Jenkins v. Cameron & Hornbostel

³²⁰ DAVIS, Judge. The appellant, a member of the Maryland Bar, appeals an award of sanctions against him for abusive discovery. He presents the following issues for our review: 1. Whether the trial court erred in finding that the appellant’s discovery motions were violative of the court’s Protective Order and in awarding sanctions against the appellant. 2.

Whether the trial court abused its discretion in ruling that the appellant violated Maryland Rule 1-341 and in awarding attorney’s fees, as a matter of law. Facts The defendant (Husband) retained the appellant as his attorney in a contested divorce proceeding. The underlying divorce proceedings had been at issue for approximately fifteen months before the appellant entered his appearance on behalf of the Husband. The plaintiff (Wife) had filed simultaneously a complaint for divorce and a Petition for Protective Order alleging fraud, bigamy, alcohol and drug abuse on the part of Husband, and seeking a Use and Possession Order and a Domestic Stay Away Order.

The Wife also filed Interrogatories, Request for Production of Documents, and a Request for Admissions. As a result of these filings, Wife was awarded a temporary ex parte protective order against physical abuse. The trial judge, on February 5, 1990, ordered appellant’s predecessor to comply with plaintiff’s request for Production of Documents and Admissions of Fact within fifteen days. If he failed to comply, the matters contained in the Request for Admissions of Fact would be deemed admitted, the defendant’s pleadings would be stricken, the counter-complaint dismissed, and judgment by default would be entered.

On February 20, 1990, the defendant responded. After acrimonious exchanges in the pleadings concerning defendant’s alleged failure to comply with discovery requests, defendant’s counsel, on October 10, 1990, simultaneously filed a Request for Admissions of Fact containing ³²¹ seventy-six items and a set of Interrogatories containing thirty questions. Wife responded on November 6, 1990 to Husband’s Request for Admissions; and, on November 12, 1990, Wife responded to Interrogatories which had been propounded by Husband. On January 8, 1991, Husband’s counsel filed Requests for Production of Documents and, on January 17, 1991, submitted his Motion to Compel Discovery and Order Admission of Facts.

Wife complained, in her Opposition to Motion to Compel filed on January 22,1991, that she had responded to “defendant’s voluminous requests for admissions” on November 6, 1990 and answered interrogatories on November 12, 1990. Her pleading further asserts that, when counsel protested that he had not received the documents and could not find them in the court files, her counsel forwarded another copy to Husband’s counsel and the court. On January 28, 1991, Wife filed her response for Production of Documents. On March 13, 1991, the lower court granted the motion for Husband’s counsel to strike his appearance and, on February 13, 1991, appellant entered his appearance.

The March 11, 1990 1 trial date was continued and ordered rescheduled by the Assignment Office. After the entry of appellant’s appearance, he requested and was granted a continuance, in order to allow him time to prepare. On or about March 1, 1991, Wife filed a second Petition for Protective Order, seeking relief from Husband’s alleged abusive discovery. The petition asserted that Husband attempted to overwhelm Wife with unnecessary requests for discovery that had been answered previously.

On March 4, 1991, Husband was served with the second protective order as well as Wife’s discovery requests. Husband alleged that, although he had complied with all of Wife’s discovery requests, she had failed to answer any of his requests. Husband then filed two Motions to Compel Dis ³²² covery (one compelling the Production of Documents and another compelling the answering of Interrogatories). On February 26, 1991, the appellant had filed a notice to take the deposition of Wife and requested that Wife bring with her, among other things: (1) all records previously requested in Defendant’s Request for Production of Documents, (2) all documents received since the pendente lite hearing, and (3) supplemental responses to Interrogatories and Requests for Production of Documents.

On April 9,1991, the trial court denied both of Husband’s motions and granted Wife’s second Petition for Protective Order, ordering “that [Wife] be excused from answering all further interrogatories or requests for production from [Husband]” and further ordering “that [Husband] is barred from engaging in any further abusive discovery, including further interrogatories and requests for production from [Wife].” On or about April 15, 1991, the appellant took the deposition of Wife and inquired as to whether she had brought the requested documents. She replied that she had not, and the deposition continued. The appellant subsequently filed a Motion to Reconsider the court’s second Protective Order. As a part of its Opposition to the Appellant’s Motion for Reconsideration, the appellee, on behalf of Wife, also filed a Motion for Sanctions in the form of attorney’s fees, citing, as its basis for relief, the appellant’s violation of the court’s order against “further abusive discovery.” In granting the appellee’s Motion for Sanctions, the trial court found that the appellant had attempted to use both the deposition and a separate subpoena duces tecum for a Master’s hearing to obtain documents from Wife, in direct violation of the court’s protective order against further requests for documents.

With respect to the appellant’s Motion for Reconsideration, the court noted that the appellant had filed the motion on Thursday, April 25, 1991 and, as previously mentioned, served Wife with a subpoena duces tecum on Friday, April ³²³ 26, 1991 for a Monday, April 29, 1991 Master’s hearing. The court also found that the appellant purposely did not send the court a copy of the motion, in order that he might have the opportunity to argue at the Master’s hearing that there was currently a Motion for Reconsideration pending (since the court could not rule on a motion it had not received), in hopes of swaying the Domestic Master. The trial court found that the appellant acted with a total disregard for the order of the court and found that his actions amounted to “abusive discovery.” Consequently, the court awarded sanctions in the amount of $3,500.00, which represented the cost to Wife associated with her response to appellant’s discovery requests, the appellant’s Motion to Compel, and Wife’s Motion for Protective Order. Legal Analysis Maryland Rule 1-341 states: In any civil action, if the court finds that the conduct of any party in maintaining or defending any proceeding was in bad faith or without substantial justification the court may require the offending party or the attorney advising the conduct or both of them to pay the adverse party the costs of the proceeding and the reasonable expenses, including reasonable attorney’s fees, incurred by the adverse party in opposing it.

Sanctions, however, should not be imposed arbitrarily, but are “an extraordinary remedy [reserved for] intentional misconduct." Talley v. Talley, 317 Md. 428, 438 , 564 A.2d 777 (1989) (emphasis added). Moreover, sanctions should not be imposed simply because a cause of action avows a “misconceived legal basis upon which relief is sought,” Black v. Fox Hills North Community Ass’n, Inc., 90 Md.App. 75, 83 , 599 A.2d 1228 (1992), quoting Hess v. Chalmers, 33 Md.App. 541, 545 , 365 A.2d 294 (1976), or urges a legal theory which was not adopted by the court, Black [90 Md.App.] at 83, 599 A.2d 1228 , citing Dixon v. DeLance, 84 Md.App. 441 , 579 A.2d 1213 (1990). As Judge Moylan stated in Black , “Rule 1-341 sanctions should be ³²⁴ imposed only when there is a clear [and] serious abuse of judicial process.” Id. at 83 , 599 A.2d 1228 . Before imposing sanctions under Rule 1-341, the trial court must make an evidentiary finding that the subject pleading either (1) was filed in bad faith or (2) lacked substantial justification.

Johnson v. Baker, 84 Md.App. 521, 528 , 581 A.2d 48 (1990); Legal Aid Bureau, Inc. v. Bishop’s Garth Associates Ltd. Partnership, 75 Md.App. 214, 220, 540 A.2d 1175 (1988). On appeal, the court’s evidentiary finding will be reviewed under a clearly erroneous standard. Judge Alpert, writing for this Court in Johnson, supra, iterated that “conduct lacks substantial justification when there is no basis in law and/or fact to support the plaintiff’s claim against the defendants who seek fees and costs.” Id. [84 Md.App.] at 529, 581 A.2d 48 . As to bad faith, the Court of Appeals has defined the term as it applies to Rule 1-341 in Inlet Associates v. Harrison Inn, 324 Md. 254, 268 , 596 A.2d 1049 (1991): “In bad faith” means vexatiously, for the purpose of harassment or unreasonable delay, or for other improper reasons.

See Roadway Exp. Inc. v. Piper, 447 U.S. 752, 766 , 100 S.Ct. 2455 [2464], 65 L.Ed.2d 488, 501 (1980); Johnson v. Baker, 84 Md.App. 521 , 581 A.2d 48 , cert. denied, 322 Md. 131 , 586 A.2d 13 (1990). In Johnson v. Baker, supra, at page 531, 581 A.2d 48 (citations omitted), this Court wrote: Previously, we had said that “[u]nder Rule 1-341, ‘bad faith,' in some circumstances, may include an action taken for the purpose of causing an unjustifiable delay.” Thus, “[t]he bad-faith exception for the award of attorney’s fees is not restricted to cases where the action is filed in bad faith ... but may be found ... in the conduct of the litigation.” Generally, the “[m]isuse of a pleading ... amounts to bad faith.” In the case before us, the trial court found that the appellant engaged in “intentional misconduct” and violated ³²⁵ the trial court’s protective order by (1) taking Wife’s deposition as a vehicle to request production of documents covered by the court’s protective order, (2) issuing a subpoena duces tecum to Wife, and (3) filing his Motion for Reconsideration in bad faith. We hold that the trial court’s finding that appellant engaged in abusive discovery and the court’s award of sanctions against the appellant were not clearly erroneous and thus affirm.

Violation of Protective Order On April 9, 1991, as noted, the court granted plaintiff’s motion for a protective order. The order specifically stated that the court had “found that Defendant and his counsel have engaged in abusive discovery” and further barred defendant “from engaging in any further abusive discovery, including further interrogatories and requests for production from Plaintiff.” Although appellant now argues that he did not believe that the court’s ruling prevented him from seeking the same documents from plaintiff by deposition, in his motion for reconsideration of the protective order filed on April 25, 1991, he maintained that the April 9 protective order barred the defendant from “engaging in any further discovery, including Production of Documents____” On May 16, 1991, appellant moved for a continuance of the hearing on the motion to reconsider and on the plaintiff’s motion for sanctions. Thereafter, on May 20, 1992, when he appeared before the trial judge at the sanctions hearing, appellant withdrew his motion for continuance. Appellant was aware that he had until May 17, 1991, to respond to plaintiff’s motion for sanctions.

Additionally, appellant’s memorandum in response to plaintiff’s motion for sanctions admits that he subpoenaed documents possessed by plaintiff from third parties and he nevertheless issued a subpoena duces tecum for the same documents to be produced at trial. On April 29-30, 1992, at the hearing on the merits, when plaintiff was cross-examined on the issue of the court’s ³²⁶ protective order, plaintiffs counsel pointed out that the requested documents had been denied per the protective order. When the Master inquired of appellant why he wanted the records and asked whether “these are the same documents that have basically been the subject of a protective order with [the trial judge],” appellant replied, “Some of them yes and some of them no.” Appellant later conceded to the lower court that they were the same. Appellant argued at the merits hearing that the requested documents were still an “open” question: [APPELLANT]: ...

I understand that [plaintiffs counsel] is saying that he has provided to me everything that he thinks is relevant, but what I am suggesting is that I do not have the ability to pursue this case. THE COURT: Well, as far as I know, there are no issues before me today having anything to do with that. [APPELLANT]: There is a motion to reconsider [the trial judge’s] denial of the request for documents. THE COURT: That has not been raised to me. [PLAINTIFF’S COUNSEL]: I have never seen it, Your Honor. [APPELLANT]: I understand that. It is in the file, and I didn’t expect it to be reached today, but for the record I think that it is still open on the question of [the judge’s] denial of the request for documents.

THE COURT: I think it is going to become moot very quickly if this is a trial on the merits, don’t you? [APPELLANT]: Well, if in fact we conclude it in the next two days. (Emphasis supplied.) The Master was unpersuaded that the documents were relevant. The lower court opined at the sanctions hearing that appellant filed his motion for reconsideration of the protective order with the intention of going to trial with the production of documents still an open question. ³²⁷ Ultimately, at the sanctions hearing, the court found that, after becoming counsel of record for defendant, appellant had been guilty of abusive process: [APPELLANT]: Well, as I understand it, the only things that I have filed since I came on board were the two motions for compelling— THE COURT: And questioned everything that your predecessor did. I have read the file.

You have gone back over that. You have gone over the material he did. You have covered that. You have sent that to them in addition to everything else.

It is abusive. It is beyond the pale. I meant it when I said don’t do it any more and I just said including interrogatories and including motion for production of documents. I said don’t do it in discovery and you did it on a deposition, didn’t you?

(Emphasis supplied.) Thereafter, the court found that the filing of the motion for reconsideration was abusive process. At the sanctions hearing, when the lower court attempted to ascertain appellant’s purpose in filing the motion for reconsideration of the protective order and in not seeking a ruling prior to the merits hearing, the explanation offered was found to be unsatisfactory. The trial judge made a factual finding that appellant had not notified the court of the motion, had made no attempt to get a ruling, and had intended to go to the merits hearing with a motion still outstanding: THE COURT: ... I am absolutely convinced, and I think anyone who reads this record will be convinced, that Counsel abused process by filing it with the full intent that it not be acted upon and that it be — so that he could argue that there was a motion for reconsideration outstanding.

Next, the trial judge found that there was no basis on which to reconsider the protective order. THE COURT: ... I find no basis to reconsider the original order. I am convinced that if Counsel had ³²⁸ sought a ruling, Counsel would have had one prior to the hearing.

Counsel did not seek any ruling, just simply filed it a few days before the hearing and let it lay there. That in itself was an abuse of the Court process because it was used for a purpose other than what process is designed to do. Finally, the court determined that appellant violated the April 9 protective order: THE COURT: Two other instances [of abuse] that I referred to were the orders of this Court. The order of this Court filed on April 11 was directly violated by Counsel.

The actions by Counsel have been abusive in the filings made which led to the original order. The order was specific about what should be done and could be done. The deposition that followed followed [sic] the order. Counsel was aware of the order, yet sought to use the deposition as a mechanism.

The order was very clear. It prohibited all discovery. That includes depositions. Still, the very same discovery was sought to be used and enforced in that deposition.

It was violated at the deposition. It may have been violated at the Master’s hearing, directly violated. The process was used in a way that it is not designed and in total abuse of the Maryland Rules of Procedure and the rules of this Court. Thus, the court found that appellant had violated the court’s order twice.

The trial judge considered issuing an order to show cause why appellant should not be held in contempt of court. The court, however, indicated that it would refer the matter of appellant’s violations of the court’s orders to the Attorney Grievance Commission. The court imposed sanctions of $3,500 on appellant, because it found, on the evidence before it, that the amount awarded had been expended by plaintiff’s counsel “in connection with response to voluminous discovery requests and ³²⁹ abusive discovery by the conduct that lacks substantial justification.” Before a court imposes sanctions, it must make an evidentiary finding of “bad faith” or “lack of substantial justification.” Johnson v. Baker, 84 Md.App. at 528, 581 A.2d 48 . “The existence of bad faith or lack of substantial justification is a question of fact subject to a ‘clearly erroneous’ standard of review.” Id., citing Legal Aid Bureau, Inc. v. Bishop’s Garth Associates Ltd. Partnership, 75 Md.App. 214, 220-21 , 540 A.2d 1175 (1988), and Century I Condominium Association, Inc. v. Plaza Condominium Joint Venture, 64 Md.Ap. 107, 117, 494 A.2d 713 (1985). Moreover, the Johnson court stated that [o]n appeal, the appellate court reviews the propriety of the sanction imposed under an abuse of discretion standard and will not disturb the sanction unless the court abused its discretion.

Johnson, 84 Md.App. at 529 , 581 A.2d 48 . Thus, the existence of “bad faith” or “lack of substantial justification” is a question of fact, the determination of which may be reversed only if it is “clearly erroneous” and there has been an abuse of discretion by the trial court. Appellant contends that “the Protective Order in question is not specific on the issue of depositions.” He insists that if taking the Wife’s deposition is abusive discovery, such a determination is “in violation of the United States Constitution ... [and] the Maryland Declaration of Rights and Rule 2-411.” We disagree. Rule 2-401 defines discovery to include depositions, interrogatories, and the production of documents.

As noted above, the court’s motion barred all further abusive discovery; and because depositions are included, the appellant was in clear violation of the court’s order. Had the appellant simply withdrawn the subpoena or otherwise informed Wife not to bring the requested documents because of the court’s order, the argument could have been made that the court’s order was sufficiently ³³⁰ vague to allow the appellant to depose Wife. Appellant, however, sought to pursue further discovery on the occasion of the scheduled