Houghton v. County Com'rs of Kent County, 76

CourtCourt of Appeals of Maryland
Citation513 A.2d 291,307 Md. 216
Docket NumberNo. 76,76
Decision Date01 September 1985

Submitted to MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned.



The plaintiffs have filed a motion for reconsideration of our decision dismissing the appeal in this case, Houghton v. County Comm'rs of Kent Co., 305 Md. 407, 504 A.2d 1145 (1986). In addition, the Maryland State Bar Association, as amicus curiae, has filed a memorandum in support of the motion for reconsideration. Neither the plaintiffs nor the Bar Association challenge the Court's holding that "an unqualified order granting a motion to dismiss or strike the plaintiff's initial pleading, thereby having the effect of putting the parties out of court, is a final appealable order." 305 Md. at 412, 504 A.2d 1145. Nonetheless, both the plaintiffs and the Bar Association maintain that the present appeal should not be dismissed.

The argument made in the plaintiffs' motion for reconsideration begins with the assertion that, "[u]ntil publication of the majority's opinion in this case, it has been the perception of the Bar and the Judges of the Court of Special Appeals that it [an appeal] is 'permitted by law' after judgment has been entered with the use of the word 'judgment' on the docket." (Motion, pp. 4-5). The plaintiffs suggest that "[i]f this Court or its Standing Committee on Rules of Practice and Procedure had ever resolved that it was not necessary to have the word 'judgment' in the docket entry, someone neglected to inform [the bar and] the Court of Special Appeals." (Id., p. 13). The authority for this "perception" of the law by the bar and judges is said to be Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1976); Aronstamn v. Coffey, 259 Md. 47, 267 A.2d 741 (1970); and Felger v. Nichols, 30 Md.App. 278, 352 A.2d 330 (1976), cited with approval in Impala Platinum v. Impala Sales, 283 Md. 296, 327, 389 A.2d 887 (1978). (Id., p. 5). Based on the premise that our holding in the case at bar was novel, the plaintiffs argue at length that it is unfair to dismiss their appeal. The plaintiffs contend that, because our decision overrules prior precedent, it should be given prospective effect only. They state (id., p. 15):

"The decision in this case establishes a new principle of law by overruling a clear past precedent on which the Judges of the Court of Special Appeals and litigants, including Appellants, have relied, and by deciding an issue of first impression whose resolution was not clearly foreshadowed.

'A decision overruling a judicial precedent will be limited to prospective application where to give it retroactive effect would impose undue hardship on persons who have justifiably relied on the the overruled precedent. A distinction has sometimes been made as to whether the overruling has been deemed to be retroactive in effect, or was one of procedural law, in which case the overruling has been deemed as merely prospective in effect.' 20 Am.Jur 2d Courts § 233 (1965) (emphasis added)."

The plaintiffs also argue that, instead of dismissing their appeal, we should follow the approach taken in Shell Oil Co. v. Supervisor, 276 Md. 36, 343 A.2d 521 (1975).

The Maryland State Bar Association, in its memorandum supporting the motion for reconsideration, takes essentially the same position as the plaintiffs. The Bar Association asserts that the decision in the instant case "established a new principle," that it "overruled" Felger v. Nichols, supra, 30 Md.App. at 279, 267 A.2d 741, that the docket entries of dismissal in this case on January 21, 1985, and January 23, 1985, do not denote a judgment under prior case law (citing Eastgate Associates v. Apper, supra, 276 Md. at 699, 350 A.2d 661), and that previously the "unwary ... would have relied on the holding in Felger v. Nichols." (Memorandum, pp. 5-7). Therefore, the Bar Association contends, the holding in the instant case should be given prospective effect only. Principal reliance is placed upon the Supreme Court's opinion in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).

Alternatively, the Bar Association asserts that the federal courts have "craft[ed] 'the unique circumstances doctrine' to permit an appeal even though the letter of the rules for appeal has been violated." (Memorandum, pp. 20-21). It "is applied to permit an 'otherwise untimely appeal.' " (Id., p. 21). According to the Bar Association, "this 'unique circumstances doctrine' is ... used when an appellant is led astray by judicial action or the like. The 'doctrine' protects a limited class of appellants who, otherwise, would be left remediless.... The 'doctrine' is broad enough to countenance protecting Appellant[s] in the case at bar." (Id., pp. 21-22). The Bar Association states that the "doctrine" is "[g]rounded in [the] Supreme Court decisions ... [in] Thompson v. I.N.S., 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964), and Harris Truck Lines v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962)." (Id., p. 21). The Association places principal reliance upon Feister v. Turner, 783 F.2d 1474 (9th Cir.1986).


The argument advanced by the plaintiffs, and the principal argument of the Bar Association, rests upon the entirely erroneous premise that our decision in this case was novel and overruled prior cases in this Court.

As both the Supreme Court and this Court have made clear, the question of whether a particular judicial decision should be applied prospectively or retroactively, depends in the first instance on whether or not the decision overrules prior law and declares a new principle of law. If a decision does not declare a new legal principle, no question of a "prospective only" application arises; the decision applies retroactively in the same manner as most court decisions. United States v. Johnson, 457 U.S. 537, 548-549, 102 S.Ct. 2579, 2586, 73 L.Ed.2d 202 (1982); Chevron Oil Company v. Huson, supra, 404 U.S. at 106, 92 S.Ct. at 355; Hanover Shoe, Inc. v. United Shoe Mach. Corp., 392 U.S. 481, 496, 88 S.Ct. 2224, 2233, 20 L.Ed.2d 1231 (1968); Potts v. State, 300 Md. 567, 577, 479 A.2d 1335 (1984); State v. Hicks, 285 Md. 310, 336-338, 403 A.2d 356 (1979); Wiggins v. State, 275 Md. 689, 719-732, 344 A.2d 80 (1975) (dissent). For example, in Hanover Shoe, Inc. v. United Shoe Mach. Corp., supra, a civil antitrust action, the Supreme Court held that it was not necessary to decide whether the principle of non-retroactivity should be applied to certain antitrust decisions, saying (392 U.S. at 496, 88 S.Ct. at 2233, emphasis supplied):

"The theory of the Court of Appeals seems to have been that when a party has significantly relied upon a clear and established doctrine, and the retrospective application of a newly declared doctrine would upset that justifiable reliance to his substantial injury, considerations of justice and fairness require that the new rule apply prospectively only.... There is, of course, no reason to confront this theory unless we have before us a situation in which there was a clearly declared judicial doctrine upon which United relied and under which its conduct was lawful, a doctrine which was overruled in favor of a new rule according to which conduct performed in reliance upon the old rule would have been unlawful. Because we do not believe that this case presents such a situation, we have no occasion to pass upon the theory of the Court of Appeals."

Just recently, in Potts v. State, supra, 300 Md. at 577, 479 A.2d 1335, Chief Judge Murphy pointed out for this Court that "where a decision has applied settled precedent to new and different factual situations, the decision always applies retroactively."

Our holding in the case at bar, that an unqualified order granting a motion to dismiss or strike the plaintiff's entire initial pleading is final and appealable, is not "novel" and does not overrule any earlier cases in this Court.

We have said on numerous occasions that "the 'accepted test in determining finality' is whether '[t]he effect of the court's ruling was to put the plaintiff out of court and deny her the means of further prosecuting her case....' " Mooring v. Kaufman, 297 Md. 342, 347, 466 A.2d 872 (1983) (quoting McCormick v. St. Francis De Sales Church, 219 Md. 422, 426-427, 149 A.2d 768 (1959)). See, e.g., Litton Bionetics v. Glen Constr., 292 Md. 34, 42, 437 A.2d 208 (1981); Smith v. Taylor, 285 Md. 143, 146-147, 400 A.2d 1130 (1979); Hillyard Constr. Co. v. Lynch, 256 Md. 375, 380, 260 A.2d 316 (1970); Gittings v. State ex rel. Ockerme, 33 Md. 458, 461 (1871).

Applying this standard, this Court has consistently taken the position that orders dismissing, or granting motions to dismiss or to strike or motions ne recipiatur with respect to the plaintiff's entire initial pleading, are final and appealable. See, e.g., Bailey v. Woel, 302 Md. 38, 41 n. 1, 485 A.2d 265 (1984); McSwain v. Tri-State Transportation, 301 Md. 363, 368, 483 A.2d 43 (1984); Mooring v. Kaufman, supra, 297 Md. at 347-348, 466 A.2d 872; Co. Comm'rs v. C.J Langenfelder, 237 Md. 368, 372-373, 206 A.2d 710 (1965); McCormick v. Church, supra, 219 Md. at 426-427, 149 A.2d 768; Wagoner v. Wagoner, 77 Md. 189, 194, 26 A. 284 (1893); Price v. Taylor, 21 Md. 356, 364 (1864).

In fact, the proposition that the dismissal of an entire initial pleading is a final judgment has always been so well understood, that this Court on many occasions has decided whether a given order is final and appealable by determining whether it is equivalent to an order of dismissal. For example, in Hendrickson v. Standard Oil Co., 126 Md. 577, 582, 95 A. 153 (1915), an order sustaining a demurrer to a bill of complaint...

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