Smith v. LEAD IND. ASS'N, INC.

WILNER, J. This is essentially a tort-based product liability case involving, among other causes of action, allegations of fraudulent and negligent misrepresentation and failure to warn of hazards associated with either the product itself or the use of the product. We granted certiorari to consider two principal questions: (1) whether injured minors can maintain an action for fraudulent or negligent misrepresentation when there is no direct reliance by them on the alleged misrepresentations; and (2) whether a manufacturer whose product is not itself harmful can be liable for failing to warn of hazards inherent in other products that may arise from the use of its product. 1 Because it is now clear that no final or appealable judgment exists and that the Court of Special Appeals erred in declaring otherwise, we are obliged to direct that the appeal be dismissed without addressing those issues. BACKGROUND This is an action by seven minor plaintiffs against twenty-one defendants to recover for injuries sustained from exposure to lead contained in either paint or gasoline. The plaintiffs, who, through one or both of their respective parents, all joined in a single fifteen-count, 172-page complaint, come from four different families: there are three Smith children, one Brantley child, one Hamilton child, and two Shorter children.

The defendants fall into one or more of four categories — those that produced tetraethyl lead (TeL), a gasoline additive that reduces knock in internal combustion engines; those that produced lead pigment used in manufacturing paint; paint manu ¹⁷ facturera which either produced paint containing that pigment (lead paint) or which did not produce lead paint but failed to provide warnings regarding the safe removal of lead paint in their surface preparation instructions; and two trade organizations charged with promoting the use and unsafe removal of lead paint. The action was filed in the Circuit Court for Baltimore City. Early in the proceeding, the plaintiffs moved to sever the action into four separate cases, one for each family, or, in the alternative, to allow them to dismiss the action without prejudice in order that separate actions could be brought. The court denied that relief.

Instead, it treated the motion as one for separate trials pursuant to Maryland Rule 2-503(b) and granted that relief. In a subsequent pre-trial scheduling order, the court set four separate trial dates — one for the Smith children, one for the Brantley child, one for the Hamilton child, and one for the Shorter children — and established different discovery schedules with respect to the quadrifurcated claims. Although that scheduling order was amended from time to time, the question of severance was never revisited, and the case proceeded in accordance with the ruling denying the motion for severance but granting separate trials on a per family basis. The effect of the court’s ruling was to maintain the action as a unitary one, involving all plaintiffs against all defendants.

See Blades v. Woods, 838 Md. 475 , 659 A.2d 872 (1995). No complaint has been made in this appeal about the validity or propriety of that ruling. The case then proceeded with a blizzard of motions to dismiss and for summary judgment, which ultimately were granted, in whole or in part. In August, 2001, the court denied a motion by Duron, Inc. to dismiss Count I of the Third Amended Complaint but “reassigned” Counts I, II, and III (Conspiracy, Concert of Action, and Aiding and Abetting) as part of the descriptive “Nature of the Action” appearing in preliminary paragraphs.

The effect of that order was to dismiss those counts as substantive causes of action at least as ¹⁸ to Duron. 2 On October 24, 2001, the court granted a motion for summary judgment in favor of Lasting Paints, Inc. “against the Plaintiffs.” The order granting the motion (1) is not in the record, although a copy was included in the record extract, and (2) was never docketed in this action. 3 It appears to apply to the six plaintiffs then in the case. One child, Shatavia Smith, did not join the case as a plaintiff until a month later, and the order was never extended to include her. A motion by the plaintiffs to reconsider the granting of Lasting Paints’ motion was denied. The next day, October 25, 2001, the court granted a motion for partial summary judgment in favor of American Cyanamid Company.

That company was sued in two capacities — for its own conduct and as a successor-in-interest to John R. MacGregor Lead Company. The motion and the order granting it addressed only the successor-in-interest liability, which is why it was labeled a partial summary judgment. As with the grant of Lasting Paints’ motion, it went against only the six plaintiffs then in the case, not Shatavia Smith, who was added a month later. ¹⁹ In February, 2002, the court dismissed (1) Counts IV through XV against PPG Industries, Inc. (PPG), E.l. DuPont de Nemours & Company (DuPont), and Ethyl Corporation with respect to the TeL claims made against them, (2) those same counts against Atlantic Richfield Company (Atlantic Richfield), NL Industries, Inc. (NL), SCM Corporation (SCM), Glidden Corporation (Glidden), The Sherwin-Williams Company (Sherwin-Williams), American Cyanamid Company (American Cyanamid), and Fuller-O’Brien Corporation (Fuller — O’Brien) with respect to the lead pigment claims made against them, (3) those counts generally against National Paint and Coatings Association (NPCA) one of the two trade associations, (4) Counts V, VIII, and XI through XV against Lead Industries Association, Inc. (LIA), the other trade association, and (5) Counts XI through XIV — the fraud counts— against all defendants.

A week later, the court dismissed all remaining counts as to Atlantic Richfield and American Cyan-amid and all counts as to ASARCO, Inc. and Doe Run Resources. That left Counts IV through X and XV (Alternative Liability, Negligent Product Design, Negligent Failure to Warn, Supplier Negligence, Strict Liability/Defective Design, Strict Liability/Failure to Warn, Commercial Seller Liability, and Consumer Protection Act) alive against ten paint manufacturing defendants (Sherwin-Williams, SCM, Glidden, DuPont, Fuller-O’Brien, PPG, Valspar Corporation, Benjamin Moore & Company, and Duron, Inc.) and Counts IV, VI, VII, IX, and X alive against LIA. On November 15, 2002, the court granted summary judgment on Counts IV through X and XV in favor of all defendants except Fuller-O’Brien and LIA, but only as to the Smith plaintiffs. 4 On November 21, it granted summary judgment to ²⁰ Fuller-O’Brien on those counts, but, as Fuller-O’Brien’s motion went to “all plaintiffs,” presumably the judgment did as well. That was the last order entered by the Circuit Court.

On December 10, 2002, all of the plaintiffs filed an appeal “from all appealable Orders, including but not limited to the final judgments entered on November 15, 2002.” The Court of Special Appeals, in an unreported opinion, recognized that there was no final judgment in the case in that many of the counts against many of the defendants were still unresolved with respect to the Brantley, Hamilton, and Shorter plaintiffs. It assumed, however, that all claims against all defendants had been finally resolved with respect to the Smith children, and concluded, as a result, that “to condition the Smith appeal upon the entry of final judgment in the claims brought by the other plaintiffs would be inefficient, at best, and possibly foolish.” That was so, it said, because the facts for each family of plaintiffs were different and because a decision in the Smith appeal might clarify issues that remain in the other cases. On that ground, the intermediate appellate court, invoking Maryland Rule 8-602(e)(1)(C), purported to enter final judgment on the Smith claims and proceeded to address the substantive issues presented in the appeal. The Court of Special Appeals affirmed the trial court’s grant of summary judgment with respect to the fraud, negligent misrepresentation, and intentional concealment claims on the ground that the plaintiffs failed to produce sufficient evidence of reliance on their part, which the appellate court held was necessary to establish liability.

The court also agreed that the manufacturers of non-lead-based paint had no duty to warn the plaintiffs of the hazards associated with the removal of lead paint, not made by them, when preparing the surface for repainting. The court found no duty owing to the plaintiffs by the two trade associations. The one area in which the appellate court disagreed with the trial court concerned the liability of the defendants that produced lead pigment and ²¹ lead paint — claims of alternative liability, negligent product design, supplier negligence, strict liability for defective design, and liability of commercial sellers for harm caused by products into which harmful components are integrated. Judgments with respect to those claims against those defendants were reversed and the case was remanded for further proceedings. 5 DISCUSSION In Shoemaker v. Smith, 353 Md. 143, 165 , 725 A.2d 549, 560 (1999), we confirmed the long-standing rule that “[t]he right to seek appellate review ordinarily must await the entry of a final judgment, disposing of all claims against all parties,” and that there were only three exceptions to that rule: appeals from interlocutory rulings specifically allowed by statute (Maryland Code, § 12-303 of the Cts. & Jud.

Proc. Article), immediate appeals permitted under Maryland Rule 2-602(b), and appeals from interlocutory rulings allowed under the common law collateral order doctrine. See also Frase v. Barnhart, 379 Md. 100, 109-10 , 840 A.2d 114, 119 (2003). In Rohrbeck v. Rohrbeck, 318 Md. 28, 41 , 566 A.2d 767, 773 (1989), we held that: “If a ruling of the court is to constitute a final judgment, it must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) the clerk must make a proper record of it in accordance with Md. Rule 2-601.” See also Walk v. Hartford Casualty, 382 Md. 1, 10-11, n. 4 , 852 A.2d 98, 103-04, n. 4 (2004); Jones v. Hubbard, 356 Md. 513, 524 , 740 A.2d 1004, 1010 (1999); Board of Liquor v. Fells Point Cafe, 344 Md. 120, 129, 685 A.2d 772, 776 (1996).

Clearly, as the Court of Special Appeals recognized, the various orders entered by the Circuit Court in this case do not constitute, or even come close to constituting, a final judgment ²² under the criteria stated in Rohrbeck . Most of the claims pled by the Brantley, Hamilton, and Shorter plaintiffs are unresolved, and, indeed, as we shall explain, some of the claims pled by the Smith plaintiffs appear also to be unresolved. Nor are any of the trial court’s rulings appealable under the collateral order doctrine or under Maryland Code, § 12-303 of the Cts. & Jud. Proc.

Article. If they are appealable at this time, it can only be pursuant to Maryland Rule 2—602(b). Rule 2-602(a) provides generally that an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action, less than an entire claim, or the rights and liabilities of fewer than all the parties to the action (1) is not a final judgment, (2) does not terminate the action as to any of the claims or any of the parties, and (3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. Section (b) of the Rule permits the Circuit Court, if it expressly determines in a written order that there is no just reason for delay, to direct in the order the entry of a final judgment as to one or more but fewer than all of the claims or parties or for some but less than all of the amount requested in a claim seeking only money relief.

The Circuit Court made no such determination and entered no such order. The appeal was therefore one that is not allowed by law and should have been dismissed. Maryland Rule 8-602(e)(1) permits this Court or the Court of Special Appeals, if it concludes that an order from which the appeal was 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), to dismiss the appeal, to remand the case for the lower court to decide whether to enter a final judgment under Rule 2-602(b), or to enter a final judgment on its own initiative. If it chooses the latter option, the Rule directs that it treat the notice of appeal as if filed on the date it enters the judgment and proceed with the appeal.

In this case, as noted, the Court of Special Appeals chose