# Brewster v. Woodhaven Building & Development, Inc.

> Court of Appeals of Maryland · August 22, 2000 · 360 Md. 602

URL: https://www.frixlaw.com/law-library/cases/9696844

## Case

- **Full name:** Andre W. BREWSTER, Et Al. v. WOODHAVEN BUILDING AND DEVELOPMENT, INC., Et Al.
- **Court:** Court of Appeals of Maryland
- **Decided:** August 22, 2000
- **Citations:** 360 Md. 602; 759 A.2d 738; 2000 Md. LEXIS 514
- **Precedential status:** Published
- **Opinion:** Dissent by Wilner
- **Judges:** Raker, Wilner
- **Cited by:** 39 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9696844

## How later opinions describe it (automated extraction)

- holding that an order of the circuit court transferring a case to another circuit court under venue or forum non conveniens grounds is an appealable final judgment because no further proceedings will occur in the court of original jurisdiction
- noting that § 3-224 is one of three sections of the Arbitration Act which “permit parties who have been through arbitration to file certain post-award petitions in the Circuit Court ...” (Wiiner, J., dissenting on other grounds)
- explaining that the final judgment rule was “well established” as early as 1835

## Opinion text

*624 WILNER, Judge,
dissenting:
The Court today holds that an order of a Circuit Court, entered under Maryland Rule 2-327(b) or (c), that transfers a case to another Circuit Court having equivalent jurisdiction but better (or exclusive) venue constitutes a final judgment that is immediately appealable. To reach that result, the Court misinterprets some cases, pays no heed to others, and comes to the extraordinary conclusion that there can be more than one final judgment in a single case. The Court’s decision is flat-out inconsistent with Parrott v. State, 301 Md. 411 , 483 A.2d 68 (1984), notwithstanding the majority’s rather strained and unconvincing attempt to distinguish that case and, but for this new notion that there can be multiple final judgments, is also inconsistent with our unanimous holding last year in Leung v. Nunes, 354 Md. 217 , 729 A.2d 956 (1999). With respect, I dissent.
The Court recognizes the long-established rule in this State, articulated at least as early as Boteler & Belt v. State, 7 G. & J. 109, 113 (1835) that
“no appeal can be prosecuted in this Court, until a decision has been had in the Court below, which is so far final, as to settle, and conclude the rights of the party involved in the action, or denying to the party the means of further prosecuting or defending the suit.”
See also Popham v. State, 333 Md. 136, 142 , 634 A.2d 28, 31 (1993), confirming that principle in nearly identical language (to constitute a final judgment, the order must be “so far final as to determine and conclude the rights involved in the action, or to deny to the party seeking redress by the appeal the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding”).
The Court then proceeds, however, to construe the alternative requirement that the lower court decision “deny to the party seeking redress by the appeal the means of further prosecuting or defending his rights and interests in the subject matter of the proceeding” as being satisfied when the order removes the case, on venue grounds, from one Circuit *625 Court to another. As a basis for that construction, it states that “[w]e have applied the principle that an order terminating litigation in a particular court is a final judgment” (emphasis added), citing as authority for that proposition cases treating as final judgments orders of a Circuit Court transferring an action to the District Court of Maryland, or dismissing an action seeking judicial review of an administrative agency decision and remanding the case to the agency, or requiring parties to arbitrate a dispute otherwise triable in the court. Those cases, however, do not support the notion that the transfer of a case, for venue purposes, from one Circuit Court to another constitutes a final, appealable judgment.
The Court first relies on Ferrell v. Benson, 352 Md. 2 , 720 A.2d 583 (1998). In that case, the Circuit Court for Montgomery County transferred a tort case to the District Court on the ground that the amount in controversy did not exceed $2,500, that the case was therefore within the exclusive jurisdiction of the District Court, and that the Circuit Court had no jurisdiction to try it. That order, we held, constituted a final judgment because it “terminated the case in the circuit court.” Id. at 5 , 720 A.2d 583 , 720 A.2d at 585 (quoting from Montgomery County v. Revere, 341 Md. 366, 378 , 671 A.2d 1, 7 (1996)). We never said that the order was final because it terminated the case in the Circuit Court for Montgomery County. It was final because the case was terminated “in the circuit court.” The crucial point was that, due to the court’s-jurisdictional determination, the plaintiff lost her ability to litigate in a Circuit Court — any Circuit Court — where she had the right of jury trial, the right to conduct discovery, and the right of direct appeal to the Court of Special Appeals. The termination of her action in a Circuit Court had more than mere logistical consequences. The same situation pertained in Carroll v. Housing Opportunities Comm’n, 306 Md. 515 , 510 A.2d 540 (1986), also cited by the Court; there, too, we observed that the order transferring the case to the District Court “completely terminated the action in circuit court.” Id. at 520 , 510 A.2d at 542. As in Ferrell, the plaintiff lost her right of jury trial, of discovery, and of appeal to the Court of Special Appeals.
*626 The same principle was involved in the cases remanding an action to an administrative agency or dismissing an action in favor of arbitration. The rationale for regarding an order remanding an action to an administrative agency as a final judgment was lucidly explained in Schultz v. Pritts, 291 Md. 1, 6 , 432 A.2d 1319, 1322-23 (1981):
“When a court remands a proceeding to an administrative agency, the matter reverts to the processes of the agency, and there is nothing further for the court to do. Such an order is an appealable final order because it terminates the judicial proceeding and denies the parties means of further prosecuting or defending their rights in the judicial proceeding.”
(Emphasis added). See also Eastern Stainless Steel v. Nicholson, 306 Md. 492, 501-02 , 510 A.2d 248, 252-53 (1986).
That is also the rationale for regarding orders to arbitrate as final judgments. In Horsey v. Horsey, 329 Md. 392 , 620 A.2d 305 (1993), the plaintiff filed an action for specific enforcement of a marital separation agreement, an agreement that contained an arbitration clause. The court construed the agreement and directed that the plaintiff pursue her claim for alimony under the agreement through arbitration. Citing Houghton v. County Comm’rs of Kent Co., 305 Md. 407, 412 , 504 A.2d 1145, 1148 (1986), for the proposition that an order that has “the effect of putting the parties out of court ... is a final appealable order,” we concluded:
“A circuit court’s order to arbitrate the entire dispute before the court does deprive the plaintiff of the means, in that case before the trial court, of enforcing the rights claimed. The order effectively terminates that particular case before the trial court. Thus, the order would clearly seem to be final and appealable under the above cited cases.”
Those cases, and' others like them, are entirely consonant with the general rule regarding final judgments and do not support the proposition adopted by the Court in this case. We are not dealing here with plaintiffs who have been denied *627 a judicial remedy, as is the situation when cases are remanded to administrative agencies or dismissed in favor of arbitration. Nor, as is the situation with a remand to the District Court, are we dealing with plaintiffs who have been prevented from trying their case in a Circuit Court, of having a jury trial with respect to issues triable before a jury, of preserving their right of direct appeal to the Court of Special Appeals, of having all of the discovery and motion practice available in a circuit court. The only effect of the order under consideration is that the plaintiffs must try their case in Carroll County rather than in Baltimore County, in a court of equivalent status and jurisdiction. This is not at all like the situations in Ferrell, Carroll, Schultz, or Horsey .
The Court cites Wilde v. Swanson, 314 Md. 80 , 548 A.2d 837 (1988), as authority for regarding a venue transfer order as a final judgment, but that case stands for no such proposition. Indeed, it demonstrates the opposite. In Wilde , the Circuit Court dismissed the action against one of several defendants on the ground that, as to that defendant, there was a lack of venue. The court then entered that order of dismissal as a final judgment under Maryland Rule 2-602. We agreed that the order was properly entered as a final judgment under the rule, but only because the effect of the order dismissing the defendant deprived the plaintiffs “of the means of further prosecuting their claim against him in that court.” What the Court here neglects to consider and give effect to is that the action against the one defendant was not transferred to another Circuit Court; it was dismissed. If the plaintiffs wanted judicial relief against that defendant, they would have been forced to file a new action. Wilde points out, quite clearly, the distinction between a dismissal for lack of venue and the transfer of an action to another circuit court. The whole purpose of allowing a transfer, rather than requiring a dismissal, was to avoid the consequence of what occurred in Wilde — to keep the action alive in every respect, but simply transfer it for trial to a court having proper venue.
In Leung v. Nunes, supra, the Circuit Court for Baltimore City transferred a tort case, under Rule 2-327(c), to the *628 Circuit Court for Howard County. No appeal was taken from that order, and the case was tried on its merits in Howard County. Following the entry of defendants’ judgments by the Circuit Court for Howard County, far longer than 30 days after the transfer order, the plaintiff noted an appeal, from those judgments, complaining only about the transfer order. The Court of Special Appeals reviewed the merits of that order and reversed the Howard County judgments, holding that the case was erroneously transferred. Despite what would clearly be a jurisdictional defect if the transfer order were to be regarded as a final judgment, we granted certiora-ri to review the merits of the transfer order, and we affirmed the judgment of the Court of Special Appeals.
The only basis upon which we could have reviewed the transfer order in that case was to treat the judgment entered in the Circuit Court for Howard County as the final judgment in the case and to regard the transfer order as an interlocutory order reviewable on appeal from the later-entered final judgment. Under what, up to now, has been our clear and routine jurisprudence, if a transfer order constitutes a final judgment, as the Court now holds, the transfer order in Leung would have been unreviewable, for, as noted (1) no appeal had been taken from that order, and (2) the only appeal that was taken was filed long after the 30 days allowed for noting an appeal. We would have lacked substantive jurisdiction to enter the mandate that we entered.
The Court’s current belief that a venue transfer order constitutes a final, immediately appealable judgment is also inconsistent with our holding in Parrott v. State, supra, 301 Md. 411 , 483 A.2d 68 , that an order removing a case from one Circuit Court to another under Article IV, § 8 of the Maryland Constitution is an interlocutory order that is not immediately appealable. This Court has always regarded removal orders under Article IV, § 8 as interlocutory in nature, but, until Parrott , we had entertained immediate appeals from them on the theory that any order that denied an absolute Constitutional right was immediately appealable. See Smith *629 v. Fredericktown Bank, 258 Md. 141 , 265 A.2d 236 (1970). In Parrott , we abrogated that broad doctrine of immediate appealability, and with that abrogation went the right of immediate appeal from removal orders: “Because the order of removal appealed from in this case is not a final judgment and does not fall within the collateral order doctrine exception, we dismissed Parrott’s appeal.” Parrott, supra, 301 Md. at 426 , 483 A.2d at 75 (emphasis added). In direct defiance of Parrott , and all of the removal cases preceding Parrott , the majority regards a transfer order from one Circuit Court to another as a final judgment, not an interlocutory order. 1
To avoid the obvious consequence of Leung , the majority holds that a party opposing a transfer order may either appeal *630 immediately or wait until the litigation has been completed in the transferee court “and appeal from that court’s final judgment on the ground that the case should not have been transferred.” It says that “[w]e have often permitted an appeal from a judgment ultimately disposing of a case based on an issue that could have been, but was not, made the basis of an earlier appeal,” citing cases involving orders to arbitrate. Once again, it has failed to recognize a critical distinction between those cases and this one.
In Testerman Co. v. Buck, 340 Md. 569 , 667 A.2d 649 (1995), a plaintiff who had filed suit against a contractor for damages was ordered to arbitrate the dispute in accordance with an arbitration clause in the contract. He did not appeal from that order but proceeded with the arbitration, which ended with an award against him. He apparently appealed from a subsequent order of the Circuit Court confirming the award, complaining that (1) he was not a party to the agreement to arbitrate, and (2) the arbitrator had no authority to award counsel fees. No issue was raised in that appeal over Tester-man’s right to appellate review of the judgment confirming the arbitration award or whether he had waived his right to raise the first issue by not appealing from the order to arbitrate, and no comment appears in the Court’s opinion with regard to either matter. Nonetheless, because the first order, requiring the parties to arbitrate, could have been appealed as a final judgment, the Court now treats that case as authority for the proposition that there can be two (or more) final judgments in the same action.
Testerman is a weak reed on which to rely. An order to arbitrate may be entered in three contexts under the Uniform Arbitration Act. Maryland Code, § 3-207 of the Courts and Judicial Proceedings. Article, allows a party to an arbitration agreement to file a petition to compel arbitration if the other party to the agreement refuses to arbitrate. Section 3-208 permits a person, threatened with arbitration, to petition the court to stay the arbitration on the ground that the person never agreed to arbitrate the matter. In either situation, if the court determines that an agreement to arbitrate exists, it *631 must order arbitration. Such an order is immediately appeal-able, because it exhausts the court’s jurisdiction. There is nothing left in the court — any court. The party has been deprived of his, her, or its alleged right to a judicial resolution. Horsey v. Horsey, supra, 329 Md. 392 , 620 A.2d 305 . A third context, under § 3-209, is where the court already has litigation pending before it but, upon a determination that one or more (but less than all) of the issues in the litigation is subject to arbitration, stays the litigation so that those particular issues may be submitted to arbitration. Whether that kind of order constitutes an immediately appealable final judgment is another matter, upon which we have not as yet opined. Testerman apparently involved an order entered under either § 3-207 or § 3-208; the judicial proceeding was ended when the order was entered.
Sections 3-223, 3-224, and 3-227 of the Courts and Judicial Proceedings Article permit parties who have been through arbitration to file certain post-award petitions in the Circuit Court — to modify or correct an award (§ 3-223), to vacate an award (§ 3-224), or to confirm an award (§ 3-227). Unless the matter proceeded to arbitration pursuant to an order entered under § 3-209, this would be a new action in the Circuit Court, seeking only the particular relief allowed under the respective statute, and any final order entered by the court in that action would constitute the single, final, appeal-able judgment in that action. 2 In viewing Testerman and similar cases (see Bd. of Ed. for Dorchester Co. v. Hubbard, 305 Md. 774 , 506 A.2d 625 (1986)) as involving two final judgments, either of which can be appealed, the Court overlooks the plain fact that, in those arbitration settings, there are not two judgments in the same case but two separate *632 cases, seeking different relief. That is clearly not the situation when a case is transferred for venue purposes. The case filed in the transferor court is simply tried in the transferee court, subject to all of the same rules of substance and procedure that would have applied in the transferor court. There is no new action; the parties do not start over, but simply pick up in the second court where they were in the first one.
Finally, the Court finds some succor in the fact that a party who may appeal immediately from an interlocutory order under the collateral order doctrine or under § 12-303 of the Courts and Judicial Proceedings Article may choose not to appeal at that time and appeal later from the final judgment. The critical — and obvious — distinction is that the first order is, indeed, an interlocutory one. Although the law allows an immediate appeal from certain kinds of interlocutory orders, its general preference is to have but one appeal at the end, which is why, subject to ordinary rules of waiver or mootness, it permits a party appealing from the final judgment to contest interlocutory orders entered during the action. With but one possible contextual exception, we have never endorsed the notion of there being more than one final judgment in a single action. The only potential exception is those actions in which an equity court has a continuing jurisdiction to entertain and enter final orders in discrete proceedings, an example being a divorce or receivership action. The holding today, that there can be more than one final judgment in this kind of case, is unprecedented.
In regarding the transfer order as a final judgment, the Court overlooks, two important aspects of such an order that clearly demonstrate its interlocutory nature. If the party opposing the transfer prevails in the transferee court, the issue of the transfer will effectively become moot, and the prospect of an issue being made moot by further proceedings in the action is, or at least should be, one of the critical factors in determining whether the order generating that issue is interlocutory, rather than final. On the other hand, if, as in Leung , that party loses in the transferee court, it can raise the *633 transfer issue, along with any other issues it chooses to raise, in an appeal from what is clearly the final judgment. In either event, there is simply no need to have the transfer order immediately appealable and certainly no reason to regard such an order as a final judgment simply in order to provide a ground for immediate appealability.
There is no logical basis for the Court’s holding. It can serve no useful purpose. Its only effects will be deleterious. It will be used to create delay in the trial of cases that are transferred under Rule 2-327, as parties opposing the transfer, by immediately appealing, can put the case “on ice” for a year or more. Cases will linger dormant on the docket as witnesses die or have their memories fade; the animosity and uncertainty inherent in litigation will persevere. By recognizing the prospect of there being two or more final judgments in a single action, this new approach will certainly sow confusion over what is or is not a final judgment, not just in this context but in many others, to which I am sure the Court has given no thought. The summary, almost cavalier, treatment of res judicata and collateral estoppel, which may be real problems, will surely return to haunt the Court. If all of that were not enough, this new rule of immediate appealability is likely to engender dozens of additional appeals for the Court of Special Appeals, which is in no need of additional work.
Judges RODOWSKY and CATHELL have authorized me to state that they join in this dissenting opinion.
. In a footnote, the majority attempts to dismiss Parrott on the alternative grounds that (1) the issue of whether the transfer order in that case constituted a final judgment was never raised or decided, and (2) in any event, there are differences between the finality of judgments in criminal and civil cases. I shall respond in a footnote. The first basis is perplexing. As just noted, we dismissed the appeal in Parrott "[b]e-cause the order or removal appealed from in this case is not a final judgment and does not fall within the collateral order doctrine exception.” How is that not a holding regarding an issue in the case? It is true that Parrott claimed that the order was interlocutorily appealable, and for good reason, for, up to that point, we had consistently regarded such orders as interlocutory, and appealable as such. The point is, however, that, notwithstanding our determination in Parrott that we would no longer regard removal orders as immediately appealable interlocutory orders, we would not have dismissed the appeal if we believed that the order before us constituted an appealable final judgment. We would not have played so fasf and loose with a jurisdictional issue in a criminal case. That would have been manifestly unjust. We dismissed the appeal because we concluded that the removal order was neither a final judgment nor an appealable interlocutory order. That is what we plainly said, and that is what we plainly did.
The second basis offered by the majority is equally mysterious. What difference does it make that, in a criminal case, a judgment on one count of an indictment or information may be appealed even though there is no judgment yet entered on another count? All that signifies is that we have not, as of yet, applied a common law equivalent of Maryland Rule 2-602 to criminal cases. It says absolutely nothing about the nature and effect of a removal order. If removal on venue grounds does not constitute a final judgment in a criminal case, even though it terminates the action in the transferring Circuit Court, how can such a removal constitute a final judgment in a civil case on the ground that it terminates the action in the transferring court?
. It may be that, if a party moved to stay arbitration under § 3-208 or objected to a petition to order arbitration under § 3-207 on the ground that he, she, or it never agreed to arbitrate the matter and failed to appeal an adverse determination in that proceeding, principles of res judicata or collateral estoppel would preclude an attempt to raise that issue again in a petition to vacate an award; that is a matter on which we have yet to opine. Any such bar, however, if one did exist, would not affect the appealability of the order denying post-award relief.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9696844. Public record. Not legal advice.