Anne Arundel v. Cambridge Commons, 2483, September Term, 2004.

• Decision Date: 22 December 2005
• Docket Number: No. 2483, September Term, 2004.,2483, September Term, 2004.
• Parties: ANNE ARUNDEL COUNTY, Maryland v. CAMBRIDGE COMMONS, et al.
• Court: Court of Special Appeals of Maryland

892 A.2d 593

167 Md. App. 219

ANNE ARUNDEL COUNTY, Maryland v. CAMBRIDGE COMMONS, et al.

No. 2483, September Term, 2004.

Court of Special Appeals of Maryland.

December 22, 2005.

Reconsideration Denied March 15, 2006.

COPYRIGHT MATERIAL OMITTED

Kurt J. Fischer (Marta D. Harting, Melissa L. Mackiewicz, on brief, Baltimore, Linda M. Schuett, Cty. Atty., Andrew Murray, Sr. Asst. Cty. Atty., on brief), for appellant.

John R. Greiber, Jr. (Phillip F. Scheibe, on brief), Millersville, for appellee.

Panel MURPHY, C.J., KRAUSER and THEODORE G. BLOOM, (Ret., Specially assigned) JJ.

BLOOM, J.

Anne Arundel County seeks our review of an Order of the Circuit Court for Anne Arundel County filed on 30 December 2004 in this class action brought against the County by Cambridge Commons, L.P., and others. We shall affirm the Order appealed from for the reasons set forth below.

The background of this case has been set forth by this Court's unpublished opinion in a prior appeal that reversed the circuit court's dismissal of the developer's first amended complaint. Cambridge Commons et al. v. Anne Arundel County, Maryland, No. 1340, Sept. Term. 2001 (filed Aug. 21, 2002). Consequently, we need only recite a brief summary to place this appeal in its proper context.

Appellees, certain owners and developers of property in Anne Arundel County, filed their initial complaint in this action on 22 February 2001, and subsequently filed an amended complaint on 2 May 2001. They seek equitable relief that includes an order of refund of developmental impact fees that had been paid to the County but, allegedly, have not been spent. This case was certified as a class action on 26 February 2003. In the provisions of the Order under review that pertain to class notice, the circuit court, acting "pursuant to [Maryland] Rule[s] 2-231 and 2-504," directed, inter alia:

a) that both parties within 30 days shall prepare a proposed form of notice in compliance with Rule 2-231(e) as to a 2-231(b)(3) class, which may be issued at the County's expense and which, at a minimum, must comply substantially with AACC [Anne Arundel County Code], section 7-110[¹] . . .

b) that the County also within 30 days must provide . . . a list of all prospective class members—that is, current owners of properties for which impact fees were paid in the years and impact fee districts contested herein[.]

Maryland Rule 2-504 pertains to scheduling orders. With respect to the class notice, the Order appealed from requires that the notice comply with Maryland Rule 2-231(e) "as to a Rule 2-231(b)(3) class[.]" Maryland Rule 2-231, which governs class actions, relevantly provides:

Rule 2-231. Class Actions.

(a) Prerequisites to a class action. — One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class actions maintainable.— Unless justice requires otherwise, an action may be maintained as a class action if the prerequisites of section (a) are satisfied, and in addition:

* * *

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions, (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class, (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum, (D) the difficulties likely to be encountered in the management of a class action.

* * *

(e) Notice.—In any class action, the court may require notice pursuant to subsection (f)(2). In a class action maintained under subsection (b)(3), notice shall be given to members of the class in the manner the court directs. The notice shall advise that (1) the court will exclude from the class any member who so requests by a specified date, (2) the judgment, whether favorable or not, will include all members who do not request exclusion, and (3) any member who does not request exclusion and who desires to enter an appearance through counsel may do so.

Notice is required for a class that is certified pursuant to Rule 2-231(b)(3).

The Maryland class action rule is derived from Fed.R.Civ.P. 23(c)(2) as amended in 1966. That Rule provided, with respect to class notice:

(2) In any class action maintained under subdivision (b)(3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (C) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.

The 1966 Amendments to the federal Rule

were designed, in part, specifically to. . . assure that members of the class would be identified before trial on the merits and would be bound by all subsequent orders and judgments.

American Pipe & Construction Co. v. Utah, 414 U.S. 538, 547, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974) (footnote omitted). Because individuals are included in the class, and must then opt out, Fed.R.Civ.P. 23(c)(2) indicates that class members are to be notified early enough to allow voluntary exclusion prior to a judgment in the suit and early enough to allow for effective appearance of counsel. See Peritz v. Liberty Loan Corp., 523 F.2d 349, 354 (7th Cir.1975).

I.

Although the County's appeal raises a host of issues, the single question that is appropriately dispositive is: "Did the circuit court's order with respect to class notice constitute an abuse of discretion." Prior to addressing that issue, however, we must determine whether we have jurisdiction to entertain the County's appeal in the first place.²

"The general rule as to appeals is that, subject to a few, limited exceptions, a party may appeal only from a final judgment." Nnoli v. Nnoli, 389 Md. 315, 323, 884 A.2d 1215 (2005) (citations omitted). See Boyd v. Bell Atlantic—Maryland, 390 Md. 60, 81, 887 A.2d 637 (2005). "Two reasons exist for the rule, that until a final judgment is entered the proceedings are subject to revision by the trial court and in the interest of sound judicial administration to avoid piecemeal appeals." Lewis v. Lewis, 290 Md. 175, 180, 428 A.2d 454 (1981).

The final judgment rule is subject to three exceptions, as Judge Wilner noted for the Court of Appeals:

[T]here are only three exceptions to that rule: appeals from interlocutory orders specifically allowed by statute, predominantly those kinds of orders enumerated in 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.

Board of Education v. Bradford, 387 Md. 353, 382-83, 875 A.2d 703 (2005) (citing Smith v. Lead Industries Assoc., Inc., 386 Md. 12, 21, 871 A.2d 545 (2005); Frase v. Barnhart, 379 Md. 100, 109-10, 840 A.2d 114 (2003); Shoemaker v. Smith, 353 Md. 143, 165, 725 A.2d 549 (1999)). See Salvagno v. Frew, 388 Md. 605, 615, 881 A.2d 660 (2005).

Jurisdiction over an Interlocutory Order

Section 12-303 of the Courts Article relevantly provides:

§ 12-303. Appeals from certain interlocutory orders.

A party may appeal from any of the following interlocutory orders entered by a circuit court in a civil case:

* * *

(3) An order:

(i) Granting or dissolving an injunction, but if the appeal is from an order granting an injunction, only if the appellant has first filed his answer in the cause; . . .

Maryland Code (1974, 2002 Repl.Vol.), § 12-303 of the Courts and Judicial Proceedings Article.

That provision is a counterpart to 28 U.S.C. § 1292(a). Funger v. Mayor & Council of Town of Somerset, 244 Md. 141, 150, 223 A.2d 168 (1966). See Boyd, supra, slip op. at 31 (28 U.S.C. § 1292(a)(1) Federal analog to CJ § 12-303(3)(i)). Interpretations of the federal provision may be relevant to an analysis of Section 12-303. Id. Cf. Stewart v. State, 282 Md. 557, 571, 386 A.2d 1206 (1978) (no substantive difference between 28 U.S.C. § 1291 and CJ 12-301). The United States Court of Appeals for the District of Columbia Circuit observed, with respect to Section 1292(a):

As the Supreme Court stated in Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981), § 1292(a)(1) provides jurisdiction over not just an injunction so-denominated, but over any order having the "practical effect" of an injunction if the order threatens a "serious, perhaps irreparable, consequence" and is of such a nature that it can be "effectively challenged only by immediate appeal."

Cobell v. Norton, 334 F.3d 1128, 1137 (D.C.Cir.2003).

The court further stated that an

order directing the parties to prepare a class notice and direct the possible allotment of costs thereof to be [was] merely "[a]n order by [a court] that relates only to the conduct or progress of litigation before that court [which] ordinarily is not considered an injunction and therefore is not appealable under § 1292(a)(1)."

Id. (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279, 108 S.Ct. 1133, 99...