Moore v. Pomory

ELDRIDGE, Judge. The petitioners filed in the Circuit Court for Baltimore City, on January 31, 1991, a complaint against the respondents, seeking damages based on alleged defamation and tortious interference with economic relations. Thereafter ⁴³⁰ the defendants-respondents filed a motion to dismiss for failure to state a claim upon which relief could be granted. See Maryland Rule 2-322(b)(2).

On May 6, 1991, Judge John Carroll Byrnes of the Circuit Court for Baltimore City signed an order reciting that the allegations of the complaint, if true, would not entitle the plaintiffs to relief.. The order went on to indicate that the motion to dismiss was granted, and the order concluded by dismissing the complaint “without prejudice.” The docket entry for May 6, 1991, stated that the defendants’ motion to dismiss was “granted without prejudice.” Two days later, May 8, 1991, a judgment for the defendants for costs was entered on the docket. On June 4, 1991, the plaintiffs filed a notice of appeal to the Court of Special Appeals. The defendants filed in the Court of Special Appeals a motion to dismiss the appeal on the ground that the circuit court’s order of May 6, 1991, was not a final judgment and thus was not appealable.

The Court of Special Appeals, in an unreported opinion, filed on August 18, 1992, agreed with the defendants and dismissed the appeal. The intermediate appellate court held that a dismissal of an entire action “without prejudice” was the same as a dismissal “allowing] leave to amend,” and, as such, “it was interlocutory and not an appealable final judgment.” The Court of Special Appeals cited two cases which held that an order sustaining a demurrer to a plaintiff’s initial pleading, with leave to amend, was not a final appealable judgment. Griffin v. St. Mary’s College, 258 Md. 276 , 265 A.2d 757 (1970) (sustaining a demurrer to a petition for a writ of mandamus with leave to amend); Porter v. Bingham, 257 Md. 213 , 262 A.2d 498 (1970) (sustaining a demurrer to a declaration with leave to amend). The plaintiffs then filed in this Court a petition for a writ of certiorari, presenting six questions.

The first question relates to the Court of Special Appeals’ dismissal of the appeal, and the other five questions concern the merits of the appeal. The defendants have answered the petition, reiterating their argument that a dismissal of a complaint ⁴³¹ “without prejudice” is the same as a dismissal “with leave to amend,” and that, therefore, a dismissal without prejudice is not an appealable final judgment. This Court has granted the certiorari petition, limited to the first question. We shall summarily reverse the judgment of the Court of Special Appeals and remand the case to that court for consideration of the merits of the appeal.

It is clear, as stated by the Court of Special Appeals, that an order which dismisses a complaint, but which expressly provides leave to amend the complaint or to file an amended complaint, is not a final judgment and therefore is not appealable under Maryland Code (1974, 1989 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article. See National Glass, Inc. v. J.C. Penney Properties, Inc., 329 Md. 300, 304-05 , 619 A.2d 528, 530 (1993); Makovi v. Sherwin-Williams Co., 311 Md. 278, 281-282 , 533 A.2d 1303, 1305 (1987); Houghton v. County Comm’rs of Kent Co., 305 Md. 407 , 412 n. 2, 504 A.2d 1145 , 1148 n. 2 (1986); Maryland Rule 2-322(c). See also, e.g., Central Collection v. Columbia Medical, 300 Md. 318, 323 , 478 A.2d 303, 305 (1984); Griffin v. St. Mary’s College, supra, 258 Md. at 279 , 265 A.2d at 759 ; Porter v. Bingham, supra, 257 Md. at 215 , 262 A.2d at 499 . The rationale for this principle is that “the express provision for amendment shows that the ... order ... was not intended finally to dispose of the case....” Makovi v. Sherwin-Williams Co., supra, 311 Md. at 281 , 533 A.2d at 1305 .

Where leave to amend is expressly granted in an order,