Russell v. American Sec. Bank, N.A.

• Citation: 499 A.2d 1320,65 Md.App. 199
• Decision Date: 01 September 1985
• Docket Number: No. 233,233
• Parties: William G. RUSSELL v. AMERICAN SECURITY BANK, N.A. ,
• Court: Court of Special Appeals of Maryland

Page 199

65 Md.App. 199

499 A.2d 1320

William G. RUSSELL v. AMERICAN SECURITY BANK, N.A.

No. 233, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Nov. 13, 1985.

A. Slater Clarke, Bethesda (Mitchell I. Alkon, Bethesda, on the brief), for appellant.

Richard H. Nicolaides, Washington, D.C. (Thomas M. Hennessey, Washington, D.C., on the brief, and Joseph A. Kenary, Rockville, on the brief), for appellee.

Argued before WILNER and BISHOP, JJ., and GETTY, JAMES S., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

BISHOP, Judge.

William G. Russell appeals a judgment entered in the Circuit Court for Montgomery County in favor of appellee American Security Bank, N.A. in the amount of $132,498.61, which is less than the full amount claimed. Pursuant to Rule 2-602, the court found that there was no just cause for delay and directed entry of the judgment under Rule 2-501(e)(3) "for some but less than all of the amount requested." Because we hold that there was just cause for delay, we dismiss this appeal.

FACTS

On December 12, 1984, the court issued the following order:

UPON CONSIDERATION of the Motion of Plaintiff, American Security Bank, N.A. for Summary Judgment, the Points and Authorities in support thereof, the Defendant's opposition thereto, the entire record herein and any oral argument thereon, it is by the Court this 12th day of December, 1984,

ORDERED, that Plaintiff's Motion for Summary Judgment is hereby granted, and there being no just cause for delay, it is further,

ORDERED, that Plaintiff American Security Bank, N.A. is hereby awarded final judgment against Defendant William G. Russell in the amount of $132,498.61 with interest at the per diem rate of $55.38 commencing May 1, 1984 through July 23, 1984, plus interest thereafter at the legal rate, plus costs.

On December 24, 1984, the court amended the last paragraph of that order to read:

ORDERED, that Plaintiff American Security Bank, N.A. is hereby awarded final judgment against Defendant William G. Russell in the amount of $132,498.61, plus interest thereafter at the legal rate, from July 23, 1984 and costs.

This revision deleted from the December 12th version, "with interest at the per diem rate of $55.38 commencing May 1, 1984 through July 23, 1984, plus interest thereafter at the legal rate, plus costs" and inserted instead: "plus interest thereafter at the legal rate, from July 23, 1984 and costs."

The court gave the following explanation during the hearing on appellant's Motion for Reconsideration, when this amendment was made:

Now, as far as the interest, he may have all kinds of good claims. I don't know about that. But he still doesn't want to pay the principal. This is not right. He owes the principal. And he ought to pay the principal. In fact, the principal was due either October 31st, or possibly April 4th, anyway....

I will deny the motion to reconsider the order of July 23rd, granting summary judgment in the principal amount of $132,498.61.

I will, with regard to December 12th, order, strike out that portion granting interest of $55.38 per day from May 1st, 1984 through July 23rd, 1984, as that was not part of the ruling.

Later in the hearing, after the order was amended, counsel for appellee stated, "[a]nd we do have a little bit of attorney's fees hanging," to which the court replied, "[t]hat is still open." ¹

While the order itself does not expressly reserve ruling on the attorney's fees and prejudgment interest issues, it is clear from the record that the trial court intended to leave these issues open. Based on the December 24 hearing, the final proceeding on the record, the trial court awarded partial judgment on what it concluded was the principal due on the note, and pointed out that issues of interest due on the note and attorney's fees would remain open. The language in the order "there being no just cause for delay" was to satisfy the Rule 2-602 certification requirements and allow immediate appeal of the partial judgment.

1. Rule 2-602 Certification of a 2-501(e) Partial Judgment

The object of Md.Rule 2-602 is to prevent piecemeal appeals by providing that only where a trial court has fully adjudicated all the issues in a case will an appeal be permitted. See Robert v. Robert, 56 Md.App. 317, 324, 467 A.2d 798, 801 (1983) (construing former Rule 605 a); Harford Sands, Inc. v. Levitt & Sons, 27 Md.App. 702, 711-12, 343 A.2d 544, 549 (1975) (same). See also P. Neimeyer & L. Richards, Maryland Rules Commentary at 348 (1984); Commentary on the New Maryland Rules of Civil Procedure, 43 Md.L.Rev. 669, 820 (1984). Rule 2-602 does however, allow the trial court to enter judgments not fully adjudicating an entire case if the court expressly finds no just reason for delay.

Rule 2-602 was derived from former Rule 605a; the major change is the addition of language providing for certification of a Rule 2-501(e) partial summary judgment ² to allow an appeal where the dispute is over only a small part of the relief sought. See P. Neimeyer & L. Richards, Maryland Rules Commentary at 348 (1984).

The version of Rule 2-602 applicable on July 23, 1984, the date summary judgment was granted and on December 24, 1984, the date of the revised order, provided:

When more than one claim for relief is presented in an action, including a consolidated action, whether by original claim, counter-claim, cross-claim, or third-party claim, or when multiple parties are involved, or when partial judgment is sought pursuant to Rule 2-501(e), the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only if the court expressly determines that there is no just reason for delay and directs the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and is subject to revision at any time before the entry of judgment that adjudicates all the claims and the rights and liabilities of all the parties.

(emphasis added). The corresponding applicable version of Rule 2-501(e) provided:

The court shall enter judgment in favor of or against the moving party if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. Upon compliance with Rule 2-602, the court may enter judgment (1) for or against one or more but less than all of the parties to the action, (2) upon one or more but less than all of the claims presented by a party to the action, or (3) for some but less than all of the relief requested.

These rules have been recently amended to make clear that a Rule 2-501(e) summary judgment resolving only part of one claim can be certified as an appealable final judgment only where the claim is limited to seeking monetary relief. See Minutes, Court of Appeals Standing Committee on Rules of Practice and Procedure, March 15, 16, 1985 at 24-28, 48-49. The current Rule 2-602 provides:

(a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:

(1) is not a final judgment;

(2) does not terminate the action as to any of the claims or any of the parties; and

(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.

(b) When Allowed. If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:

(1) as to one or more but fewer than all of the claims or parties; or (2) pursuant to Rule 2-501(e)(3), for some but less than all of the amount requested in a claim seeking money relief only.

The new Rule 2-501(e) provides:

The court shall enter judgment in favor of or against the moving party if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. By order pursuant to Rule 2-602(b), the court may direct entry of judgment (1) for or against one or more but less than all of the parties to the action, (2) upon one or more but less than all of the claims...