Dent v. Simmons

ALPERT, Judge. Today we reaffirm the principle that “[fjree access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.” Young v. Redman, 55 Cal.App.3d 827, 838 , 128 Cal.Rptr. 86 (1976) (emphasis added). This is an appeal by Edward A. Dent, appellant, from an award of attorney’s fees against him in favor of Luiz R.S. Simmons, Esquire, the appellee. The judgment of the Circuit Court for Montgomery County was based on the opinion that a prior suit by Dent against Simmons was “brought without any legal or factual justification.” FACTS AND PROCEEDINGS The facts of this case are somewhat complicated, and we will briefly summarize those which are applicable to the instant appeal.

Appellant, Edward A. Dent, filed a tort action against appellee in the Circuit Court for Montgomery County. Factually, the cause of action arose from appellee’s representation of appellant’s ex-wife in two post-divorce property disputes. These cases were heard in Mont ¹²⁵ gomery County and the District of Columbia. Although appellant prevailed in both proceedings, he alleged that the cases were at issue longer than necessary because of intentional misrepresentations made by appellee before the two tribunals.

Appellant contends he was injured as a result of the protracted litigation. Appellee filed a demurrer to the Declaration. The trial judge sustained the demurrer with leave to amend. He found that, as drafted, the declaration could stand only if the appellate courts chose to recognize a new cause of action.

The declaration was not amended within the prescribed period; therefore, Judge Miller entered judgment absolute in favor of appellee on October 20, 1983. Appellant noted a timely appeal on the demurrer issue to this Court on November 14, 1983. We issued a per curiam opinion on August 3, 1984, holding that the October judgment was in effect a judgment non pros because of appellant’s failure to amend. Hence, this Court never reached the merits of appellant’s appeal, i.e., whether the declaration indeed stated a cause of action in tort.

On February 27, 1983, prior to either the appellate argument or decision on the demurrer issue, Judge Miller conducted a hearing on appellee’s motion for attorney’s fees. Various witnesses testified and exhibits were considered to determine whether appellant filed his declaration in bad faith or without substantial justification. Maryland Rule 604(b). 1 In granting part of the requested fees, 2 Judge Miller stated: The question now before the Court is whether or not I should award attorney’s fees pursuant to Maryland Rule 604(b) which is bad faith or is for any proceeding brought in bad faith with or without substantial justification. ¹²⁶ With respect to the question of bad faith, I don’t think it is unusual for a husband to feel a certain amount of indignation toward his wife’s attorney. Whether or not this suit directly arose out of that or by way of a bad faith or not may not be necessary in deciding this particular issue.

In determining whether this suit is without justification, I looked at the facts, I looked at the law. I did that in connection with ruling on the demurrer. I take into consideration a couple of other things: that following the termination of these two actions, both in [Washington, D.C.] and in Montgomery County, both of which were terminated in Mr. Dent’s favor, a grievance procedure was instituted by Mr. Dent. There was also a. refusal by Judge Frosh to make an award of counsel fees in connection with the Montgomery County case, at least there was a non-award of attorneys’ fees.

Having reviewed the Declaration, as I indicated earlier, there would appear to be in the Court’s mind and based upon what I saw before it, there would appear to be no legal justification for the action to be brought. I understand that is on appeal, and there is no factual basis alleged. There is a cause of action for abuse of process. This action, from what I know about abuse of process, doesn’t fit in that category.

The only category might be if the Court of Appeals decides that it is going to invent a new cause of action. Given all the circumstances, the Court is of the opinion, having seen that Declaration, is of the opinion that based upon everything I have been able to glean about this ¹²⁷ action, it is brought without any legal or factual justification. Dent appealed and asserts that: 1. The trial court erred in finding that the appellant’s lawsuit was brought without substantial justification; and 2.

The trial court lacked jurisdiction to award attorney’s fees in this case. 1. “Without Substantial Justification” At the February 1984 hearing, the trial judge noted that the facts alleged by appellant did not fit within any specific tort recognized by the Court of Appeals and hence found there was no “legal justification” for filing suit. The judge made no specific finding as to the existence of “bad faith”; but instead, relied upon the absence of legal precedent in determining that the suit was filed “without substantial justification.” Former Maryland Rule 604(b) and current Maryland Rule 1-341. The subject rule provides an exception to the general rule that attorney’s fees are not recoverable by one party from an opposing party. See Empire Realty Co., Inc. v. Fleisher, 269 Md. 278, 285-90 , 305 A.2d 144 (1973); Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md.App. 583, 590 , 374 A.2d 2119 (1977).

Pursuant to the rule, attorney’s fees may be recovered if the court finds “that the ‘proceeding’ was brought, maintained, or discontinued (1) in bad faith, or (2) without any substantial justification, or (3) for purposes of delay.” Colonial Carpets, 36 Md.App. at 591 , 374 A.2d 419 (emphasis and quotations in original). The question of awarding attorney’s fees lies within the sound discretion of the trial judge and will not be overturned unless clearly erroneous. Foster v. Foster, 33 Md.App. 73, 81 , 364 A.2d 65 , cert. denied, 278 Md. 722 (1976). The trial judge essentially found that the subject lawsuit was brought “without substantial justification” because appellant attempted to introduce a new cause of action in tort — one which could only be categorized “if the Court of Appeals decides that it is going to invent a new ¹²⁸ cause of action.” We believe this determination constitutes an abuse of discretion.

A litigant ought not be penalized for innovation or exploration beyond existing legal horizons unless such exploration is frivolous. 3 [A]ny less stringent predicate for the recovery of attorneys’ fees would have a chilling effect on parties who, for example, may unsuccessfully attempt to raise questions of first impression and may deter the future growth of the law by exacting a price for today’s unavailing efforts seeking its change. T.I.E. Communications, Inc. v. Toyota Motors, 391 So.2d 697, 698 (Fla.Dist.Ct.App.1980). Were this not so, society today might not have the ameliorations produced by those who pioneered, for example, in the areas of products liability and environmental law. Furthermore, there is no indication that the State of Maryland has specifically rejected this intentional tort. 4 As it is neither necessary nor appropriate for us to decide the legal sufficiency of Dent’s suit against Simmons, we decline to do so. 5 We do, however, note that ¹²⁹ Dent presented