Brewster v. Woodhaven Building & Development, Inc.

759 A.2d 738 BREWSTER, Andre W. al. et DEVELOPMENT, INC., WOODHAVEN BUILDING AND et al. Term, Sept. No. 1999. Appeals Maryland.

Court of Aug. 2000. Reconsideration Denied Oct. 2000. Nelson, Towson, Macy

G. for Petitioners. O’Donnell, Markham, J. Michael Hannon (Thompson, Nor- Hannon, DC); Botts, ton & Washington, Samuel Y. Alan B. (Jordan, Botts, Greenbelt); Robinson Keys, Jessamy & Linda (Goodell, Devries, LLP, Baltimore); S. Wolf Leech & Gray, Swam, Elwood E. Hampstead, for Respondents. BELL, C.J., ELDRIDGE,

Argued before RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ.

RAKER, Judge. The issue in this case is whether a trial court’s order transferring a civil case one circuit court to another circuit court is a final judgment and thus immediately appeal- able. Petitioners in this appealed case of Special Court Appeals’ venue, dismissal their from a transfer of claiming injury property suit real caused by Respondents’ of water channeling into a stream that runs across the proper- ty. We shall hold that the transfer an immediately order is appealable final judgment, and we shall remand the case Special the Court of Appeals to consider the merits of the appeal.

I. Petitioners, below, plaintiffs Brewster, are Andre W. three other owners of riparian along Piney land Run in Balti- more County, Piney and the Run Preservation Association. that Run, is a stream according complaint, to the Piney The Baltimore border between near the begins at its headwaters County, and counties, Baltimore crosses northern and Carroll turn, Loch Run, which, to the flows joins the Western below, are Wood- defendants Respondents, Raven Reservoir. (“Woodhaven”), the Inc. and Building Development, haven County Maryland (“Hampstead”), Hampstead, Town of (“Carroll The County”), County of Carroll Commissioners (“The Fields”), Hill/Reedy, Association Fields Homeowners R. Myron County employees and Carroll (“Hill/Reedy”), Inc. “Slater”). (“Frock” Slater, and E. Jr. Frock and James Baltimore Court for filed the Circuit complaint, The 10, 1998, built the that Woodhaven alleges County on October center development shopping and housing Fields Roberts from the storm water runoff polluted that County; Carroll Piney channeled into shopping center are development and Fields, for the Run; homeowners’ association as the that The holding ponds owns the development, Roberts Fields flows; of the Hill/Reedy part owns runoff which the center; owns the storm drains Hampstead shopping Run; into Piney Fields storm water the Roberts direct reviewing storm responsible Frock Slater are and that of the headwaters of vicinity for the management plans water also states County. complaint Run in Carroll The Piney Treat- County Hampstead owns the Waste Water that Carroll Plant, discharges its effluent into the plant and that the ment added to the alleges Run. that the water Piney complaint The and otherwise pollutes the stream by Respondents stream liability it asserts theories of property; Petitioners’ damages nuisance, riparian rights, negligence, headings under the injunc- it seeks a liability; permanent strict trespass, and damages. tion and The Hill/Reedy complaint. answered the

Woodhaven and Frock, moved Fields, County, and Slater Hampstead, Carroll venue, Mary- pursuant grounds improper to dismiss on 322(a)(2). Hampstead also The Fields land Rule 2— alternative, moved, to a more convenient for transfer 2-327(c). forum, Conducting no Rule pursuant Maryland Baltimore trial hearing, County judge granted the motion Fields, February and issued an order on convenience, stating that “as a matter of this claim shall be transferred to the Circuit Court for County, Maryland Carroll or proper majority for venue. Vast parties witnesses in are Carroll Co. makes in that venue Co. much more and.this convenient.” Petitioners filed a motion for a hearing and 4, 1999; reconsideration of this on ruling February their points motion also out that the court’s February order of 1999 did not rule on the motions of the other defendants. On motion, February the court denied Petitioners’ sheet, issued order on the docket stating as follows: it Obviously was not the intention of the Court have one defendant’s case tried in Carroll Co. and the rest in Balto. Co. Thus the case was transferred as to all defendants and such If granted. Motions were for some reason convenience is the reason only to transfer as said in Order 2/1/99 case is transferred to Carroll Co. for that reason. For clarity, the entire case is moved to Carroll Co. timely appeal

Petitioners noted a Special the Court of Appeals. The Fields moved to dismiss the on the ground that a circuit court’s order transferring case another circuit court not immediately is appealable because it is not a final judgment. The Court of Special Appeals granted motion, in an order issued without on opinion June 1999. granted We a writ of certiorari.

II. that a argue Petitioners trial court’s is immediately order order, if appealable it is either a final judgment or a collateral and that the transfer order in this case was both. It is a final judgment, they argue, because it terminated the it, the court issued the Circuit Court for Baltimore County. argue Petitioners that the transfer order this case is appealable also because it satisfies the collateral order James, Pittsburgh Corning doctrine as set out (1999). 657, 728 A.2d 210 We need not address their argu- below, because, the transfer as explain we point ment on this judgment. it is a final because immediately appealable 2- Rule Maryland that under initially argue Respondents of a case is not of the merits dispose that fails to part, provides, pertinent Rule 2-602 judgment. a final decision, designated, that however an order or other form (wheth- in an action of the claims fewer than all adjudicates counterclaim, cross-claim, claim, original raised by er claim), less than entire adjudicates or that third claim, liabilities of fewer adjudicates rights or that all to the action: parties than judgment. is not a final adjudicate case present in the did Because the order case, is not a final argue, Respondents of the merits argument, main Respondents’ Rule 2-602. judgment under dis- however, necessarily an order need not although is that judgment, a final an order’s of the merits of a case be pose in a court does particular a case terminating effect of Rather, they a final judgment. to make the order suffice contend, of the means deprive the order must also in any at issue court. the claims pursue

III. from the originally rule1 derives judgment The final ordinarily that a writ of error English principle common law very They concerning judgments not take us far. 1. statutes final do The judgment, but do not indicate right a of from a final establish (1974, Maryland judgments. Code which orders constitute final 12-101(f) Supp.) § and Judicial Proceed- Repl.Vol., 1999 of the Courts ings Article states that sentence, order, decree, judgment” judgment, deter- "Final means a court, mination, decision, by including orphans' or other action a court, application appeal, appeal, for leave to from which may petition be for certiorari taken. provides, pertinent part, with same Article Section 12-301 of the relevant, exceptions not here judgment party may appeal a final entered in a civil or by right appeal exists from a court. The of criminal case circuit special, original, of judgment entered a court in the exercise final would not lie until there had been a final of an disposition controversy. entire Arthur R. mil- See Wright, Charles Alan Cooper, ler & H. 15A Federal Edward Practice Proce- (2d ed.1991). § at 264 final core dure rule is thus that a trial court’s disposing decision of the parties’ may appealed. the merits claims be On this the parties disagree. to this case do not however,

Respondents’ initial Ma argument, based on 2-602, ryland Rule is that this core of final judgment rule really If entirety rule: the order in question does not of the dispose parties’ claims on merits, judgment. it cannot be a final Despite seemingly 2-602, restrictive this is language Rule not the law. It is well settled that an order need not necessarily dispose of See, merits of a case to a final judgment. e.g., be Ferrell v. Benson, (1998) (“The 2, 6, 352 Md. 720 A.2d notion ... that an order the case in circuit terminating court is appealable not final and unless it rights settles the of the action, parties or concludes the cause of consistently has Court.”); expressly rejected by been this Horsey Horsey, 392, 401, (“Contrary to the expressed by view the defendant ... a trial court’s order may a final appealable judgment sometimes constitute even though underlying the order fails settle the dispute between Swanson, parties.”); Wilde (1988) (“An 837, 839 order of a circuit court ... [may be] any adjudication without by the circuit court on merits.”).

IV. second, dispute this case centers on the narrower argument by If a Respondents: judgment advanced does not limited, statutory jurisdiction, particular right unless in a case the expressly by law. is denied many provisions We have observed on occasions that these leave the See, finality Anthony e.g., elements of to be determined the courts. v. Clark, 579, 587, 1070, (1994); Sigma Repro. 335 Md. 644 A.2d 1074 State, 660, 664, 483, (1983).

Health v. Cen. 297 485

611 challeng- case, party must deny of the it the merits settle forum, in to order any the case litigate to ing ability it the judgment that the reply Petitioners’ judgment. be a final in the to the case ability litigate only deny party need availability the judgment that has issued particular —the is irrelevant. of another forum an show that question to this pertaining

Our cases particular in a if it is final terminates judgment rule that a stating general The cases court. early date from an litigation is a terminating 1835, already referring As we were period. early as “well established rule” that Court, in this until a decision can be prosecuted

no below, final, far as to which is so has been had the Court in the settle, of the involved rights party and conclude the of further action, prose- to the the means denying party or defending the suit. cuting or Co., 109, 7 112- rel. Chew & G. & J.

Boteler & Belt State ex (Md.1835). Thus, denying an order it is well settled that immediately anywhere claims is an ability pursue point, reiterated this final order. We have often appealable historical extraordinarily long period applying over subject Grimberg matter. See impressively range wide (an (1995) Marth, 546, 551-52, 659 A.2d 338 Md. motion for reconsideration orphans’ court’s denial of a be immediately appealable judgment was court”); parties cause it “has the effect of out putting (1989) Rohrbeck, 28, 41, A.2d Rohrbeck v. (a order, which left certain issues qualified domestic relations be property be a marital division would determined before it was not “so was not a final because completed, rights involved final as either to determine and conclude or prosecuting the means of further deny appellant or to subject matter of the defending rights his her omitted); v. Los Angeles Peat & Co. proceeding”) (emphasis (a Rams, trial court’s counsel disqualify opposing motion to denying party’s 612 final it immediately appealable

was not an because rights “deny did not and conclude the involved” or “determine prosecuting defending the the means of further or appellant rights subject proceeding”); his the matter of the McCor- Church, 422, 426-27, mick v. St. Francis de 149 Sales (1959) (a 768, 771 trial court’s defendant’s granting A.2d immediately motion to strike initial is an plaintiffs pleading final appealable judgment because effect of the court’s “[t]he ruling put plaintiff deny was to the out of court and her the means of her the prosecuting against moving further case State, 227, 229, v. 11 parties”); Md. Jeffers (1953) (a dismissing petition trial court’s order father’s to him petition charging support dismiss mother’s with a child obligation immediately judgment, was not an final appealable “an because order of the Circuit Court which does not settle of the not rights parties, deny conclude the and does parties defending the the means of further or the prosecuting Trusts, action, is not a final Buckler judgment”); re (1924) (a 424, 427, Md. 125 A. trial court’s order the of a striking pleading party attempting would-be inter- vene, on the no ground party the would-be had interest suit, immediately appealable judgment, is not an final prevent filing separate because the order did not action, “deny seeking and thus did not to the redress party ... prosecuting defending rights the means of further or his Penn, subject proceeding”); Bragunier matter of the (1894) (a 244, 245-46, 12, 12 29 A. trial court’s order dismissing plaintiffs petition immediately appealable was as it petitioner “inasmuch denied the suit”); State, prosecuting Gittings means of further his (1871) (a 462-63 trial court’s order to submit to jury of a question purposes defendant’s residence determining jurisdiction whether the court had personal was it was far immediately appealable because not “so rights party as to settle and conclude the of the involved action, him deny prosecut- or to the means of further (a suit”); Belt, ing defending Boteler & 7 G. & J. at 113 trial court’s order a motion for a new trial was not granting the merits it neither settled because immediately appealable suit). litigate means to nor denied however, early period, stated from an We have also litiga- terminating that a proposition specific more Waverly In judgment. a final court is particular tion in a (1885), 338, Buck, appellee 1 A. 561 64 Md. Mutual v. moved to dismiss mortgage a in a suit to foreclose borrower that the Circuit Court’s ground on the the lender’s had held The Circuit Court judgment. a final order was not This Court not entitled to foreclose. the lender was stated that appeal. We the motion to dismiss overruled ruling that the principle, it is now a well-settled appeal, for an must, proper basis in order to form below rights conclude the and so far final as determine be who seeks action, to the deny in the or involved prosecuting means of further appeal, “the redress jurisdiction. original suit” in the Court defending the Davis, Gill, 364, State, 109; 7 7 Welch Boteler v. G. & J. Morris, Hamilton, [317]; 28 Hazlehurst v. 16 Md.

Green Md. 67. added). Court’s 342, The Circuit (emphasis at 1 A. at 562

Id. definition, to the lender because it denied order satisfied this complaint, in its bill of relief invoked right “its of its suit.” prosecution in the proceed step cannot further 343, 1 A. at 563. Id. at terminat that an order applied principle

We have recent court is a ing litigation particular Benson, 2, 720 A.2d 583 In Ferrell v. 352 Md. cases as well. the action (1998), transferring an order we considered whether County to the District Montgomery for from the Circuit Court We held appealable was an order.2 Maryland Court distinction, finality purposes, between a circuit court for 2. There is no court order Court and a circuit sending a case to the District twenty-four State’s circuit sending another circuit court. The a case to IV, courts, § Article 20 of the entirely separate as set forth in courts are are simply divisions of a Maryland Constitution. All circuit courts jurisdiction.” "equivalent status single unified court which have 614 Court,

the order of the Circuit “having the effect terminat- court, in the circuit ing judgment.” case 352 Md. 5, at 720 at (quoting Montgomery A.2d 585 v. Revere County (1996)). 1, Nat’l Corp., Com’n, 515, v. Housing Opportunities Carroll (1986), A.2d 540 we considered whether a circuit court’s order denying Carroll a trial jury remanding the case to the District Court is We appealable. held that it was final and Court, appealable. Judge Eldridge, writing for the said: ease, however, In the present the circuit court’s orders court; they denied Mrs. Carroll all relief the circuit court, completely terminated the action in circuit remanding the case to the District Nothing Court trial. was left to circuit Accordingly, be done court. the order was a final appealable judgment. 520, Swanson, at

Id. A.2d at 542. In Wilde v. (1988), we considered whether defendants, dismissal of one of multiple based on improper venue, was a final judgment immediately appealable by the 2-602(b). plaintiff Maryland when certified under Rule We held that the dismissal was an immediately appealable judgment final these plain- under circumstances because “the tiffs deprived were of the means of further prosecuting their court,” against claim dismissed in that even [the defendant] though they could still enforce their a suit rights by initiating 86-87, him in against another court. See id. at 548 at A.2d added). 392, (emphasis 840 And in Horsey Horsey, v. 329 Md. (1993), 620 A.2d 305 we held that the trial court’s order to the parties to submit their dispute to arbitration was an immedi- ately appealable judgment, even though parties the were p. Simply may equiva- Dissent at 627. because the circuit courts be of jurisdiction permit lent status and does this Court to treat as a

single entity entirely separate what the Constitution has established as courts. fact, point jurisdictional among there are differences the circuit Many public jurisdiction upon courts. local laws confer the circuit particular county City. general court of one public or Baltimore A few (1997, e.g., Maryland See thing. laws Supp.) do the same Code 1999 2-215(c) § of the Insurance Code.

615 rights their before pursue opportunity the thereby afforded also 403-04, A.2d at 311. See 620 id. at arbitrator. See the (1988) 805, 806 State, 540 A.2d Md. v. 312 Bunting if it termi- only is circuit court (“Ordinarily a v. court.”); Stainless Steel Eastern in that nates the action (a (1986) 248, 501-02, 252-53 Nicholson, 492, 510 A.2d 306 Md. a case to administrative remanding court’s order trial proceed- because terminates a final agency is continue before court, parties though even ings 96, 377, 385-86, Baer, 435 A.2d 291 Md. Brown v. agency); LeVan, (1981) (same); Safety Public Department 100-01 (same). 1052, 543-44, 533, 419 A.2d our that certain of position suggests Respondents’ that an order terminat general proposition stating cases more specific conflict with the is a final ing in particular terminating litigation that an order proposition in Rohrbeck and The formulation judgment. a final court is above, is not that the order cases cited of the other several means of “further party deny final if it does not in the rights or her and interests defending his prosecuting 41, A.2d at 318 Md. at of the subject proceeding,” matter added), susceptible interpretation, of this (emphasis if can suggest may because it be taken tribunal, then the subject matter before another pursue 551, also, 338 Md. at e.g., Grimberg, is not final. See 600, 1290; Schlossberg, Schlossberg at Trusts, (1975); In re Buckler merit, however. This notion is without at 125 A. at 178. inability pursue stated that an explicitly We have never finality, requirement forum is a any of a claim substance putting appellant An order this notion now. reject and we of a final one of instance simply type court is every out of consistent with entirely is judgment. proposition This particu out of a appellant putting that an order proposition that an order It follows judgment. lar court is also a final another, for circuit court to from one transferring a case forum, thereby or for a more convenient venue proper court, is a transferring in the terminating judgment and immediately appealable. thus At the same time, an order denying motion to transfer is not an immedi- ately appealable final judgment, because litigation may continue the court issuing the order.

V. Consideration of some of the underlying purposes of the final judgment rule our supports conclusion. We have often purpose stated that the of final judgment to rule is avoid see, piecemeal Harris, P.A., appeals, e.g., Harris v. David S. 310, 314-15, (1987), reason for avoiding piecemeal appeals promotion judicial is the efficiency. aspect judicial One efficiency that concerns us here trial interruption court process by repeated application appellate courts.

Postponing review until the final or judgment, minimizing the number of occasions for interlocutory also is appeal, important to avoid interference with trial process.... Repeated interruptions of the trial court ... process may require wasteful losses of with familiarity the case and perhaps counsel as well. §

Wright, supra, at 277. Cooper, Miller & This sort of interruption cannot occur in a case which a motion to transfer has granted. been In the transferring . court, there are no longer any proceedings interrupt, the proceedings court, have been terminated. In the receiving proceedings cannot interrupted, be because they have not yet begun. The case is otherwise when motion to transfer is denied; to allow appeal immediate then interrupt would ongoing trial court process. justifies This difference the dis- tinction we in allowing make immediate from the granting of a transfer order and disallowing immediate from the denial of a transfer order.

It is also instructive to compare the rules on appealability decisions on motions due to im transfer proper venue inconvenient forum with the rules on the

617 improper motions to dismiss for of decisions on appealability An dis order such granting or inconvenient forum. venue an is immediately denying while appealable, missal is James, 657, 353 not, Pittsburgh v. Corning see Swanson, 80, 86-87, A.2d (1999); Wilde (1988). the same justified by is approach This like justifying a just we mentioned as considerations have both a transfer order and to transfer With approach orders. of order, the is out challenging put the party dismissal order, free being court while left grants particular situations, In there to the case another court. both pursue trial court ongoing process. danger interrupting no transfer motion or a dismissal Conversely, when either a denied, is not challenging the court’s order party motion is court, would be appeal an immediate put permit out of to trial interrupt process. court’s there- two situations —transfer and dismissal—should alike. in our rules fore be treated The allowance transfers exception principles not intended to was create It whether order is final determining appealable. that, hand, on illogical would be conclude the one Wilde, at for lack of 314 Md. at dismissal venue was as a final because properly entered “of the means of further deprived plaintiffs dismissal court,” their claim prosecuting against [the defendant] but, hand, trans- plaintiffs’ on the other if the case had been court, original of the circuit court to another circuit ferred out finality. the transfer order have lacked would VI. transfer of holding granting

Our that an order immediately appeal- from circuit to another is venue one court to file an opposed who order either permits able to wait days entry, from the order its within has completed until the the transferee been ground on court’s that the case should not have been A transferred.3 decision to forego the immediate appeal prevent does not a party from raising the propriety the transfer in the later appeal.4 argues 3. The dissent holding that our is inconsistent with Parrott State, 411, (1984) 301 Md. 483 A.2d 68 suggests and that our decision "may put jeopardy ... in Parrott." holding into our The dissent’s case, raised, concern about Parrott is ill-founded. In that no issue was discussed, final, or even as to whether the circuit court order was a appealable judgment principle under the that an terminating a particular in appealable. case a is final involving and No case was cited in Parrott. The principle this parties simply proceeded upon assumption the that the interlocutory. only order was The two issues Parrott were the right” "constitutional doctrine and the "collateral Court, Judge Rodowsky, order” doctrine. writing for the set forth the arguments issues and as follows: position interlocutory Parrott took the appeal an _that lies in this First, Maryland case for either of two reasons. cases view certain removal orders as within a grant class of orders deny which an right absolute ground constitutional and are immediately on that appealable. Secondly, the issue in this case meets the collateral exception judgment to the final rule. recognized The position State nonappealability its conflicts submitted, however, with certain earlier cases. The State later decisions which to look the collateral order doctrine had eroded the right approach constitutional appealability to subject and that appeal fails the collateral order test. 301 Md. at precedent 483 A.2d at 69. A case constitutes no with respect to an issue which was not raised and which was not considered Griffiths, by 485, 496, 506, e.g., court. See State v. 338 Md. (1995). A.2d addition, concerning finality In the law appealability judg- different, ments in many criminal cases is respects, from the law applicable example, to civil cases. For a final (including sentence) single on appealed count in an though indictment can be even there is no final on another count in the same indictment Moreover, action, charging a different offense. in a civil both the plaintiff enjoy rights and the concerning defendant parties venue. Both enjoy privilege transferring a case to a venue which either one case, however, can show to be more convenient. In a criminal prosecution is constrained in a analogous manner is not at all to by plaintiff. venue selection a Maryland civil Article 20 of the Rights requires Declaration of brought that criminal cases be where the Thus, transfer; usually crime occurred. it is the defendant who seeks a such defendant have appeal would little cause to a transfer order which State, sought. having he or she The much rights less "venue” than a plaintiff, civil ordinarily attempt would appeal to a transfer order. Thus, cases, in criminal there is much less need for an immediate appeal of transfer orders. 4. The view dissent’s that our decision holding is inconsistent with our Nunes, Leung ignores 729 A.2d 956 body with a of our large is holding our consistent respect, this case law. ulti- permitted

We often have an issue that could have mately of a based on disposing case been, not, appeal. earlier but was made basis case is when present closest to the the circumstance Probably should not the trial court that it first contends before arbitrate, arbitrate, not take does be ordered to ordered proceed- terminating from that order an immediate arbitration, court, appeals submits ing the trial has confirmed issue after arbitration award been only in a Curtis G. Testerman proceeding. the trial court new (1995), Buck, plaintiffs 667 A.2d 649 Co. for, individually inter president and its corporation sued alia, Court for negligence. breach of contract Circuit County granted corporation’s compel motion Cecil in the agreement to an arbitration con- pursuant arbitration in the Circuit plaintiffs tract in The then moved dispute. opposed the to arbitrate. He their compel president Court to a the ground party motion on the that he was not to arbitra- court, agreement ruling or contract. underlying tion the him by agreement, was bound the ordered president the This was a final terminat- appealable judgment to arbitrate. Horsey, ing the case in the Court. See Horsey Circuit (1993), 392, 401-02, and cases there Md. Testerman, however, take in not president cited. The did of arbitra- appeal immediate but waited until the termination In a court action tion the arbitrator’s award. new circuit and award, the in to confirm the court entered Only point president at this the plaintiffs. favor of the did that, appellate appeal and raise the issue before not to arbitration party agreement because he was a the contract, required he not have been to underlying should was bound submit to arbitration and not arbitration thirty days proposition party may appeal a elect of the to within entry completed. of the order or wait until has been with agreed that, award. This Court the president, holding although president’s liability court, tort could be tried the trial force him judge could not to his litigate liability through arbitration. We not penalize president did for failing appeal the trial immediately court’s order to arbi- trate, the fact that this order despite appealable was as a final judgment.

Similarly, Board Educ. Dorchester County for Hubbard, 774, 783-85, (1986), 629-30 sought to their grievances teachers arbitrate with the Garrett County Board of Education.5 The Board filed the Circuit County Court for Garrett a declaratory judgment action seek- ing a of arbitration stay and declaration that the issue in dispute was not arbitrable under collective bargaining agree- ments state law. The Circuit Court ordered Board to proceed arbitration, with Board took no that final terminating the cáse. Subsequent to the later, decision a arbitrator’s few months Board brought new action the Circuit Court vacate the arbitrator’s denied, decision. After the was petition the Board appealed ground on the dispute sole between and the teachers not properly subject was of arbitration. We the Board’s appeal, despite entertained the fact that the Board appealed could have very raised the same issue immedi- ately after Circuit Court’s final order in the declaratory with proceed action Again, arbitration. we did penalize failing to appeal an issue at the possible Case, earliest moment. In re Sealed 121 F.3d Cf. (D.C.Cir.1997) “a (although President is allowed to imme- diately requiring production of subpoenaed materials----we believe that White House should not be cpurt penalized because it waited until the district issued its final ruling”). although

5. as Board Educ. appeal, reported Dorchester for Hubbard, cases, County v. separate involved two from one Dorchester County County. one from Garrett

621 party when a fore- are other situations many There appellate may still seek appeal, to an but right earlier goes may final. A seek party becomes when the review under the appealable that were review issues appellate State, 406, Md. v. 287 Pulley See collateral order doctrine. (1980) 1244, if an order is 419, (holding 1251 412 A.2d under collateral order judgment6 as a final appealable doctrine, perfect appeal to or to appeal a failure party’s “cause forfeiture of a defendant’s from that order does from a appeal ... in an later ruling” to a review the right merits). Carbaugh also case on its See terminating (1982) State, 1153, 323, 328, (permit 449 1156 A.2d v. 294 under collat appeal to an immediate ting right defendant with and raise issue forego appeal immediate eral order doctrine 701, Grant, 690, 481 v. 300 Md. judgment); Vogel after final (1984) 186, (allowing entry after 191 A.2d un immediately appealable order was though even doctrine). the collateral order der forego right

A to an immediate party may in a same issue later injunction and raise the appeal of Co., v. 225 Md. Drugs Upjohn Save-Mor appeal. See (1961) 223, appellant, Save (holding “[t]he 170 A.2d Mor, granting from the inter have the order appealed could so, and it locutory injunction, it was not bound do could but so questions might which it have bring up review decree”). also, e.g., the final See on presented 531, Brosius, 612, 647-48, 241 Md. Rocks v. 389, Albrecht, 401, (1966); v. 157 Md. Washington Cleaners Masonheimer, 310, 233, (1929); Lippy 146 A. (1856). right has a another situation which Still issue, deciding of a but seek review appellate by seeking and later raise the issue may forego right involves review of subsequent judgment, review of a appellate appealable as limited 6. The collateral doctrine “treats the trial class which do not terminate the court.” of orders Valley League, Public Serv. Com’n Patuxent Conservation added). (emphasis 622

judgments appellate by remanding intermediate courts cases. Counsel, See Maryland Public Serv. Com’n v. People’s 309 1, Md. 522 A.2d 369 (holding that the law of case the preclude deciding doctrine does the Court of from Appeals an issue on review of a judgment by second the Court of Special first of Appeals, judgment where the the Court of Special on the was not Appeals issue appealed defen dant). State, Loveday See also 296 462 Md. A.2d 58 (1983); Houghton County, Com’rs County Kent of (1986). 407, 414, 1145, 1149 a

Finally, party forego an may from a final appeal court, judgment terminating particular a case a but subse quently separate proceeding declaratory raise issue in a judgment questions liability actions resolve of insurance a coverage when insured is defendant in a tort suit. See Atwood, Allstate Co. v. Ins. Md. (1990) (holding an bring declaratory insurer’s failure to action, “or an appeal to take from dismissal of declaration,

such an without operate action will not as an insurer”). estoppel or a waiver against all these situations, final, appeal was taken when the was raising an on issue which an earlier was appeal permissible but not Our holding today taken. is consistent with these cases. principle

No or rule of law stands way permitting party choose between immediately appealing waiting transfer order and until the end the case to litigate instance, this For issue further. the fact that more than days might have since passed the transfer order was not prevent appeal entered does from the ultimate disposi tion of the based argument case on the that the transfer was improper. It is true that requirement ... that an “[t]he of appeal thirty filed within days be of a final if jurisdictional; met, the requirement is not the appellate jurisdiction no acquires and the must appeal be dis Houghton, missed.” at 504 A.2d at 1148. But appeal judgment ultimately from disposing the case old, is not an from appeal the order that is 30 days more than transfer is propriety transfer order. namely the The amount this is taken. on which merely ground only order is date of the transfer passes of time that has to long how the adverse relevant order. judicata res mean the doctrine of

Nor does of the effect the transfer order has forego appeal to of decision of the issue further precluding failure to ordinarily judgment. While ultimate of review appellate later precludes from an appealable is this not a judicata, doctrine res that order under the is judicata rule. The doctrine res universal or absolute litigation, see policy against repetitive in the grounded public 100, 108 v. Realty Lingo, Pat Perusse (1968); will not judgment occasions where final but there are Montgomery County e.g., effect. See given preclusive be 382, 1, Nat’l 341 Md. Corp., Revere may some (stating public policy of a state that “fundamental final be vacated or times that a consent require effect”). given preclusive conclusion, of this Court’s note that a review we no years or will show that forty fifty over the

opinions past than the subject opinions has of more one issue been is The bar question appealable. of whether a trial court order difficulty determining finality appealability had more has Nonetheless, there exists any with other issue. perhaps than to which this Court has continu one principle appealability adhered, An simple is and understandable. ously one is proceeding particular in a order which terminates final and appealable. THE APPEALS OF COURT OF SPECIAL

JUDGMENT APPEAL CASE RE- DISMISSING THE REVERSED. MANDED TO THAT COURT FOR CONSIDERATION OF APPEAL. ABIDE THE MERITS THE COSTS TO OF THAT THE RESULT IN COURT. RODOWSKY, WILNER, J, in which

Dissenting opinion by CATHELL, J., join. J. and

WILNER, Judge, dissenting: today Court, The Court holds that an a Circuit 2-327(b) (c), under Maryland entered Rule that transfers a Circuit equivalent case another Court having jurisdiction (or exclusive) but better venue constitutes a final is immediately result, appealable. To reach that cases, Court misinterprets others, some no pays heed to comes the extraordinary conclusion that there can be more than single one in a case. The Court’s decision State, is flat-out inconsistent with Parrott v. (1984),

A.2d notwithstanding the majority’s rather strained and unconvincing attempt distinguish and, that case but for this new notion that there can be multiple judgments, also with inconsistent our year unanimous holding last Nunes, (1999). Leung 729 A.2d 956 With I respect, dissent. Court recognizes long-established State, rule in this State,

articulated at as early least as Boteler Belt& v. 7 G. & 109, 113 J. appeal Court,

“no can be in prosecuted this until a decision below, final, has been had in the Court which is so far as to settle, and conclude the of rights the in party involved the action, or denying to the party the means of further prose- cuting defending or the suit.” State, 142, See Popham 136, 28, also 634 A.2d 31 (1993), confirming principle nearly in identical language (to constitute a final judgment, the order must far be “so as to determine and rights action, conclude the in involved the deny or to party seeking to the by redress the the of means or prosecuting further defending rights his in subject of interests the matter the proceeding”). proceeds, however, The Court then to construe the alterna- requirement tive that the lower “deny court decision to the party seeking redress the appeal the means of further prosecuting or defending rights his and interests in the sub- ject matter of proceeding” as being satisfied when the case, order removes the on venue grounds, from one Circuit

625 construction, it states a for that As basis to another. Court terminating that an order principle have applied “[w]e (emphasis judgment” a final court is particular in a treating cases added), proposition for that authority as citing transferring a orders of Circuit Court judgments as dismissing of or Maryland, to the District Court action agency judicial of administrative seeking review action agency, requiring to the remanding the case decision in the court. otherwise triable dispute arbitrate parties to however, notion that cases, not support do Those case, one Circuit Court for venue from purposes, of a transfer final, appealable judgment. another constitutes Benson, 2, relies on Ferrell The Court first (1998). case, for Montgom Court In that the Circuit A.2d on the to the District Court transferred a tort case ery County $2,500, controversy in did exceed ground that the amount of jurisdiction therefore within exclusive that the case was Court, jurisdic no and that the Circuit Court had the District held, order, a final judg we constituted tion to it. That try in Id. the case the circuit court.” because “terminated ment 5, 583, Montgomery at (quoting at 720 A.2d (1996)). Revere, We County v. it terminated the that the order was final because never said was Montgomery County. Court for It case the Circuit case terminated “in circuit court.” final because the was that, court’s-jurisdictional was due to point The crucial determination, ability litigate her plaintiff lost right Circuit Court—where she had any Circuit Court— trial, discovery, right to conduct jury right The termi Special Appeals. the Court direct than mere action a Circuit Court had more nation her consequences. pertained The same situation Car logistical Comm’n, 515, Md. 510 A.2d Housing 306 Opportunities roll Court; there, too, (1986), we observed 540 also cited the transferring the case to the District Court 520, in court.” Id. terminated the action circuit at “completely Ferrell, of right As in lost her plaintiff 510 A.2d at 542. of trial, discovery, Special to the Court jury and Appeals.

The same was involved in the principle remanding cases an action to an administrative an agency dismissing action favor arbitration. The for regarding rationale an order remanding action an administrative agency as a final Pritts, explained 1, was lucidly Schultz v. 6, 1319, 1322-23 (1981): 432 A.2d

“When proceeding remands a to an administrative agency, the matter processes reverts of the agency, is nothing there for the court to do. further Such order is an appealable order because it terminates the judicial proceeding and denies the parties means offurther prosecuting or defending their rights judicial pro- ceeding.” added).

(Emphasis See also Eastern Stainless Steel v. Ni- cholson, 492, 501-02, (1986). 248, Md. 252-53

That is also the rationale for regarding orders to arbitrate as final judgments. Horsey v. Horsey, 392, (1993), A.2d 305 plaintiff filed an action for en- specific forcement of a marital separation agreement, an agreement contained arbitration clause. The court construed the agreement plaintiff directed that the pursue her claim for alimony under agreement through arbitration. Citing Co., Houghton v. County Comm’rs Kent (1986), for the proposition that an order that has “the effect of putting parties out of court ... is a order,” final appealable we concluded: “A circuit court’s order to arbitrate the entire dispute before the means, court does deprive plaintiff of the court, case before trial of enforcing rights claimed. The effectively terminates that particular Thus, case before the trial court. clearly the order would seem to be final under appealable the above cited cases.” cases, them,

Those and' others like are entirely consonant general with the rule regarding judgments and do not support proposition adopted by the Court in this case. We are not here dealing plaintiffs with who have been denied are remanded the when cases as is situation judicial remedy, a in of arbitration. dismissed favor agencies or to administrative Court, to the District Nor, with a remand as is the situation prevented who have been plaintiffs dealing we with are Court, with jury of a trial having in a their case Circuit trying their of jury, preserving a respect to issues triable before of Special Appeals, of to the Court right of direct in available a discovery practice and motion all of the having of order under consideration only court. The effect circuit County must case in Carroll try their plaintiffs is that the equivalent in of County, in Baltimore a court rather than at is not all like situations jurisdiction. This status Carroll, Schultz, Ferrell, Horsey. Swanson, 548 A.2d 837 Court cites Wilde venue transfer order as a

(1988), as a authority regarding no proposition. that case stands for such judgment, but Wilde, Indeed, In opposite. it Circuit demonstrates the of defendants against action one several Court dismissed the defendant, that, a lack of to that there was ground on the as of as a court then entered that order dismissal venue. The Maryland agreed that Rule 2-602. We under a final under the properly the order was entered as rule, dismissing of only but because effect the order “of the of further deprived plaintiffs defendant means against claim him that court.” What the their prosecuting give effect to is that the neglects Court here to consider to anoth- against action the one defendant was not transferred Court; plaintiffs Circuit it was If the wanted er dismissed. defendant, they have been judicial relief would against out, quite clearly, a action. points forced to file new Wilde for lack venue and the a dismissal distinction between circuit court. The whole transfer of an action to another transfer, requiring allowing rather than dis- purpose missal, occurred in consequence was to avoid the what every respect, simply but keep the action alive Wilde—to having proper to court venue. transfer for trial Nunes, Circuit Court for Baltimore supra, Leung case, 2-327(c), Rule City a tort under transferred Circuit Court for County. Howard No was taken from order, and the case was tried on its merits Howard County. Following entry judgments by defendants’ Circuit County, Court for Howard far longer than 30 days order, after the transfer plaintiff noted an appeal, from judgments, only those complaining about the transfer order. of Special The Court Appeals reviewed the of merits that order and reversed County the Howard judgments, holding that the case was erroneously Despite transferred. what clearly jurisdictional would be a if defect the transfer order regarded to be judgment, were as a final granted we certiora- order, ri to review the merits of the transfer and we affirmed of the Court of Special Appeals. basis only upon which we could have reviewed the transfer in that order case was to treat the entered in the Circuit Court for as County Howard the final judgment in the regard case and to the transfer order as an interlocu- tory order appeal reviewable on from the later-entered final what, now, judgment. up Under our has been clear and jurisprudence, routine if a transfer order constitutes a final holds, judgment, as the Court now the transfer order Leung for, (1) unreviewable, would have been as noted no appeal had (2) order, been taken from that only that appeal was long taken was filed days after the 30 for noting allowed appeal. We would have jurisdiction lacked substantive enter the mandate that we entered.

The Court’s current belief that a venue transfer order final, constitutes a immediately appealable judgment is also State, inconsistent with holding our Parrott supra, that removing a case from one IV, Circuit Court to § another under Article of8 the Mary- an interlocutory land Constitution is order that is not immedi- ately appealable. always This Court has regarded removal IV, § nature, orders under Article interlocutory but, as Parrott, until we had entertained appeals immediate from them on theory any that order that denied an absolute right immediately Constitutional was appealable. See Smith (1970). Bank, 141, 265 In A.2d 236 v. Fredericktown immediate Parrott, ap broad of we that doctrine abrogated immedi abrogation right went and with pealability, of remov the order orders: “Because ate from removal and does from in this case is al appealed exception, doctrine we collateral order not fall within the Parrott, supra, Md. at appeal.” Parrott’s dismissed added). direct defiance (emphasis 483 A.2d at Parrott, Parrott, preceding cases all of the removal Circuit Court to transfer order one majority regards a interlocutory order.1 not an judgment, as a final another Leung, majority consequence To the obvious avoid may either opposing holds transfer footnote, majority attempts Parrott on the alterna- to dismiss 1. In a (1) that case of whether the transfer order in grounds tive the issue decided, any judgment was never raised or constituted a final event, finality judgments in crimi- between the there are differences basis respond a footnote. The first is nal cases. I shall in and civil noted, just appeal "[b]e- we dismissed the in Parrott perplexing. As appealed in this is not a final or removal from case cause the order excep- order doctrine judgment and does not fall within collateral regarding holding an issue the case? It is is that not a in tion.” How interlocutorily appealable, was true that claimed that the order Parrott for, reason, consistently regarded point, we good up to that had for is, point interlocutory, appealable as such. The such orders as however, that, notwithstanding that we our determination in Parrott immediately appealable longer regard as would no removal orders orders, appeal if interlocutory we dismissed the we would not have appealable judg- us constituted an final believed that the order before jurisdictional played a We would not have so fasf and loose with ment. manifestly unjust. been We issue in a case. That would have criminal appeal we that the removal order was dismissed the because concluded interlocutory appealable order. That is judgment a nor neither said, plainly plainly is did. that what we what we by majority equally mysterious. is What second basis offered case, that, judgment on it a a one does make in criminal difference may appealed though even information be count of an indictment or signifies yet that judgment no on another count? All there is entered not, equivalent yet, applied common law we as of a that have says absolutely nothing It Maryland 2-602 to criminal cases. Rule If on of a removal order. removal venue about the nature and effect case, a even grounds judgment a final in criminal does constitute Court, transferring Circuit how though it the action in terminates a on the a final in civil case can a removal constitute such transferring court? ground it the action in the that terminates or wait until the immediately litigation has completed been the transferee court from appeal “and that court’s final judg- ment on ground that the case should not have been It says transferred.” that permitted have often “[w]e from a ultimately disposing of a case based been, on not, an issue that could have but was made the basis of an appeal,” citing involving earlier cases orders to arbitrate. again, Once recognize has failed to a critical distinction between those cases and this one. Buck,

In Testerman (1995), Co. 667A.2d 649 a plaintiff who had filed against suit for damages contractor was ordered to dispute arbitrate the in accordance with an arbitration clause the contract. He did not appeal from that order but proceeded arbitration, with the which ended with an against award him. apparently He appealed subsequent order of the confirming award, Circuit Court (1) he complaining was not a to agreement to arbitrate, and the arbitrator authority had no to award counsel No fees. issue was raised in over Tester- man’s right appellate review of the confirming the arbitration award or whether he had right waived his to raise the first issue not appealing arbitrate, from the and no comment appears opinion the Court’s with regard to Nonetheless, either order, matter. because the first requiring arbitrate, parties could have been appealed as judgment, the Court now treats that case as authority (or more) proposition there can be two final judgments in the same action.

Testerman is a weak reed on which to An rely. order to may arbitrate be entered three contexts under the Uniform Code, § Arbitration Act. Maryland 3-207 of the Courts and Article, Judicial Proceedings. allows a an party to arbitration agreement petition to file to compel arbitration if the other to party agreement refuses to arbitrate. Section 3-208 permits arbitration, a person, threatened with to petition the stay to court the arbitration on the ground that person agreed situation, never to arbitrate the matter. In either if the court an agreement exists, determines that to arbitrate it immediately appeal- is Such an order order arbitration. must is There jurisdiction. court’s able, it exhausts the because has been party court. any in the nothing left court — judicial his, her, right to a resolution. alleged its deprived of or A third 620 A.2d 305. Horsey, supra, Horsey already litiga- context, 3-209, § is the court has where under or but, that one a determination upon tion before pending (but all) subject is in the litigation of the issues less than more particular arbitration, so that those stays to that kind to arbitration. Whether may be submitted issues final immediately appealable an constitutes order yet not matter, opined. which we have as upon another under either an entered involved apparently Testerman 3-208; ended when judicial proceeding § § was 3-207 or the order was entered. 3-224, and 3-223, of the Courts Judicial 3-227

Sections through who have been Proceedings permit parties Article in the Circuit post-award petitions file arbitration to certain (§ 3-223), an to vacate modify or correct an award Court—to (§ 3-227). (§ 3-224), Unless or to confirm an award award to an order pursuant to the matter arbitration proceeded 3-209, action in the § would be a new this entered under Court, relief allowed under seeking only particular Circuit statute, any entered respective final, single, appeal- constitute the that action would viewing Testerman in that action.2 able Hubbard, (see Ed. Dorchester Co. similar cases Bd. of (1986)) involving two 506 A.2d 625 as the Court over- appealed, of which can be either judgments, there that, settings, fact those arbitration plain looks the two separate the same case but judgments are not two that, stay § 3-208 may moved to arbitration under 2. It be if ground § 3-207 on objected petition order arbitration under to a to he, she, and failed agreed to arbitrate matter or it never res proceeding, principles of in that adverse determination preclude attempt judicata estoppel would raise or collateral award; which again petition is a matter on in a to vacate issue bar, however, exist, would Any if one did yet opine. such we have denying post-award relief. appealability affect the order cases, seeking different relief. That is clearly the situa- tion when a case is transferred for venue The case purposes. in filed is simply the transferor court tried in the transferee court, to all of subject the same rules of substance and that procedure applied would have in the transferor court. action; over, There is no new parties do not start but simply in the pick up second court in they where were the first one.

Finally, the Court finds some in party succor the fact that a appeal immediately who may from an interlocutory order under the § collateral order doctrine or under of 12-303 Proceedings Courts and Judicial Article may choose not to at appeal that time and later from appeal the final judgment. is, The critical—and obvious—distinction is that the first order indeed, an interlocutory Although one. law allows an appeal orders, immediate from certain of interlocutory kinds general preference end, its is to have but one at the why, subject which is to ordinary mootness, of rules waiver permits a appealing it party from the final judgment contest interlocutory orders entered during the action. With but one possible exception, contextual we have never endorsed the notion being there more than one in single only action. potential in exception is those actions jurisdiction which an equity has a continuing to entertain and enter final in orders discrete proceedings, example being a receivership divorce or today, action. The holding that there can be more than one final this kind of case, is unprecedented.

In regarding the transfer order as a final judgment, overlooks, important Court two aspects such clearly its If interlocutory demonstrate nature. party court, opposing prevails transfer the transferee moot, of the issue transfer will effectively become and the prospect being issue made moot further proceedings is, be, in the action or at least should one the critical factors in determining whether order generating is issue interlocutory, hand, than if, rather final. On the other as Leung, court, loses transferee it can raise the raise, other issues chooses issue, along with any transfer clearly judgment. the final in an from what to have transfer event, no need simply there is either to re- certainly no reason immediately appealable in judgment simply an order as a such gard appealability. immediate ground provide can holding. It for the Court’s logical basis There no will be deleterious. only Its effects purpose. no useful serve cases that are in the trial of delay It will be used create trans- 2-327, parties opposing Rule as transferred under “on for a fer, put can the case ice” immediately appealing, as dormant on docket linger Cases will year or more. fade; animosity memories or have their witnesses die By recogniz- will persevere. uncertainty inherent judgments or more final being two ing there prospect sow confusion action, certainly will approach this new single just not this context a final judgment, over what is or is not has no others, given the Court which I am sure many but cavalier, treatment of res almost summary, thought. may real problems, which be estoppel, collateral judicata and If all of were to haunt the Court. surely will return is likely to appealability of immediate this new rule enough, Special for the Court of appeals of additional engender dozens work. in no need of additional Appeals, which is authorized me and CATHELL have Judges RODOWSKY join dissenting opinion. in this they to state that

Case Details

Case Name: Brewster v. Woodhaven Building & Development, Inc.

Court Name: Court of Appeals of Maryland

Date Published: Aug 22, 2000

Citation: 759 A.2d 738

Docket Number: 82, Sept. Term, 1999

Court Abbreviation: Md.