Azar v. Adams

• Decision Date: 01 September 1996
• Docket Number: No. 1875,1875
• Citation: 700 A.2d 821,117 Md.App. 426
• Parties: Stacy L. AZAR, v. Ebony K. ADAMS, a minor, etc., et al. ,
• Court: Court of Special Appeals of Maryland

Page 426

117 Md.App. 426

700 A.2d 821

Stacy L. AZAR, v. Ebony K. ADAMS, a minor, etc., et al.

No. 1875, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 25, 1997.

William N. Zifchak (Sasscer, Clagett & Bucher, on the brief), Upper Marlboro, for appellant

Neil J. Bixler (Robert C. Verderaime and Verderaime & DuBois, P.A., on the brief), Baltimore, for appellees.

Argued before MURPHY, C.J., and MOYLAN and CATHELL, JJ.

CATHELL, Judge.

Stacy L. Azar appeals from the judgment by an in banc panel of the Circuit Court for Wicomico County that reversed a trial court's grant of her motion for judgment at the conclusion of appellee's case. The trial court had granted her motion based upon its finding, that, as a matter of law, appellee, Ebony K. Adams, had been contributorily negligent.

FINALITY OF IN BANC PANEL'S ORDER

Before addressing the determitive issue, we must resolve appellee's claim that the case, as presented to this Court, lacks finality. That claim is without merit. Appellee argues that because she prevailed before the in banc panel on the issue of contributory negligence, the issue of primary negligence remains to be resolved and, therefore, there is no final judgment. Appellee fails to realize that finality is determined by the status of the case at the conclusion of the trial court proceeding, not at the conclusion of the in banc panel proceeding. The in banc panel sits to review the findings of the trial court and, as such, sits in an appellate capacity. We review both the correctness of the in banc panel's decision and the trial court's finding. We explain.

The question of the finality and appealability of the decisions of circuit court in banc panels was discussed in Board of License Comm'rs v. Haberlin, 320 Md. 399, 403, 578 A.2d 215 (1990). In that case, the Court was presented the same question as is presented by appellee, albeit the factual situation was somewhat different. Although the Court in Board of License Comm'rs ultimately held the in banc panel lacked The appellees assert that the in banc court judgment is not final because it did not terminate the circuit court proceedings in this case.... We have today filed our opinion in Dabrowski v. Dondalski, 320 Md. 392, 578 A.2d 211 [ (1990) ], which holds that the Court of Special Appeals erred in dismissing the appeal in that case and which vacates the judgment of the Court of Special Appeals. For the reasons set forth in our Dabrowski opinion, and in Estep v. Estep, 285 Md. 416, 420-421 (1979), it is clear that the judgment of the in banc court was final and appealable.

jurisdiction in the first instance, it nonetheless held that the decisions of such panels are final and appealable. Judge Eldridge, for the Court, stated:

Haberlin, 320 Md. at 403, 578 A.2d 215 (footnote omitted). In Dabrowski v. Dondalski, 320 Md. 392, 395-96, 578 A.2d 211 (1990), the Court of Appeals stated:

It is clear that the decision of the court in banc was a final order appealable to the Court of Special Appeals.... Our decision in Estep v. Estep, 285 Md. 416, 420-421 (1979), is depositive.... In Estep ... this Court ... stated:

....

"If, as petitioner has suggested, the Court of Special Appeals dismissed the appeal to it as interlocutory because the court in banc, after reversing the circuit court's decision, remanded the case for further action on the respondent's petition for modification, such a ruling ... would be in error.... [T]he court in banc acts only as an appellate tribunal so that its decisions are not those of a reconsidering trial court but are reviewable as final appellate judgments." [Citations omitted.]

See also Estep v. Estep, 285 Md. 416, 421, 404 A.2d 1040 (1979) ("[T]he court in banc acts only as an appellate tribunal so that its decisions are not those of a reconsidering trial court but are reviewable as final appellate judgments." (footnote omitted)); Green v. State, 96 Md.App. 601, 606, 626 A.2d 975 (1993) Just as a decision of this Court, reversing or vacating a trial judge's grant of such a motion, would not affect either the finality of the original trial court order or the ability of a party before us to seek certiorari from the Court of Appeals, the in banc court's decision did not affect the finality of the trial court's judgment nor does it limit this appellant's ability to present these issues for our review. ¹ It is clear that the in banc court's decision in this case is appealable.

("An in banc panel is regarded as an appellate body, separate from the circuit court that rendered the decision under review, because the proceeding before it is a substitution for the direct appeal to this Court.").

RESOLUTION

We shall now review the in banc court's holding and the trial court's finding. In that respect we perceive that this case is in an unusual posture.

At the in banc court proceeding, the parties proceeded on appellee's Petition and Memorandum, Respondent's (appellant's) Memorandum of Argument, and the oral arguments of both parties. Appellee asserts, and appellant does not reply otherwise, that there was no trial transcript presented to the in banc panel. Accordingly, the in banc court relied solely on the petition, the response, and the oral arguments of the parties. Our appellant, however, has included in the extract before us a trial transcript, or portions of one, upon which she and the current appellee base portions of their arguments before this Court. Inexplicably, appellant has not included a transcript of any part of the oral arguments before the in banc panel. To compound the problem, the in banc panel, in its resolution, proffered no reasons for its holding that the trial court had erred in granting appellant's motion for judgment.

Normally, we might be required to next address whether we are limited in our review of the in banc court's decision, to the material presented to it, or whether it is appropriate for us to expand our review to include evidentiary matters not presented to, and thus not considered by, the in banc court. In this regard we have found no prior cases delineating or limiting the scope of our review. There are several general statements, in addition to those mentioned above, that could be liberally construed to require this Court to treat appeals from in banc courts in the same way as appeals from this Court to the Court of Appeals are governed by the Maryland Rules and the cases. Because these statements are dicta, and only of marginal applicability here, they offer little guidance.

In Washabaugh v. Washabaugh, 285 Md. 393, 399, 404 A.2d 1027 (1979), the Court of Appeals noted:

Although the proceeding before a court in banc tends to be informal, the case usually being submitted on the record without filing formal briefs or record extracts ... at present Rule 510b [ ²] does require the submission of a written exception fully presenting the law and the facts concerning the reserved issue to the trial judge for his signature. After a point or question has been properly reserved ... it can be abandoned ... [so long as the in banc court has not made its determination], but once a determination is made by the court in banc, its decision is final as to the party who sought review by that court. This is not the case with the nonmoving party, however, for he is entitled to further appellate review of a decision of the court in banc that is adverse to his interests. [Emphasis added; citations omitted.]

In discussing its certiorari role in the in banc court appellate process, the Court of Appeals in Estep noted:

There being no statutory provision relating to section 22's grant of an appeal of right to the nonmoving party who loses before a court in banc, such an appeal would necessarily have to conform to the normal appellate procedure established by the legislature and thus be taken to the Court of Special Appeals, with this Court exercising jurisdiction only upon the issuance of a writ of certiorari.

285 Md. at 420-21 n. 4, 404 A.2d 1040

In Buck v. Folkers, 269 Md. 185, 187, 304 A.2d 826 (1973), the Court of Appeals stated: "Obviously, in the limited area of permissible appeal to this Court, the parties must comply with the Maryland Rules of Procedure governing such appeals." Maryland Rule 2-551(h), provides simply that "the decision of the [in banc] panel does not preclude an appeal to the Court of Special Appeals by an opposing party who is otherwise entitled to appeal."

This rule does not resolve the quandary, i.e., are we, when reviewing a decision of an in banc court, limited to the record presented to the in banc court, or may we consider the transcripts, pleadings, and evidence from the trial court proceedings. We have found no rule governing the scope of our review of an in banc court's action. An in banc court is, however, an appellate tribunal. It is subordinate to this Court just as we are subordinate to the Court of Appeals. When the appellate process commences via the in banc court route, that court is, as to this Court, in the case where an appellee at the in banc level files a further appeal, an intermediate appellate court. That fact, however, also offers little help in resolving what it is that we are reviewing and what constitutes the record upon which our review is to be based. The issue is whether our review is limited to the record before the in banc panel or whether we may review the entire record of the trial court proceedings.

In one of our relatively recent cases, we were called upon to discuss the nature of an appeal to an in banc panel from a trial court that had reviewed a decision of an administrative agency and had reversed the agency's decision. We noted in General Motors Corp. v. Bark, 79 Md.App. 68, 70-71, 555 A.2d 542 (1989):

At every level reached on this escalator of judicial review, it is necessary to identify the appropriate standard of review. As we look down one stage [ ³] to the decision of the in banc panel, identifying...