National 4-H Club Foundation of America, Inc. v. Thorpe, No. 777

• Court: Court of Special Appeals of Maryland
• Writing for the Court: Argued before ORTH; MENCHINE
• Citation: 22 Md.App. 1,321 A.2d 321
• Parties: NATIONAL 4-H CLUB FOUNDATION OF AMERICA, INC. v. Bernard C. THORPE.
• Docket Number: No. 777
• Decision Date: 03 July 1974

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22 Md.App. 1 321 A.2d 321 NATIONAL 4-H CLUB FOUNDATION OF AMERICA, INC.
v.
Bernard C. THORPE. No. 777. Court of Special Appeals of Maryland. July 3, 1974.

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[321 A.2d 322] Stephen Z. Kaufman, Silver Spring, with whom were Linowes & Blocher, R. Robert Linowes and Robert H. Metz, Silver Spring, on the brief, for appellant.

Michael J. Ragland, Rockville, with whom were Charles W. Bell, John T. Bell, Frank S. Cornelius and Bell & Bell, Rockville, on the brief, for appellee.

Argued before ORTH, C. J., and THOMPSON and MENCHINE, JJ.

MENCHINE, Judge.

National 4-H Club Foundation of America, Inc. (National), claiming the right to do so under Maryland Rule 208 a, filed a motion to intervene as defendant in an ejectment action brought by Bernard C. Thorpe (Thorpe) as plaintiff against Bessie V. Mills (Mills) as defendant. The motion to intervene was denied by the Circuit Court for Montgomery County (Shure, J.). This appeal followed. A pending demurrer by Mills has not been heard by the trial court, the proceedings [321 A.2d 323] below having been suspended pending this appeal.

Sua sponte, we note that a jurisdictional question arises in this appeal. Although the right to immediate appeal was not contested by the parties, we believe was should discuss the interrelationship of Maryland Rule 208 a and Maryland Rule 605 a. The latter rule bars immediate appeal from an adjudication of less than all claims absent express

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determination by the trial court that there is no just reason for delay and absent express direction for the entry of judgment by the trial court. Jurisdiction may not be conferred by consent of the parties. Lang v. Catterton, 267 Md. 268, 275, 297 A.2d 735, 739.

That part of Rule 208 that is pertinent to these proceedings reads as follows:

'Rule 208. Intervention.

a. Of Right.

Upon timely application a person shall be permitted to intervene in an action: (a) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; * * *.'

The part of Rule 605 that is pertinent to these proceedings reads as follows:

'Rule 605. Multiple Claims-Judgment Upon . . . Gen'l.

a. When Entered-As to Part or All.

Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.'

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In the subject case we stress that intervention by National was claimed as a matter of right under Rule 208 a and that the trial court did not make the express determination and the express direction authorized by Rule 605 a.

The question whether denial of intervention, Claimed as a matter of right, gives rise to a concomitant right of immediate appeal, has been the subject of considerable appellate discussion in the Federal Courts, under the Federal Rules of Procedure. ¹

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[321 A.2d 324] The question has not, however, been the subject of appellate discussion in Maryland. ²

3B Moore's Federal Practice, 24.15 discusses appeal rights under Federal Rule 24(a). It is there stated:

'As a general rule, unless an interlocutory order falls within one of the categories from which an appeal may be taken, a decision of a district court must be 'final' in order to be appealable.

'Under this standard, it is clear that a district court order allowing intervention is not a final order and is not appealable as such. It would appear that the converse should also be true that an order denying intervention is appealable since it finally excludes the applicant from participation in the litigation and is thus a final order as to him. However, the cases do not support so sweeping a conclusion. Rather, a jurisdictional rule has arisen under which an order denying intervention is appealable if intervention was a matter of right; but if intervention is permissive only, the order denying intervention is appealable only if the court has abused its discretion. * * * Since the rule makes the initial question of jurisdiction turn on the merits of the question being raised, i. e., whether intervention was of right or invoked the sound discretion of the trial court, as a practical matter the appellate court must decide the merits whether it dismisses the appeal, affirms or reverses. The appropriate solution therefore should be to treat all denials of intervention as final orders, but to reverse only where there was intervention of right or an abuse of discretion in denying permissive intervention.'

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The relationship of Federal Rules 24(a) and 54(b) is discussed in 6 Moore's Federal Practice, 54.38 wherein it is said, inter alia:

'The appealability, under amended 54(b), of an order denying intervention raises a troublesome and quite different problem from that involved where intervention is granted and the intervener's claim is thereafter adjudicated.

'We shall first discuss the denial of intervention. As previously stated, there are two different types of intervention-one based upon a permissive right, the other upon an absolute right; and under original 54(b) an appeal based upon the denial of a permissive right would ordinarily not lie because the denial involved an exercise by the district court of discretion and abuse could seldom be shown, but would lie from a denial where the right of intervention was absolute. How stands the matter under amended 54(b)?

'To answer this, one must first determine whether the Rule has any application[321 A.2d 325] to the denial of intervention * * *, we question whether the denial of intervention has dealt with a 'claim for relief' or whether the petitioner is a 'party' whose rights and liabilities in the action have been adjudicated within the intendment of amended 54(b). * * * in the absence of the determination and direction the order denying intervention is not appealable if amended 54(b) applied. By hypothesis, however, where an absolute right to intervene is involved the litigation is of such a character that unless the applicant is allowed to intervene his rights will be unduly affected. * * * problems can be avoided by holding that the denial of intervention is a collateral order, whose appealability is totally unaffected by amended 54(b). Thus the prior law would continue to determine the appealability of orders denying intervention: an order denying intervention where

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the right is abolute is final; an order denying permissive intervention, although rejecting a claimed procedural right with finality, would ordinarily be non-appealable because of the discretionary nature of the denial.' (From pp 641-643)

In 7A Wright & Miller, Federal Practice and Procedure, Civil § 1923, appellate review of intervention orders is discussed, the authors saying, inter alia:

'An order granting leave to intervene is not final and is not appealable as of right. * * *

'The matter has been much more complicated when review is sought of a denial of intervention, but there are clear signs that the courts are moving to a...