COUCH, Judge.
In this appeal we consider whether the Circuit Court For Baltimore City (Ward, J.) erred in permanently enjoining the National Collegiate Athletic Association (NCAA) from taking any action, under Sec. 10
of its Enforcement Program,
against The Johns Hopkins University (University). Under the facts, as presented by the record, we hold the circuit court erred and thus we reverse.
In
The National Collegiate Athletic Ass’n v. Tucker,
300 Md. 156, 476 A.2d 1160 (1984) (dismissed as moot), a case originally heard by Judge Baylor, we set forth the facts which provided the genesis for the present controversy, and they will not be repeated here except as to provide continuity from that case to the present appeal.
While the appeal of the NCAA in
Tucker, supra,
was pending, the University, on April 5, 1984, filed a cross-claim against the NCAA in Tucker and Carswell’s action; the University also filed, in the same action, a petition against the NCAA. In its cross-claim the University sought (1) a declaration that Sec. 10 of the NCAA Enforcement Program was void as against public policy; and (2) an injunction
enjoining and restraining the NCAA from imposing any sanctions against it for its compliance with the interlocutory injunction issued allowing Tucker and Carswell to play lacrosse. In its petition the University sought a preliminary and final injunction against the NCAA restraining it from applying any sanctions against the University; it also prayed that the NCAA be enjoined from “attempting to adversely influence, deter or interfere with the issuance of invitations to the Johns Hopkins University to participate in invitational, post season meets and tournaments in the sport of lacrosse to which the University otherwise would be entitled by reason of its win/loss record and ranking.”
The record further shows that a show cause order
was issued by Judge Ward on the petition April 5, 1984 giving the NCAA until April 11, 1984 to answer, providing service was effected by April 6, 1984. We were told at oral argument that there were two chambers conferences held with Judge Ward and the various attorneys which were not recorded so that it is not clear to us what transpired. This becomes important as the attorneys for the NCAA and the University do not agree as to the intended scope of the hearing Judge Ward set for April 13, 1984.
Regardless of the dispute between counsel, from our review of the record we glean that Judge Ward intended to hear all outstanding issues and motions at the April 13th hearing, and not just the issues addressed by his show
cause order of April 5.
The attorney for NCAA, on the other hand, believed the hearing would concern the University’s motion for an interlocutory injunction.
As to the University, its attorney stated on the record that she was before the court on a motion for preliminary injunction in a declaratory judgment action. Never was there more than a short discussion with respect to Sec. 10 being void as against public policy.
Furthermore, it is not at all clear that Judge Ward declared the rights of the parties as required under our cases.
See Donnelly Adv. Corp. v. Mayor of Baltimore,
279 Md. 660, 370 A.2d 1127 (1977) and
Dart Drug Corp. v. Hechinger Co.,
272 Md. 15, 320 A.2d 266 (1974).
Turning now to the sole issue before us, in our view Judge Ward erred in granting a permanent injunction. We explain.
It is evident Judge Ward misinterpreted the standard for issuing a permanent, rather than an interlocutory, injunction. Maryland Rule BB70 states in part:
“c.
Interlocutory Injunction.
‘Interlocutory injunction’ means an injunction granted after an adversary hearing on the propriety thereof, but
before
a determination of the merits of the action.
d.
Final Injunction.
‘Final injunction’ means an injunction final or permanent in its nature granted
after
a determination of the merits of the action.” [Emphasis added.]
The difference, then, between an interlocutory injunction and a permanent one is whether there has been a determination on the merits of the claim. If that determination has been made, then the injunction may be final; if not, it is interlocutory.
See also
Miller, Equity Proceedings § 570, at 677-78 (1897) [footnotes omitted] (“An interlocutory injunction is one which is to continue in force until a specified period, or until the further order of the court; it is provisional in its nature and does not finally conclude the rights of the parties. A final injunction is one which is made after a hearing of a case on its merits, and usually forms part of a final decree____”).
In this appeal, the record shows there never was a determination on the merits. Following a one day hearing, part of which focused upon the efforts of the original plaintiffs, Tucker and Carswell, to add a new party plaintiff (a Towson State University student lacrosse player) and a new party defendant (Towson State University), the judge issued an interlocutory injunction. It stated in part:
“THEREFORE, the National Collegiate Athletic Association is restrained from imposing any sanctions against The Johns Hopkins University and/or its athletic department on account of the Order of this Court of the 28th of March, 1984, either during its pendency or retroactively should such order be later vacated following a determination as to the merits of this case.”
At a later date and with no further formal proceedings, the judge inserted the word “permanently” between “is” and “restrained”. However, it is not clear that he ever made any determination on the merits of Hopkins’ cross-claim — that is, whether Section 10 is void because of public policy. Without a determination on the merits, the permanent injunction is invalid. Md.Rule BB70(d).
Furthermore, NCAA contends its due process rights were violated in that it was required to answer and show cause against the injunction in less than the time permitted by the Maryland Rules. In addition, it alleges it was denied the full opportunity to be heard when the trial judge promised it an opportunity at a later date to present witnesses, and then rendered his decision without hearing those witnesses.
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COUCH, Judge.
In this appeal we consider whether the Circuit Court For Baltimore City (Ward, J.) erred in permanently enjoining the National Collegiate Athletic Association (NCAA) from taking any action, under Sec. 10
of its Enforcement Program,
against The Johns Hopkins University (University). Under the facts, as presented by the record, we hold the circuit court erred and thus we reverse.
In
The National Collegiate Athletic Ass’n v. Tucker,
300 Md. 156, 476 A.2d 1160 (1984) (dismissed as moot), a case originally heard by Judge Baylor, we set forth the facts which provided the genesis for the present controversy, and they will not be repeated here except as to provide continuity from that case to the present appeal.
While the appeal of the NCAA in
Tucker, supra,
was pending, the University, on April 5, 1984, filed a cross-claim against the NCAA in Tucker and Carswell’s action; the University also filed, in the same action, a petition against the NCAA. In its cross-claim the University sought (1) a declaration that Sec. 10 of the NCAA Enforcement Program was void as against public policy; and (2) an injunction
enjoining and restraining the NCAA from imposing any sanctions against it for its compliance with the interlocutory injunction issued allowing Tucker and Carswell to play lacrosse. In its petition the University sought a preliminary and final injunction against the NCAA restraining it from applying any sanctions against the University; it also prayed that the NCAA be enjoined from “attempting to adversely influence, deter or interfere with the issuance of invitations to the Johns Hopkins University to participate in invitational, post season meets and tournaments in the sport of lacrosse to which the University otherwise would be entitled by reason of its win/loss record and ranking.”
The record further shows that a show cause order
was issued by Judge Ward on the petition April 5, 1984 giving the NCAA until April 11, 1984 to answer, providing service was effected by April 6, 1984. We were told at oral argument that there were two chambers conferences held with Judge Ward and the various attorneys which were not recorded so that it is not clear to us what transpired. This becomes important as the attorneys for the NCAA and the University do not agree as to the intended scope of the hearing Judge Ward set for April 13, 1984.
Regardless of the dispute between counsel, from our review of the record we glean that Judge Ward intended to hear all outstanding issues and motions at the April 13th hearing, and not just the issues addressed by his show
cause order of April 5.
The attorney for NCAA, on the other hand, believed the hearing would concern the University’s motion for an interlocutory injunction.
As to the University, its attorney stated on the record that she was before the court on a motion for preliminary injunction in a declaratory judgment action. Never was there more than a short discussion with respect to Sec. 10 being void as against public policy.
Furthermore, it is not at all clear that Judge Ward declared the rights of the parties as required under our cases.
See Donnelly Adv. Corp. v. Mayor of Baltimore,
279 Md. 660, 370 A.2d 1127 (1977) and
Dart Drug Corp. v. Hechinger Co.,
272 Md. 15, 320 A.2d 266 (1974).
Turning now to the sole issue before us, in our view Judge Ward erred in granting a permanent injunction. We explain.
It is evident Judge Ward misinterpreted the standard for issuing a permanent, rather than an interlocutory, injunction. Maryland Rule BB70 states in part:
“c.
Interlocutory Injunction.
‘Interlocutory injunction’ means an injunction granted after an adversary hearing on the propriety thereof, but
before
a determination of the merits of the action.
d.
Final Injunction.
‘Final injunction’ means an injunction final or permanent in its nature granted
after
a determination of the merits of the action.” [Emphasis added.]
The difference, then, between an interlocutory injunction and a permanent one is whether there has been a determination on the merits of the claim. If that determination has been made, then the injunction may be final; if not, it is interlocutory.
See also
Miller, Equity Proceedings § 570, at 677-78 (1897) [footnotes omitted] (“An interlocutory injunction is one which is to continue in force until a specified period, or until the further order of the court; it is provisional in its nature and does not finally conclude the rights of the parties. A final injunction is one which is made after a hearing of a case on its merits, and usually forms part of a final decree____”).
In this appeal, the record shows there never was a determination on the merits. Following a one day hearing, part of which focused upon the efforts of the original plaintiffs, Tucker and Carswell, to add a new party plaintiff (a Towson State University student lacrosse player) and a new party defendant (Towson State University), the judge issued an interlocutory injunction. It stated in part:
“THEREFORE, the National Collegiate Athletic Association is restrained from imposing any sanctions against The Johns Hopkins University and/or its athletic department on account of the Order of this Court of the 28th of March, 1984, either during its pendency or retroactively should such order be later vacated following a determination as to the merits of this case.”
At a later date and with no further formal proceedings, the judge inserted the word “permanently” between “is” and “restrained”. However, it is not clear that he ever made any determination on the merits of Hopkins’ cross-claim — that is, whether Section 10 is void because of public policy. Without a determination on the merits, the permanent injunction is invalid. Md.Rule BB70(d).
Furthermore, NCAA contends its due process rights were violated in that it was required to answer and show cause against the injunction in less than the time permitted by the Maryland Rules. In addition, it alleges it was denied the full opportunity to be heard when the trial judge promised it an opportunity at a later date to present witnesses, and then rendered his decision without hearing those witnesses. We need not address this issue since it is obvious, as we have previously discussed, that the procedure adopted by the trial judge violated Maryland Rule BB70(d) and former Rule 307 (now Rule 2-321).
Finally, it is apparent to us that Judge Ward misconstrued the effect of Judge Baylor’s order granting an interlocutory injunction allowing Tucker and Carswell to play lacrosse for the rest of the season. In the original claim in this suit, Tucker and Carswell were challenging the NCAA’s interpretation of what constituted a “season” for purposes of playing lacrosse. Judge Baylor, who heard the original claim, concluded that there was a likelihood of success on the merits of Tucker and Carswell’s Bill of Complaint and that a denial of relief would result in irreparable injury to the players.
As to the proceedings before Judge Ward, the issue was whether Sec. 10 sanctions were void for public policy reasons and whether an injunction should issue to stop NCAA’s future utilization of those sanctions. It appears from the record, however, that Judge Ward believed the Sec. 10 issue had already been decided. At a point near the end of the April 13th hearing before Judge Ward, NCAA
summarized its argument for upholding Section 10. Judge Ward then stated:
“Well, that argument applies more to Judge Baylor than to me. Maybe I would have reached a different decision in the beginning of this case, because I’m not inclined to interfere in the governing bodies of other outside institutions [NCAA],
I think judges’ powers are not as great as maybe they think they are.
But it has occurred, and the decision has been made, and now I’ve got to decide this last point.”
At the close of the hearing, Judge Ward declared:
“I find that the finding of Judge Baylor of a likelihood of success is the law in the case. Therefore, it is not my determination, but his, that guides with respect to that.”
Thus it seems Judge Ward treated the order of Judge Baylor as the law of the case so far as the issue of Section 10 sanctions was concerned. That issue, however, never had been ruled upon by Judge Baylor.
In this instance, Judge Baylor issued an interlocutory injunction which permitted Tucker and Carswell to play lacrosse, while the issue before Judge Ward regarded Section 10 sanctions. Therefore, we believe Judge Ward was confused as to the issue determined by Judge Baylor. Consequently, when Judge Ward applied the law of the case, he erred.
ORDER OF APRIL 13, 1984 VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR BALTIMORE CITY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE, THE JOHNS HOPKINS UNIVERSITY.