Hermina v. Baltimore Life Insurance

THEODORE G. BLOOM, Judge (Retired, Specially Assigned). This appeal by John W. Hermina is from an order of the Circuit Court for Baltimore County finding him guilty of direct civil contempt of court and imposing a sanction of $8,500, with a provision that the contempt may be purged by paying $8,500 to Barrett W. Freedlander, Esquire, on or before 28 August 1998. The direct contempt found by the court was the failure of appellant, who was the attorney of record for Adel Alalfey and David Griggs, two of the defendants 1 in a civil action brought by appellees, Baltimore Life Insurance Company and Life of ⁵⁷² Baltimore, Inc. (collectively, Baltimore Life), to appear for trial on 15 April 1998. On 23 April, Mr. Freedlander and another member of his law firm, who were counsel for Baltimore Life in the suit against Alalfey, et al., filed in those proceedings a Motion for Sanctions, asserting that appellant was guilty of criminal contempt and asking for an award of sanctions against appellant in the amount of $8,500.

The motion was accompanied by a lengthy memorandum, which contained derogatory allegations about appellant’s conduct in proceedings totally unrelated to the case at hand. Appellant’s response to the Motion for Sanctions and supporting memorandum contained a personal attack on Mr. Freedlander’s conduct in various cases. It also denied any contumacious intent by appellant and set forth an exculpatory explanation for his failure to appear in court on 15 April 1998. There was no order issued by the court directing appellant to appear at a date and time certain to show cause why he should not be found to be in contempt and be punished therefore.

On 29 July 1998, there was a hearing on pending motions, which included certain motions filed by the defendants, along with appellees’ Motion for Sanctions. At that hearing, the court first addressed and disposed of the defendants’ motions by denying all of them, after which the court took up appellees’ Motion for Sanctions. Counsel appearing for appellant on appellees’ Motion for Sanctions addressed the court and outlined appellant’s explanation for his failure to appear on 15 April. The scheduled trial date was 14 April.

On 13 April, in a telephonic conversation with someone in the assignment office, appellant was advised that the case would not be tried on the 14th, because there were no judges available. On the basis of that information, appellant, who was ill, went home. Counsel denied the allegation of appellees’ attorney that appellant was told to call the assignment office before 4 p.m. the next day to learn of the trial status. Appellant never received word that the case was reset for trial on 15 April.

Counsel presented a note from appellant’s doctor, which stated that he saw appellant on 13 ⁵⁷³ April and treated him for bronchitis on that day, and he also saw and treated appellant for an ear condition on 16 April. The court next took testimony from Linda Hopkins, the Assistant Director for the Central Assignment Division of the Court. Ms. Hopkins testified that her notes reflected that she telephoned appellant’s office on 13 April 1998 and, because appellant was not available, she told a secretary that there was no judge available to start the trial on the 14th and explained the court’s procedure in such cases. Her notes reflected that Mr. Hermina called her back later in the day, and she repeated the procedure to him, as follows: When we don’t have a Judge to start the case, we can tell them that the case had to go on standby.

We request the attorneys stay in the office and notify their client and any witnesses and tell them not to come into court and to please be available if we need to call. And we tell them, if you don’t hear from us by noon, they are to call our office at four o’clock the next day to see if it would be on the assignment for the following day. We tell everybody this. And that we would allow an hour travel time.

On cross-examination, Ms. Hopkins admitted that she was unaware that appellant’s brother was his partner, so that, when she received a call from Mr. Hermina on the 13th, she assumed she was speaking to appellant. Appellant then testified. His recollection conflicted with Ms. Hopkins’s testimony. He said that he called the assignment office on the 13th to report that he was sick and to ask about the procedure followed by the court.

He was told that for lack of a judge to begin the trial on the 14th the case was on standby. He understood that he would be notified when the case was reset for trial. He never received notice that the case was set for trial on 15 April. He stated that, in any event, he was too ill to appear on the 15th.

He assured the court that he had not intended any disrespect. There was also testimony from J. Joseph Curran, III, another attorney involved in the case, to the effect that appellant’s brother, in a telephone conversation on 14 April, ⁵⁷⁴ told him that appellant was in the Circuit Court for Baltimore County. George Hermina, appellant’s brother, then testified. He admitted that in his conversation with Mr. Curran on 14 April he indicated that his brother might be at the courthouse in Towson.

He also admitted that he did not tell Mr. Curran that appellant was ill, because he did not want his brother to be harassed at home by appellees’ attorneys.. He assumed that, if it were important and the judge wanted to get in touch with appellant, he would get a call from the judge’s office. At the conclusion of all the testimony, the judge found appellant guilty of direct civil contempt, which could be purged by paying $8,500 to Mr. Freedlander, that sum being the amount of expenses that he had incurred or would incur “as outlined on Page six of his memorandum in support of his Motion for Sanctions.” The judge also found “beyond a reasonable doubt that Mr. Hermina has the ability to pay $8,500,” and that those expenses were reasonable. A written Order of Contempt was later filed, along with his “decision,” or comments.

At appellant’s request, those comments were sealed. DISCUSSION Appellant presents the following assertions of error: I. The court did not follow appropriate procedures as mandated by the rules in holding the attorney in contempt. A. The court was in error in allowing a motion by a party to seek a finding of direct and criminal contempt. B. The court was in error in finding a direct civil contempt.

C. The court was in error in not requiring notice to the alleged contemnor as to whether the court was considering civil or criminal, direct or constructive contempt. ⁵⁷⁵ D. When the Movant called upon the court to consider his personal knowledge, the court was in error in not recusing himself and referring the hearing to another judge. E. The court was in error in failing to specify the evidentiary facts known to the court and any other evidentiary facts not so known in the written order which formed the basis of the court’s finding.

II

The court was in error in considering statements in motions and other evidence that had nothing to do with the attorney’s failure to appear for trial.

III

The disdain that the court demonstrated in finding the attorney in direct civil contempt demonstrates bias, anger, or an emotional response such that the judge should have recused himself and referred the hearing to another judge.

IV

The court was in error in the finding of the amount of attorneys’ fee that constituted the sanction. Appellees, in addition to responding to appellant’s assertions of error, contend that the appeal should be dismissed because appellant did not appeal in his own name. We shall address that contention first, before proceeding to consider appellant’s complaints. I. The Notice of Appeal filed by appellant was “as to all rulings made by [the presiding judge], including those made on or about July 29, 1998 and including those rulings relating to civil contempt in the above captioned case.” It was signed: Respectfully Submitted, The Plaintiff, By [signature ] John W. Hermina The rulings adverse to appellant’s clients, Messrs.

Alalfey and Griggs (who were defendants, not “Plaintiff’), ⁵⁷⁶ were interlocutory and, therefore, not appealable. The contempt judgment against Mr. Hermina, however, was a final and appealable judgment. At common law, there was no right of appeal in contempt cases. Harford County Education Association v. Board of Education, 281 Md. 574 , 380 A.2d 1041 (1977); Tyler v. Baltimore County, 256 Md. 64 , 259 A.2d 307 (1969).

By statute (Maryland Code (1974, 1998 Repl.Vol.), § 12-304(a) of the Courts and Judicial Proceedings Article (C.J.)), however [a]ny person may appeal from any order or judgment passed to preserve the power or vindicate the dignity of the court and adjudging him in contempt of court, including an interlocutory order, remedial in nature, adjudging any person in contempt, whether or not a party to the action. Appellees correctly point out that the statutory right to appeal from a contempt judgment is conferred on the person adjudged to be in contempt, and that Mr. Hermina did not appeal in his own name; he signed the notice of appeal only as counsel for his clients, who have no standing to appeal their attorney’s adjudication of contempt. Nevertheless, the notice of appeal, despite its defects, specifically stated that the adjudication of contempt was being appealed, together with other rulings in the case that were not appealable. As the Court of Appeals pointed out in Newman v. Reilly, 314 Md. 364, 383 , 550 A.2d 959 (1988), “[t]he Maryland Rules do not regulate the content of an order for appeal to the Court of Special Appeals.” In Newman v. Reilly, the Circuit Court for Washington County, after dismissing a medical malpractice action brought by Luke R. Reilly against Dr. George C. Newman, II, and others, granted Dr. Newman’s motion for sanctions, pursuant to Md. Rule 1-341, finding that the claim had been filed without substantial justification.

The court entered separate judgments against Reilly and his attorney, Daniel M. Zerivitz, in the amount of $10,583 each. Mr. Zerivitz filed an order of appeal in the following language: ⁵⁷⁷ Please enter an appeal on behalf of the Plaintiff to the Court of Special Appeals from the Judgment, in the above captioned matter, in favor of the Defendant[.] Id, at 382, 550 A.2d 959 . This Court held, inter alia, that the appeal in that case was an appeal on behalf of Reilly only, and was not an appeal of the separate judgment against Zerivitz. The words in the order for appeal, “on behalf of the Plaintiff,” and “Judgment,” were interpreted by this Court as words of limitation that circumscribed the scope of a timely (and as seen by the Court of Appeals, a meritorious) appeal.

The Court of Appeals, reversing this Court on that point, held that the right of an attorney sanctioned under Md. Rule 1-341 to appeal is as a “party,” under C.J. § 12-301, which provides that “a party may appeal from a final judgment entered in a civil ... case by a circuit court,” except as provided in § 12-302. The language regarded by this Court as limiting the appeal to the judgment against the plaintiff, Reilly, was deemed by the Court of Appeals to be gratuitous surplusage. The Court noted that, [i]f Zerivitz had signed, as attorney for the plaintiff, a paper reading, “Please note an appeal to the Court of Special Appeals” and the paper were filed within thirty days of the entry of the sanctions judgments, the legal effect would have been to bring up for appellate review all appealable judgments in the case. 314 Md. at 383 , 550 A.2d 959 . The Court stated, “Our cases, and those of the Court of Special Appeals, have generally been quite liberal in construing timely orders for appeal.” Id. at 386 , 550 A.2d 959 .

After reviewing a few of such cases, the Court commented: The philosophy of these cases is also reflected in the Notes of the Advisory Committee on the Federal Rules of Appellate Procedure, 1979 amendment, Note to Rule 3, subdivision c: “Because of the fact that the timely filing of the notice of appeal has been characterized as jurisdictional ... it is ⁵⁷⁸ important that the right to appeal not be lost by mistakes of mere form. In a number of decided cases it has been held that so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with.” Id. at 387-88 , 550 A.2d 959 . Adopting the reasoning of Newman v. Reilly, supra, and the “liberal” philosophy embraced therein, we hold that the notice of appeal filed by Mr. Hermina in this case was sufficient to constitute an appeal by him from the contempt judgment. It was timely filed; he had a right to appeal under C.J. § 12-304(a); and if he had merely signed and filed a paper stating, “Please note an appeal to the Court of Special Appeals,” the legal effect of that paper would have been to bring up for appellate review the sole appealable judgment in the case.

We shall treat the rest of the language in his order of appeal as surplusage that did not limit or circumscribe the scope of the appeal.

II

We need not address all of appellant’s assertions of error. He contends, and we agree, that the lower court did not follow appropriate procedures in holding him in contempt. For that reason, we shall reverse the judgment of the circuit court. A contempt may be either direct or constructive and either civil or criminal.

Consequently, a contempt may be direct and civil, or direct and criminal, or constructive and civil, or constructive and criminal. Under which of those classifications a contempt falls may be of the utmost importance, but the proper classification may be difficult to discern. Pearson v. State , 28 Md.App. 464, 481 , 347 A.2d 239 (1975). The line between civil and criminal contempt is often indistinct; the same act may constitute both or at least embrace aspects of both.

Tyler v. Baltimore County, supra. Md. Rule 15-202, however, provides the following definitions of constructive and direct contempts: ⁵⁷⁹ (a) Constructive contempt. “Constructive contempt” means any contempt other than a direct contempt. (b) Direct contempt. “Direct contempt” means a contempt committed in the presence of the judge presiding in court or so near to the judge as to interrupt the court’s proceedings. A direct contempt, either civil or criminal, may be summarily punished by the court against which the contempt has been committed if (1) the contempt has interrupted the order of the court and interfered with the dignified conduct of the court’s business, and (2) the presiding judge has personally seen, heard, or otherwise perceived the contemptuous conduct and has personal knowledge of the identity of the person who committed it.

Md. Rule 15-203(a). An attorney’s unjustified failure to attend court at the time appointed is misbehavior by an officer of the court and is punishable as contempt. Kandel v. State, 252 Md. 668 , 250 A.2d 853 (1969); Murphy v. State, 46 Md.App. 138 , 416 A.2d 748 (1980). Since such contempt is committed in the presiding judge’s presence and disrupts the scheduled proceedings before the court, it may be punished summarily.

Kandel v. State, supra; Murphy v. State, supra. Summary contempt proceedings, however, “are only proper in cases where the action of the alleged contemnor poses an open, serious threat to orderly procedure that instant, and summary punishment, as distinguished from due and deliberate procedures, is necessary.” State v. Roll and Scholl, 267 Md. 714, 733 , 298 A.2d 867 (1973). If an attorney disrupts the orderly proceedings by arriving late, summary punishment may be imposed immediately upon his arrival, as it was in Kandel . But if, as in this case, the attorney fails to appear and the trial is simply postponed, there is no need for summary punishment.

The rules of procedure do not attempt to define civil contempt and criminal contempt or to distinguish between them. In State v. Roll and Scholl, supra, the Court of Appeals, after briefly summarizing the historical development of the law of contempt, explained: ⁵⁸⁰ Today, contempts are classified as civil or criminal and at least in theory either of these may be direct or constructive. The various categories are not mutually exclusive and in fact the nomenclature assigned to a contempt involves both classes, e.g., a constructive civil, or a direct criminal contempt. Historically, criminal contempts were positive acts which offended the dignity or process of the court.

Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders. The people were considered as the real interested parties to prosecution and the State was generally the prosecutor.... Today, the line between civil and criminal contempt is frequently hazy and indistinct. Often the same acts or omissions may constitute or at least embrace aspects of both.

Tyler v. Baltimore County, 256 Md. 64 , 259 A.2d 307 (1969). When this is the case, an alleged contemnor may be answerable in either a civil or criminal contempt proceeding. But, in this State, the distinction between the two types of contempt has been preserved and is important. A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties.

These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive.

In this State, to these factors must be added the degree of proof required to establish a contempt — a civil contempt need be proved only by a preponderance of the evidence, while a criminal contempt must be shown beyond a reasonable doubt. Id. at 727-28, 298 A.2d 867 . (Citations omitted.) It would seem, from the above quoted language in Boll and Scholl, that an attorney’s unexcused failure to appear for the ⁵⁸¹ scheduled trial of a case in which he is counsel for one of the parties is a criminal contempt. It offends the process of the court, and punishment for it tends to vindicate the authority and power of the court rather than to compel future obedience to an order or decree primarily made to benefit a party or parties to a case.

Certainly, as their titles clearly indicate, Kandel v. State and Murphy v. State were direct criminal contempt cases. There is, however, other language in Roll and Scholl that casts some doubt on the above quoted description of the distinguishing characteristics of civil contempt. The Court referred to Judge Barnes’s opinion in Winter v. Crowley, 245 Md. 318 , 226 A.2d 304 (1967), which “delineated the basic criteria applicable in this State for determining if a proceeding was for civil contempt.” The Court stated that [t]he five