Millison v. Citizens Nat. Bank of Southern Md., 150

• Decision Date: 09 January 1970
• Docket Number: No. 150,150
• Citation: 260 A.2d 324,256 Md. 431
• Parties: J. Laurence MILLISON v. CITIZENS NATIONAL BANK OF SOUTHERN MARYLAND.
• Court: Maryland Court of Appeals

Page 431

256 Md. 431

260 A.2d 324

J. Laurence MILLISON v. CITIZENS NATIONAL BANK OF SOUTHERN MARYLAND.

No. 150.

Court of Appeals of Maryland.

Jan. 9, 1970.

Edward P. Camus, Riverdale (Charles A. Norris, Leonardtown, on the brief), for appellant.

Ernest N. Cory, Jr., Laurel (Cory, Boss & Rice, Laurel, and Paul J. Bailey and Joseph D. Weiner, Leonardtown, on the brief), for appellee.

Before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and DIGGES, JJ.

DIGGES, Judge.

After the demurrers filed by appellee, Citizens National Bank of Southern Maryland (Bank), and two of six co-defendants were sustained, appellant, Jay Laurence Millison, filed his amended bill of complaint containing three counts. The first count has fifteen paragraphs making numerous factual allegations. It seeks to have declared that one of the defendants, Containerization, Inc., holds property as constructive trustee for the benefit of Millison and seeks further equitable relief against both Containerization, Inc. and another defendant, George M. Green. The second and third counts are in law and incorporate by reference the factual allegations of the first count. The second count seeks both compensatory and exemplary damages from the 'Defendants' for their intentional and malicious interference with appellant's contract for the purchase of approximately one-half acre of land from the defendant Green, Resulting in plaintiff's loss of this property. In the third count the appellant likewise seeks both compensatory and exemplary damages from the 'Defendants' because of their entering into a conspiracy to prevent the plaintiff from becoming the owner of said realty with the result that he not only lost ownership of the real estate but a valuable lease for a department store and restaurant to be constructed thereon. The questions raised by this appeal are procedural and not substantive and therefore the facts can be briefly summarized.

It is alleged in the amended complaint that the plaintiff disclosed to one of the defendants, Daugherty, as president of the Bank, that he had an option to purchase approximately one-half acre of land in Lexington Park, St. Mary's County, Maryland, and requested the Bank's aid in financing the purchase. It is alleged that Daugherty used this information not for the purpose of arranging the requested loan, but to have his solely owned corporation, Containerization, Inc., with the knowledge and consent of the Bank, acquire title to the property. There is a further allegation that three other named defendants aided in Daugherty's plan to deprive the plaintiff of the benefits of his contract.

All of the defendants, with the exception of Daugherty and Containerization, Inc., demurred generally to the amended complaint but not separately to each count. ¹ The remaining two defendants answered the complaint.

At the time of the hearing before judge Bowen on March 11, 1969, after argument, all demurrers filed by the defendants, with the exception of that of the Bank, were withdrawn. The demurrer of the Bank initially was 'overruled generally' with leave to file an appropriate pleading in fifteen days. In making this ruling Judge Bowen stated:

'I think the allegations here support a cause of action against the Bank, on the first court. The conspiracy counts and the malicious or intentional interference counts, I don't believe that you can; * * * I will say, that I overrule the Demurrer * * * (to) the first; overruled the Demurrer because I find that the first count states a cause of action against the Bank. Let's stand on that. That's not going to get me anywhere, because Mr. Cory is going to get up and say that I demurred separately to the second and third counts. Is that what you have in mind to do? I can't find it.

'MR. WEINER (Attorney for Bank): You have demurred to each and every count, Your Honor. There aren't any left over to demurrer.

'JUDGE: Well gentlemen, if that being the case the Court sustains the demurrer * * * (of) the Bank * * * (to) the second and third counts. Overrule as to the first count. The Bank will have fifteen (15) days within which to plead to the first count.' ²

The plaintiff's attorney observed that the sustaining of the demurrer to the second and third counts might be a final order compelling an immediate appeal. The Bank's attorney then observed that the filing of the case had caused the Bank considerable harm and they would like very much to have the matter promptly terminated. Whereupon Judge Bowen stated:

'Well let's change it then, gentlemen, from Demurrer. Let's say that the demurrer is overruled generally. That will be docketed, Madam Clerk, 15 days within which to plead. Now, Mr. Cory, I think if you move to strike counts two and three as to the Bank; one motion will be a motion made during the course of the trial, and two of them have already been filed.

'MR. CORY: All right, we accept that motion right now. If it please the Court, based upon the Court's order to sustain, to overrule the Demurrer generally, the Citizens National Bank moves to strike count No. 2 and No. 3 of the Amended Bill of Complaint in the case of Millison vs. Green, being Equity No. A-3247.

'THE COURT: In order to preserve the defendant's right to appeal on these two counts.

'MR. CAMUS: Plaintiff.

'THE COURT: The Court treats this motion as an interlocutory motion ruling made during the course of trial and grants it and those counts will be stricken as surplusage in the Bill of Complaint insofar as it pertains to the defendants, Citizens National Bank of Maryland. That is all the record we have here. That is all the motions we have considered then.'

Subsequent to this hearing, on March 14, 1969, the Bank filed a motion for summary judgment as to count one, the only count remaining against it. The court verbally granted this motion and ordered judgment entered in favor of the Bank for costs. These actions on the part of the trial court resulted in the plaintiff's noting an appeal to this Court. Mention is made of the fact that the record discloses that the rulings appealed from were contained in an oral opinion delivered from the bench. A notation was made on the docket but no written order appears to have been entered. We have previously held on a number of occasions that an appeal will lie in equity 'only from a final decree or an order in the nature of a final decree entered by a court of equity, which presupposes a written decree or order, and not from the opinion of the court.' Bell v. Shifflett, 249 Md. 104, 238 A.2d 533 (1968), and cases cited therein. We now, however, as we did in Bell, take the position that this Court need not necessarily dismiss an appeal 'if it appears that a dismissal is not in the interest of justice.'

Because of the confusion that seems to have existed, brought about by the great number of oral motions that were made, we believe it appropriate that we point out some of the errors committed in order that this litigation may be finally terminated, rather than dismiss this appeal.

The appellant concedes that the action of the trial court in granting the motion for summary judgment pertaining only to the first count of the complaint was correct as he had sought no relief against the Bank in that count. He, however, challenges the action of the court in striking counts two and three from the complaint, particularly since only a few moments before this ruling was made, Judge Bowen had overruled the demurrer with leave to the Bank to plead within fifteen days. It appears that Judge Bowen was attempting to be consistent because each time the matter was before him he expressed the view that the plaintiff had alleged no valid cause of action against the Bank under counts two and three. He did at one time express the feeling that a valid claim, subject to proof, had been made under count one. The motion to strike counts two and...