Snowden v. Baltimore Gas & Electric Co.

ELDRIDGE, Judge. Carl 0. Snowden, “for himself and on behalf of all others similarly situated,” commenced the present action by filing in the Circuit Court for Anne Arundel County a declaration against the Baltimore Gas & Electric Company. Snowden alleged in the declaration that he had telephoned the defendant to make a complaint concerning his bill, that during his telephone conversation with the defendant’s Customer Service Representative he heard a “beep,” and that he “was advised that it was the policy of the company to record all incoming calls relative to inquiries concerning service or billing.” Snowden asserted that the defendant’s actions with respect to his telephone call and similar telephone calls ⁵⁵⁸ of others were in violation of Maryland Code (1974, 1984 Repl.Vol.), §§ 10-401 through 10-412 of the Courts and Judicial Proceedings Article.

Snowden stated that his suit was a class action, and he sought actual damages, punitive damages, and attorneys’ fees under § 10-410 on behalf of himself and each of the other members of the class. The defendant filed a demurrer, which the circuit court overruled, and then filed a general issue plea. Subsequently the defendant filed a “Motion ... For Determination of Non-Class Action Status,” setting forth several reasons why the court should issue an order “declaring the nonrepresentative character of the action, and stating that only the rights of the individual named parties are bound thereby” On July 18, 1983, the circuit court filed a memorandum opinion holding that “[bjecause the named plaintiff’s claim cannot be typical of a class, the named plaintiff cannot adequately represent a class,” and that, therefore, the action was “non-representative in character and ... cannot proceed as a class action.” The order concluded by stating “that Defendant’s Motion for Determination of Non-class action be granted” and that “this action be dismissed as to the unnamed plaintiffs, members of the alleged class of others similarly situated.” The plaintiff on August 7, 1983, filed a motion requesting that the circuit court make its July 18th order final and appealable under former Rule 605 a. 1 The circuit court on ⁵⁵⁹ August 9, 1983, granted the plaintiff’s motion, determined that there was no just reason for delay, and directed the entry of “final judgment ... in favor of the Defendant, with respect to the unnamed Plaintiffs, members of the alleged class of others similarly situated.” The plaintiff filed an order of appeal to the Court of Special Appeals from the August 9th order.

After briefs were filed but before the case was argued in the intermediate appellate court, this Court issued a writ of certiorari. In our order directing the issuance of the writ, we requested the parties to file supplemental briefs on an additional question which the parties had not dealt with in their original briefs. The additional question was as follows: “Whether the circuit court’s order of August 9, 1983, constitutes an appealable judgment in light of Maryland Rule 605 a.” We shall answer in the negative and dismiss the appeal. In their supplemental briefs and oral arguments, both sides take the position that the circuit court’s August 9th order was appealable under Rule 605 a, although they obviously disagree over the merits of the order.* 2 Neverthe ⁵⁶⁰ less, as we have repeatedly stated, “appellate jurisdiction cannot be conferred on a reviewing court by consent of the litigants, and this Court will dismiss an appeal sua sponte when it recognizes that appellate jurisdiction is lacking.” Anthony Plumbing Of Md. v. Atty.

Gen., 298 Md. 11, 16 , 467 A.2d 504 (1983), and cases there cited. It has been pointed out on several recent occasions that Rule 605 a empowers a trial court to enter a final judgment resolving part of a case only where there are multiple claims and the order disposes of at least one entire claim. An order which disposes of only a portion of a claim cannot be made final under Rule 605 a. East v. Gilchrist, 293 Md. 453, 458 , 445 A.2d 343 (1982); Lewis v. Lewis, 290 Md. 175, 181 , 428 A.2d 454 (1981); Pappas v. Pappas, 287 Md. 455, 464 , 413 A.2d 549 (1980); Biro v. Schombert, 285 Md. 290, 294 , 402 A.2d 71 (1979); Diener Enterprises v. Miller, 266 Md. 551, 554-556 , 295 A.2d 270 (1972); Harford ⁵⁶¹ Sands, Inc. v. Levitt & Sons, 21 Md.App. 702, 708-709, 343 A.2d 544 , cert. denied, 276 Md. 744 (1975).

In addition, we have held that the term “multiple claims” in Rule 605 a includes multiple parties. Starfish Condo. v. Yorkridge Serv., 292 Md. 557 , 559-560 n. 4, 440 A.2d 373 (1982); Lang v. Catterton, 267 Md. 268 , 297 A.2d 735 (1972); Moritz v. Church Of Jesus Christ, 266 Md. 220, 222 , 292 A.2d 84 (1972); Brooks v. Ford Motor Credit Co., 261 Md. 278 , 274 A.2d 345 (1971); Tedrow v. Ford Motor Co., 260 Md. 142 , 271 A.2d 688 (1970); Picking v. State Finance Co., 257 Md. 554, 557-558 , 263 A.2d 572 (1970). 3 Consequently, if a trial court’s order is dispositive with respect to one party, the order can be made final as to that party by the express determination and direction required under Rule 605 a. See Picking v. State Finance Co., supra, 257 Md. at 558 , 263 A.2d at 574 ; Prickett v. Consolidated Liquidating Corp., 180 F.2d 8, 9 , 196 F.2d 67, 68 (9 Cir.1950, 1952); 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice §§ 54.33, 54.34 (2d ed. 1983). On the other hand, this Court has not previously considered whether an order that a case may not proceed as a class action can be made final under Rule 605 a on the theory that it is dispositive as to certain “parties,” i.e., the “unnamed plaintiffs, members of the alleged class of others similarly situated.” The federal courts, however, have considered this issue.

And, as Judge Digges stated for the Court in Diener Enterprises v. Miller, supra, 266 Md. at 554, 295 A.2d at 472 , Rule 605 a “was modeled after Rule 54(b) of the Federal Rules of Civil Procedure and uses substantially the same language. This renders interpretations of the federal rule especially persuasive as to the meaning of the Maryland Rule.” See Lewis v. Lewis, supra, 290 Md. at 181 , 428 A.2d at 457 ; Biro v. Schombert, supra, 285 Md. at 295 , 402 A.2d at 74 . ⁵⁶² The Supreme Court of the United States, in Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978), considered the appealability of a trial court’s order determining that an action could not be maintained as a class action and held that such order was not appealable as a “final decision.” Although the Livesay case did not involve a trial court’s attempt to make the order appealable under Federal Rule 54(b), the Supreme Court’s opinion is instructive on the issue. In holding that the order was interlocutory, that it was not appealable under the “collateral order doctrine,” and that it was not appealable under the “death knell” theory developed by some lower federal courts, 4 the Supreme Court pointed out that under Federal Rule 23(c)(1) the order is specifically subject to later revision by the trial court. 437 U.S. at 469 , 98 S.Ct. at 2458 . 5 The Supreme Court went on to observe that “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause' of action.’ ” Ibid., quoting from Mercantile Nat. Bank v. Langdeau, 371 U.S. 555, 558 , 83 S.Ct. 520, 522 , 9 L.Ed.2d 523 (1963). 6 The opinion in Livesay charac ⁵⁶³ terized a refusal to certify a class as being “inherently interlocutory.” 437 U.S. at 470 , 98 S.Ct. at 2458 .

Finally, the Supreme Court discussed the availability of the Federal Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292 (b), which provides for discretionary appeals from certain interlocutory orders. The Court indicated that, where an appeal was desirable, this statute furnished the appropriate route for appellate review of orders refusing to certify a class. Id. at 474-475, 98 S.Ct. at 2460-2461 . 7 The Court did not mention Federal Rule 54(b) as an available alternate route. Rather, the Supreme Court quoted from Judge Friendly’s concurring opinion in Parkinson v. April Industries, Inc., 520 F.2d 650, 660 (2nd Cir.1975), that “ ‘the best solution is to hold that appeals from the grant or denial of class action designation can be taken only under the procedure for interlocutory appeals provided by 28 U.S.C. 1292(b).’ ” Id. at 475 n. 27, 98 S.Ct. at 2461 -2462 n. 27, emphasis added.

As previously indicated, the authorization in Federal Rule 54(b) and Maryland Rule 605 a for trial judges to make certain orders appealable, 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. The emphasis in the Supreme Court’s Livesay opinion upon the inherently interlocutory nature of orders refusing to certify suits as class actions, and the Court’s indication that 28 U.S.C. § 1292 (b) provides the only route under federal procedure for appeal of such orders, strongly suggests that the orders may not be made final and appeal-able under Federal Rule 54(b). ⁵⁶⁴ Following the Supreme Court’s opinion in Coopers & Lybrand v. Livesay, supra, one federal appellate court has dealt with the question presented in the instant case and has decided that a trial court’s order refusing to certify an action as a class action cannot be made final and appealable under Federal Rule 54(b). In Minority Pol.

Off. Ass’n v. City of South Bend, Ind., 721 F.2d 197 (7th Cir.1983), where the trial judge had made the requisite determination and direction under Rule 54(b), the United States Court of Appeals for the Seventh Circuit dismissed an appeal from a purported “final Judgment” with respect to the class action issue. The Seventh Circuit reasoned as follows ( 721 F.2d at 201 ): “The only reason the district judge refused to certify this lawsuit as a class action was that he thought the members of the class too few to satisfy the requirements of Rule 23. Their claims are identical to those of the named plaintiffs.

In any event, the Supreme Court’s decision that refusals to certify actions as class actions are not appealable under the ‘collateral order’ doctrine, Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978), implies that they are not appealable under Rule 54(b) either. The argument for appeal that the Court rejected was that such a refusal was sufficiently final as a practical matter to be a ‘final decision’ within the meaning of 28 U.S.C. § 1291 interpreted in light of the ‘collateral order’ doctrine. Since a federal rule of civil procedure cannot enlarge the jurisdiction of the district court (Fed.R.Civ.P. 82), Rule 54(b) only allows appeals from