Can We Appeal Now? by Leslie Hayes Russo1
Leslie Hayes Russo received her law degree from the Columbus School of Law at Catholic University, where she was a member of the Law Review and commencement speaker on behalf of the graduates. She served as a law clerk to the Honorable Theodore G. Bloom of the Court of Special Appeals (retired). Ms. Russo has previously served as legislative assistant and speech writer to US Senator Patrick J. Leahy and clerk to The Honorable Ronald J. Wortheim, D.C. Superior Court. Her publications include, “Final Judgments and Interlocutory Appeals,” Appellate Practice for the Maryland Lawyer: State and Federal (1994, MICPEL), and “Prior Conviction Impeachment in the District of Columbia: What Happened When the Courts Ran Out of Luck?” 35 Cath. U.L. Rev. 1157 (1986). Ms. Russo is a senior associate at Israelson, Salsbury, Clements & Bekman, L.L.C. Her practice concentrates in civil litigation, with an emphasis on personal injury practice.
Adverse pre-trial rulings dismissing claims or parties, or otherwise seriously impairing an action’s prospects for success, are every day concerns for trial lawyers. Whether those rulings can and should be immediately appealed involves both legal and tactical considerations. An appeal must ordinarily be taken from a final judg- ment or limited classes of interlocutory orders.2
With characteristic understate-
ment, the courts have described the task of determining whether a given trial court action is a final judgment or otherwise appealable interlocutory order as a mat- ter “not always readily capable of delineation.”3
The purpose of this ar-
ticle is to provide the legal framework within which to resolve questions regard- ing appellate jurisdiction.
The Final, Appealable Judgment
An order is a final, appealable judg- ment only when each of the following four questions may be answered in the affir- mative: 1. Is the order intended as an un- qualified, final disposition of the matter in controversy?
1
Ms. Russo is the author of Chapter 15, “Final Judgments and Interlocutory Appeals,” AP- PELLATE PRACTICE FOR THE MARY- LAND LAWYER: STATE AND FEDERAL, Copyright @ Paul Mark Sandler, Andrew D. Levy and MICPEL. Excerpts are reprinted with the permission of the editors and the Maryland Institute for the Continuing Pro- fessional Education of Lawyers, Inc., 1994, 1997.
2
Estep v. Georgetown Leather, 320 Md. 277, 282 (1990). See also Porter Hayden Co. v. Commercial Union Insurance Co., 339 Md. 150, 160 (1995).
3
Peat, Marwick, Mitchell & Co. v. The Los Angeles Rams Football Co., 284 Md. 86, 91 (1978).
4
Question 1. An Unqualified Final Disposition: A judgment is final5
if it decides the
“very matter in controversy between the parties” and determines “the question of right in issue in the cause.”6
To have the
attribute of finality, the order or judgment of the circuit court “must be so far final as to determine and conclude the rights in the action, or to deny to the party seek-
4 Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989). 5
Section 12-301 of the Maryland Courts and Judicial Proceedings Code Annotated (1998 & Supp. 1999) (hereinafter “the Courts Ar- ticle”) provides, in pertinent part, that, “Ex- cept as provided in Section 12-302 of this sub- title, a party may appeal from a final judg- ment entered in a civil or criminal case by a circuit court. The right of appeal exists from a final judgment entered by a court in the exer- cise of original, special, limited, statutory ju- risdiction, unless in a particular case the right of appeal is expressly denied by law[.]” Sec- tion 12-101(f) of the Courts Article defines the term “final judgment’ to mean “a judg- ment, decree, sentence, order, determination, decision, or other action by a court, including an orphans’ court, from which an appeal, ap- plication for leave to appeal, or petition for certiorari may be taken.”
6 Nally v. Long, 56 Md. 567, 571 (1881). Trial Reporter
2. Does the order adjudicate or com- plete the adjudication of all claims against all parties; or, if the adju- dication was not so completed, is the order both certifiable and cer- tified by the court in accordance with Rule 2-602?
3. Did the clerk make a proper record of the order or judgment in accor- dance with the dictates of Rule 2-601?4
4. Has the trial court disposed of all post-trial motions which divest an otherwise final judgment of its fi- nality?
ing redress by the appeal the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.”7
To be final and appealable,
a ruling need not settle the underlying dis- pute between the parties if its effect is to put the parties out of court.8 In deciding whether the ruling or or- der at issue constitutes an appealable judgment, the courts look to whether the order or ruling at issue is “unqualified,” that is, whether there was “any contem- plation that a further order [was to] be issued or that anything more [was to] be done.”9
If the trial court does not intend
the ruling to end the litigation, the ruling cannot be considered a final judgment. Thus, the Court of Appeals has held that whenever the trial court indicates in a written opinion or statement from the bench that a written order embodying its decision is to follow,10
a final judgment 7
In re Buckler Trusts, 144 Md. 424, 427 (1924)(emphasis added). See also Grimberg v. Marth, 338 Md. 546, 551 (1995); Anthony v. Clark, 335 Md. 579, 587 (1994).
8
Grimberg v. Marth, 338 Md. 546 , 551 (1995); Anthony v. Clark, 335 Md. 579, 587 (1994); Popham v. State Farm Mutual Insur- ance Co., 333 Md. 136, 142 (1993); Horsey v. Horsey, 329 Md. 392, 401-02 (1993).
9
Keene Corp. v. Levin, 330 Md. 287, 292 (1993); Rohrbeck, supra, 318 Md. at 41-42; Walbert v. Walbert, 310 Md. 657, 661 (1987).
10
Rohrbeck, supra, 318 Md. at 42. There is a ca- veat to this statement. Where the trial defini- tively rules from the bench, verbally explains the reasons for that ruling, obtains and ex- ecutes an order reflecting that ruling on the same date, and the clerk enters that determi- nation on the docket, the finality of a disposi- tion will not be affected by the trial judge’s statement that he will later embody the rea- sons for his ruling in a written opinion. See Board of Liquor License Commissioners for Baltimore City v. Fells Point Café, Inc., 344 Md. 120 (1996).
Summer 2000
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