Tharp v. Disabled American Veterans Dept. of Md., Inc.

• Decision Date: 01 September 1997
• Docket Number: No. 1662,1662
• Citation: 121 Md.App. 548,710 A.2d 378
• Parties: Lorraine S. THARP v. DISABLED AMERICAN VETERANS DEPARTMENT OF MARYLAND, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 548

121 Md.App. 548

710 A.2d 378

Lorraine S. THARP v. DISABLED AMERICAN VETERANS DEPARTMENT OF MARYLAND, INC., et al.

No. 1662, Sept. Term, 1997.

Court of Special Appeals of Maryland.

May 29, 1998.

Suzanne Levin, Rockville, for appellant.

No brief or appearance by appellees' counsel.

Argued before MOYLAN and KENNEY, JJ., and JOHN J. BISHOP, Jr., Judge (retired), Specially Assigned.

MOYLAN, Judge.

This is the third time that an attempt has been made to bring before us, by way of a piecemeal appeal, the partial resolution--to wit, as to three of five remaining co-defendants--of a larger judicial unit. In all likelihood, the case will be before us again when the remaining part of the law suit, still pending at the trial level, is resolved one way or the other. What is now Md. Rule 2-602, modeled after and serving the same purpose as Federal Rule of Civil Procedure 54(b), was designed to curb just such a proliferation of fragmented appeals. On our own motion, we invoke that curb and dismiss this appeal.

The ruling appealed from is presumptively not a final judgment within the contemplation of Rule 2-602(a) because it "adjudicate[d] the rights and liabilities of fewer than all the parties to the action." The appellant, Lorraine S. Tharp, had filed a complaint in the Circuit Court for Baltimore City against eight defendants, alleging 1) the wrongful termination of her employment, 2) interference with her employment relationship, and 3) the intentional infliction of emotional harm.

The claims against three of those defendants--1) the National Office of the Disabled American Veterans, 2) Arthur Wilson, as an employee of that National Office, and 3) Paul Steicklein in his individual capacity--have been finally settled and do not, therefore, inhibit this appeal. The ruling here appealed from was the granting of a motion to dismiss filed by three other defendants: 1) Wallace Diehl, 2) Ernest Unger, and 3) Carl Brumage. Still pending, however, is the case against the remaining two defendants: 1) the Disabled American Veterans-Department of Maryland, Inc. and 2) Thomas Johns, both individually and in his capacity as an employee of the Disabled American Veterans of Maryland. The dismissal of the complaint as to Diehl, Unger, and Brumage--the order now being appealed--therefore, "adjudicate[d] the ... liabilities of fewer than all of the parties to the action." The question is whether we will entertain such a partial appeal. We will not.

The Problem of Piecemeal Appeals And the Judicial Response

Both the problem of proliferating appeals and the judicial response to the problem were incisively described by Judge Adkins in Planning Board of Howard County v. Mortimer, 310 Md. 639, 530 A.2d 1237 (1987). He explained how the "final judgment," which was always the necessary predicate for an appellate court's subject matter jurisdiction, was traditionally described as something that ultimately decided or settled the entire controversy between the parties. Simplistic definitions from an earlier era later proved inadequate, however as law suits became more sophisticated and more complicated:

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 where there are multiple parties and multiple claims, circumstances encouraged by the modern system of pleadings 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.

310 Md. at 645, 530 A.2d 1237 (emphasis supplied).

The initial federal response to the problem of proliferating appeals was the promulgation in 1937, with amendments in 1946 and 1961, of Federal Rule of Civil Procedure 54(b). Maryland in 1947 followed suit, almost verbatim, with what was originally Rule 6a, III, Part Two of the General Rules of Practice and Procedure and became, without significant change, Former Rule 605a. On July 1, 1984, Rule 605a became, again without significant change, Rule 2-602. An April 8, 1985 amendment retitled Rule 2-602 and restructured the text in order to emphasize the philosophical approach that had theretofore been at best implicit.

Rule 2-602 is now entitled "Judgements not disposing of entire action." The primary thrust of the Rule, and the newly supplied emphasis, is Subsection (a). It provides that any order disposing of fewer than all claims or fewer than all parties is ipso facto not final and, therefore, not appealable:

(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.

In Planning Board v. Mortimer, 310 Md. at 647, 530 A.2d 1237, Judge Adkins explained the theory behind the Rule:

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. Moore [6 J. Moore, W. Taggart, J. Wicker, Federal Practice § 54.04[2.-3](2d ed.1987) at p. 54-44] 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.

Recently in State Highway Admin. v. Kee [309 Md. 523, 525 A.2d 637 (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."

(Emphasis supplied; citations omitted).

In Waters v. Whiting, 113 Md.App. 464, 472-73, 688 A.2d 459 (1997), Judge Eyler made reference to the same "judicial unit" rationale:

The effect of these rules [Maryland Rule 2-602 and Federal Rule of Civil Procedure 54(b) ] is to view '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.' Accordingly, a judgment lacks finality unless it completely disposes of the judicial unit. Rule 2-602[ (b) ] does empower the trial court to permit exceptions to the rule[.] Absent an exercise of this power, however, there are no exceptions to the judicial unit rule.

(Emphasis supplied; internal citations omitted).

The Limited Exception

It is subsection 2-602(b) that provides a limited and tightly circumscribed exception:

(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; ...

It was the 1985 amendment that divided Rule 2-602 into two subsections. As Paul V. Niemeyer and Linda M. Schuett, Maryland Rules Commentary, (2d ed.1992), p. 451, have noted, the "structure of the rule was changed to emphasize its intent." Subsection (a) states the norm--anything less than a complete resolution of the entire lawsuit is ordinarily not a final judgment ripe for appeal. Subsection (b) then provides a limited exception, available on rare occasions to avoid harsh results. Niemeyer and Schuett explain:

This amended rule reverses the emphasis of the former rule and of the federal rule by stating first, in section (a), the policy that a judgment is not entered until all claims are adjudicated as to all parties to the action. Section (b) provides a limited exception that permits a court, in its discretion, to carve out a particular portion of a case and permit it to be concluded by a judgment, while at the same time continuing with the remainder of the case. The only portion that the rule permits to be carved out is an order that disposes of an entire claim or cause of action (including both liability and damages), or that adjudicates the litigation entirely as to one or more, but less than all, parties, or that adjudicates, on a motion for summary judgment, the principle portion of a money judgment claim under Rule 2-501(e).

Id. (Emphasis in original). Niemeyer and Schuett elaborate, at 452, on the truly exceptional nature of certification under subsection (b):

To obtain appellate review of an order that does not dispose of the entire action, the court must be willing to make the determination and direction required by this rule. Only in limited circumstances, and only then when the court, in its discretion, determines that the policy of a piecemeal appeal outweighs factors that favor waiting for an appeal of the entire case, does the rule permit a trial court to enter a judgment as to part of a case by certifying it in accordance with this rule.

Id. (Emphasis supplied).

Parallel Partial Resolutions: Less Than All Parties, Less

Than All Claims

As we prepare to evaluate the procedural status of this attempted appeal against the criteria of Rule 2-602, several...