for continuance. Both were filed one day before the trial was scheduled to begin before a jury. An appeal was filed when those motions were denied. It was contended below and on appeal that the appeal divested the trial court of jurisdiction to proceed with the case.

The trial judge disagreed and ordered the trial to proceed, which it did. In the opinion for the Court of Special Appeals, Judge Powers quoted from Barnes v. Lednum, 197 Md. 398 , 79 A. 2d 520 (1951), where Judge Marked said for this Court: “If every order granting or denying discovery is a final appealable order, it would seem ²⁷⁶ that every ruling on evidence would be separately appealable.” Id. at 405 . After quoting from Raimondi v. State, 8 Md. App. 468 , 261 A. 2d 40 (1970), where the Court of Special Appeals held that the filing of the appeal did not divest the trial court of jurisdiction and need not stay further proceedings in a case where the attempted appeal was from a motion to dismiss an indictment alleging that the case had received such widespread publicity that the defendant could not obtain a fair trial anywhere in the State within the foreseeable future, Judge Powers then said: “Should a broader expression be required, we specifically hold that the rule we stated in Raimondi applies with equal force to civil cases. To apply any other rule would be utterly unthinkable.

Any party would then be able, at any time before final judgment, to bring the trial of a case to an abrupt halt by merely filing an order for appeal from any ruling of the court. Control of the judicial process would thus pass from the courts to the parties and their counsel. Mistrials and continuances would be available without limitation at the whim of any party. The trial court must have, and does have, the power to determine whether its jurisdiction to proceed has been ousted.

Should any abuse of that power ever arise, such abuse could undoubtedly be corrected by prompt appellate action.” Id. at 550-51 . The background of Fed. R. Civ. P. 54(b), the parent of our Rule 605 a, was set forth by Mr. Justice Burton for the Supreme Court in Sears, Roebuck and Co. v. Mackey, 351 U. S. 427 , 76 S. Ct. 895 , 100 L. Ed. 1297 (1956), where he said: “To meet the demonstrated need for flexibility, the District Court is used as a ‘dispatcher.’ It is permitted to determine, in the first instance, ²⁷⁷ the appropriate time when each ‘final decision’ upon ‘one or more but less than all’ of the claims in a multiple claims action is ready for appeal. This arrangement already has lent welcome certainty to the appellate procedure.

Its ‘negative effect’ has met with uniform approval. The effect so referred to is the rule’s specific requirement that for ‘one or more but less than all’ multiple claims to become appealable, the District Court must make both ‘an express determination that there is no just reason for delay’ and ‘an express direction for the entry of judgment.’ A party adversely affected by a final decision thus knows that his time for appeal will not run against him until this certification has been made.” (Emphasis in the original.) Id. at 435-36 . In 3 Barron & Holtzoff, Federal Practice and Procedure § 1193, at 25, (Wright ed. 1958) the federal rule is discussed. The authors obviously believe that the preferable practice where “through inadvertence” the trial court has not made a certification under the rule is to permit the parties to obtain a proper order nunc pro tunc.

They note, however, that as of the time the work was written at least one court had taken the position that the trial court lacked jurisdiction to enter such an order after the original appeal had been taken, a position criticized by the authors as “unsound.” Unsound or not, it seems to have grown into the majority view if one may judge by the annotations in that work, although apparently only a small number of courts have been obliged to address themselves to the point. The authors cite but three cases in support of their position. One is Vale v. Bonnett, 191 F. 2d 334 , 89 U.S. App. D.C. 116 (D.C. Cir. 1951), which can hardly be called enthusiastic in support of such a rule. The court there noted that in the order sustaining a motion for summary judgment the trial court had said that “the complaint [was] finally ²⁷⁸ dismissed.” (Italics supplied by the U.S. Court of Appeals.) It then said: “This, with expressions in an opinion filed by the trial court, is sufficient basis for a nunc pro tunc order as to the matters contained in this amendatory order.

While we do not consider the securing of such an order good practice, at least in the relatively early stage of the general enforcement of Rule 54 (b) we shall hear the appeal rather than remand and require the parties to start anew.” Id. at 335 . The first case in point of time is Remington Rand Inc. v. Societe Internationale, 188 F. 2d 1011 (D.C. Cir. 1951). There is no discussion of such a rule in that case. As it was put in Vale : “The Remington Rand opinion does not mention this issue but the situation there was the same as here in essentials.

In that case, Rule 54 (b) had not been complied with at the time of appeal but, after the appeal had been