Immediate Appeals (Continued from page 5)
action to another circuit court to an or- der dismissing an action for improper venue or inconvenient forum and noted that there was no danger, in either case, “of interrupting an ongoing trial court process” because “with both a transfer or- der and dismissal order, the party challenging the order is put out of a par- ticular court that grants the order, while being left free to pursue the case in an- other court.”23
Conversely, it noted,
when such motions are denied, the “party challenging the court’s order is not put out of court, and to permit an immediate appeal would be to interrupt the trial court’s process.”24 The Court made clear that the party who had opposed the order granting a transfer of venue from one circuit to an- other circuit court had the option of filing an appeal within thirty days of its entry,25 or waiting until the conclusion of the liti- gation in the transferee court.26
In its
view, the fact that more than thirty days might have passed since the date of the transfer order would not prevent an ap- peal of the issue of the propriety of that transfer after the ultimate disposition of the case.27
The Court offered examples
of situations in which a party’s decision to forego an immediate appeal did not prevent it from raising that issue in a sub- sequent appeal after the conclusion of the action on the merits: (a) appeals of orders to compel arbitration after the comple- tion of arbitration;28
(b) appeals of issues
that would have been immediately review- able under the collateral order doctrine after the judgment becomes final;29
(c)
appeals from final decrees or orders that would have been immediately appealable
23Id. at 14. 24Id.
25
To constitute a final judgment, the order must be properly docketed under Maryland Rule 2-601. Thus, the appeal would have to be noted within 30 days after its entry in accordance with that Rule. 26Brewster, at 15, 21. 27Id. at 21.
28
Id. at 17. (citing Curtis G. Testerman Co. v. Black, 340 Md. 569 (1965); Board of Edu- cation for Dorchester County v. Hubbard, 305 Md. 774, 783-785 (1986)).
29
Id. at 19 (citing Vogel v. Grant, 300 Md. 690 (1984); Carbaugh v. State, 294 Md. 323 (1982); Pulley v. State, 287 Md. 406, 419 (1980)).
6 31 30
Id. at 19-20 (citing Save-Mor Drugs v. Upjohn Co., 225 Md. 187, 194 (1961); Rocks v. Brosius, 241 Md. 612 (1966); Washington Cleaners v. Albrecht, 157 Md. 389, 401 (1929); Lippy v. Masonheimer, 9 Md. 310, 315 (1856)). For a discussion of the interlocutory orders appealable under Section 12-303, see Appellate Practice, su- pra, note 6.
Brewster. at 19-20 (citing Public Service Commission v. Maryland’s People’s Coun- sel, 309 Md. 1 (1987); Allstate Ins. Co. v. Atwood, 319 Md. 247, 255 (1990)).
32Id. at 21. 33Id.
34
Id. at 22 (citing Montgomery County v. Revere National Corp., 341 Md. 366, 392 (1996)). In Montgomery County, the Court stated that “fundamental public policy of a state may sometimes require that a final con- sent judgment be vacated or not given pre- clusive effect.” 341 Md. at 392.
Trial Reporter
as injunctions under Section 12-303 of the Courts Article;30
(d) reviews of a sec-
ond judgment by the Court of Special Appeals in situations in which the first judgment had not been appealed.31 While it acknowledged that the filing of an order of appeal within thirty days from entry of a final judgment was jurisdic- tional, and that an appeal must be dismissed if that requirement is not met, it urged that an appeal from the judgment ultimately disposing of the case was “not an appeal from the order that is more than thirty days old, namely the transfer or- der. The propriety of the transfer order is merely the ground on which this appeal is taken.” It therefore deemed the amount of time that passed from the date of that transfer order as being relevant “
only...to how long the adverse party has to appeal that order.” 32 Finally, the Court gave little attention
to the res judicata implications of its hold- ing, stating only that, “While ordinarily the failure to appeal from an appealable order precludes later appellate review of that order under the doctrine of res judi- cata, this is not a universal or absolute rule.”33
single case.”35
It then proceeded to chal-
lenge every underpinning of the Court’s holding that there could be two final judg- ments in a single case.36
First, it urged
that the Court had never previously held that “an order terminating litigation in a particular court” was a final judgment; in the dissent’s view, the key to decisions holding immediately appealable orders of the circuit courts dismissing actions, com- pelling arbitration, or remanding actions to the district court37
or to administrative
agencies, was the complete termination of the action in “a Circuit Court – any Circuit Court” with the rights attendant to those proceedings, i.e., the right to a jury trial, the availability of extensive dis- covery, and the right to appeal to the Court of Special Appeals.38
In contrast,
it noted, “[t]he only effect of the [trans- fer order at issue here]
...is that the plaintiffs must try their case in Carroll County rather than in Baltimore County, in a court of equivalent status and juris- diction.”39 Second, it urged that the Court had erroneously considered Wilde v. Swanson40
as authority for the proposi- Without elucidation, it noted that
there were “occasions where a final judg- ment will not be given preclusive effect.”34
The three-member dissent energeti- cally attacked the majority’s holding, stating in its opening salvo, “To reach [its] result, the Court misinterprets some cases, pays no heed to others, and comes to the extraordinary conclusion that there can be more than one final judgment in a
tion that a venue transfer order was a final judgment. The dissenting members con- sidered Wilde inapposite because it involved an immediate appeal from an order dismissing an action for lack of venue, not a transfer for lack of venue, which dismissal would have required the filing of a new action to obtain judicial relief.41 Third, it found the Court’s holding at odds with its recent decision, Leung v. Nunes,42
in which it had considered the
propriety of an order transferring the ac- tion under Rule 2-327 (c), on an appeal from a final judgment entered after the
35Dissent at 1. 36Dissent at 12.
37
In the view of the majority, there was “no distinction, for finality purposes, between a circuit court order sending a case to the Dis- trict Court and a circuit court order sending a case to another circuit court,” because the twenty-four circuit courts are “entirely sepa- rate courts, as set forth in Article IV, Section 20 of the Maryland Constitution” and be- cause public local laws conferred jurisdiction on one particular county or the City of Bal- timore. Brewster, at 10 n. 2. 38Dissent at 2-3. 39Dissent at 5.
40314 Md. 80 (1980). 41Dissent at 5.
42354 Md. 217 (1999). Fall 2000
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