Planning Bd. of Howard County v. Mortimer

• Decision Date: 22 September 1987
• Docket Number: No. 123,123
• Parties: , 80 A.L.R.4th 691 PLANNING BOARD OF HOWARD COUNTY et al. v. Rosemary MORTIMER et al. The HOWARD RESEARCH AND DEVELOPMENT CORPORATION et al. v. Rosemary MORTIMER et al. Sept. Term 1986.
• Court: Maryland Court of Appeals

Page 639

310 Md. 639

530 A.2d 1237, 80 A.L.R.4th 691

PLANNING BOARD OF HOWARD COUNTY et al. v. Rosemary MORTIMER et al.

The HOWARD RESEARCH AND DEVELOPMENT CORPORATION et al. v. Rosemary MORTIMER et al.

No. 123 Sept. Term 1986.

Court of Appeals of Maryland.

Sept. 22, 1987.

Motion for Reconsideration Denied Oct. 27, 1987.

Paul T. Johnson, Sr. Asst. County Sol. (Timothy E. Welsh, County Sol., on brief), Ellicott City, for part of appellant Planning Bd. of Howard County.

Susan M. Reutershan (John J. Delaney, John L. Hollingshead and Linowes & Blocher, on brief), Silver Spring, and James D. Lano, Associate Gen. Counsel, on brief, Columbia, for appellant Howard Research and Development Corp. and The Besche Oil Corp.

Elizabeth B. Entwisle, Asst. County Sol. (Timothy E. Welsh, County Sol., for Howard County, on brief), Ellicott City, for appellee Howard County Board of Appeals.

Bernard A. Cook (Robert H. Levan and Levan, Schimel, Richman & Belman, on brief), Columbia, for appellees Rosemary Mortimer, Anne Bowman & Betty Jesneck.

Barbara Gold, on brief, Baltimore, for appellees James and Katherine Wu.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH ^*, McAULIFFE and ADKINS, JJ.

ADKINS, Judge.

Before these two consolidated appeals were considered in the Court of Special Appeals, we granted certiorari to resolve issues involving the authority of a county planning board to challenge an adverse decision of a county board of appeals, and the authority of the board of appeals to participate in the ensuing litigation in circuit court as a party-appellee. Because of problems arising under Md. Rule 2-602, we now find we must dismiss the appeals for lack of jurisdiction. In one of the appeals, the trial court failed to certify an order certifiable under the Rule. In the other it certified a non-certifiable order. ¹

I

Before discussing the jurisdictional problems we discern, we introduce the parties and set the factual and procedural scene. Appellant Besche Corporation (Besche) contracted to buy land in Howard County from appellant Howard Research and Development Corporation (HRD). HRD as owner and Besche as contract purchaser petitioned appellant Planning Board of Howard County (Planning Board) for an amendment to the Comprehensive Sketch Plan for the Village of Hickory Ridge. The amendment was designed to permit use of the land as an "Employment Center--Commercial Land Use Parcel." The Planning Board granted the petition.

Nearby property owners took that decision to the Howard County Board of Appeals, where HRD, Besche, and the Planning Board appeared as appellees. The Board of Appeals, concluding that the Planning Board had failed to evaluate properly certain legal criteria, remanded to the latter agency for reconsideration.

From the decision of the Board of Appeals, HRD and the Planning Board appealed to the Circuit Court for Howard County. This case was docketed as case no. 85-CA-1839 in that court. Besche also appealed to the circuit court. Its appeal was docketed as case no. 85-CA-1874. In each case the Board of Appeals answered as an appellee. In each case the appellees before us, Rosemary Mortimer and other property owners (Protesting Owners), intervened. The two cases were eventually consolidated by order of the circuit court.

In case no. 1839, the Protesting Owners moved to dismiss the Planning Board for lack of standing. On 30 December 1985 the circuit court granted the motion on the grounds that the Planning Board lacked express statutory authority to appeal a Board of Appeals decision, was not a party aggrieved by that decision, and had failed to show a legally sufficient special interest in the proceedings. The order dismissing the Planning Board was, however, stayed. On 5 May 1986 the circuit court declined to reconsider its dismissal of the Planning Board and as to that action lifted the stay. Neither the original nor the confirmatory order dismissing the Planning Board included a Rule 2-602 certification. The Planning Board and HRD appealed to the Court of Special Appeals. We shall designate this case as Appeal I.

In both cases no. 1839 and 1874, motions were made to dismiss the Board of Appeals. The argument was that the Board had no authority to participate in the appeals, as appellee, at the circuit court level. The circuit court denied these motions and on 10 July 1986, purportedly acting pursuant to Rule 2-602, found that "there is no just reason for delay in the entry of a final judgment as to the Board of Appeals' standing to participate in this case" and entered "as a final judgment" its order refusing to dismiss the Board. HRD and Besche appealed to the Court of Special Appeals. We shall designate this case as Appeal II.

II

Appeal I on its face raises the question of whether the Planning Board had legal authority to appeal from the Board of Appeals to the Circuit Court for Howard County. In point of fact, though, the question is whether the order dismissing the Planning Board was an appealable order absent a Rule 2-602(b) certification. If it was not, we lack jurisdiction to consider the matter, even absent a motion to dismiss on that basis. Potter v. Bethesda Fire Dept. Inc., 302 Md. 281, 487 A.2d 288 (1985); Smith v. Taylor, 285 Md. 143, 400 A.2d 1130 (1979); Md.Rule 835 a 1. Appeal II raises the substantive question of the legal authority of the Board of Appeals to participate as appellee, in an appeal from its own decision. Here, however, the real question is whether the order refusing to dismiss the Board of Appeals was appealable despite the Rule 2-602(b) certification. ² As noted, we must dismiss both appeals.

We preface our consideration of the two cases by some general remarks on appellate jurisdiction, Rule 2-602, and authority interpreting it. In doing so we shall make reference to Federal Rule of Civil Procedure 54(b). Rule 2-602 is derived from that federal rule and interpretations of it are especially persuasive in interpreting our own Rule. East v. Gilchrist, 293 Md. 453, 445 A.2d 343 (1982); Pappas v. Pappas, 287 Md. 455, 413 A.2d 549 (1980); Diener Enterprises v. Miller, 266 Md. 551, 295 A.2d 470 (1972); Durling v. Kennedy, 210 Md. 549, 123 A.2d 878 (1956) (dealing with former Md.Rule 605a, a predecessor to current Rule 2-602); P. Niemeyer and L. Richards, Maryland Rules Commentary at 348 (1984) [hereinafter Niemeyer].

For an appellate court to have subject matter jurisdiction, an appeal must generally be taken from a final judgment or an appealable interlocutory order. Md.Code (1984 Repl.Vol. & 1986 Cum.Supp.) §§ 12-301 and 12-303 of the Cts. & Jud.Proc. Art.; Harris v. Harris, P.A., 310 Md. 310, 529 A.2d 356 (1987). So far as the final judgment requirement is concerned, it was long ago said that a judgment is of this character if it decides or settles the "very matter in controversy between the parties" and determines "the question of right in issue in the cause." Nally v. Long, 56 Md. 567, 571 (1881). That definition works well enough in a simple lawsuit in which a single plaintiff sues a single defendant on a single claim. But what happens when there are multiple parties and multiple claims, circumstances encouraged by the modern system of pleading that promote liberal joinder of parties, claims, cross-claims and counterclaims? Some of the claims or some of the parties or some of both may be disposed of at various stages of the litigation. If every disposition of this sort is appealable, the problems of disruption and delay at the trial level, overburden and duplication at the appellate level, and increased costs both to the parties and to the judicial system become substantial. See, e.g., Harris, 310 Md. at 314-315, 529 A.2d at 358 (discussing necessity of final judgment requirement).

The federal response to these problems was Federal Rule of Civil Procedure 54(b). See 6 J. Moore, W. Taggart, J. Wicker, Federal Practice, § 54.04 (2d ed. 1987) (discussing historic development of Rule 54(b)) [hereinafter cited as Moore]. ³ Maryland's response, modelled on the federal rule, was Rule 605a, now designated as Rule 2-602. ⁴ In the context of multiple- claim or multiple-party litigation, or both, the purpose of the rules is to avoid the costs, delays, frustrations, and unnecessary demands on judicial resources occasioned by piecemeal appeals. Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980); Parish v. Milk Producers Ass'n, 250 Md. 24, 97-98, 242 A.2d 512, 553-554 (1968), cert. denied, 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1971); Durling v. Kennedy, 210 Md. 549, 123 A.2d 878 (1956). A corollary purpose is to provide litigants with certainty as to the finality of judgments for appeal purposes. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S.Ct. 895, 100 L.Ed. 1297 (1956); 6 Moore, § 54.04 [3.-5] at p. 54-52.

The design of Md.Rule 2-602 and its federal counterpart accomplishes these goals by viewing an action involving multiple claims or multiple parties as a single judicial unit ordinarily requiring complete disposition before a final appealable judgment may be entered. This single judicial unit theory historically governed actions involving multiple claims, and, to a lesser extent, multiple parties prior to the evolution of liberal pleadings. Sears, 351 U.S. at 431-432, 76 S.Ct. at 897-898, 100 L.Ed. at 1304. Moore explains:

The general proposition underlying the single judicial unit theory was that an action constituted a single unit for disposition despite the fact that it embraced multiple claims or involved multiple parties; and a judgment lacked finality unless it completely disposed of this unit.

6 Moore, § 54.04 [2.-3] at p. 54-44. Recently in State Highway Admin. v. Kee, 309 Md. 523, 531, 525 A.2d 637, 641 (1987), we explained that "[a]bsent a proper certification, Rule 2-602 is designed to bring all issues in an action up for appellate review in one appeal."

Both Md.Rule 2-602 and ...