Houghton v. County Comm'rs of Kent Co.

504 A.2d 1145, 305 Md. 407, 1986 Md. LEXIS 195

• Court: Court of Appeals of Maryland
• Decided: February 25, 1986
• Docket: 76, September Term, 1985
• Status: Published

Opinions

ELDRIDGE, Judge.

We granted the petition for a writ of certiorari in this case to consider some questions concerning the alleged conduct of county commissioners in connection with voting on a particular project. We shall not be able to reach those questions, however, because the order of appeal was filed more than thirty days from the final judgment of the circuit court. Consequently, there is no appellate jurisdiction, and the appellees’ motion to dismiss the appeal must be granted. See Maryland Code (1974, 1984 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article; Maryland Rule 1012a.

This case commenced on October 19, 1984, when the plaintiffs-appellants, E. Edward Houghton and his wife Elizabeth F. Houghton, filed a complaint in the Circuit Court for Kent County against the County Commissioners of Kent County. The complaint, as subsequently amended, contained three counts. The plaintiffs alleged in the first count that, in connection with voting on a project to improve a public wharf on the Chester River, and in connection with voting on another matter, two of the three county commissioners entered into an “improper” vote trading “agreement.” The second count asserted that the public wharf, as improved, would constitute a nuisance. In the third count, it was alleged that the claimed improper agreement was reached at a non-public meeting between the two commissioners, and that holding such a meeting in private violated Code (1984), §§ 10-501 through 10-510 of the State Government Article, and Code (1957, 1981 Repl.Vol.), Article 25, § 5. The plaintiffs sought both a declaratory judgment and injunctive relief.

The defendants moved to dismiss the complaint, asserting three alternate grounds: (1) that the plaintiffs had failed to exhaust available administrative remedies; (2) that the complaint failed to state a claim upon which relief could be granted; (3) that the plaintiffs lacked standing. Thereafter both sides filed legal memoranda on these issues, and a hearing was held before the circuit court.

On January 21, 1985, the circuit court filed ah opinion and a separate order. With regard to count one, the court’s opinion held: “[e]ven assuming that the Plaintiffs have standing to bring an action, and that the Court has jurisdiction to entertain the Complaint in this case,” the allegations in count one failed to state a claim upon which relief could be granted. As to count three, the court’s opinion also held that the plaintiffs had failed to state a claim upon which relief could be granted. The court did hold, however, that the plaintiffs would be allowed to go to trial on count two. The court’s order stated that “the Motion to Dismiss Counts I and III of the Complaint as Amended is GRANTED this 21st day of January, 1985. The Motion is Denied as to Count II.” On the same day, the court’s order granting the motion to dismiss was entered on the docket, although the word “judgment” was not used in the docket entry. Two days later, on January 23, 1985, the plaintiffs filed a notice voluntarily dismissing count two of their complaint. This notice of dismissal was entered on the docket the same day, although again the word “judgment” was not used in the docket entry. As of January 23, 1985, therefore, there was a final disposition of all counts in the complaint. See Rule 2-602; Hardy v. Metts, 282 Md. 1, 4-5, 381 A.2d 683 (1978). See also the discussion in Tower v. Moss, 625 F.2d 1161, 1164-1165 (5th Cir.1980) (involving F.R.Civ.P. 54(b), upon which Maryland Rule 2-602 was based).

The plaintiffs on February 19, 1985, filed an order of appeal to the Court of Special Appeals. On March 5, 1985, the Court of Special Appeals directed that the appeal proceed without a prehearing conference. See Rule 1024. On April 19, 1985, however, the Court of Special Appeals sua sponte dismissed the appeal on the ground that there was no final circuit court judgment.¹ The mandate of the Court of Special Appeals was issued April 26, 1985. No petition for a writ of certiorari was filed in this Court seeking review of the Court of Special Appeals’ decision.

Next, on May 1, 1985, there was entered on the circuit court docket the following: “BY ORDER OF THE Court (Judge J. Owen Wise) Final Judgment entered in favor of Defendant as to Counts I & III.” The plaintiffs filed another order of appeal on May 2, 1985. Prior to argument in the Court of Special Appeals, the plaintiffs filed in this Court a petition for a writ of certiorari which we granted.

Along with their brief on the merits, the defendant County Commissioners have filed in this Court a motion to dismiss the appeal. The plaintiffs have filed a response to the motion, and at the hearing before us, both the motion and the merits of the case were argued.

In seeking dismissal of the appeal, the defendants contend that the January 21, 1985, order granting in part the motion to dismiss the complaint was final as to counts one and three. They argue that, upon the dismissal of count two on January 23, 1985, there was a final appealable judgment. In the defendants’ view, the Court of Special Appeals erred in dismissing the first appeal. According to the defendants, the order of appeal filed on May 2, 1985, more than thirty days from the final judgment on January 23rd, was late and conferred no appellate jurisdiction. Consequently, the defendants argue, the May 2, 1985, appeal must be dismissed.

In their response, the plaintiffs do not dispute the premises of the defendants’ argument. Instead, the plaintiffs rely solely on the “law of the case” doctrine, arguing that the January “judgment” was

“not an appealable final judgment which triggered the thirty day appeal period because the Court of Special Appeals said it was not final in its Order of Dismissal of the first appeal, and that is the law of the case. Ward Development Co., Inc., v. Ingrao, 63 Md.App. 645, 493 A.2d 421 (1985). Even if the Court of Special Appeals had erred in dismissing the initial appeal, when the Mandate issued the order was conclusive. See Van Der Vlugt v. Scarborough, 51 Md.App. 134, 137, 441 A.2d 1105 (1982).”

As previously indicated, we believe that the defendants’ position is correct and that the appeal must be dismissed.

It is settled that an unqualified order granting a motion to dismiss or strike the plaintiff’s initial pleading, thereby having the effect of putting the parties out of court, is a final appealable order. See, e.g., Bailey v. Woel, 302 Md. 38, 41 n. 1, 485 A.2d 265 (1984); McSwain v. Tri-State Transportation, 301 Md. 363, 368, 483 A.2d 43 (1984); Mooring v. Kaufman, 297 Md. 342, 347-348, 466 A.2d 872 (1983), and cases there cited.²

The order of January 21, 1985, dismissing counts one and three, coupled with the order of January 23, 1985, dismissing the remaining count two, had the effect of putting the plaintiff out of court. Nothing remained to be done. Both orders were entered on the docket as required by Rule 2-601(b). Nothing in Rule 2-601, adopted on July 1, 1984, and dealing with the entry of judgment, requires that the word “judgment” always be used as a prerequisite to finality. The orders of January 21 and 23, 1985, together constituted the final judgment of the circuit court.

Consequently, the present appeal was taken more than thirty days from the final judgment of the circuit court. The requirement of Rule 1012 and its predecessors, that an order of appeal be filed within thirty days of a final judgment, is jurisdictional; if the requirement is not met, the appellate court acquires no jurisdiction and the appeal must be dismissed. See, e.g., Kirsner v. State, 296 Md. 567, 463 A.2d 865 (1983); Institutional Mgt. v. Cutler Computer, 294 Md. 626, 629-630, 451 A.2d 1224 (1982); Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1976); Boyce v. Plitt, 274 Md. 333, 336, 335 A.2d 101 (1975); Clinton Petroleum Serv. v. Norris, 271 Md. 665, 667, 319 A.2d 304 (1974); Buck v. Folkers, 269 Md. 185, 188, 304 A.2d 826 (1973); Merlands Club v. Messall, 238 Md. 359, 208 A.2d 687 (1965); Porter, Exc’x of Earlougher Timanus, 12 Md. 283, 292 (1858).

Finally the “law of the case” doctrine, relied upon by the plaintiffs, furnishes no ground for this Court’s exercise of jurisdiction. Under some circumstances, that doctrine has been applied to preclude re-litigation of a prior holding that “jurisdiction” did exist or of a prior exercise of jurisdiction by the same court. See, e.g., Noonan v. Bradley, 12 Wall. 121, 129, 20 L.Ed. 279 (1871); Whyte v. Gibbes et al., 20 How. 541, 542, 15 L.Ed. 1016 (1858); Washington Bridge Co. v. Stewart et al., 3 How. 413, 424-426, 11 L.Ed. 658 (1845); all cited with approval by this Court in Park Land Corp. v. M. & C.C. of Balt., 128 Md. 611, 621, 98 A. 153 (1916). Even in that context, however, the “law of the case” doctrine would not apply to certain types of prior jurisdictional holdings. See, e.g., Kingsbury v. Buckner, 134 U.S. 650, 10 S.Ct. 638, 33 L.Ed. 1047 (1890).

We doubt very much that an erroneous prior dismissal of an appeal can properly, under the “law of the case” doctrine, be used later to confer jurisdiction upon an appellate court when no jurisdiction otherwise exists. Nevertheless, we need not reach this question in the present case. Very recently we held that a decision of the Court of Special Appeals on an earlier appeal is not the law of the case for purposes of this Court’s review on a later appeal in the same case. Loveday v. State, 296 Md. 226, 229-234, 462 A.2d 58 (1983). In other words, in this Court, the law of the case doctrine has no applicability when the prior decision relied upon was by a subordinate court. Loveday v. State, supra, 296 Md. at 234, 462 A.2d 58. The Loveday case is dispositive of the plaintiffs’ argument.

APPEAL DISMISSED. COSTS TO BE PAID BY THE PLAINTIFFS-APPELLANTS.

1 . The Court of Special Appeals apparently did not consider whether the January 21, 1985, order might be appealable as an interlocutory order under § 12-303(c) of the Courts and Judicial Proceedings Article.

2 . One area where this general principle did not apply prior to July 1, 1984, concerned demurrers. Former Rules 345 e and 373 d provided that an order sustaining a demurrer to an entire declaration or bill of complaint, in order to constitute a final judgment, had to prohibit amendment. Demurrers were abolished effective July 1, 1984, and former Rules 345 e and 373 d were rescinded at that time. No provisions comparable to Rules 345 e and 373 d have been adopted since that time. New Rule 2-322(b)(2), providing for a motion to dismiss a complaint for failure to state a claim upon which relief can be granted, took the place of former Rules 345 and 373 on July 1, 1984. If a court intends to grant such a motion with leave to amend, the order should expressly give leave to amend.