Tharp v. Disabled American Veterans Department of Maryland, Inc.

MOYLAN, Judge. This is the third time that an attempt has been made to bring before us, by way of a piecemeal appeal, the partial resolution — to wit, as to three of five remaining co-defendants — of a larger judicial unit. In all likelihood, the case will be before us again when the remaining part of the law suit, still pending at the trial level, is resolved one way or the other. What is now Md. Rule 2-602, modeled after and serving the same purpose as Federal Rule of Civil Procedure 54(b), was designed to curb just such a proliferation of fragmented appeals.

On our own motion, we invoke that curb and dismiss this appeal. ⁵⁵⁰ The ruling appealed from is presumptively not a final judgment within the contemplation of Rule 2-602(a) because it “adjudicate[d] the rights and liabilities of fewer than all the parties to the action.” The appellant, Lorraine S. Tharp, had filed a complaint in the Circuit Court for Baltimore City against eight defendants, alleging 1) the wrongful termination of her employment, 2) interference with her employment relationship, and 3) the intentional infliction of emotional harm. The claims against three of those defendants — 1) the National Office of the Disabled American Veterans, 2) Arthur Wilson, as an employee of that National Office, and 3) Paul Steicklein in his individual capacity — have been finally settled and do not, therefore, inhibit this appeal. The ruling here appealed from was the granting of a motion to dismiss filed by three other defendants: 1) Wallace Diehl, 2) Ernest Unger, and 3) Carl Brumage. Still pending, however, is the case against the remaining two defendants: 1) the Disabled American Veterans-Department of Maryland, Inc. and 2) Thomas Johns, both individually and in his capacity as an employee of the Disabled American Veterans of Maryland.

The dismissal of the complaint as to Diehl, Unger, and Brumage — the order now being appealed — therefore, “adjudicate[d] the ... liabilities of fewer than all of the parties to the action.” The question is whether we will entertain such a partial appeal. We will not. The Problem of Piecemeal Appeals And the Judicial Response Both the problem of proliferating appeals and the judicial response to the problem were incisively described by Judge Adkins in Planning Board of Howard County v. Mortimer, 310 Md. 639 , 530 A.2d 1237 (1987). He explained how the “final judgment,”, which was always the necessary predicate for an appellate court’s subject matter jurisdiction, was traditionally described as something that ultimately decided or settled the entire controversy between the parties.

Simplistic definitions from an earlier era later proved inadequate, howev ⁵⁵¹ er, as law suits became more sophisticated and more complicated: 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 where there are multiple parties and multiple claims, circumstances encouraged by the modern system of pleadings 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. 310 Md. at 645 , 530 A.2d 1237 (emphasis supplied).

The initial federal response to the problem of proliferating appeals was the promulgation in 1937, with amendments in 1946 and 1961, of Federal Rule of Civil Procedure 54(b). Maryland in 1947 followed suit, almost verbatim, with what was originally Rule 6a, III, Part Two of the General Rules of Practice and Procedure and became, without significant change, Former Rule 605a. On July 1, 1984, Rule 605a became, again without significant change, Rule 2-602. An April 8, 1985 amendment retitled Rule 2-602 and restructured the text in order to emphasize the philosophical approach that had theretofore been at best implicit.

Rule 2-602 is now entitled “Judgements not disposing of entire action.” The primary thrust of the Rule, and the newly supplied emphasis, is Subsection (a). It provides that any order disposing of fewer than all claims or fewer than all parties is ipso facto not final and, therefore, not appealable: (a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire ⁵⁵² claim, or that adjudicates 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. In Planning Board v. Mortimer, 310 Md. at 647 , 530 A.2d 1237 , Judge Adkins explained the theory behind the Rule: 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. Moore [6 J. Moore, W. Taggart, J. Wicker, Federal Practice § 54.04[2.-3](2d ed.1987) at p. 54-44] 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. Recently in State Highway Admin. v. Kee [ 309 Md. 523 , 525 A.2d 637 (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.” (Emphasis supplied; citations omitted). In Waters v. Whiting, 113 Md.App. 464, 472-73 , 688 A.2d 459 (1997), Judge Eyler made reference to the same “judicial unit” rationale: The effect of these rules [Maryland Rule 2-602 and Federal Rule of Civil Procedure 54(b) ] is to view ‘an action involving multiple claims or multiple parties as a single judicial unit ⁵⁵³ ordinarily requiring complete disposition before a final appealable judgment may be entered.’ Accordingly, a judgment lacks finality unless it completely disposes of the judicial unit.

Rule 2-602[(b)] does empower the trial court to permit exceptions to the rule[.] Absent an exercise of this power, however, there are no exceptions to the judicial unit rule. (Emphasis supplied; internal citations omitted). The Limited Exception It is subsection 2-602(b) that provides a limited and tightly circumscribed exception: (b) When allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment: (1) as to one or more but fewer than all of the claims or parties; ...

It was the 1985 amendment that divided Rule 2-602 into two subsections. As Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary, (2d ed.1992), p. 451, have noted, the “structure of the rule was changed to emphasize its intent.” Subsection (a) states the norm — anything less than a complete resolution of the entire lawsuit is ordinarily not a final judgment ripe for appeal. Subsection (b) then provides a limited exception, available on rare occasions to avoid harsh results. Niemeyer and Schuett explain: This amended rule reverses the emphasis of the former rule and of the federal rule by stating first, in section (a), the policy that a judgment is not entered until all claims are adjudicated as to all parties to the action.

Section (b) provides a limited exception that permits a court, in its discretion, to carve out a particular portion of a case and permit it to be concluded by a judgment, while at the same time continuing with the remainder of the case. The only portion that the rule permits to be carved out is an order that disposes of an entire claim or cause of action (including both liability and damages), or that adjudicates the litiga ⁵⁵⁴ tion entirely as to one or more, but less than all, parties, or that adjudicates, on a motion for summary judgment, the principle portion of a money judgment claim under Rule 2-501(e). Id. (Emphasis in original).

Niemeyer and Schuett elaborate, at 452, on the truly exceptional nature of certification under subsection (b): To obtain appellate review of an order that does not dispose of the entire action, the court must be willing to make the determination and direction required by this rule. Only in limited circumstances, and only then when the court, in its discretion, determines that the policy of a piecemeal appeal outweighs factors that favor waiting for an appeal of the entire case, does the rule permit a trial court to enter a judgment as to part of a case by certifying it in accordance with this rule. Id. (Emphasis supplied).

Parallel Partial Resolutions: Less Than All Parties, Less Than All Claims As we prepare to evaluate the procedural status of this attempted appeal against the criteria of, Rule 2-602, several preliminary observations are appropriate. The judicial order that the appellant seeks to have treated as an appealable final judgment — the dismissal of the complaint with respect to three of the five remaining defendants — was one that “adjudicate[d] the rights and liabilities of fewer than all the parties to the action.” The earlier version of what is now Rule 2-602 provided only for the possible “entry of a final judgment upon one or more but less that all of the claims.” Those earlier versions made no express reference to parties to the action and left some doubt, therefore, as to whether the strictures of the rule would operate to limit the appealability of decisions resolving the rights and liabilities of one or more, but less than all, of the parties to a law suit. Early on, however, the case law treated the phenomenon of multiple parties as indistinguishable from ⁵⁵⁵ that of multiple claims. In Picking v. State Finance Corp., 257 Md. 554 , 263 A.2d 572 (1970), the Court of Appeals applied what was then Rule 605a to foreclose the immediate appealability of a summary judgment in favor of one defendant while the action was still pending against two other defendants: In the instant case the summary judgment adjudicated less than all of the claims as no judgment was entered either for or against Judge and Yates[.] We conclude that as the case now reaches us Rule 605a dictates that the summary judgment in favor of State Finance leaving unadjudicated the claims against the codefendants Yates and Judge is in effect an interlocutory judgment as to State Finance, with no right of appeal now existing. 257 Md. at 557 , 263 A.2d 572 .

Judge Diggs explained the Court’s reasoning: There appears to be a difference of opinion among the several federal courts of appeals as to whether Federal Rule 54(b) applies where multiple claims, as distinguished from multiple parties, are involved. This Court has heretofore adopted the view that the term multiple claims includes multiple defendants. Here, where the decision of the trial court was to some but not all of the claims and where it purports to dispose of the rights of one but not all defendants, the case comes within the rule of these decisions. Upon this ground the appeal will be dismissed. 257 Md. at 557-58 , 263 A.2d 572 (emphasis supplied).

See also Harkins v. August, 251 Md. 108, 110-11 , 246 A.2d 268 (1968); Parish v. Milk Producers Association, 250 Md. 24, 97-98 , 242 A.2d 512 (1968); Durling v. Kennedy, 210 Md. 549, 553-54 , 123 A.2d 878 (1956). In its present manifestation, the Rule now makes explicit what had theretofore been merely implicit: Rule 2-602(a) expressly covers the adjudication of the rights and liabilities of “fewer than all of the parties.” In Hanna v. Quartertime Video & Vending, 78 Md.App. 438, 442-43 , 553 A.2d 752 (1989), we held an appeal to be premature when the rights of only some of the parties had been determined: ⁵⁵⁶ The case has yet to be tried as to the Lawsons and Crown. An adjudication that determines the rights and liabilities of fewer than all of the parties is ‘not a final judgment’ and 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.’ Rule 2-602(a)(3). (Emphasis supplied).

In affirming, the Court of Appeals observed in Quartertime Video & Vending v. Hanna, 321 Md. 59, 64 , 580 A.2d 1073 (1990): As the Court of Special Appeals pointed out, the trial judge’s position was clearly in error. The rule applies to multiple parties as well as multiple claims. Rule 2-602(a) provides that an order, ‘however designated, that adjudicates ... 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 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.’ By its own terms, Rule 2-602 applies to actions involving a single claim and multiple parties in which a judgment is entered as to fewer than all of the parties involved. (Emphasis supplied). 1 The appeal now before us, therefore, is clearly controlled by Rule 2-602. ⁵⁵⁷ The Appellate Court Will Act Sua Sponte We also note preliminarily that the failure of either party to this appeal to raise the issue of appealability is no impediment to our raising it nostra sponte.

In Harford Sands v. Levitt, 27 Md.App. 702, 706 , 343 A.2d 544 (1975), Judge Eldridge, on special assignment to this Court, stated emphatically: Neither the appellant nor the appellee presented the issue of whether this court has jurisdiction to decide the appeal. When, at oral argument, we raised the issue of our jurisdiction, counsel for both parties urged us to decide the case on the merits. However, the ‘jurisdiction of this Court is statutory and may not be conferred by consent of the parties.’ It is our duty to raise and decide, where appropriate, the issue of our jurisdiction over cases appealed to us. See also Blocher v. Harlow, 268 Md. 571, 578 , 303 A.2d 395 (1973).

In Canterbury Riding Condominium v. Chesapeake Investors, 66 Md.App. 635, 640 , 505 A.2d 858 (1986), we again noted: Although neither side has questioned or discussed the jurisdiction of this Court to hear this appeal, we hold that this appeal is not properly before us and dismiss it. And see Maryland Rule 8-602(a); Biro v. Schombert, 285 Md. 290, 293-97 , 402 A.2d 71 (1979); Jenkins v. Jenkins, 112 Md.App. 390, 395-96 , 685 A.2d 817 (1996). The Threshold Requirement of Express and Literal Certification As we undertake, nostra sponte, our review of appealability, we conclude that the subject matter of the present appeal falls squarely within the coverage of subsection 2-602(a). We turn our attention to the required satisfaction of subsection 2-602(b).

The fact that the resolution 1) of one, but less than all, claims or 2) of the rights and liabilities of one, but less than all, parties might qualify, on its merits, to be treated as an appealable final judgment is not enough. There is first the ⁵⁵⁸ threshold requirement that the trial judge literally make the certification required by subsection 2-602(b). When that first step is missing, the merits need not be addressed and the appeal may be summarily dismissed. 2 Blucher v. Ekstrom, 309 Md. 458, 462 , 524 A.2d 1235 (1987); Shpak v. Oletsky, 280 Md. 355, 358-60 , 373 A.2d 1234 (1977); Harlow v. Blocher, 257 Md. 1, 3-4 , 262 A.2d 58 (1970); Harkins v. August, 251 Md. 108, 110-12 , 246 A.2d 268 (1968); Flores v. King, 13 Md.App. 270, 272-73 , 282 A.2d 521 (1971); Knight v. Tolson, 10 Md. App. 311, 312-14 , 270 A.2d 132 (1970). With respect to the strict and literal nature of the certification requirement, Niemeyer and Schuett, Maryland Rules Commentary is again instructive, at 456.

When the court elects to certify a ruling to make it a judgment that is appealable and enforceable, it must do so in strict compliance with this rule. The court must expressly determine in a written order that there is no just reason for delaying the entry of a judgment, and the order must direct the clerk to enter judgment under Rule 2-601. The ruling is not a judgment until the certification is made and until the clerk has proceeded through the mechanics of entering it under Rule 2-601(b). (Emphasis supplied).

The dismissal of the appellant’s complaint against Diehl, Unger, and Brumage, as we have noted, was appealed to us on two prior occasions. On each occasion, the appeal was dismissed because of a procedural flaw. It is the first of those dismissals that is here relevant. When the appeal was first before us, we dismissed it on our own initiative because it was self-evidently from a non-final judgment.

On that occasion, the appeal was obviously and facially flawed because there had been no attempt at compliance with the threshold requirements spelled out by Rule 2-602(b) that the trial judge 1) “expressly determine in a written order that there is no just ⁵⁵⁹ reason for delay” and 2) actually “order the entry of a final judgment.” On remand, the appellant accordingly requested the trial judge to declare, pursuant to Rule 2-602(b), that the order dismissing the defendants Diehl, Unger, and Brumage was, indeed, a “final order” subject to immediate appeal. The trial judge issued the following order, precisely as the appellant requested it: ORDERED that Plaintiffs Motion be and it is hereby GRANTED and that a final order dismissing Defendants, Carl Brumage, Wallace Diehl and Ernest Unger is hereby entered pursuant to Maryland Rules §§ 2-602(b) and 8-602(a)(1) and is appealable pursuant to the Md. Ann.Code, Courts Article § 12-301. That represented facial compliance with at least part of Rule 2-602(b). The First Prong of Certiñcation: “No Just Reason for Delay” Subsection 2-602(b) is a two-pronged requirement and the appellant has satisfied only one of those two prongs.

The trial court, by a written order, certified that its order dismissing Diehl, Unger, and Brumage as defendants was a final order and was appealable. What was completely overlooked, however, was the first part of subsection 2-602(b) which requires that “the court expressly determine in a written order that there is no just reason for delay.” In terms of the fatal nature of that flaw, the present case is procedurally indistinguishable from Waters v. U.S.F. & G., 328 Md. 700 , 616 A.2d 884 (1992). In that case, as here, the trial judge expressly determined in a written order that the partial judgment in question was final and appealable. There, as here, there was also a failure to make an express determination that there was no just reason for delay.

The Court of Appeals held that the “trial court’s order was not effective as a final appealable judgment because of the trial court’s failure to make an express determination that there was no just reason ⁵⁶⁰ for delay.” 328 Md. at 708-09 , 616 A.2d 884 . Judge Eldridge explained, 328 Md. at 707-08 , 616 A.2d 884 : Mr. Waters filed a motion pursuant to Maryland Rule 2-602(b) requesting that the trial court direct entry of a final judgment in favor of USF & G____ The trial court’s order in this case merely stated that ‘[u]pon consideration of the plaintiff, John Watersfs], Motion for Final Judgment, and good cause shown, it is ... ORDERED, that the Motion be GRANTED.’ The court failed to make an express determination that there was no just reason for delay. Consequently, the trial court’s purported Rule 2-602(b) determination was ineffective, and there was no final appealable judgment in favor of USF & G.

(Emphasis supplied). In Blucher v. Ekstrom, 309 Md. 458, 462 , 524 A.2d 1235 (1987), the Court of Appeals dealt similarly with the same fatal procedural flaw: Under subsection (b), a trial court may order the entry of final judgment as to an entire claim or party, but less than all claims or parties, if the court in a written order makes an express determination that there is no just reason for delay. In this case, neither the order of March 18, 1986, nor any earlier order contained the trial court’s express determination of no just reason for delay. When the order of appeal was filed on March 27, 1986, there existed no appealable judgment in this case.

(Emphasis supplied). See also Parish v. Milk Producers Association, 250 Md. 24, 97-98 , 242 A.2d 512 (1968). This Court addressed the same procedural flaw in Robert v. Robert, 56 Md.App. 317 , 467 A.2d 798 (1983). Judge Lowe there observed: Not only must the direction for the entry of judgment be explicit, but also the determination that there is no just reason for delay must be explicit. * * * * [T]he rule by its carefully articulated mandatory language contemplates an informed determination by the trial judge ⁵⁶¹ that there is no reason to delay an appeal, i.e., that some purpose will be served other that permitting piecemeal appeals.

Absent such express determination there is naught for us to review because our jurisdiction is wanting. 56 Md.App. at 322-23 , 467 A.2d 798 (emphasis supplied). A Procedural Lifeboat: Maryland Rule 8-602(e) Prior to 1988, that flaw would have been irredeemably fatal. Since July 1, 1988, however, Rule 8-602(e) has made available at the appellate level some remedial measures that could repair a damaged Rule 2-602(b) certification. That subsection, in pertinent part, provides: (e) Entry of judgment not directed under Rule 2-602.

(1) If the appellate court determines that the order from which the appeal is 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), the appellate court may, as it finds appropriate, (A) dismiss the appeal, (B) remand the case for the lower court to decide whether to direct the entry of a final judgment, (C) enter a final judgment on its own initiative or (D) if a final judgment was entered by the lower court after the notice of appeal was filed, treat the notice of appeal as if filed the same day as, but after, the entry of the judgment. Ours is a case in which the trial judge could, at least facially, have satisfied subsection 2-602(b). Of the four possible courses of action available to us in such a situation, the fourth (D) is not here pertinent. We decline to exercise the third option (C) of entering a final judgment on our own initiative and proceeding to consider the merits of the appeal because, for reasons to be more fully explained, we believe a certification of the judgment in this case as an appealable final judgment would have been an abuse of discretion in any event, even if subsection 2-602(b) had been facially satisfied.

We reject the second option (B) because we do not want to do anything that might encourage the trial court to make a “quick fix” under subsection 2-602(b) and to send the case ⁵⁶² back up to us yet again. We exercise the first option (A), which is exactly the result that would have been reached if Rule 8-602(e) had never been promulgated. Some Attendant Dicta Our holding, therefore, is that this appeal is hereby dismissed. For the guidance of the lower court, however, we will supplement that holding with some attendant dicta to forfend any possibility that another quick surface repair will be made and that this partial appeal might reappear before us.

Our dicta will consist of what our hypothetical disposition of this attempted appeal would have been even if, arguendo, there had been facial compliance with Rule 2-602(b). Even a Permissible Certiñcation Is Subject to Appellate Scrutiny Although certification of finality by the trial judge pursuant to Rule 2 — 602(b) is a necessary condition, it is not a sufficient condition to guarantee that the appeal will ultimately be heard. To cross the threshold of Rule 2 — 602(b) is not necessarily to satisfy Rule 2-602 in the eyes of the appellate court. Even a permitted exercise of discretion by the trial judge does not preclude close appellate scrutiny of that exercise of discretion.

In Diener Enterprises v. Miller, 266 Md. 551, 555 , 295 A.2d 470 (1972), Judge Digges noted for the Court of Appeals: [E]ven in those cases where the trial judge has discretionary