Dabrowski v. Dondalski, 20
Decision Date | 01 September 1989 |
Docket Number | No. 20,20 |
Citation | 320 Md. 392,578 A.2d 211 |
Parties | Bernard DABROWSKI v. Angeline DONDALSKI et vir. , |
Court | Maryland Court of Appeals |
George M. Church (Church & Houff, P.A., both on brief), Baltimore, for petitioner.
Alexander R. Martick, Baltimore, for respondents.
Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, McAULIFFE and ADKINS, JJ., and BLACKWELL, * J. (retired).
Angeline Dondalski and her husband brought this action for money damages in the Circuit Court for Baltimore City against Bernard Dabrowski, trading as "Dabrowski & Son Funeral Home." The plaintiffs claimed that Mrs. Dondalski, upon leaving the funeral home and descending the outside steps, after paying her respects to a deceased friend, fell on the steps and was injured. It was asserted that the fall was due to the "slippery, hazardous, dangerous and defective design and condition of the steps."
The case was tried before Circuit Judge Mary Arabian and a jury on October 27 and 28, 1986. At the conclusion of all of the evidence on October 28th, Judge Arabian granted the defendant's motion for judgment. The plaintiffs filed a motion for a new trial on November 6, 1986, and it was denied on November 17, 1986. Twenty-nine days later, on December 16, 1986, the plaintiffs filed a request for review by a court in banc.
A court in banc, consisting of Judges Pines, Gordy and Noel, after receiving memoranda and hearing oral argument filed an opinion and order on January 26, 1988. The court in banc mandated that the "decision of the trial court is hereby REVERSED and it is hereby ORDERED that the case be set in for a new trial." The defendant had not, either before Judge Arabian or before the in banc court, raised any issue concerning the timeliness under Maryland Rule 2-551(b) of the request for in banc review.
The defendant on February 24, 1988, filed a notice of appeal to the Court of Special Appeals. The Court of Special Appeals, on its own motion, dismissed the appeal on the ground that the January 26, 1988, order by the court in banc was not a final appealable judgment. Dabrowski v. Dondalski, 77 Md.App. 747, 551 A.2d 933 (1989). The Court of Special Appeals relied on a decision dismissing an appeal from the grant of a new trial by a single circuit judge, Feinberg v. Geo. Wash. Cemetery, 233 Md. 440, 197 A.2d 147 (1964). The intermediate appellate court also cited two cases involving appeals from final judgments, where this Court indicated that a single trial judge's denial of a motion for a new trial is reviewable on appeal only for abuse of discretion. See Martin v. Rossignol, 226 Md. 363, 366-367, 174 A.2d 149 (1961); Brinand v. Denzik, 226 Md. 287, 292-293, 173 A.2d 203 (1961).
The defendant filed in this Court a petition for a writ of certiorari, raising essentially three questions: (1) whether the Court of Special Appeals erred in holding that the decision of the in banc court was not a final judgment; (2) whether the plaintiffs' failure to file the notice of in banc review within ten days after Judge Arabian denied the motion for new trial, as required by Rule 2-551(b), requires that this Court vacate the decisions of the Court of Special Appeals and of the in banc court; (3) whether Rule 2-551(b), permitting a request for in banc review to be filed within ten days after the trial court's judgment, instead of requiring that it be filed on the same day as the trial court's ruling, is unconstitutional in light of Art. IV, § 22, of the Maryland Constitution and Costigin v. Bond, 65 Md. 122, 3 A. 285 (1886). See Montgomery County v. McNeece, 311 Md. 194, 533 A.2d 671 (1987). 1 The defendant obviously urged an affirmative answer with regard to all three questions.
This Court granted the petition, 316 Md. 107, 557 A.2d 255, and our order encompassed all three questions presented. Nonetheless, as we agree with the defendant's position concerning the first two questions, we shall not reach the constitutional issue.
It is clear that the decision of the court in banc was a final order appealable to the Court of Special Appeals under Maryland Code (1974, 1989 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article and Art. IV, § 22, of the Maryland Constitution. Our decision in Estep v. Estep, 285 Md. 416, 420-421, 404 A.2d 1040 (1979), is dispositive. In Estep, as in the present case, an appeal was taken from a circuit court decision to a court in banc; the court in banc reversed and ordered further proceedings in the circuit court; the appellee before the court in banc took an appeal to the Court of Special Appeals, and the Court of Special Appeals dismissed the appeal. Reversing the Court of Special Appeals, this Court, in an opinion by Judge J. Dudley Digges, stated (285 Md. at 420-421, 404 A.2d at 1042-1043):
"In addressing the initial issue of the propriety of the Court of Special Appeals' dismissal of petitioner's request for review, we find that we are at somewhat of a loss because that court failed to further explain the reason for its decision, other than to say the appeal was 'not allowed by law.'
* * * * * *
Judge Digges for the Court went on to note as follows (285 Md. at 421 n. 5, 404 A.2d at 1043 n. 3):
Consequently, in the present case, the Court of Special Appeals erred in dismissing the appeal for lack of a final appealable judgment.
Rule 2-551(b), effective July 1, 1986, requires that the notice for in banc review be filed within ten days after entry of judgment or, when a timely motion is filed pursuant to Rules 2-532, 2-533, or 2-534, within ten days of an order disposing of the motion. 2 Therefore the plaintiffs' request for in banc review should have been filed within ten days of November 17, 1986. Instead, it was filed twenty-nine days after November 17, 1986. Under these circumstances, it was error for the in banc court to have exercised jurisdiction over the appeal. Judge Arabian's order of November 17, 1986, not having been appealed in a timely manner, terminated this case. The in banc court should have dismissed the appeal.
A situation very similar to that in the instant case was presented in Walbert v. Walbert, 310 Md. 657, 531 A.2d 291 (1987), where an in banc court also entertained an appeal which had been noticed beyond the ten-day period set forth in Rule 2-551(b). In Walbert, as in this case, neither party brought to the in banc court's attention the untimeliness of the appeal. In ordering that the decision of the in banc court be vacated, we said (310 Md. at 662, 531 A.2d at 293):
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