Hiob v. Progressive American Insurance ( 2014 )

Deborah Hiob, et al. v. Progressive American Insurance Company, et al.
No. 4, September Term 2014
Appeals – Entry of Final Judgment – Separate Document Requirement. Under
Maryland Rule 8-202(a), a notice of appeal must ordinarily be filed within 30 days of
the entry of a final judgment. Under Maryland Rule 2-601, which governs the entry
of judgment, a final judgment must be set forth in a separate document signed by the
judge or the clerk and must be entered on the court docket. A stipulation of voluntary
dismissal between one plaintiff and one defendant in a multi-party case, not signed by
a judge or clerk and docketed as “Voluntary Dismissal (Partial),” did not satisfy that
requirement, even though it resolved the remaining claim in the case after the court
had awarded summary judgment as to the plaintiffs’ claims against the co-defendant
in an earlier and previously docketed order. The requirements of Rule 2-601 were
satisfied only when the Circuit Court subsequently signed an order that incorporated
the summary judgment ruling into a final judgment and that order was entered on the
docket. A notice of appeal filed between the signing and the docketing of that order
was timely under the savings provision of Maryland Rule 8-602(d), which deems a
notice of appeal filed after the rendering of a judgment, but before its docketing, as
filed on the same day but after entry of the final judgment.
Circuit Court for Baltimore County
Case No. 03C08002145
Argued: September 10, 2014
IN THE COURT OF APPEALS
OF MARYLAND
No. 4
September Term 2014
DEBORAH HIOB , ET AL.
V.
PROGRESSIVE AMERICAN INSURANCE
COMPANY , ET AL.
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Raker, Irma S. (Retired,
Specially Assigned),
JJ.
Opinion by McDonald, J.
Filed: November 20, 2014
It is said, in many contexts, that timing is everything. This case involves an
important question of timing for an appellate lawyer – the time to appeal.
A trial court’s decision may take many forms – for example, a jury verdict, an
oral ruling from the bench, a written opinion, a simple order. If there are multiple
claims or multiple parties, there may be several decisions at different times that
resolve the case episodically. When must a disappointed litigant commence an appeal
of an adverse decision?
The time to appeal must accommodate competing values. On the one hand,
appellate review advances the interest in ensuring that judicial decisions are
consistent and correct. On the other hand, it is also important that a judicial decision
be certain – in other words, that there is an end to the process of review. Accordingly,
the path to appellate review should be clear and well-marked, but the time for filing
an appeal should be finite and well-defined.
The statutes and rules governing appellate review reflect those principles. The
Legislature has limited appellate jurisdiction largely to review of “final judgments” of
the trial courts. This Court has implemented that jurisdiction, setting time limits by
rule and, to some extent, by case law. Under Maryland Rule 8-202(a), a “notice of
appeal shall be filed within 30 days after entry of the judgment or order from which the
appeal is taken.” The date of “entry of judgment” is determined under Maryland Rule
2-601. Under that rule, a final judgment is not effective unless it is set forth on a
“separate document” consistent with Rule 2-601(a) and is entered on the docket
consistent with Rule 2-601(b). The date on which the separate document is docketed
triggers the 30-day deadline for filing a notice of appeal under Rule 8-202(a). This case
concerns what qualifies as a “separate document” that, upon its docketing, starts the
30-day clock for filing a notice of appeal.
This case involves several plaintiffs and two defendants. All of the plaintiffs
asserted claims against the first defendant; one plaintiff asserted a claim against the
second defendant. The Circuit Court awarded summary judgment in favor of the first
defendant against all of the plaintiffs – a decision that was indisputably not a final
judgment as it did not resolve the claim against the co-defendant. More than a year
later, the claim as to the remaining co-defendant was voluntarily dismissed by means
of a stipulation of dismissal. When the plaintiffs then sought to appeal the earlier
adverse summary judgment ruling, the question arose as to whether the stipulation
of dismissal satisfied the separate document requirement of Rule 2-601. If so, the
notice of appeal was untimely as it was filed more than 30 days after the docketing of
the stipulation of dismissal.
We hold that the stipulation of dismissal did not satisfy the requirements of
Rule 2-601 for a separate document. The stipulation of dismissal was not in the form
of a judgment, was not signed by either the judge or the clerk as required by the rule,
and was not docketed consistent with the rule. Accordingly, its docketing did not
trigger the time for filing an appeal of the order awarding summary judgment.
2
I
Entry of Judgment - The Separate Document Requirement
The separate document requirement was added to Maryland Rule 2-601 in 1997
when it was imported into that rule from federal appellate practice.1 To fully
understand the purpose and meaning of that requirement in Rule 2-601, it is
instructive to review briefly the model on which it was based.
A. The Model – Federal Rule of Civil Procedure 58
1. 1963 - Adoption of Separate Document Requirement
During the middle of the last century, there was confusion in the federal courts
as to what constituted an effective final judgment2 and when the time for filing an
appeal began – confusion that sometimes resulted in the inadvertent loss of the right
to appellate review. (As we shall see below, similar confusion reigned in the Maryland
state courts). In particular, it was often unclear whether a judge’s opinion or written
memorandum constituted an effective final judgment and whether a docket entry
corresponding to the opinion or memorandum started the time for filing an appeal
under the federal rules. This confusion caused “inequities … when a party appealed
from a document or docket entry that appeared to be a final judgment of the district
court only to have the appellate court announce later that an earlier document or entry
1
See Rules Order dated April 8, 1997, making the amendment of Rule 2-601
effective October 1, 1997, 24:9 Md. Reg. 649 (April 25, 1997).
2
As in Maryland, federal appellate jurisdiction generally turns on whether there
is a final judgment. See 28 U.S.C. §1291.
3
had been the judgment and dismiss the appeal as untimely.” Bankers Trust Co. v.
Mallis, 435 U.S. 381, 385 (1978) (per curiam).
In order to eliminate these uncertainties and inequities, the federal rule
governing entry of judgment was amended in 1963 to require that “there be a judgment
set out on a separate document – distinct from any opinion or memorandum – which
provides the basis for the entry of judgment.” Advisory Committee Note on 1963
Amendments to Rule 58 of the Federal Rules of Civil Procedure. The separate
document requirement was explicitly designed to avoid confusion when more than one
docket entry or order could be interpreted as a final judgment. Id. The new
requirement was intended to “make clear that a party need not file a notice of appeal
until a separate judgment has been filed and entered.” Bankers Trust, 435 U.S. at 384;
see also 11 Wright, Miller & Kane, et al., Federal Practice & Procedure Civ. §2781 (3d
ed.) (two distinct acts must coincide before there is an effective judgment: the
rendition of the judgment must be set forth on a separate document and the judgment
must be entered properly on the docket).
2. Mechanical Application Favoring Preservation of Appeal Rights
Two principles have guided the application of the separate document
requirement in the federal courts. First, in order to provide the desired clarity, the
“separate-document rule must be ‘mechanically applied’ in determining whether an
appeal is timely.” Bankers Trust, 435 U.S. at 386 (quoting United States v. Indrelunas,
4
411 U.S. 216 (1973)).3 In Indrelunas, the United States Supreme Court recognized that
the separate document requirement “would be subject to criticism for its formalism
were it not for the fact that something like this was needed to make certain when a
judgment becomes effective.” 411 U.S. at 220 (quoting 6A J. Moore, Federal Practice
58.04 (1972)).
Second, because the rule “is not designed as a trap for the inexperienced,” it is
to be interpreted to preserve the right to an appeal. Bankers Trust, 435 U.S. at 386-87.
Thus, the mechanical application of the requirement is relaxed only when it will
prevent the loss of a right of appeal. Id. In that regard, the Supreme Court in Bankers
Trust held that the separate document requirement could be waived to allow an appeal
when the lack of a separate document did not mislead or prejudice a party. Id.; see also
Fiore v. Washington County Community Mental Health Center, 960 F.2d 229, 235 (1st
Cir. 1992) (Rule 58’s “hypertechnicality” would be relaxed only to save an appeal);
3
See also In re Taumoepeau, 523 F.3d 1213, 1217 (10th Cir. 2008) (rule is a
technical one, but must be applied mechanically when doing so is required to preserve
an appeal); In re Cendant Corp. Sec. Litig., 454 F.3d 235, 243 (3d Cir. 2006) (appeal
was timely because purported separate document not clearly a judgment, as opposed
to a memorandum, when it contained a recitation of the facts); Wang Laboratories, Inc.
v. Applied Computer Sciences, Inc., 926 F.2d 92, 96 (1st Cir. 1991) (appeal was timely
under a mechanical application of Rule 58 because party is not required to appeal from
a judgment not set out in a separate document); Stelpflug v. Federal Land Bank of St.
Paul, 790 F.2d 47, 51 (7th Cir. 1986) (per curiam) (under a mechanical application, the
docket entry must clearly indicate the day the judgment is entered before the time for
filing an appeal begins); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 689
(4th Cir. 1978) (although it appears “pedantic,” under the mechanical application of the
rule, an order of dismissal tacked onto the end of an opinion, no matter how explicit,
is not a separate document).
5
Hummer v. Dalton, 657 F.2d 621, 624 (4th Cir. 1981) (Rule 58 should be interpreted
to prevent loss of the right of appeal) (citations omitted).4
B. Adoption of the Requirement in the Maryland Rules
1. Confusion about Timing of Entry of Judgment
As in the federal courts, appellate jurisdiction in Maryland is ordinarily limited
to review of final judgments. See Maryland Code, Courts & Judicial Proceedings
Article (“CJ”), §12-301.5 Prior to the adoption of the separate document requirement
in the Maryland Rules, there was some uncertainty concerning the timing of entry of
a final judgment. For example, confusion arose when a docket entry stated that
judgment had been entered but other circumstances indicated that the judge had not
intended to issue a judgment, or when the judge intended to render a final judgment
4
This approach opened up the possibility that the time to appeal might continue
indefinitely if a court failed to enter judgment in a separate document. See McCalden
v. California Library Ass’n, Inc., 955 F.2d 1214, 1219 (9th Cir. 1992) (en banc) (appeal
was timely because trial court’s failure to enter judgment on separate document meant
that “the time for appeal never began to run”). In 2002, Rule 58 was amended to
provide an alternate date for entry of judgment when the separate document was
delayed or forgotten. The amended rule provides that, when a separate document is
required, the judgment is deemed entered as of the earlier of the time that (1) it is set
out in a separate document or (2) 150 days have elapsed from the recording of the
judgment on the docket. Rule 58(c)(2) of the Federal Rules of Civil Procedure.
5
There are, of course, exceptions to this general rule. See, e.g., CJ §12-303
(allowing appeals from certain interlocutory orders); In re Foley, 373 Md. 627, 633-34,
820 A.2d 587 (2003) (collateral order doctrine). Also, if a circuit court expressly finds
that “there is no just reason for delay” it may direct entry of a final judgment as to
fewer than all of the claims or parties. Maryland Rule 2-602(b); see also Maryland Rule
8-602(e) (appellate court may enter final judgment if circuit court had discretion to do
so under Rule 2-602(b)). There are similar exceptions in federal appellate jurisdiction.
6
but the docket entry stated otherwise.6 This uncertainty could occasionally result in
an unwary appellant losing the right to appeal. See Minutes of the Standing
Committee on the Rules of Practice and Procedure (October 8, 1993) at 11 (discussion
concerning how, under Rule 2-601 prior to the 1997 amendments, an attorney might
be unaware of the exact date of the judgment and as a result lose the opportunity to
appeal).
2. 1997 - Amendment of Rule 2-601 to Require Separate Document
The revision of Rule 2-601 in 1997 was designed to alleviate much of this
uncertainty. In drafting a revision to achieve clarity as to what is an effective
judgment and when that judgment is entered, the Rules Committee patterned the
amendment after the existing version of Rule 58 of the Federal Rules of Civil
Procedure7 which, as noted above, was designed to address similar confusion in the
6
See, e.g., Waller v. Maryland National Bank, 332 Md. 375, 379-80, 631 A.2d 447
(1993) (per curiam) (no judgment was issued despite judge’s intention and parties’
understanding that a final judgment had been issued, because docket indicated
judgment was forthcoming); Rohrbeck v. Rohrbeck, 318 Md. 28, 39, 43, 566 A.2d 767
(1989) (docket entry stating “judgment entered” was not the entry of final judgment
because the docket entry also indicated an order would follow); Davis v. Davis, 97 Md.
App. 1, 627 A.2d 17 (1993) (oral pronouncement by judge combined with docket entry
stating decree was “granted” did not actually grant the decree because judge had not
intended to issue a final judgment).
7
At the time the separate document requirement was imported to the Maryland
Rules in 1997, the federal rule read, in relevant part:
Subject to the provisions of Rule 54(b): (1) upon a general
verdict of a jury, or upon a decision by the court that a party
shall recover only a sum certain or costs or that all relief
(continued...)
7
federal courts. The Reporter’s Note that accompanied the proposed revisions of Rule
2-601 to the Court of Appeals noted that, in accordance with the Court’s direction at
a rules hearing, the proposed amendments borrowed language from Rule 58, with style
changes, “to address the need for clear, complete, and precise judgments” by creating
a separate document requirement. See 134th Report of the Standing Committee on the
Rules of Practice and Procedure (October 31, 1996), 23:24 Md. Reg. 1665, 1667
(November 22, 1996). In the Reporter’s Note to the amended rule, the Rules
Committee recommended that the Administrative Office of the Courts develop forms
of judgment similar to those used in the federal system. In an apparent response to
that suggestion, shortly after the adoption of the amendment, legal counsel to the
circuit court clerks circulated a memorandum with examples and directions, patterned
7
(...continued)
shall be denied, the clerk, unless the court otherwise orders,
shall forthwith prepare, sign and enter the judgment
without awaiting any direction by the court; (2) upon a
decision by the court granting other relief, or upon a special
verdict or a general verdict accompanied by answers to
interrogatories, the court shall promptly approve the form
of the judgment, and the clerk shall thereupon enter it.
Every judgment shall be set forth in a separate document. A
judgment is effective only when so set forth and when
entered as provided in Rule 79(a). ...
Rule 58 of the Federal Rules of Civil Procedure (1993) (emphasis added). Subsequent
amendments of that rule in 2002 and 2007 elaborated and refined that requirement
and made stylistic improvements in the language and format of the rule, including the
addition of an alternative date for the entry of judgment when the separate document
was delayed or overlooked. See footnote 4 above. The alternate method of computing
the date of entry of judgment has not been incorporated into Rule 2-601.
8
after models used by the federal courts under Rule 58, for satisfying the separate
document requirement. Memorandum of Assistant Attorney General Julia Freit to All
Clerks of the Circuit Courts (June 19, 1997).8
3. Entry of Judgment under the Amended Rule
In its current form,9 Rule 2-601 states as follows, with the language added by the
1997 amendments in italics:
Rule 2-601. Entry of judgment.
(a) Prompt entry – Separate document. Each
judgment shall be set forth on a separate document. Upon
a verdict of a jury or a decision by the court allowing
recovery only of costs or a specified amount of money or
denying all relief, the clerk shall forthwith prepare, sign,
and enter the judgment, unless the court orders otherwise.
Upon a verdict of a jury or a decision by the court granting
other relief, the court shall promptly review the form of the
judgment presented and, if approved, sign it, and the clerk
shall forthwith enter the judgment as approved and signed.
A judgment is effective only when so set forth and when
entered as provided in section (b) of this Rule. Unless the
court orders otherwise, entry of the judgment shall not be
delayed pending determination of the amount of costs.
(b) Method of Entry--Date of Judgment. The
clerk shall enter a judgment by making a record of it in
writing on the file jacket, or on a docket within the file, or in
a docket book, according to the practice of each court, and
shall record the actual date of the entry. That date shall be
the date of the judgment.
8
In a decision issued several years after the amendment, this Court also
provided an example of a form of judgment, also based on a federal model. See footnote
19 below.
9
Amendments of the rule in 2001 and 2003 effected minor changes in language
and in the source note to the rule, but do not bear on the question in this case.
9
(c) Recording and Indexing. Promptly after entry,
the clerk shall (1) record and index the judgment, except a
judgment denying all relief without costs, in the judgment
records of the court and (2) note on the docket the date the
clerk sent copies of the judgment in accordance with Rule 1-
324.
As the above indicates, the 1997 amendments included several new requirements for
the effective entry of judgment. First, as a result of those amendments, “[e]ach
judgment shall be set forth on a separate document.” This document must be separate
from an oral ruling of the judge, a docket entry, or a memorandum.10
Second, the separate document is to be signed by either the judge or the clerk.
Who must sign the document depends on the type of judgment. When there is a
decision by the court denying all relief, the clerk shall “prepare, sign, and enter the
judgment.” Rule 2-601(a). More complex types of judgments require a signature by the
judge. Id.11
10
See Tierco Maryland, Inc. v. Williams, 381 Md. 378, 393, 849 A.2d 504 (2004)
(oral pronouncement from bench did not satisfy Rule 2-601); Taha v. Southern
Management Corp., 367 Md. 564, 571, 790 A.2d 11 (2002) (judgment on jury verdict on
less than all of the claims was not a final judgment and oral pronouncement from
bench could not create a final judgment); Allstate Ins. Co. v. State Farm Mut. Auto. Ins.
Co., 363 Md. 106, 117 n.1, 767 A.2d 831 (2001) (after the 1997 amendments to Rule 2-
601, a judgment cannot be attached to memorandum); Byrum v. Horning, 360 Md. 23,
28, 756 A.2d 560 (2000) (oral pronouncement from bench coupled with docket entries
stating “judgment entered” was not sufficient to satisfy separate document
requirement).
11
During the discussion of the signature requirement in the Rules Committee,
it was noted that the amendments made the clerk responsible for the judgment in
simple cases, but that the judge must sign the judgment in more complicated cases.
See Court of Appeals Standing Committee on Rules of Practice and Procedure Minutes
(May 17, 1996) at 6.
10
Third, a judgment is effective – meaning that it triggers the time for filing an
appeal – only if it is set forth in accordance with the requirements of Rule 2-601(a) and
properly entered under Rule 2-601(b).12 See Byrum, 360 Md. at 31-33 (time for filing
appeal did not begin when judge issued an oral decision from the bench dismissing a
plaintiff because no separate document was issued or entered at that time).
In construing the separate document requirement of Rule 2-601, this Court has,
unsurprisingly, employed the same principles as the federal courts in construing Rule
58 of the Federal Rules of Civil Procedure. Like the federal courts, we have stated that
the “separate-document rule must be mechanically applied in determining whether an
appeal is timely.” Byrum, 360 Md. at 32 (quoting Bankers Trust, 435 U.S. at 386).
Compliance with Rule 2-601 is “not just a matter of complying with a hyper-technical
rule.” Allstate Ins. Co. v. State Farm Mut. Auto. Ins. Co., 363 Md. 106, 117 n.1, 767
A.2d 831 (2001). Instead, as in the federal courts, the mechanical application of the
rule is necessary to fulfill its purpose of providing clear and precise judgments and to
eliminate uncertainty as to when an appeal must be filed. Id.
In addition, as in the federal courts, this requirement is interpreted in favor of
the preservation of appeal rights. In Byrum, this Court concluded that docket entries
12
Rule 2-601(b) directs the clerk to enter judgment “by making a record of it ...
according to the practice of each court....” The specific practices for making an entry
listed in the rule – writing on a file jacket, on a docket within the court file, or in a
docket book – are apparently obsolete as a result of the transition to electronic court
records. The Rules Committee has recently recommended an amendment of Rule 2-
601(b) to reflect the use of the electronic case management system. See 186th Report
of the Standing Committee on the Rules of Practice and Procedure (September 26,
2014), 41:21 Md. Reg. 1199, 1202-3, 1217-18 (October 17, 2014).
11
could not substitute for a separate document and start the time for appeal when such
an interpretation would render the appeal untimely. 360 Md. at 32-33. The Court also
rejected the argument that a litigant may waive Rule 2-601’s separate document
requirement when the waiver will cause the appeal to be untimely. Id. In a
subsequent decision, the Court elaborated on this point and held that the parties may
waive the separate document requirement under limited circumstances but only when
a party is not prejudiced by the waiver. Suburban Hospital, Inc. v. Kirson, 362 Md.
140, 153-57, 763 A.2d 185 (2000). The Court cautioned that waiver of the separate
document requirement under Rule 2-601 should not be interpreted to find that a party
has filed an appeal late. Id.
II
The Hiobs v. Progressive and Erie
A. Complaint and Separate Dispositions in the Circuit Court
This action arises out of a fatal car accident and a dispute over uninsured
motorist coverage under two insurance policies that covered occupants of one of the
vehicles in the accident. In a complaint filed in the Circuit Court for Baltimore County
in February 2008, Petitioners Deborah Hiob, Douglas Hiob, Margaret Nelson, and the
personal representatives of Virginia Hiob and Laura Dusome (collectively the “Hiobs”)
brought an action for declaratory judgment against Respondent Progressive American
Insurance Company (“Progressive”) and Erie Insurance Exchange (“Erie”).13 All of the
13
Erie is not a party to this appeal although, as will become apparent, the
disposition of the case against it is central to the issue in this case.
12
Hiobs asserted claims against Progressive, but only the Estate of Virginia Hiob alleged
a claim against Erie. The merits of these claims are not before us. The only issue is
the timeliness of the appeal. Accordingly, we limit our discussion of the background
to the procedural posture of this action.
In September 2009, the Circuit Court granted Progressive’s motion for summary
judgment and denied the Hiobs’ motion for summary judgment, thereby resolving all
of the claims against Progressive. The court issued a written order specifying the
rights of the parties, which was entered on the docket on October 7, 2009. The court
docket recorded no further activity in the case for the next 14 months.
On January 10, 2011, the Estate of Virginia Hiob and Erie filed with the Circuit
Court a document entitled “Line of Dismissal” which stated that the personal
representative of Virginia Hiob voluntarily dismissed with prejudice the action as to
Erie. The Line of Dismissal was signed by the attorneys for the Estate of Virginia Hiob
and Erie and was entered on the docket as “Voluntary Dismissal (Partial)” on January
10, 2011.
At the same time that the Line of Dismissal was filed, the Hiobs also filed a
“Motion to Reduce Order of October 7, 2009 to Final Judgment,” citing Rule 2-601 and
noting that, with the dismissal of Erie, the interlocutory order as to Progressive could
be made final. On February 8, 2011, the Circuit Court granted that motion and signed
an order stating that “final judgment is entered.” The order was not immediately
docketed. On February 15, 2011 – before that order was docketed but 36 days after the
Line of Dismissal had been docketed – the Hiobs filed a notice of appeal. Then, on
13
February 25, 2011, the clerk made a docket entry indicating that a final judgment had
been issued.
B. The Hiobs Appeal
In its consideration of the Hiobs’ appeal, the Court of Special Appeals did not
reach the merits of the Circuit Court’s award of summary judgment because it found
that the appeal was untimely. 212 Md. App. 734, 71 A.3d 184 (2013). In its opinion,
the court first considered whether the separate dispositions as to two defendants could
together constitute a final judgment. It observed that this Court’s decision in
Houghton v. County Commissioners of Kent County, 305 Md. 407, 504 A.2d 1145 (1986)
had approved the concept of “piecemeal judgments” and concluded that, although
Houghton predated the 1997 amendment of Rule 2-601, its holding on piecemeal
finality remained good law. The intermediate appellate court then considered whether
the Line of Dismissal as to Erie, in conjunction with the October 2009 order awarding
summary judgment as to the claims against Progressive, together constituted a final
judgment for purposes of Rule 2-601. The court held that the Line of Dismissal was
a judgment for purposes of Rule 2-601, relying on language from this Court’s decision
in Tierco Maryland, Inc. v. Williams, 381 Md. 378, 393, 849 A.2d 504 (2004), and that
the docketing of the Line of Dismissal on January 10, 2011, was the date final
judgment was entered in the action under Rule 2-601. Accordingly, it held that the
Hiobs’ failure to file their notice of appeal within 30 days of that date doomed their
appeal. 212 Md. App. at 748.
14
This Court granted certiorari to consider the application of Rule 2-601 in this
context.
III
Discussion
Whether the Hiobs’ notice of appeal concerning their claims against Progressive
was timely turns on what satisfies the criteria for entry of judgment by a separate
document under Rule 2-601(a). The critical question is whether the Line of Dismissal,
in conjunction with the summary judgment order, satisfied the separate document
requirement of Rule 2-601 for entry of final judgment and triggered the 30-day clock
for filing a notice of appeal.
Progressive’s argument in its brief to us can be interpreted in two ways: (1) the
judgment in this case was the order of summary judgment as to the claims against
Progressive, and the filing of the Line of Dismissal provided both finality and the
separate document required for the entry of final judgment, or (2) the summary
judgment order was a final order with its own separate document (the declaratory
judgment), and the voluntary dismissal of the claim against Erie was a second and
distinct judgment with its own separate document (the Line of Dismissal) that, when
docketed, combined with the earlier summary judgment order to make a final,
appealable judgment – a theory that would be based on the concept of “piecemal
judgments” articulated in Houghton.14
14
It is not clear as to the extent to which Progressive actually advocates for this
second theory, as it does not address Houghton in its brief to us.
15
In our view, the Line of Dismissal did not satisfy the separate document
requirement and thus could not trigger the 30-day period for filing a notice of appeal
as to the claims against Progressive because it did not provide a clear indication that
judgment had been rendered, it did not comply with the plain language of Rule 2-
601(a), and its accompanying docket entry did not satisfy Rule 2-601(b). We need not
decide whether Houghton’s acceptance of piecemeal judgments survives the 1997
amendment of Rule 2-601, as one of the necessary pieces was missing in any event.
Because the Line of Dismissal did not comply with Rule 2-601, a separate
document was not rendered or entered until the clerk docketed the Circuit Court’s
February 8, 2011 order on February 25, 2011 – the earliest date on which the 30-day
clock for filing a notice of appeal would have been triggered.15 Although the Hiobs filed
their notice of appeal before the order was docketed on February 25, 2011, it was timely
under the savings provision of Rule 8-602(d).16 Under that rule, a notice of appeal that
15
The February 8 order stated that final judgment was entered in this case and
incorporated the prior summary judgment order, but did not mention the voluntary
dismissal as to Erie. The better practice would be to acknowledge the resolution of
each claim in the separate document. The failure to mention all claims is not a
jurisdictional error because the February 8 order and the voluntary dismissal as to
Erie finally resolved all claims. Thus, when final judgment was entered on February
8, it was a final judgment in fact.
16
In particular, Rule 8-602(d) states:
Judgment Entered After Notice Filed. A notice of
appeal filed after the announcement or signing by the trial
court of a ruling, decision, order, or judgment but before
entry of the ruling, decision, order, or judgment on the
(continued...)
16
is filed after a trial court announces or signs a ruling, but before the ruling is docketed,
is deemed to have been filed on the same day, but after the entry of the ruling on the
docket. As a result, such a notice of appeal is deemed to have been filed within the 30-
day period established by Rule 8-202(a).17
A. Whether the Line of Dismissal Satisfies the Separate Document
Requirement
1. The Separate Document is to be a Form of Judgment
As its title indicates, Rule 2-601 applies to the “entry of judgment.” A threshold
question is whether a voluntary dismissal by stipulation between the parties, although
not a decision of the court, sets forth a “judgment” for purposes of Rule 2-601.
a. Characteristics of a judgment
The Maryland Rules define “judgment” as an “order of court final in nature
entered pursuant to these rules.” Maryland Rule 1-202(o). Prior to the current
iteration of Rule 2-601, it was established that when “[r]ead in conjunction, Rule 1-
202([o]) and 2-601 make clear that two acts must occur for an action by a court to be
deemed the granting of a judgment[.]” Jones v. Hubbard, 356 Md. 513, 520, 740 A.2d
1004 (1999) (citing Doehring v. Wagner, 311 Md. 272, 533 A.3d 1300 (1987)). First,
16
(...continued)
docket shall be treated as filed on the same day as, but
after, the entry on the docket.
17
This rule is obviously designed to avoid creating a situation in which an appeal
is dismissed as prematurely filed and remanded for the sole purpose of docketing the
judgment and re-filing the notice of appeal. See Bankers Trust Co. v. Mallis, 435 U.S.
381, 385 (1978) (characterizing a similar possible scenario in federal appellate
procedure as one in which “[w]heels would spin for no practical purpose”).
17
there must be a rendition of the judgment by the court; second, there must be entry of
the judgment by the clerk. Jones, 356 Md. at 520-21. “Rendition of judgment is the
judicial act by which the court settles and declares the decision of the law on the
matters at issue. In other words, rendition is the court’s pronouncement … of its
decision upon the matter submitted to it for adjudication.” Id. The rendition of
judgment by the court must “clearly indicate[] that the issue submitted has been
adjudicated completely and it has reached a final decision on the matter.” Id. at 524;
see also Bd. of Liquor License Comm’rs for Baltimore City v. Fells Point Café, Inc., 344
Md. 120, 129, 685 A.2d 772 (1996) (the purported judgment “must be intended by the
court as an unqualified, final disposition of the matter in controversy”) (quoting
Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767 (1989)).
There is no indication, in either the history of Rule 2-601 or our case law, that
the addition of the separate document requirement eliminated the requirement that
there must be a rendition of judgment by the court. Instead, the 1997 amendment of
Rule 2-601(a) added the additional element that the judgment by the court – whether
rendered by oral pronouncement, written memorandum, or otherwise – must also be
“set forth on a separate document.” In other words, the separate document itself must
now set forth the judgment by indicating that the issues have been fully adjudicated
and that the court has reached a final decision. An important aspect of this function
is to clearly indicate in the separate document which party has prevailed on which
issues and what type of relief, if any, has been granted by the court. These features
of the separate document ensure that the court issues “clear, precise, and complete
18
judgments”18 that provide the public and the litigants with clarity as to when a
judgment is rendered, which party prevailed, when the judgment becomes effective,
and when an appeal must be filed.
In sum, Rule 2-601(a) requires more than a piece of paper – or, with the advent
of electronic filing in the courts, an electronic document – accompanied by a docket
entry. It requires that the piece of paper (or electronic document) “set forth” an
unqualified decision of the court as to which party has prevailed and what relief, if any,
is awarded. The separate document requirement is not complicated, despite these
requirements. This Court has previously indicated that the requirement should be
satisfied through the use of a document patterned after the forms devised for federal
practice. Suburban Hospital, Inc. v. Kirson, 362 Md. 140, 154, 763 A.2d 185 (2000)19;
18
See 134th Report of the Standing Committee on the Rules of Practice and
Procedure (October 31, 1996), 23:24 Md. Reg. 1665, 1667 (November 22, 1996),
Reporter’s Note.
19
In a footnote in Suburban Hospital, this Court provided an example of the
format for a separate document that it “would expect to find” for compliance with Rule
2-601 (filling in the facts and parties from the case before it):
Judgment on Jury Verdict
This action having come on for trial before the Court
and a jury, the undersigned judge presiding, and the issues
having been duly tried and the jury having duly rendered its
special verdict,
It is Ordered and Adjudged:
That the plaintiff, Phyllis R. Kirson, recover of the
(continued...)
19
see also 134th Report of the Standing Committee on the Rules of Practice and
Procedure (October 31, 1996), 23:24 Md. Reg. 1665, 1668 (November 22, 1996)
(suggesting that, following adoption of the 1997 amendment of Rule 2-601, the
Administrative Office of the Courts adopt forms for judgments similar to those used
in the federal system); Memorandum of Assistant Attorney General Julia Freit to All
Clerks of the Circuit Courts (June 19, 1997) (distributing model judgment forms
patterned after federal forms).
b. Whether a stipulated dismissal is a form of judgment
This Court has previously stated that a voluntary dismissal by stipulation is not
an order of court. Claibourne v. Willis, 347 Md. 684, 691, 702 A.2d 293 (1997).
Similarly, when the parties enter into a settlement agreement, even if it is filed with
the court, it is not an order of the court, unless the parties ask the court to enter a
19
(...continued)
defendants, Suburban Hospital, Inc., Mary Beth Smith,
Mary Anderson, and Aparangi Paul, jointly and severally,
the sum of $130,500, with interest and costs; and
That the plaintiff take nothing against the defendant,
Carol Stephens, that the action be dismissed on the merits
as to said defendant, and that the defendant, Carol
Stephens, recover of the plaintiff, Phyllis R. Kirson, her
costs.
/s/_____________
Judge
/s/_____________
(Date)
362 Md. at 154 n.4. The Court noted that its example was based on the federal form.
20
consent judgment based on the settlement agreement. See Kent Island, LLC v.
DiNapoli, 430 Md. 348, 359-60, 61 A.3d 21 (2013); Consolidated Const. Services, Inc.
v. Simpson, 372 Md. 434, 465, 813 A.2d 260 (2002); see also Jones v. Hubbard, 356 Md.
513, 525, 740 A.2d 1004 (1999).
It is apparent from this case law that a voluntary dismissal by stipulation, which
is not presented to the court for approval, is not an order of court and therefore is not
a judgment. This would seem to resolve the issue in the Hiobs’ favor because if a
voluntary dismissal by stipulation is not a judgment, the Line of Dismissal in this case
is not a document on which a judgment is set forth.
Progressive argues that the Line of Dismissal nevertheless possesses the
requisite finality and that this Court’s decisions in Claibourne and Tierco Maryland,
Inc. v. Williams, 381 Md. 378, 849 A.2d 504 (2004) indicate that a voluntary dismissal
can be a judgment for purposes of Rule 2-601. We consider each of those contentions
in turn.
c. Whether finality alone is sufficient to satisfy Rule 2-601
The main thrust of Progressive’s argument is that the entry of the voluntary
dismissal started the time for filing a notice of appeal because, at that point in the
action, all of the pending claims had been finally adjudicated.20 Progressive’s
20
Most of Progressive’s arguments are focused on finality: the Hiobs “could not
delay the imposition of finality after the filing and docketing of the Line of Dismissal”;
nothing in Rule 2-601 requires a signature by the clerk before a voluntary dismissal
“takes effect as a final disposition of the action” and, therefore, it makes no sense to
require a signature when the action is terminated by a voluntary dismissal; the
(continued...)
21
arguments fail to recognize the distinction between a final judgment and an “effective”
judgment under Rule 2-601. Finality, although required, is not equivalent to, or a
substitute for the existence of a separate document on which the final judgment is set
forth. This Court has often explained that a final, appealable judgment must possess
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) the clerk must make a proper record of
it in accordance with Md. Rule 2-601.
Rohrbeck v. Rohrbeck, 318 Md. 28, 41, 566 A.2d 767 (1989). The fact that the judge
issues an unqualified, final disposition that adjudicates all the claims against all the
parties satisfies the first two elements, but it is not sufficient to constitute a final,
appealable judgment and start the time for an appeal. The third requirement, that
20
(...continued)
voluntary dismissal “extinguish[ed]” all claims and “gave immediate finality” to the
summary judgment order; stipulated dismissals are final adjudications for purposes
of res judicata.
Progressive also suggests in passing that the voluntary dismissal acted as a
consent judgment. A voluntary dismissal by stipulation is not a consent judgment
unless it is endorsed by the court. See Kent Island, LLC v. DiNapoli, 430 Md. 348, 359-
60, 61 A.3d 21 (2013) (settlement agreement was transformed into consent order when
the judge signed and entered a court order embodying the agreement); Chernick v.
Chernick, 327 Md. 470, 478, 610 A.2d 770 (1992) (“Consent judgments or decrees are
essentially agreements entered into by the parties which must be endorsed by the
court. They have attributes of both contracts and judicial decrees.”); Jones v. Hubbard,
356 Md. 513, 525, 740 A.2d 1004 (1999) (noting that when parties ask a court to render
judgment based on a settlement agreement, the critical element of judicial
conclusiveness is added to the parties’ agreement) (citation omitted).
22
there be a proper record of the judgment in accordance with Rule 2-601 must also be
satisfied. As explained above, Rule 2-601(a) now requires that the judgment be set
forth on a separate document before it is entered by the clerk. See Circuit City Stores,
Inc. v. Rockville Pike Joint Venture Ltd. P’ship, 376 Md. 331, 347 n.3, 829 A.2d 976
(2003). In other words, the existence of final adjudication on all claims against all
parties is necessary but not sufficient to begin the time for filing an appeal.21
Here, the fact that a voluntary dismissal is vested with finality upon docketing,
without more, does not answer the question of whether the time for filing an appeal of
the disposition of another claim has begun.22 There must still be a separate document
on which the judgment is set forth. And, if Progressive is correct that the Line of
Dismissal “gave” finality to the summary judgment order, this does not indicate that
a separate document exists. Thus, it is the separate document, not finality alone, that
starts the time for filing an appeal.
21
Finality is a statutory limitation on appellate jurisdiction. CJ §12-301. The
separate document requirement, in contrast, is a creature of court rule. Accordingly,
the parties may waive the separate document requirement and the appellate court may
proceed with an appeal, but the parties may not waive finality and agree to confer
appellate jurisdiction over a non-final claim. Compare Suburban Hospital, 362 Md. at
154 (parties may waive the separate document requirement) with Miller & Smith at
Quercus, LLC v. Casey PMN, LLC, 412 Md. 230, 250, 987 A.2d 1 (2010) (parties cannot
agree to confer appellate jurisdiction when all of the claims have not been finally
resolved).
22
A voluntary dismissal by stipulation, which under Rule 2-506(a) need not be
approved by the court, does not need to be reduced to a judgment to be final. But, as
explained in the text, a filing that provides finality as to a dismissed claim does not
necessarily also serve as the separate document required for entry of final judgment
on other claims.
23
d. Claibourne v. Willis
Progressive argues that this Court’s decision in Claibourne v. Willis, 347 Md.
684, 702 A.2d 293 (1997), supports the proposition that a voluntary dismissal with
prejudice is a final judgment that triggers the time period for seeking appellate review.
In Claibourne, this Court considered whether a party’s effort to seek relief from a
stipulated order of dismissal more than 30 days after entry of the order was subject to
the limitations of Rule 2-535. 347 Md. at 692. Under that rule, a court may exercise
its revisory powers over a “judgment” on motion of a party filed within 30 days of entry
of the judgment; otherwise, the court may only exercise its revisory powers over the
judgment in cases of fraud, mistake or irregularity.23
The case arose out of an automobile tort action. The plaintiff settled her claim
with an insurer, agreeing to discharge the insurer from any claims and to assist the
insurer in pursuing a subrogation claim against the other driver. The plaintiff then
mistakenly dismissed, through a stipulation of dismissal, her claim against the driver,
thereby extinguishing the insurer’s subrogation rights against the driver.
Subsequently, the plaintiff realized that she had dismissed her claim against the
wrong defendant and moved for relief from the voluntary dismissal. The Circuit Court
23
Then, as now, Rule 2-535(b) read, in its entirety:
(b) Fraud, mistake, irregularity. On motion of any party
filed at any time, the court may exercise revisory power and
control over the judgment in case of fraud, mistake, or
irregularity.
24
denied the motion, apparently on the ground that it did not satisfy the standards for
the exercise of the court’s revisory powers under Rule 2-535(b).
On appeal, the plaintiff argued that, because the voluntary dismissal was not
an order of court and thus not a judgment as defined by Rule 1-202(o),24 the court’s
revisory power was not limited by Rule 2-535(b). Citing cases that pre-dated the 1997
amendment of Rule 2-601,25 this Court agreed that a stipulated voluntary dismissal
with prejudice is not a court order, but held that the limitations in Rule 2-535(b) on the
court’s revisory powers should be applied to limit relief from a voluntary dismissal
“even if that rule is not directly applicable.” 347 Md. at 692. The Court reasoned that
because a voluntary dismissal with prejudice and a court order dismissing a case have
the same effect – they are both final adjudications on the merits and carry res judicata
effect – they should be interpreted in the same manner for purposes of the exercise of
the court’s revisory powers. But while the Court believed that the interest in finality
that underlies Rule 2-535(b) was also present in a voluntary dismissal with prejudice,
it did not hold that a voluntary dismissal was a “judgment” per se.
e. Tierco v. Williams
Progressive asserts that Tierco Maryland, Inc. v. Williams, 381 Md. 378, 849
A.2d 504 (2004), held that a voluntary dismissal by stipulation is a judgment for
24
At the time the voluntary dismissal was filed in Claibourne, the definition of
“judgment” was set forth Rule 1-202(m); it was redesignated as section (o) in 2009.
25
Although the Claibourne decision was issued shortly after the effective date
of the 1997 amendment of Rule 2-601, it applied the earlier version of the rule. See 347
Md. at 690 n.9.
25
purposes of Rule 2-601.26 While the Tierco decision did concern the timeliness of an
appeal, the Court did not hold that a voluntary dismissal by stipulation is a judgment
for purposes of Rule 2-601. Indeed, it held, in the course of its decision that the appeal
in that case was timely, that a trial court’s oral order approving a voluntary dismissal
must be reflected in a separate document as required by Rule 2-601 for entry of
judgment.
The case arose out of a tort action brought by six family members against an
amusement park. On the morning of trial, plaintiffs’ counsel requested that one of the
plaintiffs be dismissed. The trial court orally approved the dismissal, but neither the
court nor the clerk prepared a written record of that order or a docket entry recording
the dismissal at that time. The remaining plaintiffs went to trial and the jury reached
a verdict in favor of those plaintiffs. The trial court entered judgment on the jury
verdict and the amusement park filed a motion for judgment notwithstanding the
verdict under Rule 2-532. The trial court subsequently entered a written judgment as
to the claims against the one plaintiff that it had orally dismissed prior to the trial.
The trial court largely denied the amusement park’s post-trial motion and entered
judgment accepting most of the jury verdict.27 The amusement park appealed.
The Court of Special Appeals dismissed the appeal as untimely. It held that the
amusement park’s post-judgment motion under Rule 2-532 had been filed prematurely
26
The Court of Special Appeals agreed with Progressive’s analysis on this point.
212 Md. App. at 192.
27
The trial court vacated an award of punitive damages.
26
(because the trial court had not yet entered a final judgment as to the dismissed
plaintiff), that the motion had therefore not tolled the 30-day period for filing a notice
of appeal, and that, as a result, the notice of appeal was filed late. The intermediate
appellate court therefore dismissed the amusement park’s appeal as untimely.
After granting certiorari, this Court reversed that decision and found the appeal
to be timely. But the Court did not hold that every voluntary dismissal is a judgment
for purposes of Rule 2-601 and explicitly rejected an argument that the pre-trial
voluntary dismissal in Tierco sufficed as an effective final judgment under Rule 2-601.
Before this Court, the amusement park argued that the oral dismissal by the
judge in open court was a final adjudication of that claim that satisfied Rule 2-601 and
thus, when the judgment on the jury verdict was later entered, all the claims were
resolved, a final judgment existed, the time for filing motions for post-judgment
motions was triggered, and, as a result, its motion for judgment notwithstanding the
verdict was timely and had tolled the time for filing a notice of appeal. According to
the amusement park, the trial court did not need to memorialize in writing its pre-trial
decision to dismiss one of the plaintiffs because the rule applicable to voluntary
dismissals, Maryland Rule 2-506, does not require a written court order.28 The
28
At the time Tierco was decided in 2004, Rule 2-506(a)-(b) stated:
(a) By Notice of Dismissal or Stipulation. Except
as otherwise provided in these rules or by statute, a plaintiff
may dismiss an action without leave of court (1) by filing a
notice of dismissal at any time before the adverse party files
an answer or a motion for summary judgment or (2) by
(continued...)
27
amusement park argued that Rule 2-506(a) envisions that a notice of dismissal or a
signed stipulation presumably would be in writing, but nothing in Rule 2-506(b),
governing dismissals by court order, requires the court order to be in writing.29
Although this Court ultimately held that the appeal was timely, it rejected the
amusement park’s argument and concluded that a separate written order was required
for the pre-trial dismissal of one plaintiff to constitute a judgment. Tierco, 381 Md. at
394. The Court reasoned that, because the dismissal was effectuated by court order
and because Rule 2-601 requires that an order be set forth on a separate document to
be effective as a final judgment, the order of dismissal had to be set forth on a separate
28
(...continued)
filing a stipulation of dismissal signed by all parties who
have appeared in the action.
(b) By Order of Court. Except as provided in
section (a) of this Rule, a plaintiff may dismiss an action
only by order of court and upon such terms and conditions
as the court deems proper. If a counterclaim has been
pleaded prior to the filing of plaintiff's motion for voluntary
dismissal, the action shall not be dismissed over the
objection of the party who pleaded the counterclaim unless
the counterclaim can remain pending for independent
adjudication by the court.
Effective November 8, 2005, clarifying language and a new section (b) were added to
Rule 2-506. The provision governing dismissals “By Order of Court” is now section (c).
29
See State ex rel. Lennon v. Strazzella, 331 Md. 270, 275, 627 A.2d 1055 (1993)
(noting that the rules set forth three different ways an action may be voluntarily
dismissed: by notice of dismissal, by stipulation of dismissal, or by order of court); see
also Milburn v. Milburn, 142 Md. App. 518, 531-35 790 A.2d 744 (2002) (describing the
three types of dismissals).
28
document.30 The Court went on to note that the requirements of Rule 2-601 “are
neither burdensome nor obscure,” id., and briefly (but not exhaustively) described those
requirements.31 But, as noted, that passage appears in the context of a ruling in which
this Court held that a voluntary dismissal only became a final judgment upon entry of
a written order by the trial court. Thus, Tierco does not hold that all voluntary
dismissals are judgments for purposes of Rule 2-601.
f. Whether the Line of Dismissal is a judgment
Here, the Line of Dismissal as to Erie does not clearly indicate to the parties or
the public that the court has adjudicated fully the issues presented to it and has
reached a final, unqualified decision.32 A voluntary dismissal, which is effected by the
parties without any participation or approval by the court, does not provide any
indication as to the court’s intent and does not purport to set forth a decision by the
court. The public and the litigants have no indication from the court that it has
adjudicated the claims against Progressive and reached a final decision because the
30
While the Court rejected the amusement park’s argument concerning whether
there was final judgment at the time the amusement park filed its post-judgment
motion, it nevertheless held that the amusement park’s appeal was timely. In
particular, it held that the existence of a final judgment as to all claims and all parties
is not a prerequisite to the filing of a post-judgment motion under Rule 2-532. 381 Md.
at 394, 398. In the circumstances of the case before it, the Court found that the
amusement park’s post-judgment motion was timely filed (even though it preceded the
final judgment as to the voluntary dismissal), that the motion tolled the time for filing
an appeal, and that the subsequent appeal was timely. Id. at 394-401.
31
See p. 34 below.
32
Indeed, the docket entry – “Voluntary Dismissal (Partial)” – suggested
otherwise.
29
summary judgment order in favor of Progressive was not final, even as to the claims
against Progressive, see Maryland Rule 2-602(a),33 and the Line of Dismissal as to Erie
does not mention the claims against Progressive.
Progressive argues that clarity is not a concern in this case because the Hiobs
knew the claims against Progressive were finally resolved once the Line of Dismissal
was filed. This argument ignores the need to provide the public, not just the litigants,
with a clear indication of when judgment is entered. Moreover, it is not entirely
accurate as to the parties’ knowledge. The Hiobs and Progressive could not know
definitively – although they might be able to predict – whether the court would modify
33
That rule provides:
(a) Generally. Except [when the court explicitly directs
entry of final judgment as to fewer than all of the claims or
parties], an order or other form of decision, however
designated, that adjudicates fewer than all of the claims in
an action (whether raised by original claim, counterclaim,
cross-claim, or third-party claim), or that adjudicates less
than an entire claim, or that adjudicates the rights and
liabilities of fewer than all the parties to the action:
(1) is not a final judgment;
(2) does not terminate the action as to any of the
claims or any of the parties; and
(3) is subject to revision at any time before the entry of
a judgment that adjudicates all of the claims by and against
all of the parties.
Maryland Rule 2-602(a) (emphasis added).
30
the prior summary judgment order, which the court retained the power to do until final
judgment was entered for all claims and parties. See Maryland Rule 2-602(a). Thus,
under Progressive’s theory, the parties or a member of the public must assume that the
prior, non-final order is actually a final order against Progressive, not because the
court issued any final determination on this issue, but because an unrelated defendant
settled. A determination that a final judgment exists based on assumptions of implied
finality is not the type of clear indication that judgment has been entered envisioned
by the current version of Rule 2-601.
Moreover, the Line of Dismissal does not perform the functions of a separate
document because it is not readily apparent from the document itself that a judgment
has been issued. Instead, under Progressive’s proposed rule, one must be aware of all
the existing claims, including counter-claims, cross-claims, and third-party claims in
the action and the resolution of each claim. See Maryland Rule 2-602(a) (an order that
does not resolve every claim, counter-claim, cross-claim, or third-party claim by and
against all parties is not a final adjudication of any claim). Once the litigant or
member of the public searches the docket or case file and is able to determine the
disposition of each claim and realizes that no further claims remain pending, the
researcher will know the adjudication of the last claim constituted final judgment.
Although within a different context, this Court has previously concluded that a rule
that requires an extensive examination into each claim of the case creates mystery, not
clarity:
31
We do not believe that either the public or the appellate
courts of this state will be served by a test which requires
an examination of the legal relationships of all of the claims
at trial and a conclusion through deductive reasoning that
a judgment on one claim has obviated the need for a
judgment to be entered on the remaining claims. Such a test
would only make the legal system more mysterious to the
general public.
Estep v. Georgetown Leather Design, 320 Md. 277, 287, 577 A.2d 78 (1990). Such a
determination may not be a significant impediment in a simple case; but Rule 2-601
must be interpreted to produce clear and precise judgments in all cases.
Thus, because the Line of Dismissal does not clearly indicate to the parties and
the public that the court has adjudicated the issues presented and rendered a final
decision as to the claims against Progressive, the Line of Dismissal does not have the
same effect as a judgment under Rule 2-601 and should not be treated as a judgment
for purposes of that rule.
2. The Separate Document is to be signed by the Clerk or Judge
As explained above, Rule 2-601, like its federal counterpart, is to be applied
“mechanically” and its requirements relaxed only when doing so would preserve an
appeal. See Byrum, 360 Md. at 32 (quoting Bankers Trust, 435 U.S. at 386). The
insistence on formality is necessary to provide clarity as to when the time for filing an
appeal begins. See Allstate Ins. Co., 363 Md. at 117 n.1. One of the formalities of Rule
2-601(a) is that the separate document be signed by either the clerk or the judge,
depending on the type of judgment. See Rule 2-601(a); see also Byrum, 360 Md. at 31
(noting that Rule 2-601(a) contains an “express requirement for a separate document
32
that is signed.”) (emphasis added). Under a mechanical application of Rule 2-601, the
Line of Dismissal is deficient because it was not signed by either the clerk or the
judge.34
Progressive makes two arguments in support of its position that the signature
requirement of Rule 2-601 does not apply to stipulated dismissals. First, Progressive
argues that Tierco created a new and unique way for Rule 2-601 to be interpreted when
applied to voluntary dismissals by stipulation and that, under Tierco, the signature of
neither the judge nor the clerk is required. Progressive relies on the following passage
from Tierco:
34
This application of Rule 2-601 is consistent with the decisions of the federal
courts that have considered the signature requirement in the related federal rule. The
federal Courts of Appeals for the Fifth, Ninth, and Tenth Circuits have concluded that
the signature of the clerk is an important factor in determining whether a purported
separate document satisfies Rule 58 of the Federal Rules of Civil Procedure. See
Walters v. Wal-Mart Stores, Inc., 703 F.3d 1167, 1171 (10th Cir. 2013) (a minute sheet
was not a separate document because it was not captioned as an order, not signed, and
did not establish the disposition of the claim on its face); Silver Star Enterprises, Inc.
v. M/V Saramacca, 19 F.3d 1008 (5th Cir. 1994) (same); Ingram v. ACandS, Inc., 977
F.2d 1332, 1338-39 (9th Cir. 1992) (the signature by the clerk is one element required
for a minute order to constitute a separate document under Rule 58).
The Third and Seventh Circuits have developed tests for determining whether
a document satisfies the separate document requirement that, although not specifically
waiving the signature requirement, suggest that an unsigned order could satisfy the
test. See Am. Nat. Bank & Trust Co. of Chicago v. Sec’y of Hous. & Urban Dev. of
Washington, D.C., 946 F.2d 1286, 1289 (7th Cir. 1991) (a separate document must be
(1) self-contained and separate from the opinion (2) note the relief granted and (3) omit
the district court’s reasons for disposing of the claims); In re Cendant Corp. Securities
Litigation, 454 F.3d 235 (3rd Cir 2006) (same); but see Brown v. Fifth Third Bank, 730
F.3d 698, 701 (7th Cir. 2013) (one judge ruling on a motion to dismiss the appeal)
(stating Rule 58 requires “that the separate document be signed by the court clerk”).
33
According to Rule 2-601, each dismissal must be
memorialized by a document in the case file. The word
“judgment” need not appear on the document. Nor is the
judge necessarily required to sign an order of voluntary
dismissal, which is a judgment that denies all relief. The
document need only put litigants and the public on notice
that the claim has been resolved. It must also be docketed,
entered, and recorded by the clerk. These steps ensure that
litigants, third parties, and the public have access to the
disposition of every civil claim brought in Maryland’s circuit
courts.
381 Md. at 394 (emphasis added; citation omitted). Progressive argues that, based on
this language, a signature is not required when the separate document is a stipulated
dismissal, so long as the Line of Dismissal puts litigants and the public on notice that
the claim was resolved and it was docketed.
Progressive extrapolates from this passage to interpret Rule 2-601 contrary to
the plain language of the rule. “When a party contends that a court should disregard
the express language of a carefully-drawn rule of procedure, that party bears a heavy
burden of showing that departure from the plain language is justified.” State ex rel.
Lennon v. Strazzella, 331 Md. 270, 282, 627 A.2d 1055 (1993) (quotations and citation
omitted). That burden is particularly heavy when the proposed change disregards the
over-arching policy concern of the rule. Id.
Progressive does not carry that burden. The statement in Tierco that a judge
need not sign an order that denies all relief does not contradict the plain language of
Rule 2-601, as the rule explicitly permits the clerk to prepare and sign a judgment
“denying all relief.” The Court in Tierco did not hold that the signature requirement
could be disregarded altogether.
34
Second, Progressive counters that the plain language of Rule 2-601 does not
require the signature of either the clerk or court, and thus, an exception for voluntary
dismissals is not a departure from the Rule’s plain language. Progressive notes that
Rule 2-601(a) requires the signature of the clerk only “upon the verdict of a jury or a
decision by the court.” Because a stipulated dismissal is not a “decision by the court,”
Progressive concludes that a signature by the clerk or judge is not required.
But this argument is at odds with Progressive’s position that the stipulated
dismissal is a “judgment.” In sum, Progressive argues that a stipulated dismissal is
an order of court and therefore is a judgment subject to Rule 2-601, but at the same
time argues that it is not an decision of court, and thus need not comply with the
requirements of Rule 2-601 in order to begin the time for appeal. Progressive cannot
have it both ways – either the Line of Dismissal is a judgment – i.e., an order of court
– and must comply with Rule 2-601’s requirements in order to start the time for
appeal; or it is not an order of court – i.e., not a judgment – and is not the type of
document that must be entered under Rule 2-601 and cannot start the time for appeal.
3. The Separate Document is to be Docketed under Rule 2-601(b)
Even if the Line of Dismissal as to Erie satisfied the separate document
requirement of Rule 2-601(a), our analysis would not be complete because the time for
filing a notice of appeal does not begin until the separate document is entered on the
docket consistent with 2-601(b). See Maryland Rule 2-601(a) (“A judgment is effective
only … when entered as provided in section (b) of this Rule.”). As the Court stated in
Tierco, docketing under the rule is one of the steps that ensures that “litigants, third
35
parties, and the public have access to the disposition of every civil claim brought in
Maryland’s circuit courts.” Tierco, 381 Md. at 394. In particular, “the value of docket
entries making public the disposition of each claim in a case cannot be overemphasized.
Litigants and the public ought to be able to look at a case file or docket and determine
when any judgment was entered.” Id. at 393-94 (internal quotations marks and
citation omitted); see Minutes of the Standing Committee on the Rules of Practice and
Procedure (May 17, 1996) at 4-5 (in discussion of 1997 amendments of Rule 2-601, it
was noted that the docket entry acts as a “warning that a judgment has been entered”).
Here, the docket entry for the Line of Dismissal reads “Voluntary Dismissal
(Partial) as to Erie Insurance Exchange.” The docket entry is ambiguous as to whether
a judgment has been entered because it does not specify whether the dismissal is with
or without prejudice, leaving open the possibility that the claim against Erie was not
resolved definitively. Although the Hiobs and Erie may be aware that the “partial” is
in reference to the dismissal of only one defendant out of two, as opposed to only a
portion of the claims against Erie, the public cannot discern this information from the
docket entry. Without any indication of finality, the public cannot discern from the
docket entry that a final judgment has been entered.
The ambiguity as to finality is especially apparent in this case because neither
the docket entry, nor the Line of Dismissal as to Erie, indicates that the prior summary
judgment order in favor of Progressive is now a final order. Instead, under the peculiar
interpretation urged by Progressive, the notice of dismissal, signed by only two of the
multiple plaintiffs and defendants, would constitute both the final judgment in the
36
entire action and the separate document on which that final judgment is set forth.
Such a rule creates a trap for the unwary and the inexperienced and does not promote
the ability of the public to readily determine the disposition of every claim brought in
the circuit courts.
4. Summary
In sum, the Line of Dismissal is not a separate document sufficient to satisfy
Rule 2-601 because it is not a form of judgment, it does not comply with the plain
language of the rule, and its accompanying docket entry does not give a clear indication
that final judgment for all the pending claims in the case has been entered.
B. Houghton and Piecemeal Judgments
We end with a word on what is sometimes called “piecemeal finality.”35 In its
decision in this case, the Court of Special Appeals relied on Houghton v. County
Commissioners of Kent County, 305 Md. 407, 504 A.2d 1145 (1986) – a decision that
pre-dated the 1997 amendment of Rule 2-601 – to conclude that a case can be disposed
of by the successive docketing of judgments, neither of which is final in nature (as
neither, individually, adjudicated all of the claims as to all of the parties), so long as
each judgment is entered in a manner that complies with Rule 2-601, and finality
attaches to all prior orders when the last such judgment is docketed. Here, the second
purported judgment (the stipulated voluntary dismissal) was not set forth on a
separate document and thus, was not entered in a manner that complied with Rule 2-
35
It is also sometimes referred to as “cumulative finality.” See 15A Wright,
Miller, et al., Federal Practice & Procedure §3914.9 (2d ed. updated April 2014).
37
601. This case does not satisfy the Houghton rule, assuming it is still valid, and the
resolution of this case does not turn on whether Houghton remains good law.
Because Houghton interpreted a version of Rule 2-601 prior to the adoption of
the separate document requirement, its analysis as to whether each judgment has been
entered properly under Rule 2-601 is outdated. For instance, at the time Houghton
was decided, the requirement that the clerk prepare, sign, and enter the separate
document on which judgment is set forth was not yet part of Rule 2-601. Additionally,
at the time of the Houghton decision, the time for filing an appeal began at the time
that a final, appealable judgment existed and a notation was entered on the docket.
As a result, the analysis in Houghton focused on whether the orders issued in that case
finally resolved all of the issues and nothing remained pending before the court. See
Houghton, 305 Md. at 412 (concluding that an order of dismissal on two claims and a
notice of dismissal on a third claim had the effect of putting the plaintiff out of court,
nothing remained to be done, and therefore, a final judgment existed). The 1997
amendments to Rule 2-601 changed the analysis from whether finality existed to
whether an order, which finally resolved all the issues, had been set forth on a separate
38
document.36 Houghton’s focus on finality is still relevant, but it is not sufficient,
without the separate document, to start the time for filing an appeal.
36
In reasoning that Houghton remains good law as to piecemeal judgments, the
Court of Special Appeals quoted certain portions of the following passage from the
minutes of the Rules Committee meeting when that committee considered what
became the 1997 amendment to Rule 2-601:
Mr. Sykes asked how piecemeal judgments will be
handled under the modified Rule. Currently when a party
is dismissed at some point in the case, the dismissal is
entered on the docket. Mr. Bowen replied that this would
be a separate document. Mr. Sykes inquired as to what the
clerk has to enter under this Rule. If the judgment is very
long, does the clerk enter the entire judgment on the docket?
Mr. Bowen answered that the entire judgment is not
entered, but simply a notation that there has been a
judgment and the date of it. Mr. Sykes questioned whether
the clerk summarizes the judgment in any way. Mr. Bowen
responded that the judgment is the one signed by the court.
Mr. Sykes commented that he had a problem with the word
“entered” as it is provided in Rule 2-601. Only the fact that
there has been a judgment is entered on the docket, so to
find out what happened, it would be necessary to look at the
papers or to copy the entire judgment on the docket, which
would require more work. Mr. Bowen explained that the
docket entry is a warning that a judgment has been entered,
so someone can go to the file to read it.
Minutes of Standing Committee on Rules of Practice and Procedure (May 17, 1996) at
4-5. It is not evident to us – from a review of the entire passage – that the Rules
Committee had a view as to the continued vitality of Houghton under the proposed
amendments. There is no mention of Houghton here or elsewhere in the minutes and
the cryptic nature of the minutes leaves much room for interpretation. A review of the
recording of the hearing conducted by this Court on the 1997 amendment uncovered
no reference to Houghton or piecemeal judgments.
39
IV
Conclusion
For the reasons set forth above, in order for there to be an entry of an effective
final judgment that triggers the time for filing an appeal, there must be an affirmative
answer to the following questions:
! Is there a final judgment?
! Is there a separate document?
• Is there a document in the court file separate from the docket
entry?
• Does the document reflect a judicial action that grants or denies
specific relief in an unqualified way?
• Has the separate document been signed by the judge or the clerk?
! Has the clerk docketed the judgment in accordance with the practice of
the court?
In this case, the Line of Dismissal did not satisfy these requirements and did not
trigger the 30-day clock for filing a notice of appeal as to the summary judgment ruling.
The Hiobs filed their notice of appeal after the Circuit Court issued an order entering
final judgment that satisfied those requirements, but before that order was docketed.
Accordingly, the Hiobs’ notice of appeal was timely under Rule 8-602(d).
JUDGMENT OF THE COURT OF SPECIAL
APPEALS REVERSED . CASE REMANDED TO
THAT COURT FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION . COSTS IN
THIS COURT AND IN THE COURT OF SPECIAL
APPEALS TO BE PAID BY THE RESPONDENT .
40