Maryland Court of Appeals, in Irwin Industrial, Confirms Alternative Grounds for Summary Judgment, Typically Remain Unavailable to Argue in Appeals

By Michael Wein

The Court of Appeals’s recent decision in Irwin Industrial Tool Company v. Pifer (May 31, 2022, J. Watts) had as the main certiorari issue, on “[w]hether it was reversible error for the [Court of Special Appeals] to reverse the authenticity threshold applied by the Circuit Court for the admissibility of items purchased from the internet.”[i]  This encompassed about 36 pages of the 44-page unanimous decision authored by Judge Watts.  The case also featured the effective but tricky usage of demonstrative evidence at oral arguments, beginning at the 41st minute of the oral argument webcast.

However, Question Presented Two, on “[w]hether it was reversible error for the [Court of Special Appeals] to ignore the alternative grounds for summary judgment encompassed in the Circuit Court’s Order[,]” while only a few pages long, had important applications, beyond the case.  The ultimate decision confirms a reluctance by Maryland appellate courts to decide issues for the first time on appeal, especially when the trial court declines to clearly rest their decision on these alternative grounds.

From Judge Watts’ decision, it is noted at Slip. Op. at 37,

Irwin contends that the circuit court’s grant of summary judgment was based on grounds other than the exclusion of the containers bought on eBay and that the Court of Special Appeals erred in not considering the additional grounds. Irwin argues that, where the scope of an order granting summary judgment is unclear, the Court of Special Appeals must review all possible grounds on the assumption that the trial court considered all of the grounds. Irwin asserts that this principle promotes finality and judicial economy and is particularly important here, given that the alternative grounds for summary judgment did not involve factual disputes and the circuit court did not have the discretion to deny summary judgment. As to the alternative grounds for summary judgment, Irwin maintains that it did not owe Mr. Pifer a duty to warn and that the Estate cannot establish causation or its strict liability and manufacturing defect claims.  [Emphasis Added]

This topic has come up before by another Blog Editor, in “Can Maryland Courts Affirm Summary Judgment on Alternative Grounds.” This post argued, primarily premised on Federal Court Rules, and two Maryland Court of Special Appeal cases,[ii] that Maryland appellate courts can and should have “broad discretion” to consider “Appellees” alternative ground arguments, and if they are not advanced on appeal, the appellate court can in their discretion do so as well, but give the appeal parties first the opportunity to do supplemental briefing. 

In response, I respectfully disagreed, noting inter alia in the Reply,

First, assuming the Federal Courts’ interpretation is to be afforded deference, […] here the Maryland Rule [2-311] is not the same […] 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. […Especially] [w]hen the trial judge may have had legitimate reasons that are not clearly evinced in the Record for not deciding the question […].”  [Emphasis Added]

Ultimately, the Maryland Court of Appeals in Irwin addressed “a well-established ‘general rule that in appeals from the granting of a motion for summary judgment, absent exceptional circumstances, Maryland appellate courts will only consider the grounds upon which the lower court granted summary judgment[.]’ State v. Rovin, 472 Md. 317, 373 […] (2021) (cleaned up). We have described this principle as follows: ‘Our review of the trial court’s grant of summary judgment is limited ordinarily to the legal grounds relied upon explicitly in its disposition.’    Baker v. Montgomery Cty., 427 Md. 691, 706 […] (2012) (citing River Walk Apartments, LLC v. Twigg, 396 Md. 527, 541-42 […](2007)).”  Slip Op. at 38.  [Emphasis Added]

Irwin arguably confirmed the “best practices”language of Maryland Court of Special Appeals in Bond v. Nibco, Inc., 96 Md. App. 127 (1993), was accurate. However, Bond was not dealt with directly, as precedent to permit this procedure to typically require remand, absent a concession, as occurred in that case.  See Bond at 136-137 (“It would certainly be preferable to have before us the basis for the circuit court’s order [granting summary judgment]. This would not only give us the benefit of the circuit court’s reasoning as to why summary judgment was proper but also make it clear whether the lower court found any of the asserted grounds lacked merit, i.e., did not support the grant of summary judgment. In the absence of any such discussion, we must assume that the circuit court carefully considered all of the asserted grounds and determined that all or at least enough of them as to merit the grant of summary judgment were meritorious.”); see also, Irwin at 41 (citing general language used in Bond and other Court of Special Appeal cases).

The Irwin Court concluded:

In this case, it is not clear from the record that the circuit court relied on any ground other than the Estate’s concession in granting summary judgment.[iii] To address the alternative grounds for summary judgment alleged by Irwin, we would be required to infer from the record that although the circuit court made no specific findings as to the additional grounds, the circuit court nonetheless granted summary judgment as to multiple claims involving complex legal issues. Nowhere in the order granting summary judgment did the circuit court mention any alternative grounds for the grant of summary judgment, let alone indicate that summary judgment was granted for any reason other than the Estate’s concession. Although the order stated that the circuit court had “reviewed and considered” the motion for summary judgment, it would be pure speculation to infer from customary “reviewed and considered” language that the circuit court agreed with any of the alternative grounds on which Irwin sought summary judgment.  [Emphasis Added]

With one caveat concern, supra, also outlined in the January 30, 2021 Commentary Response, this is correct in my opinion.  While the trial court clearly focused upon the “creative” evidentiary arguments won at both the Court of Special Appeals and Court of Appeals, involving the “Ebay-obtained” evidence (and consistent expert witness evidence), it was a stretch based on the Record, the trial court relied upon the alternative summary judgment “duty” argument, even by inference. 

Perhaps the trial court was satisfied in ruling on the evidentiary issue, as the clear basis of summary judgment, which required new appellate law for the Appellant/Respondent Pifer to succeed.  Assume there is an 85-90% chance of affirmance, as exists in the average civil appeal.   That makes the trial Court’s decision logical to countenance, rather than directly addressing a second (or secondary) legal argument related to the “complex legal issues” surrounding duty for the Asbestos manufacturer.  If that issue has a much less chance of success on appeal (say 50%) and/or the trial judge is simply not in favor to decide, as opposed to a jury, then the Appellees/Petitioners can re-litigate the matter presumably.  Which is how the Maryland Court of Appeals ultimately addressed Question Presented #2. 

My caveat concern is the Pifer Court did not explicitly address the possible tension created in “whatever” Orders by trial judges. A “whatever” Order, occurs when the trial judge decides to grant a dispositive filing, but leaves it up to the parties and potentially appellate court, to ascertain “whatever” the grant was based upon.  This happens infrequently, as usually the oral arguments on the dispositive motions will clarify the focus or limit of the issues presented as to how or why Summary judgment is being considered.  Yet, if combined with a later written Order that simply, and curtly, grants Summary Judgment without bases given, this conflates, at the expense of transparency, what were the multiple arguments presented by the opposing party, the trial Court appropriately considered were meritorious enough to grant the dispositive motion.  The merits or lack thereof, of an argued basis in favor of summary judgment, may vary significantly in both complexity and merit.  Thus, the language of Baker and Bond still could use some harmonization, to avoid incentivizing trial judges, not to give the reasons upon which they may grant summary judgment.

Michael Wein is an attorney in Greenbelt, Maryland, whose practice concentrates on appellate, civil, and criminal litigation. He can be reached at 

[i] In other words, was the Court of Special Appeals correct to reverse the trial judge’s summary judgment grant, in arguing to a preponderance of the evidence that proof existed for causation from asbestos use from the 1960-1980s, resulting in the death of Mr. Pifer in 2016, by creatively testing decades old, hermetically sealed “exemplars” of the company’s product,  purchased through Ebay, and analyzed and carefully tested under modern scientific conditions to verify they are authentic and never tampered with before?

[ii] Citing Presbyterian Univ. Hosp. v. Wilson, 99 Md. App. 305, 313 (1994) and Abrams v. Rockville, 88 Md. App. 588 (1991).


[iii] The Court of Special Appeals noted Record confusion on some of the strategy involved by one or more of the parties, such as “[f]or reasons we can’t discern […] [w]hy it did this” the Estate conceded, without the Ebay sample evidence, there was no way to survive summary judgment.  Pifer v. Irwin Industrial Tool Co., 252 Md. App. 57, 82 (2021).

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