Silbersack v. Acands

• Decision Date: 04 January 2008
• Docket Number: No. 53, Sept. Term, 2007.,53, Sept. Term, 2007.
• Parties: Donna SILBERSACK, Personal Representative of the Estate of Dominic Casino, et al. v. ACANDS, INC., et al.
• Court: Court of Special Appeals of Maryland

938 A.2d 855

402 Md. 673

Donna SILBERSACK, Personal Representative of the Estate of Dominic Casino, et al. v. ACANDS, INC., et al.

No. 53, Sept. Term, 2007.

Court of Appeals of Maryland.

January 4, 2008.

R. Bruce McElhone (Theodore M. Flerlage, Jr., James S. Zavakos of Law Offices of Peter G. Angelos, P.C., Baltimore), on brief, for appellants.

James K. Archibald (Venable, L.L.P., Baltimore; Robert C. Heim, Ezra D. Rosenberg, Louise E. Moyer, Philadelphia, PA., of counsel), on brief, for Phillip Morris USA, Inc., appellee.

David B. Hamilton (Womble Carlyle Sandridge & Rice, PLLC, Linthicum; R. Dal Burton of Womble Carlyle Sandridge & Rice, PLLC, Atlanta, GA, of counsel), on brief, for R.J. Reynolds Tobacco Co. and Brown & Williamson Holdings, Inc., f/k/a Brown & Williamson Tobacco Corp., Individually and as Successor in Interest to the American Tobacco Co., appellees.

Kathleen McDonald, Kerr McDonald, LLP, Baltimore; Michael B. Minton, Bruce D. Ryder (Thompson Coburn, LLP, St. Louis, MO, of counsel), for Lorillard Tobacco Co., appellee.

David W. Skeen (Wright, Constable & Skeen, LLP, Baltimore; Aaron H. Marks, Kasowitz, Benson, Torres & Friedman, LLP, New York City, of counsel), on brief, for Liggett Group, Inc., appellee.

Argued Before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, JJ., and ALAN M. WILNER and DALE R. CATHELL (Retired, Specially Assigned), JJ.

ALAN M. WILNER, Judge (Retired, Specially Assigned).

This case has a complex history, but the issue before us is a simple one. No final judgment, as we have consistently defined that term, has been entered in the case by the Circuit Court. There are still claims pending against nine defendants who are in bankruptcy. Appellants asked the court to enter a judgment, under Maryland Rules 2-601 and 2-602(b), and the court declined to do so. Appellants acknowledge that such a decision is both a discretionary and interlocutory one and that no appeal ordinarily lies from it. Their case, they believe, calls for a different result. They insist that, in their case, the court's refusal to exercise its discretion in their favor constitutes a final judgment. We disagree and shall dismiss their appeal.

BACKGROUND

This case began as, and remains, an action for wrongful death and personal injuries suffered by Dominic Casino as the result of his workplace exposure to asbestos products allegedly manufactured or supplied by the defendants. Mr. Casino was diagnosed with lung cancer in November, 1994; he died from that disease in February, 1995. In March, 1997, Mr. Casino's widow and the personal representative of his Estate, appellants, filed their initial complaint against nineteen defendants in the Circuit Court for Baltimore City.¹ For nearly five years, the action was pursued as an asbestos case. Then, in December, 2001, appellants filed an amended complaint which added seven new defendants—six manufacturers and sellers of tobacco products and an alleged public relations and lobbying "arm" of the six manufacturers.² The amended complaint is quite lengthy. The thrust of it is that, although smoking and exposure to asbestos can each, independently, cause lung cancer, the combination of the two act in "synergy" and greatly heighten the risk of developing that disease, so that both the asbestos defendants and the tobacco defendants, separately and in combination, are responsible for the illness and death of Mr. Casino.

The tobacco defendants moved to dismiss the amended complaint against them on the ground that, because the personal injury claims against the two sets of defendants involved different products, different methods of distribution, and different uses, the joinder of asbestos and tobacco defendants was improper. In April, 2002, the court granted those motions. It agreed that the claims involved different products, methods of distribution, and uses and concluded that the joinder of asbestos and tobacco defendants (1) would not achieve the goals of joinder—a just, speedy, and inexpensive determination of all disputes between the parties, but (2) would, instead, "disrupt the orderly procedures that the asbestos docket now has in place" and cause confusion to the jury because "a unique set of practices and procedures have developed under the asbestos docket" which the court believed would be prejudicial to the tobacco defendants if they were then added to the case. Aggrieved by that ruling, appellants sought a writ of mandamus from this Court directing the trial judge to vacate the orders of dismissal or, in the alternative, directing her to enter an order of final judgment pursuant to Rule 2-602(b), which would enable appellants to appeal that decision. We denied the petition. Allen v. The Honorable M. Brooke Murdoch, Misc. No. 11, Sept. Term 2002.

In July, 2005, in accordance with the court's procedures relating to its asbestos docket, this case was consolidated for trial in March, 2006, along with ten other lung cancer asbestos cases. By the time of trial, nine of the defendants had filed for bankruptcy, thereby automatically staying further proceedings against them (see 11 U.S.C. § 362), and appellants had either dismissed or resolved their claims against the other defendants. In April, 2006, appellants moved to "reinstate" the tobacco defendants. Noting that, by reason of the bankruptcy of some of the asbestos defendants and full resolution of appellants' claims against the others, they argued that "[t]his case is now in a position to proceed against the Cigarette Defendants, since all claims that could be resolved against the Asbestos Defendants in these proceedings have now been fully resolved." In January, 2007, the court denied that motion.

Upon that denial, appellants moved for the entry of final judgment pursuant to either Rule 2-601 or Rule 2-602(b). The avowed purpose of the motion was to permit appellants to appeal from the court's denial of their effort to join and proceed against the tobacco defendants in the asbestos case. Because there remained in the case nine asbestos defendants in bankruptcy, against whom they could not then proceed but whom they did not choose, on their own, to dismiss, they recognized that "[a]s of this date, a final judgment pursuant to Rule 2-601 and consistent with the requirements of Rule 2-602 has not been entered," thereby precluding immediate appellate review.

To deal with that problem, they sought alternative relief. First, they asked the court to "administratively" dismiss the asbestos defendants in bankruptcy, subject to their being "reinstated" upon their emergence from bankruptcy, on the theory that, if administratively dismissed in that manner, they would no longer be in the case and final judgment could be entered. Second, they moved that the court declare, pursuant to Rule 2-602(b), that there was no just reason for delay and enter a final judgment as to all of the other (non-bankrupt) defendants. The court denied that motion as well, and appellants have brought this appeal from that denial.

DISCUSSION

To set the context, there is a longstanding bedrock rule of appellate jurisdiction, practice, and procedure that, unless otherwise provided by law, the right to seek appellate review in this Court or the Court of Special Appeals ordinarily must await the entry of a final judgment that disposes of all claims against all parties. See Shoemaker v. Smith, 353 Md. 143, 165 725 A.2d 549, 560 (1999); Smith v. Lead, 386 Md. 12, 21, 871 A.2d 545, 550 (2005); Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767, 773 (1989). Rule 2-602(a), subject to an exception provided for in section (b) of that Rule, makes clear that an order or decision "that adjudicates fewer than all of the claims in an action . . . or that adjudicates the rights and liabilities of fewer than all of 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." That includes a party in bankruptcy, notwithstanding that, unless the Bankruptcy Court lifts any stay that it has entered or that is imposed by operation of law pursuant to 11 U.S.C. § 362(a), the court is precluded from proceeding further against the party. See Starfish Condo. v. Yorkridge Serv., 292 Md. 557, 440 A.2d 373 (1982).

Rule 2-602(b) provides a limited exception. It allows the Circuit Court to order the entry of a judgment as to fewer than all of the claims or parties if the court expressly determines in a written order that "there is no just reason for delay." For more than three decades, however, we have made clear that the discretion to enter judgment under Rule 2-602(b), or its predecessor Rule 605a., was to be reserved for the "very infrequent harsh case."³ Diener Enterprises v. Miller, 266 Md. 551, 556, 295 A.2d 470, 473 (1972). We pointed out in Smith v. Lead, supra, 386 Md. 12, 25, 871 A.2d 545, 553 that the purpose of Rule 2-602(a) is to prevent piecemeal appeals "which, beyond being inefficient and costly, can create significant delays, hardship, and procedural problems." We noted, among other things, that piecemeal appeals may cause the appellate court to be faced with having the same issues presented multiple times and may burden the parties with having to assemble records, file briefs and record extracts, and prepare and appear for oral argument on multiple occasions. That is "precisely why," we said, "Rule 2-602(b) is reserved for the `infrequent harsh case,' and why the trial judge, who normally has a much better grasp of the situation than an appellate court, is viewed, at least in the first instance, as the `dispatcher.'" Id. at 26, 871 A.2d at 553.⁴

The great majority of cases in which this Court or the Court of Special Appeals has been called upon to consider discretionary rulings under Rule 2-602(b) have involved situations in...