Kerpelman v. Barrash

Melvin, J., delivered the opinion of the Court. In March 1972, the appellant (plaintiff below), Leonard J. Kerpelman, Esquire, an attorney at law, represented Lily F. Barrash in a suit for separate maintenance that she brought ¹⁹ against her husband, Frank M. Barrash, the appellee (defendant below) in the instant proceedings. In the suit she also asked for an allowance of counsel fees. The husband countered with a cross-bill in which he sought a divorce a mensa et thoro grounded upon allegations that the wife “did on or about February 29, 1972, and without any just cause or reason, abandon and desert . ..” him.

On June 22, 1972, the case came on for trial on the merits. On June 23, 1972, the chancellor passed a decree granting the husband a divorce a mensa et thoro and dismissing the wife’s bill of complaint. On 24 July 1972, the wife filed a petition seeking a rehearing under Rule 690 and revision of judgment under Rule 625. From an order denying the petition the wife appealed to this Court.

In an unreported opinion (Barrash v. Barrash, No. 657, Sept. Term 1973, filed April 8, 1974), after finding that the evidence supported the trier of facts in his conclusion that the wife had deserted the husband and that there was “no showing of a colorable meritorious defense or of a colorable right to relief under her original bill”, we affirmed the order. In the meantime, the husband, after filing a supplemental cross-bill of complaint, had obtained a divorce a vinculo matrimonii, the decree therefor being dated 20 December 1973. The decree reserved for future resolution the question of an award for counsel fees of the wife. 1 On 12 June 1974, Mr. Kerpelman, on behalf of the wife, filed in the divorce proceedings a “Petition for Counsel Fee” asking the chancellor “to award him a reasonable fee for the services he has rendered to the Complainant”. The petition alleged the particular services rendered, the time spent in rendering them (17572 hours) and further alleged “that the sum of $95 per hour would be a fair and reasonable rate of compensation for his particular said professional services, or the sum of $16,672.50”.

The petition further alleged the financial status, respectively, of the wife and the husband. ²⁰ The petition for counsel fees came on for hearing before Judge Marshall A. Levin on 9 September 1974. The transcript of the hearing reveals that at the outset, before any ■ evidence or arguments on the merits of the petition were heard, Mr. Kerpelman said to the court: “If Your Honor please, I wish to dismiss my petition for counsel fee. I intend to proceed instead by an action at law, which would allow me a right of trial by jury.” There then followed a colloquy between the court and both counsel concerning whether the dismissal should be with prejudice or without prejudice. The husband’s counsel urged that dismissal be with prejudice and opined that the issue of counsel fees “was reserved by this Court in its decree of December 20, 1973 ... [and] the issue was before the Court, and if it is dismissed ... it is res judicata and I want that on the Record”.

Mr. Kerpelman responded that he disagreed “that it could be res judicata”. Judge Levin ruled: “Now as to whether it would be res judicata I am not called upon to make that decision at this point and, therefore, I won’t. And, of course, counsel for the ex-wife has the right to withdraw her petition. Now whether it’s a matter that could have been litigated and therefore forecloses her in the future is something as I say I won’t decide.

All I can say is that this Court is ready, willing and able to determine the matter of counsel fee. It is traditional that counsel fee is decided in an equity case and as I say I am available, but if the wife doesn’t want to pursue it, therefore, Mr. Kaufman, will you kindly draw an order dismissing the petition. You will not put in anything to the effect that it’s res judicata.” Judge Levin’s written order following the hearing was as follows: “On September 9, 1974, the above matter came on for hearing on the matter of the petition of Leonard ²¹ J. Kerpelman, Esq., Solicitor for Lily F. Barrash (Kerpelman) for counsel fee, both Kerpelman and Joseph S. Kaufman, Esq., Solicitor for Frank M. Barrash (Kaufman) being present. Upon the oral motion of Kerpelman to dismiss his petition for counsel fee (although the Court was ready, willing and able to determine the matter of counsel fee), it is on September 9, 1974 by the Circuit Court No. 2 of Baltimore City ORDERED that the petition of Kerpelman for counsel fee in the above matter be and the same is hereby dismissed, and it is FURTHER ORDERED that Lily F. Barrash shall pay the costs of these proceedings.” Seven months later, on 17 April 1975, Mr. Kerpelman, on his own behalf, filed a declaration at law against the husband, the appellee herein.

The allegations in the declaration in their entirety read as follows: “The particulars of this case are that the Plaintiff was retained for services pertaining to a domestic case and did so render services to Lilly M. Barrash, wife of Frank M. Barrash, and when the attached invoice was rendered, the Defendant refused payment. And the Plaintiff Claims $16,672.50.” The “attached invoice,” addressed to appellee husband, listed the identical services and time spent as set forth in the petition for counsel fees filed in the divorce proceedings. The declaration was accompanied by a motion for summary judgment “on the ground that the defendant has no defense to the Plaintiffs claim, and that there is no genuine dispute between the parties as to any material fact, and that the plaintiff is entitled to judgment as a matter of law.” Mr. Kerpelman’s affidavit in support of the motion set forth the amount “justly due and owing” and that he “provided services to or for the Defendant, as fully set forth in accompanying documents and statements which remain unpaid”. (Emphasis added). ²² On 7 July 1975, appellee filed a demurrer to the declaration, an “Answer” to the plaintiffs motion for summary judgment, and an affidavit in opposition to the motion.

On the same date appellee filed a motion for summary judgment “pursuant to Rule 610 ... on the ground of res judicata, collateral estoppel and/or election of remedies”. 2 The motion was accompanied by three exhibits: 1) A copy of the