Brown & Williamson Tobacco Corp. v. Gress

• Decision Date: 15 December 2003
• Docket Number: No. 38,38
• Citation: Brown & Williamson Tobacco Corp. v. Gress, 838 A.2d 362, 378 Md. 667 (Md. 2003)
• Parties: BROWN & WILLIAMSON TOBACCO CORP., et al. v. GRESS, et al.
• Court: Maryland Court of Appeals

838 A.2d 362

378 Md. 667

BROWN & WILLIAMSON TOBACCO CORP., et al. v.GRESS, et al.

No. 38, Sept. Term, 2003.

Court of Appeals of Maryland.

December 15, 2003.

Robert C. Heim (Dechert LLP of Philadelphia, PA; George A. Nilson, George F. Ritchie and Christina M. Burden of Piper Rudnick LLP, Kenneth L. Thompson, Paul

J. Day, Piper Rudnick LLP, William F. Ryan, Jr., Christopher B. Lord, Whiteford Taylor & Preston LLP, Baltimore), for petitioners.

R. Bruce McElhone(Theodore M. Flerlage and James S. Zavakos of Law Offices of Peter G. Angelos, P.C., E. David Hoskins of Law Offices of E. David Hoskins, LLC, all on brief), Baltimore, for respondents.

R. Dal Burton, Womble, Carlyle, Sandridge & Rice, PLLC, Atlanta, GA; Kenneth L. Thompson, Paul J. Day, Piper Rudnick LLP, Baltimore, for Attorneys for AppellantR.J. Reynolds Tobacco Company.

Norbert F. Bergholtz, Louise E. Moyer, Dechert LLP, Philadelphia, PA; James K. Archibald, Marina M. Sabett, Andrew Gendron, Venable, Baetjer and Howard, LLP, Baltimore, for Attorneys for Attorneys for AppellantPhilip Morris Incorporated.

J. William Newbold, Bruce D. Ryder, Thompson Coburn LLP, St. Louis, MO; Edward C. Schmidt, Thompson Coburn LLP, Washington, DC; Kathleen McDonald, Kerr McDonald, LLP, Baltimore, for Attorneys for AppellantTobacco Co.

William F. Ryan, Jr., Christopher B. Lord, Whiteford Taylor & Preston LLP, Baltimore, for Attorneys for AppellantThe Tobacco Institute, Inc.

David W. Skeen, Wright, Constable & Skeen, LLP, Deborah L. Robinson, Peter A. Woolson, Melodie M. Mabanta, Robinson Woolson, P.A., Baltimore; Aaron H. Marks, Nancy Straub, Kasowitz, Benson, Torres & Friedman, LLP, New York, NY, for Attorneys for AppellantLiggett Group, Inc.

Argued before BELL, C.J., and ELDRIDGE¹, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, Chief Judge.

Maryland Rule 8-602(e) 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 on the same day as, but after, the entry of the judgment.

"(2) If, upon remand, the lower court decides not to direct entry of a final judgment pursuant to Rule 2-602(b), the lower court shall promptly notify the appellate court of its decision and the appellate court shall dismiss the appeal.If, upon remand, the lower court determines that there is no just reason for delay and directs the entry of a final judgment pursuant to Rule 2-602(b), the case shall be returned to the appellate court after entry of the judgment.The appellate court shall treat the notice of appeal as if filed on the date of entry of the judgment.

"(3) If the appellate court enters a final judgment on its own initiative, it shall treat the notice of appeal as if filed on the date of the entry of the judgment and proceed with the appeal."

As relevant to the casesub judice, pursuant to Rule 8-602(e)(1)(C), where the trial court could have directed entry of final judgment in a case prematurely appealed, an appellate court has discretion to "enter a final judgment on its own initiative[.]"

It is well settled that

"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 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."

Maryland Rule 2-602(a).SeeGruber v. Gruber,369 Md. 540, 546, 801 A.2d 1013, 1016(2002);Taha v. Southern Mgmt. Co.,367 Md. 564, 567-68, 790 A.2d 11, 13(2002);O'Brien v. O'Brien,367 Md. 547, 553-54, 790 A.2d 1, 4-5(2002);Board of Liquor License Comm'rs for Baltimore City v. Fells Point Cafe, Inc.,344 Md. 120, 129, 685 A.2d 772, 776(1996), Rohrbeck v. Rohrbeck,318 Md. 28, 40-41, 566 A.2d 767, 773-74(1989).Such an order is not appealable.SeeMaryland Code(1973, 2002 Replacement Volume), § 12-301 of the Courts and Judicial Proceedings Article;²Estep v. Georgetown Leather,320 Md. 277, 282, 577 A.2d 78, 80(1990).

An order that is not otherwise final may be certified as such, under some circumstances.Maryland Rule 2-602(b) addresses those circumstances.It provides:

"(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; or

"(2) pursuant to Rule 2-501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only."

Rule 2-602(b)(1) is relevant to the casesub judice.

At the center of this case is the relationship between Maryland Rule 8-602(e)(1)(C)andMaryland Rule 2-602(b) and, in turn, that relationship's impact on the appellate court's discretion to itself enter a final judgment in a case in which an appeal has been taken prematurely.More particularly, we are required to consider whether, in deciding to direct entry of final judgment, the appellate court may disregard the trial court's appropriately exercised discretionary decision not to certify the order at issue as a final judgment.Although the respondents, Patricia A. Gress, Mary E. Mayes, Joseph and Iva Dingus, and George Van Daniker, so requested, the Circuit Court for Baltimore City refused to certify as a final judgment its order dismissing their complaints against the petitionersBrown & Williamson Tobacco Corporation, individually and as successor in interest to The American Tobacco Company, Lorillard Tobacco Company, Phillip Morris Incorporated, R.J. Reynolds Tobacco Company, The Tobacco Institute, Inc., and Liggett Group Inc.(the "cigarette defendants"), thus leaving only asbestos claims against AC and S, Inc., Owens Illinois, Inc., Flintkoke Company, Pfizer Corporation, Universal Refractories, E.L. Stebbings & Co., Inc., Quigley Company, Inc., Owens Corning Fiberglas Corporation, Corhart Refractories Company, A.W. Chesterton, and Anchor Packing, as defendants(the "asbestos defendants").³

Notwithstanding that court's refusal to certify the orders relating to the cigarette defendants as final judgments, the Court of Special Appeals entered such judgments on its own initiative pursuant to Rule 8-602(e)(1)(C), Gress v. ACandS, Inc.,150 Md.App. 369, 383, 820 A.2d 616, 624(2003), holding

"under Md. Rule 8-602(e)(1)(C), an appellate court is authorized to enter a final judgment even if the circuit court did not abuse its discretion in refusing to do so, provided that (1)the appellate court is persuaded that entry of a final judgment is appropriate under the circumstances, and (2)the circuit court had discretion to enter a final judgment but did not do so."

Rationalizing its decision, the intermediate appellate court relied on Wilde v. Swanson,314 Md. 80, 548 A.2d 837(1988).⁴In that case, the Circuit Court for Montgomery County directed the entry of a final judgment when it dismissed the case against Wilde, one of the four defendants allegedly involved in an assault against a motel guest.Id. at 82, 548 A.2d at 838.On appeal, respondent Wilde argued that the trial court should not have entered final judgment and, thus, the appeal was improper.The Court of Special Appeals denied the respondent's motion to dismiss the appeal and addressed, and ultimately reversed, the Circuit Court on the merits of the dismissal.After granting certiorari, this Court affirmed the decision of the Court of Special Appeals, both on the grounds that the certification of final judgment was proper and that the Court of Special Appeals had ruled correctly regarding the merits of the Circuit Court dismissal.In doing so, this Court noted that all of the claims "arose out of the same transaction or occurrence,"id. at 87, 548 A.2d at 840, that the issues of liability involved "a substantial degree of common proof," and compensatory damages, "a complete commonality of proof,"id., and that, because the venue ruling split one action into two actions, "[i]f erroneous, the ruling unnecessarily multiplied the time, effort, and expense for the plaintiffs in asserting all of their claims and needlessly created collateral estoppel complexities."Id. at 88, 548 A.2d at 841.

In the casesub judice,the Court of Special Appeals concluded that "the reasons for certification that were discussed by the Wilde Court are equally applicable to the case at bar."150 Md.App. at 382, 820 A.2d at 623-24.It explained:

"Because appellants seek to hold both the Cigarette Defendants and the Asbestos Defendants liable under the "synergy theory," the claims against both groups will involve a substantial amount of "common proof."Moreover, it is more likely so than not so that a jury considering only appellants' claims against the Asbestos Defendants would be presented with evidence that appellants' injuries were caused and/or aggravated by their use of tobacco."

Id. at 382, 820 A.2d at 624(footnote omitted).

The intermediate appellate court also pointed out that the trial court's time "is a valuable public commodity that should not be wasted."Id.Therefore, it concluded, noting the Circuit Court...