Institutional Management Corp. v. Cutler Computer Concepts, Inc., 132

• Court: Court of Appeals of Maryland
• Citation: 451 A.2d 1224,294 Md. 626
• Docket Number: No. 132,132
• Parties: INSTITUTIONAL MANAGEMENT CORPORATION v. CUTLER COMPUTER CONCEPTS, INC.
• Decision Date: 12 November 1982

Page 626

294 Md. 626 451 A.2d 1224 INSTITUTIONAL MANAGEMENT CORPORATION
v.
CUTLER COMPUTER CONCEPTS, INC. No. 132. Court of Appeals of Maryland. Nov. 12, 1982.

Page 627

Joshua R. Treem, Baltimore (Schulman & Treem, Baltimore, on brief), for appellant.

Owen M. Taylor, Kensington (Owen McDonnell Taylor, P.A., Kensington, on the brief), for appellee.

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

[451 A.2d 1225] DAVIDSON, Judge.

This case presents two questions. The first question concerns the propriety of the dismissal of an appeal. The second question involves the applicability of the doctrines of res judicata and collateral estoppel.

The respondent, Cutler Computer Concepts, Inc. (Concepts), is a Maryland corporation that provides general consulting services for the development of computer software. The petitioner, Institutional Management Corporation (IMCO), is a Pennsylvania corporation that was engaged in the development and marketing of a computerized system that would translate stenographic notes to English text (system).

In July, 1977, Concepts and IMCO entered into a contract in which Concepts agreed to provide certain consulting services necessary for the design and development of the system. Lionel Bartram, then a full-time salaried employee of Concepts, was to perform the work. In February, 1978, Bartram resigned and joined with several former employees of IMCO to form Translation Systems, Inc., a competitor of IMCO.

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In January, 1979, in the Circuit Court for Montgomery County, Concepts sued IMCO alleging that it had performed work under the contract for which it had not been paid (Montgomery County case). IMCO filed a counterclaim alleging that Concepts had breached the contract by, among other things, failing to deliver a "complete" system, and by violating the contractual requirement of confidentiality.

In the Montgomery County case, IMCO asserted that Concepts was barred from litigating certain issues that had allegedly been determined in previous litigation in which IMCO had sued Translation Systems, Inc. and its principals, including Bartram, in the United States District Court for the District of Maryland, Institutional Management Corp. v. Translation Systems, Inc., 456 F.Supp. 661 (D.Md.1978) (Federal court case). In the Montgomery County case, IMCO contended that although Concepts was not a party of record in the Federal court case, it was, nonetheless, in privity with Bartram, a party of record in that suit.

On 3 December 1980, at the conclusion of a trial on the merits in the Montgomery County case, the trial court, in an oral opinion, found that Concepts was not a party to the proceedings in the Federal court case and was, therefore, not barred by the doctrines of res judicata or collateral estoppel. On that same day, it additionally directed that judgments be entered in favor of Concepts on both the claim and the counterclaim. On 9 December 1980, final judgments in favor of Concepts were entered on both the claim and the counterclaim.

On 8 January 1981, IMCO filed an Order for Appeal. That order stated:

"Pursuant to Rules 1011 and 1012, Maryland Rules of Procedure, Institutional Management Corporation, the defendant and counterclaim Plaintiff, by its attorneys, Joshua R. Treem, Esquire and Schulman and Treem, files this Notice and Order of Appeal to the Maryland Court of Special Appeals of the rulings and judgments entered by the Honorable Joseph A. Mathias, Circuit Judge, on December 3, 1980." (Emphasis added.)

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The Court of Special Appeals, in an unreported per curiam opinion, Institutional Management Corp. v. Cutler Computer Concepts, Inc., (No. 82, September Term, 1981, filed 5 October 1981), found that the appeal was taken from the trial court's judgment nisi ¹ entered on 3 December 1980, and not [451 A.2d 1226] from the trial court's final judgment entered on 9 December 1980. That Court, therefore, dismissed the appeal.

IMCO filed a petition for a writ of certiorari that we granted. We note that in reaching its conclusion, the Court of Special Appeals overlooked not only a prior opinion of the Court of Appeals, but also prior reported opinions of the Court of Special Appeals itself. Accordingly, we shall vacate the judgment of the Court of Special Appeals dismissing the appeal as premature. Additionally, we shall affirm the judgments of the trial court although for reasons other than those it expressed.

I

The jurisdiction of this Court, and the Court of Special Appeals, is determined by constitutional provisions, statutory provisions, and rules. Where appellate jurisdiction is lacking, the appellate court will dismiss the appeal sua sponte. An appeal may be taken to the Court of Special Appeals within 30 days from the date of the judgment appealed from. Md.Rule 1012 a. Ordinarily, the appeal must be taken from a final judgment. Eastgate Assocs. v. Apper, 276 Md. 698, 700-01, 350 A.2d 661, 663 (1976); see Clark v. Elza, 286 Md. 208, 212, 406 A.2d 922, 924 (1979); Biro v.

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Schombert, 285 Md. 290, 294, 402 A.2d 71, 73 (1979). An appeal taken from a judgment nisi and before final judgment has been entered must be dismissed as premature. King v. State Roads Comm'n, 294 Md. 236, ---, 449 A.2d 390, 391 (1982); Merlands Club, Inc. v. Messal, 238 Md. 359, 365, 208 A.2d 687, 691 (1965).

This Court and the Court of Special Appeals have both recognized that when an order for appeal is timely filed subsequent to the entry of a final judgment, an appellate court has jurisdiction. It must entertain the appeal even though the text of the order for appeal indicates that the appeal is taken from something other than a final judgment. Sweeney v. Hagerstown Trust Co., 144 Md. 612, 622, 125 A. 522, 526 (1924); Johnson-Bey v. Reiger, 32 Md.App. 299, 306, 360 A.2d 457, 461, cert. denied, 278 Md. 725 (1976); Shipp v. Autoville Ltd., 23 Md.App. 555, 559-60, 328 A.2d 349, 352 (1974), cert. denied, 274 Md. 725 (1975).

In Sweeney v. Hagerstown Trust Co., 144 Md. 612, 125 A. 522 (1924), this Court considered the effect of the text of an order...