Planning Board v. Mortimer

ADKINS, Judge. Before these two consolidated appeals were considered in the Court of Special Appeals, we granted certiorari to resolve issues involving the authority of a county planning board to challenge an adverse decision of a county board of ⁶⁴² appeals, and the authority of the board of appeals to participate in the ensuing litigation in circuit court as a party-appellee. Because of problems arising under Md. Rule 2-602, we now find we must dismiss the appeals for lack of jurisdiction. In one of the appeals, the trial court failed to certify an order certifiable under the Rule.

In the other it certified a non-certifiable order. 1 I Before discussing the jurisdictional problems we discern, we introduce the parties and set the factual and procedural scene. Appellant Besche Corporation (Besche) contracted to buy land in Howard County from appellant Howard Research and Development Corporation (HRD). HRD as owner and Besche as contract purchaser petitioned appellant Planning Board of Howard County (Planning Board) for an amendment to the Comprehensive Sketch Plan for the Village of Hickory Ridge. The amendment was designed to permit use of the land as an “Employment Center—Commercial Land Use Parcel.” The Planning Board granted the petition.

Nearby property owners took that decision to the Howard County Board of Appeals, where HRD, Besche, and the Planning Board appeared as appellees. The Board of Appeals, concluding that the Planning Board had failed to evaluate properly certain legal criteria, remanded to the latter agency for reconsideration. From the decision of the Board of Appeals, HRD and the Planning Board appealed to the Circuit Court for Howard County. This case was docketed as case no. 85-CA-1839 in that court.

Besche also appealed to the circuit court. Its appeal was docketed as case no. 85-CA-1874. In each case the Board of Appeals answered as an appellee. In each ⁶⁴³ case the appellees before us, Rosemary Mortimer and other property owners (Protesting Owners), intervened.

The two cases were eventually consolidated by order of the circuit court. In case no. 1839, the Protesting Owners moved to dismiss the Planning Board for lack of standing. On 30 December 1985 the circuit court granted the motion on the grounds that the Planning Board lacked express statutory authority to appeal a Board of Appeals decision, was not a party aggrieved by that decision, and had failed to show a legally sufficient special interest in the proceedings. The order dismissing the Planning Board was, however, stayed.

On 5 May 1986 the circuit court declined to reconsider its dismissal of the Planning Board and as to that action lifted the stay. Neither the original nor the confirmatory order dismissing the Planning Board included a Rule 2-602 certification. The Planning Board and HRD appealed to the Court of Special Appeals. We shall designate this case as Appeal I. In both cases no. 1839 and 1874, motions were made to dismiss the Board of Appeals.

The argument was that the Board had no authority to participate in the appeals, as appellee, at the circuit court level. The circuit court denied these motions and on 10 July 1986, purportedly acting pursuant to Rule 2-602, found that “there is no just reason for delay in the entry of a final judgment as to the Board of Appeals’ standing to participate in this case” and entered “as a final judgment” its order refusing to dismiss the Board. HRD and Besche appealed to the Court of Special Appeals. We shall designate this case as Appeal II.

II Appeal I on its face raises the question of whether the Planning Board had legal authority to appeal from the Board of Appeals to the Circuit Court for Howard County. In point of fact, though, the question is whether the order dismissing the Planning Board was an appealable order absent a Rule 2-602(b) certification. If it was not, we lack ⁶⁴⁴ jurisdiction to consider the matter, even absent a motion to dismiss on that basis. Potter v. Bethesda Fire Dept.

Inc., 302 Md. 281 , 487 A.2d 288 (1985); Smith v. Taylor, 285 Md. 143 , 400 A.2d 1130 (1979); Md.RuIe 835 a 1. Appeal II raises the substantive question of the legal authority of the Board of Appeals to participate as appellee, in an appeal from its own decision. Here, however, the real question is whether the order refusing to dismiss the Board of Appeals was appealable despite the Rule 2-602(b) certification. 2 As noted, we must dismiss both appeals. We preface our consideration of the two cases by some general remarks on appellate jurisdiction, Rule 2-602, and authority interpreting it.

In doing so we shall make reference to Federal Rule of Civil Procedure 54(b). Rule 2-602 is derived from that federal rule and interpretations of it are especially persuasive in interpreting our own Rule. East v. Gilchrist, 293 Md. 453 , 445 A.2d 343 (1982); Pappas v. Pappas, 287 Md. 455 , 413 A.2d 549 (1980); Diener Enterprises v. Miller, 266 Md. 551 , 295 A.2d 470 (1972); Durling v. Kennedy, 210 Md. 549 , 123 A.2d 878 (1956) (dealing with former Md.Rule 605a, a predecessor to current Rule 2-602); P. Niemeyer and L. Richards, Maryland Rules Commentary at 348 (1984) [hereinafter Niemeyer]. For an appellate court to have subject matter jurisdiction, an appeal must generally be taken from a final judgment or an appealable interlocutory order.

Md.Code (1984 Repl.Yol. & 1986 Cum.Supp.) §§ 12-301 and 12-303 of the Cts. & Jud.Proc. Art.; Harris v. Harris, P.A., 310 Md. 310 , 529 A.2d 356 (1987). So far as the final judgment requirement is concerned, it was long ago said that a judgment is of this character if it decides or settles the “very matter in controversy between the parties” and determines “the question of right in issue in the cause.” Nally v. Long, 56 Md. 567 , 571 ⁶⁴⁵ (1881). That definition works well enough in a simple lawsuit in which a single plaintiff sues a single defendant on a single claim.

But what happens when there are multiple parties and multiple claims, circumstances encouraged by the modern system of pleading that promote liberal joinder of parties, claims, cross-claims and counterclaims? Some of the claims or some of the parties or some of both may be disposed of at various stages of the litigation. If every disposition of this sort is appealable, the problems of disruption and delay at the trial level, overburden and duplication at the appellate level, and increased costs both to the parties and to the judicial system become substantial. See, e.g., Harris, 310 Md. at 314-315 , 529 A.2d at 358 (discussing necessity of final judgment requirement).

The federal response to these problems was Federal Rule of Civil Procedure 54(b). See 6 J. Moore, W. Taggart, J. Wicker, Federal Practice, § 54.04[2] (2d ed. 1987) (discussing historic development of Rule 54(b)) [hereinafter cited as Moore]. 3 Maryland’s response, modelled on the federal rule, was Rule 605a, now designated as Rule 2-602. 4 In the ⁶⁴⁶ context of multiple-claim or multiple-party litigation, or both, the purpose of the rules is to avoid the costs, delays, frustrations, and unnecessary demands on judicial resources occasioned by piecemeal appeals. Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1 , 100 S.Ct. 1460 , 64 ⁶⁴⁷ L.Ed.2d 1 (1980); Parish v. Milk Producers Ass’n, 250 Md. 24, 97-98 , 242 A.2d 512, 553-554 (1968), cert. denied, 404 U.S. 940 , 92 S.Ct. 280 , 30 L.Ed.2d 253 (1971); Durling v. Kennedy, 210 Md. 549 , 123 A.2d 878 (1956).

A corollary purpose is to provide litigants with certainty as to the finality of judgments for appeal purposes. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 , 76 S.Ct. 895 , 100 L.Ed. 1297 (1956); 6 Moore, § 54.04 [3.-5] at p. 54-52. The design of Md.Rule 2-602 and its federal counterpart accomplishes these goals by viewing an action involving multiple claims or multiple parties as a single judicial unit ordinarily requiring complete disposition before a final appealable judgment may be entered. This single judicial unit theory historically governed actions involving multiple claims, and, to a lesser extent, multiple parties prior to the evolution of liberal pleadings.

Sears, 351 U.S. at 431-432 , 76 S.Ct. at 897-898 , 100 L.Ed. at 1304 . Moore explains: The general proposition underlying the single judicial unit theory was that an action constituted a single unit for disposition despite the fact that it embraced multiple claims or involved multiple parties; and a judgment lacked finality unless it completely disposed of this unit. 6 Moore, § 54.04 [2.-3] at p. 54-44. Recently in State Highway Admin. v. Kee, 309 Md. 523, 531 , 525 A.2d 637, 641 (1987), we explained that “[a]bsent a proper certification, Rule 2-602 is designed to bring all issues in an action up for appellate review in one appeal.” Both Md.Rule 2-602 and FRCP 54(b) envision exceptions to this design and invest in the trial judge discretionary authority to manage complex cases by acting as a “dispatcher” of final orders. See Curtiss-Wright Corp. v. General Elec.

Co., 446 U.S. at 8 , 100 S.Ct. at 1465 , 64 L.Ed.2d at 11 ; Blocher v. Harlow, 268 Md. 571 , 303 A.2d 395 (1973) (disapproved as to the use of Rule 885 in Eastgate Assocs. v. Apper, 276 Md. 698, 703 , 350 A.2d 661, 664-665 (1976)). The enactment of both rules, therefore, reflects “a return to the general pre-rules equation of finality with complete disposition of the action, subject to a ⁶⁴⁸ limited discretion in the trial court to bend the general principle to avoid injustice.” 6 Moore, § 54.27 [2.-2] at p. 54-115. Absent the exercise of this discretionary authority, final decisions that completely dispose of pne of several claims or the rights and liabilities of one of several parties are treated, essentially, as interlocutory orders. As this Court noted in Lang v. Catterton, 267 Md. 268, 272 , 297 A.2d 735, 738 (1972), discussing the operation of former Rule 605a, “[t]he 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.” The discretionary authority, of course, is found in the trial court’s power to direct “the entry of a final judgment” as to a particular claim or party if it “expressly determines in a written order that there is no just reason for delay____” Rule 2-602(b).

In the exceptional case, the trial judge may decide that early appellate decision of a particular point is of sufficient importance, or that delay will produce sufficient hardship or unfairness, to outweigh the general policy against piecemeal appeals. The judge may then certify for immediate appeal an order that would otherwise be unappealable until the case terminates upon the disposition of all claims of all parties. The exercise of discretion is reviewable and should not be routinely exercised. A separate appeal under Rule 2-602 should be allowed “only ... in the very infrequent harsh case.” Diener, 266 Md. at 556 , 295 A.2d at 473 ; see also Allstate Ins.

Co. v. Angeletti, 71 Md.App. 210 , 524 A.2d 798 (1987); Canterbury Rid. Condo. v. Chesapeake Inv., 66 Md.App. 635 , 505 A.2d 858 (1986). But improper exercise of discretion aside, there are other situations in which a certification under Rule 2-602 is not permissible. 5 ⁶⁴⁹ For example, an order which disposes of only part of a single claim is not certifiable under Rule 2-602. Washington Sub.

San. Comm’n v. Frankel, 302 Md. 301, 308 , 487 A.2d 651, 655 (1985); Biro v. Schombert, 285 Md. 290, 294 , 402 A.2d 71, 74 (1979). Such an order does not partake of the finality that has traditionally been required for conventional appealable orders. Potter v. Bethesda Fire Dept.

Inc., 302 Md. at 285-287, 487 A.2d at 290-291. As Judge Eldridge has explained for the Court: the authorization in Federal Rule 54(b) and Maryland Rule 605a for trial judges to make certain orders appeal-able, is limited to orders which, by their nature, have a characteristic of finality. Such orders must be completely dispositive of an entire claim or party. Snowden v. Baltimore Gas & Electric, 300 Md. 555, 563 , 479 A.2d 1329, 1333 (1984).

Put otherwise, Rule 2-602 does not operate to modify one of the statutory conditions for appellate jurisdiction—the existence of a final judgment. The threshold requirement for the invocation of Rule 2-602 is an order that but for multi-party or multi-claim circumstances, would be final in the traditional sense. This rationale mirrors the federal interpretation of Rule 54(b). In Sears, Roebuck & Co. v. Mackey, the Supreme Court observed that Rule 54(b) does not eliminate the requirement of a final judgment for the proper exercise of review under 28 U.S.C.A. § 1291 .

The Court explained that 54(b) does not relax the finality required of each decision, as an individual claim, to render it appealable, but it does provide a practical means of permitting an appeal to be taken from one or more final decisions on individual claims, in multiple claims actions, without waiting for final deci ⁶⁵⁰ sions to be rendered on all the claims in the case [emphasis in original]. 351 U.S. at 435 , 76 S.Ct. at 899 , 100 L.Ed. at 1306 . The Court cautioned that Rule 54(b) “does not supersede any statute controlling appellate jurisdiction. It scrupulously recognizes the statutory requirement of a ‘final decision’ under § 1291 as a basic requirement for an appeal....” Id. at 438, 76 S.Ct. at 901 , 100 L.Ed. at 1307 . In Curtiss-Wright Co. v. General Elec.

Co., 446 U.S. at 7-8 , 100 S.Ct. at 1464-1465 , 64 L.Ed.2d at 11 , the Court, in reference to Sears, explained the application of Rule 54(b): A district court must first determine that it is dealing with a “final judgment.” It must be a “judgment” in the sense that it is a decision upon a cognizable claim for relief, and it must be “final” in the sense that it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Once having found finality, the district court must go on to determine whether there is any just reason for delay [citation omitted]. See also Corrosioneering v. Thyssen Environmental Sys., 807 F.2d 1279 (6th Cir.1986); United States Gen. v. Albert, 792 F.2d 678 (7th Cir.1986); Flegenheimer v. General Mills, 191