Can Maryland Courts Affirm Summary Judgment on Alternative Grounds?
Law is complicated. I often need to remind myself that, if law was easy to understand and apply, no one would need attorneys. To efficiently analyze legal problems and resolve cases, courts and practitioners naturally rely on general legal rules and principles. Such analytical shortcuts are invaluable—when they fit the case—because they provide clear, correct guidance. But for any general legal rule, the proverbial devil is not so much in the details as in the exceptions to the rule.
Practitioners must be able to not only recognize and recite general legal rules but also identify each rule’s limits to know when to ask appellate courts to reject the general rule and apply an exception. This article examines one general rule that shapes Maryland appeals from orders entering summary judgment: Do not affirm summary judgment on grounds different from those the trial court relied on.
Maryland’s appellate courts are quick to cite the general rule that they will not affirm summary judgment on grounds that differ from the trial court’s reasons. The general rule aligns with the principle of limiting appellate courts to reviewing final judgments rather than preempting trial courts and creating their own alternative final judgments. The reasoning holds that if a trial court improperly granted summary judgment, any alternative basis for summary judgment should initially be resolved by the trial court. Affirming summary judgment on alternative grounds would effectively end a plaintiff’s case without an affirmed adverse ruling from the trial court.
The general rule made more sense before the Supreme Court’s 1986 trilogy of decisions (Celotex, Anderson, and Matsushita), when courts viewed summary judgment as a highly disfavored form of relief that they had discretion to ignore completely. For example, in 1967, the Court of Appeals observed that it is usually “neither advisable nor practicable to enter a summary judgment in a tort action.” Driver v. Potomac Electric, 247 Md. 75, 79, 230 A.2d 321, 324 (1967). Such a sweeping statement cautioning against summary judgment in all tort actions would be hard to imagine today.
Resisting summary judgment became more complicated after the Supreme Court’s 1986 trilogy, which favors summary judgment in federal courts under Rule 56 when the record presents no genuine issue of material fact. Although Maryland state courts are not bound by federal rules of procedure or Supreme Court cases that apply them, no one disputes that these decisions influence state-court judges. And Rule 56 is among those federal rules that Maryland’s procedural rules are based on. Thus, the Court of Appeals has long instructed that “interpretations of Fed. R. Civ. P. 56 are very persuasive as to the meaning of [former] Md. Rule 610.” Metropolitan Mtg. Fund v. Basiliko, 288 Md. 25, 27, 415 A.2d 582 (1980).)
For appellate judges who can plainly see from the record that a defendant is entitled to summary judgment—but not for the reasons given by the trial court—it might seem foolish to remand the case for further time- and resource-consuming proceedings. The remand seems even more wasteful if the appellate court knows that, even if the trial court allows a full trial, it would all be mooted by a second appeal on an issue that is already ripe and cannot change. For example, if a government official is entitled to judgment under qualified immunity but won summary judgment for a different reason, the appellate court would reasonably want to affirm the summary judgment on alterative grounds. See Higginbotham v. PSC, 412 Md. 112, 149, 985 A.2d 1183, 1204 (2009). Doing so not only saves the parties and trial court from wasting their efforts on a trial but also vindicates the underlying purpose of qualified immunity itself, keeping public officials from getting mired in litigation related to their performance of public duties.
Understandably reluctant to trash the general rule, appellate courts have explained their reasons for invoking the exception in various ways. These exceptions risk swallowing the rule. In Gresser, the Court of Appeals instructed that “exceptional circumstances” would be needed to affirm summary judgment on alternative grounds. Gresser v. Anne Arundel Cty., 349 Md. 542, 552, 709 A.2d 740, 745 (1998). In Ragin, the Court of Special Appeals reasoned that, when “a motion is based solely upon ‘a pure issue of law that could not properly be submitted to a trier of fact,’ then ‘we will affirm on an alternative ground.’” Ragin v. Porter Hayden Co., 133 Md. App. 116, 134, 754 A.2d 503 (2000) (quoting Davis v. Goodman, 117 Md. App. 378, 395 n.3, 700 A.2d 798 (1997)). And in Dehn Motor Sales, the Court of Special Appeals explained that “the grant of summary judgment will be affirmed on a ground not relied upon by the circuit court if the alternative ground is one that the motions judge would have had no discretion to reject.” Dehn Motor Sales, LLC v. Schultz, 212 Md. App. 374, 392 n.26, 69 A.3d 61, 72 (2013). Conversely, “if the alternative ground is one as to which the trial court had a discretion to deny summary judgment,” such as a factual dispute that may ripen in subsequent discovery, the appellate court will not consider it. Lovelace v. Anderson, 366 Md. 690, 696, 785 A.2d 726, 729 (2001) (citing Basiliko).[*]
But discretion to deny summary judgment is far from clear. Although courts unanimously recognize that summary judgment is not proper when material facts are reasonably disputed, they struggle to articulate when a court lacks discretion to deny summary judgment. In Presbyterian University Hospital, the Court of Special Appeals limited the Basiliko holding as “intended to apply to those cases in which there are factual controversies—in which the ultimate results would be determined by resolution of facts.” Presbyterian Univ. Hosp. v. Wilson, 99 Md. App. 305, 313, 637 A.2d 486, 488 (1994). It found the rule against reviewing denials of summary judgment “inapplicable” to denied summary-judgment motions that were “based upon a pure issue of law that could not properly be submitted to a trier of fact.” Id. at 313-14. Yet, it still suggested that a trial court somehow has “discretion” to grant or deny a motion that presents no material factual disputes and will be reversed only for “clear abuse” of that discretion. See id. I don’t know what this means.
Even the dichotomy between “pure” questions of law and those mixed with factual questions breaks apart as a basis for deciding when summary judgment can be affirmed on alternative grounds. In the 1991 Abrams case, the Court of Special Appeals affirmed on an alternative ground that is hard to characterize as a pure legal question. Abrams v. Rockville, 88 Md. App. 588, 596 A.2d 116 (1991). The case involved allegations that a school-run after-care program’s showing of the movie Poltergeist to elementary-school students on Halloween intentionally inflicted emotional distress on one seven-year-old student. Despite recognizing the general rule against affirming summary judgment on alternative grounds, the Abrams court reasoned that when “discovery on the issue has been completed and it is clear, as a matter of law, that the plaintiff cannot establish an element necessary to recovery, the defendant is entitled to summary judgment and the court is obliged to grant it.” 88 Md. App. at 597 n.1, 596 A.2d at 120.
Instead of letting these exceptions swallow the rule, courts may want to reframe the general rule on affirming summary judgment on alternative grounds this way:
- Appellees, cognizant of word limits, may raise an alternative ground for affirming summary judgment in their brief, but failing to do so won’t preclude them from raising it on remand.
- When appellees raise an alternative ground, the appellate court has broad discretion whether to reach it.
- When appellees do not raise the alternative ground but the appellate court wants to grant summary judgment on alternative grounds, it should ask the parties to brief the discrete issue.
[*] See also Bishop v. State Farm Mut. Auto Ins., 360 Md. 225, 233-34, 757 A.2d 783, 787-88 (2000); T.H.E. Ins. Co. v. P.T.P., Inc., 331 Md. 406, 409 n.2, 628 A.2d 223, 224 (1993); Boyer v. State, 323 Md. 558, 588, 594 A.2d 121, 136 (1991); Orkin v. Holy Cross Hosp., 318 Md. 429, 435, 569 A.2d 207, 210 (1990); Three Garden Village L.P. v. U.S. Fid. & Guar. Co., 318 Md. 98, 107-08, 567 A.2d 85, 89 (1989).
2 responses to “Can Maryland Courts Affirm Summary Judgment on Alternative Grounds?”
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- July 26, 2022 -
So made a note to respond earlier. I’d have to respectfully disagree on some of the overall contentions here.
First, assuming the Federal Courts’ interpretation is to be afforded deference, and that Maryland generally considers as persuasive the Federal rules particularly when analyzing a Fed. Rule that a Maryland Rule is modelled upon, here the Maryland Rule is not the same. Md. 2-311. Maryland parties/litigants are entitled to seek and have a hearing on a dispositive motion. That’s not true, and usually the opposite of what happens in federal court, where dispositive motions are decided upon in the Memo Briefing. So a more aggressive practice in considering to grant alternative grounds on appeal for the first time, is arguably inconsistent with the distinct Maryland Rules, especially when a trial judge is left out of the decision making. If there’s a remedy for your concern of efficiency, it’s that trial judges should rule upon reasonable alternative arguments at the trial level.
Second, a more aggressive appellate practice of alternative grounds, would risk offending some of the jurisdictional aspects of the appellate courts. That again has Rules, and case law, some that seem archaic, because they are formal (and which delays I haven’t always agreed with.) But those exist as well to respect the distinctions between the trial and appellate courts, that also have jurisdictional implications.
Third, while there may be some merit and some inconsistencies on the topic in Maryland, for the vast majority where an alternative ground is not reached upon by the trial court exists to consider on appeal, they tend to involve fundamentally flawed cases that would be futile and involve jurisdictional claims such as sovereign immunity cases. I don’t think that’s been fully decided (including the level to which briefing for appeals are proper on alternative grounds and it’s contestability). However, I would be concerned, that doing so would be done at the expense of the first and second concerns, which itself could raise the question of fundamental fairness to the parties, if not done with the consent of both parties, AND risks leaving the trial court out of the process. (When the trial judge may have had legitimate reasons that are not clearly evinced in the Record for not deciding the question).