Cant v. Bartlett

• Decision Date: 09 February 1982
• Docket Number: No. 50,50
• Citation: 292 Md. 611,440 A.2d 388
• Parties: Geoffrey D. CANT and F. Carvel Payne v. Evelyn M. BARTLETT, Pers. Rep. of the Estate of J. Kemp Bartlett.
• Court: Maryland Court of Appeals

Page 611

292 Md. 611

440 A.2d 388

Geoffrey D. CANT and F. Carvel Payne v. Evelyn M. BARTLETT, Pers. Rep. of the Estate of J. Kemp Bartlett.

No. 50.

Court of Appeals of Maryland.

Feb. 9, 1982.

Robert A. Zarnoch and Linda H. Lamone, Asst. Attys. Gen., Annapolis (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellants.

W. Porter Ellington, Chestertown (Alan V. Cecil of Salisbury, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

SMITH, Judge.

We shall hold in this case that the order of a trial judge permitting substitution of the personal representative of a deceased litigant as plaintiff in an action for libel was not an appealable final order. Hence, we shall affirm the order of the Court of Special Appeals dismissing the appeal from the trial judge's action. Because, however, it would be a waste of time for these parties to go back, try the case, and then learn on appeal that the action abated by the death of the plaintiff, we shall set forth the basis of our view that the trial judge erred when he permitted substitution of the personal representative of the deceased.

J. Kemp Bartlett sued Geoffrey D. Cant and F. Carvel Payne in the Circuit Court for Anne Arundel County. Only an action for libel remained in the suit after demurrers to certain counts were sustained. Bartlett died. Thereafter, a motion was made to substitute his personal representative as the party plaintiff. Cant and Payne opposed the motion contending that the defamation action had abated by the death of Bartlett. They appealed to the Court of Special Appeals. Upon motion of Mrs. Bartlett, who is the personal representative, the intermediate appellate court dismissed the appeal on the ground that it was not an appeal from a final order. We then granted the writ of certiorari in order that we might address the issue.

I Appealability

At issue here is whether the circuit court's order of substitution and revival is a final judgment for the purposes of appeal within the meaning of Maryland Code (1974) § 12-301, Courts and Judicial Proceedings Article. That section provides in pertinent part:

"Except as provided in § 12-302, a party may appeal from a final judgment entered in a civil ... case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exercise of original, special, limited, statutory jurisdiction, unless in a particular case the right of appeal is expressly denied by law...."

There is no contention here that the appeal comes within one of the exceptions set forth in § 12-302. Likewise, there is no claim that the order here is from one of the interlocutory orders listed in § 12-303 from which an appeal is permitted.

The leading case of Peat & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978), sheds considerable light on what constitutes an appealable final judgment. That case involved an accounting firm's motion to require the withdrawal of a Baltimore City law firm from further representation of the Rams. The circuit court denied the motion. An appeal then was taken to the Court of Special Appeals, which dismissed the appeal as not permitted by law.

When the case reached us, we dealt with the issue of whether the order refusing to disqualify the law firm from further participation in the proceedings was a "final judgment" within the contemplation of § 12-301. We noted in that case that the General Assembly in § 12-101(f) of the Courts and Judicial Proceedings Article had defined "final judgment" as "a judgment, decree, sentence, order, determination, decision, or other action by a court ... from which an appeal, application for leave to appeal, or petition for certiorari may be taken." Judge Digges pointed out for the Court, however, that, "as this definition implies, it is ultimately for this Court to decide which judgments or orders are final and therefore appealable under section 12-301. Warren v. State, 281 Md. (179,) 183, 377 A.2d (1169,) 1171 ((1977))." 284 Md. at 91, 394 A.2d 801. Quoting United States Fire Ins. v. Schwartz, 280 Md. 518, 521, 374 A.2d 896 (1977), overruled, Department of Public Safety v. LeVan, 288 Md. 533, 419 A.2d 1052 (1980), we said that the prior attempts of this Court to determine if a particular trial court action is appealable do not always involve questions readily capable of delineation. The underlying policy of the final judgment rule is that piecemeal appeals are disfavored. Accordingly, we have stated that as a general rule an appealable judgment is one that "must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding." 280 Md. at 521, 374 A.2d 896.

In the course of the discussion in Peat & Co. we said that the trial court's refusal to disqualify the attorneys in question had in no way precluded Peat & Co. from fully defending its interest in the pending law suit, or concluded the question of its liability. We held that in that context the order was not a final judgment. 284 Md. at 91, 394 A.2d 801.

The Court addressed the argument that the circuit court's order was appealable as a "collateral order," which is an exception to the final order requirement. Citing the Court's application of the collateral order exception in Stewart v. State, 282 Md. 557, 571, 386 A.2d 1206 (1978), and Jolley v. State, 282 Md. 353, 357, 384 A.2d 91 (1978), Judge Digges reiterated for the Court in Peat & Co. the ambit of the exception "The concept is narrow in scope, however, for, as the Supreme Court has articulated, if the order is to come within the 'small class' of cases included in the final judgment rule under Cohen it must meet four requirements: '(T)he order must ((1) ) conclusively determine the disputed question, ((2)) resolve an important issue (, (3) be) completely separate from the merits of the action, and ((4)) be effectively unreviewable on appeal from a final judgment.' Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978) (footnote omitted); see Cohen v. Beneficial Industrial Loan Corp., 337 U.S. (541,) 546 (, 69 S.Ct. 1221 (1225), 93 L.Ed. 1528 (1949))." 284 Md. at 92, 394 A.2d 801.

As indicated, we deemed the circuit court's order refusing disqualification as not immediately appealable. In support of this conclusion, Judge Digges noted for the Court: (1) the potential floodgate effect incident to appeals concerning the propriety of a trial court's ruling on particular facts; (2) that the question of whether to disqualify counsel was one addressed to the discretion of the trial court; and (3) the absence of sufficient import to warrant immediate appellate review because serious and unsettled questions were not presented. Id. at 96-97, 394 A.2d 801. We also declined application of the interlocutory appeal statute. Id. at 98, 394 A.2d 801.

As recently pointed out in Lewis v. Lewis, 290 Md. 175, 182, 428 A.2d 454 (1981), and Pappas v. Pappas, 287 Md. 455, 460, 413 A.2d 549 (1980), generally it is only those interlocutory orders specified in § 12-303, Courts and Judicial Proceedings Article, which are immediately appealable.

Thus, as was stated in In re Buckler Trusts, 144 Md. 424, 125 A. 177 (1924), a decree or an order, to be appealable, "must be so far final as to determine and conclude the rights involved in the action ...." 144 Md. at 427, 125 A. 177 (emphasis added). At issue in that case was the appealability of a decree appointing substituted trustees pursuant to a deed of trust, and an order striking from the files a document submitted in opposition to that appointment. In dismissing the appeal, the Court observed that the appellant had no direct interest in the subject matter of the litigation and that the appellant improperly intervened. Id. at 427-28, 125 A. 177. Nothing in the order and decree appealed from precluded a proper proceeding to enforce or to defend the rights and interests at stake. Id. at 428, 125 A. 177; see Rowe Co. v. Rowe, 154 Md. 599, 604, 141 A. 334 (1928) (order directing intervention was interlocutory and nonfinal; thus, order was not immediately appealable). Finality for the purposes of appeal requires settlement of the rights of the parties. D. C. Transit Systems v. S.R.C., 259 Md. 675, 682, 270 A.2d 793 (1970); Concannon v. State Roads Comm., 230 Md. 118, 125, 186 A.2d 220 (1962); and Hopkins v. Easton Nat. Bank, 171 Md. 130, 135, 187 A. 874 (1936).

Examination of the plethora of case law bearing on the question of finality for the purposes of appeal produces the following catalog: Clark v. Elza, 286 Md. 208, 211-13, 406 A.2d 922 (1979) (order denying motion to enforce oral settlement of tort action, albeit not final, nonetheless was appealable as within the collateral order exception); Schlossberg v. Schlossberg, 275 Md. 600, 606-15, 343 A.2d 234 (1975) (order which did not finally determine proper parties and issues to be tried, or send issues from an orphans' court to a law court for trial was not final and thus not immediately appealable); Ventresca v. Weaver Brothers, 266 Md. 398, 402-03, 292 A.2d 656 (1972) (order striking an enrolled judgment divested a substantial right and thus was immediately appealable); Griffin v. St. Mary's College, 258 Md. 276, 279, 265 A.2d 757 (1970) (order sustaining demurrer to petition for writ of mandamus with leave to amend was not a final judgment or immediately appealable); Lawrence v. Dept. of Health, 247 Md. 367, 371-72, 231 A.2d 46 (1967) (denial of plaintiff's motion for summary judgment was not a final order from which an appeal might be taken); Commissioner v. Steudl, 233 Md. 543, 545, 197 A.2d 432 (1964) (order striking declaration but granting leave to amend within a specified period of time did not conclude rights of the parties on the facts of that case or constitute a final judgment); Concannon,...