This is еssentially a tort-based product liability case involving, among other causes of action, allegations of fraudulent and negligent misrepresentation and failure to warn of hazards associated with either the product itself or the use of the product. We granted certiorari to consider two principal questions: (1) whether injured minors can maintain an action for fraudulent or negligent misrepresentation when there is no direct reliance by them on the alleged misrеpresentations; and (2) whether a manufacturer whose product is not itself harmful can be liable for failing to warn of hazards inherent in other products that may arise from the use of its product. 1 Because it is now clear that no final or appealable judgment exists and that the Court of Special Appeals erred in declaring otherwise, we are obliged to direct that the appeal be dismissed without addressing those issues.
BACKGROUND
This is an action by seven minor рlaintiffs against twenty-one defendants to recover for injuries sustained from exposure to lead contained in either paint or gasoline. The plaintiffs, who, through one or both of their respective parents, all joined in a single fifteen-count, 172-page complaint, come from four different families: there are three Smith children, one Brantley child, one Hamilton child, and two Shorter children. The defendants fall into one or more of four categoriеs — those that produced tetraethyl lead (TeL), a gasoline additive that reduces knock in internal combustion engines; those that produced lead pigment used in manufacturing paint; paint manu facturera which either produced paint containing that pigment (lead paint) or which did not produce lead paint but failed to provide warnings regarding the safe removal of lead paint in their surface preparation instructions; and two trade orgаnizations charged with promoting the use and unsafe removal of lead paint.
The action was filed in the Circuit Court for Baltimore City. Early in the proceeding, the plaintiffs moved to sever the action into four separate cases, one for each family, or, in the alternative, to allow them to dismiss the action without prejudice in order that separate actions could be brought. The court denied that relief.
The case then proceeded with a blizzard of motions to dismiss and for summary judgment, which ultimately were granted, in whole or in part. In August, 2001, the court denied a motion by Duron, Inc. to dismiss Count I of the Third Amended Complaint but “reassigned” Counts I, II, and III (Conspiracy, Concert of Action, and Aiding and Abetting) as part of the descriptive “Nature of the Action” appearing in preliminary paragraphs. The effect of that order was to dismiss those counts as substantive causes of action at least as to Duron. 2
On October 24, 2001, the court granted a motion for summary judgment in favor of Lasting Paints, Inc. “agаinst the Plaintiffs.” The order granting the motion (1) is not in the record, although a copy was included in the record extract, and (2) was never docketed in this action. 3 It appears to apply to the six plaintiffs then in the case. One child, Shatavia Smith, did not join the case as a plaintiff until a month later, and the order was never extended to include her. A motion by the plaintiffs to reconsider the granting of Lasting Paints’ motion was denied.
The next day, October 25, 2001, the court granted a motion for partial summary judgment in favor of American Cyanamid Company. That company was sued in two capacities — for its own conduct and as a successor-in-interest to John R. MacGregor Lead Company. The motion and the order granting it addressed only the successor-in-interest liability, which is why it was labeled a partial summary judgment. As with the grant of Lasting Paints’ motion, it went against only the six plaintiffs then in the case, not Shatavia Smith, who was added a month later.
That left Counts IV through X and XV (Alternative Liability, Negligent Product Design, Negligent Failure to Warn, Supplier Nеgligence, Strict Liability/Defective Design, Strict Liability/Failure to Warn, Commercial Seller Liability, and Consumer Protection Act) alive against ten paint manufacturing defendants (Sherwin-Williams, SCM, Glidden, DuPont, Fuller-O’Brien, PPG, Valspar Corporation, Benjamin Moore & Company, and Duron, Inc.) and Counts IV, VI, VII, IX, and X alive against LIA.
On November 15, 2002, the court granted summary judgment on Counts IV through X and XV in favor of all defendants except Fuller-O’Brien and LIA, but only as to the Smith plaintiffs. 4 On November 21, it granted summary judgment to Fuller-O’Brien on those counts, but, as Fuller-O’Brien’s motion went to “all plaintiffs,” presumably the judgment did as well. That was the last order entered by the Circuit Court. On December 10, 2002, all of the plaintiffs filed an appeal “from all appealable Orders, including but not limited to the final judgments entered on November 15, 2002.”
The Court of Special Appeals, in an unreported opinion, recognized that there was no final judgment in the case in that many of the counts against many of the defendants were still unresolved with rеspect to the Brantley, Hamilton, and Shorter plaintiffs. It assumed, however, that all claims against all defendants had been finally resolved with respect to the Smith children, and concluded, as a result, that “to condition the Smith appeal upon the entry of final judgment in the claims brought by the other plaintiffs would be inefficient, at best, and possibly foolish.” That was so, it said, because the facts for each family of plaintiffs were different and because a decision in thе Smith appeal might clarify issues that remain in the other cases. On that ground, the intermediate appellate court, invoking Maryland Rule 8-602(e)(1)(C), purported to enter final judgment on the Smith claims and proceeded to address the substantive issues presented in the appeal.
The Court of Special Appeals affirmed the trial court’s grant of summary judgment
DISCUSSION
In
Shoemaker v. Smith,
“If a ruling of the court is to constitute a final judgment, it must have at least three attributes: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy, (2) unless the court properly acts pursuant to Md. Rule 2-602(b), it must adjudicate or complete the adjudication of all claims against all parties, and (3) thе clerk must make a proper record of it in accordance with Md. Rule 2-601.”
See also Walk v. Hartford Casualty,
Clearly, as the Court of Special Appeals recognized, the various orders entered by the Circuit Court in this case do not constitute, or even come close to constituting, a final judgment under the criteria stated in Rohrbeck. Most of the claims pled by the Brantley, Hamilton, and Shorter plaintiffs are unresolved, and, indeed, as we shall explain, some of the claims pled by the Smith plaintiffs aрpear also to be unresolved. Nor are any of the trial court’s rulings appealable under the collateral order doctrine or under Maryland Code, § 12-303 of the Cts. & Jud. Proc. Article. If they are appealable at this time, it can only be pursuant to Maryland Rule 2—602(b).
Rule 2-602(a) provides generally that an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action, less than an entire claim, or the rights and liabilities of fewer than all the parties to the action (1) is not a final judgment, (2) does not terminate
Maryland Rule 8-602(e)(1) permits this Court or the Court of Special Appeals, if it concludes that an order from which the appeal was taken was not a final judgment when the notice оf appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2-602(b), to dismiss the appeal, to remand the case for the lower court to decide whether to enter a final judgment under Rule 2-602(b), or to enter a final judgment on its own initiative. If it chooses the latter option, the Rule directs that it treat the notice of appeal as if filed on the date it enters the judgment and proceed with the appeal.
In this case, as noted, the Court of Special Appeals chose that third option, believing that it would be inefficient and possibly “foolish” to do otherwise. We disagree. There are so many loose ends left in the Circuit Court that, to proceed with this appeal now would be to do what we, and the Court of Special Appeals, have consistently held ought not to be done. Neither efficiency nor the avoidance of “foolishness” is served.
As we have indicated, the appellate court implicitly assumed that all claims by the Smith plaintiffs had been resolved against all of the defendants. That does not appear to be the case. Although LIA and perhaps the other parties thought otherwise, the record indicates that, when LIA filed for bankruptcy on April 4, 2002, Counts IV, VI, VII, IX, and X were still open against it, and, because of the bankruptcy stay, those claims, by the Smith plaintiffs, have yet to be resolved.
6
See Starfish Condo. v. Yorkridge Serv.,
Apart from that problem, the order of October 24, 2001 granting summary judgment in favor of Lasting Paints against “the Plaintiffs” (1) was never docketed in this action and could not achieve the status оf a judgment until it is so docketed, and (2) did not include Shatavia Smith, who was not yet a party. The summary judgment was never extended to include her after her intervention the following month. That is true as well with the partial summary judgment entered in favor of American Cyanamid on October 25, 2001; that, too, did not include Shatavia Smith.
Beyond the open issues regarding the Smith plaintiffs, we made quite clear in
Diener Enterprises v. Miller,
The Court of Special Appeals has traditionally been in lockstep with this approach and has not hesitated to countermand the entry of judgment under Rule 2-602(b) and dismiss an appeal upon a finding that the trial court had not articulated a sufficient reason why there was no just reason for delay, sufficient to allow an immediate аppeal.
See Canterbury Rid. Condo. v. Chesapeake Inv.,
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. The appellate court may be faced with having the same issues presented to it multiple times; the parties may be forced to assemble records, file briefs and record extracts, and prepare and appear for oral argument on multiple occasions; resolution of the claims remaining in the trial court may be delayed while the partial appeal proceeds, to the detriment of one or more parties and the orderly operation of the trial court; and partial rulings by the appellate court may do more to confuse
than clarify the unresolved issues. That is precisely why 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.”
See Planning Board v. Mortimer, supra,
Although Rule 8-602(e) permits an appellate court to enter a judgment if the trial court could properly have done so under Rule 2-602(b), its discretion is even more limited than that of the trial judge. As we made clear in
Brown v. Gress,
This is not a case in which the lack of a final judgment was not apparent when the appeal was taken, where a “2-602 problem” surfaced after the appeal was noted, and where it seems clear that, if the matter had been presented to the trial court, that court likely would have acted under Rule 2-602(b). The plaintiff-appellants, which included all of the plaintiffs, not just the Smith plaintiffs, had to be fully aware when they noted the appeal that no final judgment existed and that no appeal could possibly lie under either Cts. & Jud. Proc. Art. § 12-303 or under the collateral order doctrine. The “2-602 problem” was obvious before the appeal was noted, and, given all of the issues that remain unresolved, it is not at all clear that the trial court would have given favorable consideration to a request to enter judgmеnt under Rule 2-602(b).
The decision of the Court of Special Appeals to enter judgment under Rule 8-602(e) avoided neither inefficiency nor foolishness. Quite the contrary. By entering judgment on its own initiative and entertaining the appeal, the court delayed resolution of the claims of the other plaintiffs
JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS APPEAL; COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONERS.
Notes
. A third issue was also included in the petition for certiorari — whether the petitioners properly appealed the dismissal of their Consumer Protection Act count. The Court of Special Appeals held that they had not done so.
. The court issued its order in response to Duron’s Motion to Dismiss Count I of the Third Amended Complaint, in which no other defendants had joined. In its Memorandum and Order, the court stated that it would interpret Counts I and III as having been set forth in the "Nature of the Action” section of the Third Amended Complaint “for any future proceedings pertaining to this cause of action.” Although this language suggests that the court intended its order to aрply as to all plaintiffs and defendants in the action, the effect of its ruling is an open question, since the court never entered a separate order to that effect. Later, in its February 14, 2002 Memorandum Opinion and Order, the court stated that Count II had also been reassigned to the "Nature of the Action” section of the Third Amended Complaint. Thus, the court believed that it had reassigned all three counts as to all plaintiffs and defendants.
. The caption of the order, as it appears in the record extract, indicates that it was entered in both this case and another,
Joan E. Young v. Lead Industries Association, Inc.,
No. 24-099-004491,
. The motion for summary judgment filed by those defendants asked that the court grant judgment in their favor “as to all claims asserted on behalf of Plaintiffs Reginald Smith, Jr., Shatara Smith, and Shatavia Smith (the 'Smith Plaintiffs’) based upon the Smith Plaintiffs' failure to identify the manufacturer or sellеr of the product allegedly causing them injury.” The court's order granted the "Defendants' Motions for Summary Judgment.”
. The Court of Special Appeals did not consider the lower court’s grant of summary judgment as to Count XV, holding that ‘‘its dismissal [was] not appealed by plaintiffs.”
. The record before us shows that on November 13, 2000, LIA and NPCA — the two trade associations — filed motions to dismiss Counts V, VIII, and XI-XV (product design, fraud, and Consumer Protection Act). The next day, LIA and NPCA filed a supplemental memorandum in suрport of their motion to dismiss those counts. On November 21, NPCA, but not LIA, filed a memorandum in support of a motion to dismiss Counts II, IV, and V-XIV, although it did not actually file a motion to dismiss those counts until February 12, 2001. On February 14, 2002, the court entered an order “that the Motion[s] to Dismiss of Defendant Lead Industries Association and National Paint and Coating Association are granted.” The order did not specify which counts were dismissed, although, in an accompanying memorandum, it seemed to assume that the motion went to the entire Third Amended Complaint. In NPCA’s case, it effectively did, but in LIA's case, it did not. In an opposition to the plaintiffs' motion for reconsideration, LIA also assumed that the dismissal went to the entire Third Amended Complaint. The problem is that the only motion to dismiss applicable to the Third Amended Complaint that we can find in the record on behalf of LIA went only to Counts V, VIII, and XI-XV.
. The appeal was noted on December 10, 2002. The Court of Special Appeals mandate issued June 23, 2004.