Kirsner v. Edelmann

ROBERT M. BELL, Judge. On this appeal, Milton F. Kirsner, appellant, challenges the judgment of the Circuit Court for Baltimore City ordering that he pay $500.00 toward the counsel fees incurred by John Charles L. Edelmann, appellee, in defending the action initiated by Kirsner. Also at issue is Edelmann’s Motion for Payment of Cost and Counsel Fee By Appellant, which seeks recovery of counsel fees incurred in the defense of this appeal. We will affirm the judgment below, but because we have not been provided with sufficient information in support of Edelmann’s motion for counsel fees arising on appeal, we will decline to award further counsel fees.

The present appeal had its genesis in an action in ejectment which Edelmann filed against Kirsner in 1978 in the Superior Court of Baltimore City. 1 In that action, Edelmann, the owner of the reversion, alleged that Kirsner, the leasehold owner of 2011 Walbrook Avenue in Baltimore City, failed to pay annual ground rent on the property for three and one-half years despite demand having been made on him. Judgment absolute in favor of Edelmann was entered on March 27, 1979 and a Writ of Possession, pursuant to which the property was delivered to Edelmann’s agent, was issued April 4, 1979. Kirsner’s appeal of that judgment to this Court was dismissed by his then attorney, who allegedly informed Kirsner that he intended to redeem the property in an equity proceeding. On February 20, 1981, almost two years later, Kirsner, now represented by different counsel, filed an equity pro ¹⁹⁰ ceeding against Edelmann in the Circuit Court No. 2 of Baltimore City 2 seeking a return of the Walbrook Avenue property, an accounting, and a judgment for costs and counsel fees.

He alleged that he was entitled to relief because “although your Complainant has tendered a check to redeem the leasehold property and pay all items as outlined in the judgment against him, the Respondent has refused to account for the rents collected and to furnish your Complainant with a final redemption figure” and because the value of the property far exceeded the amount of ground rent in arrears. Edelmann’s response denied Kirsner’s entitlement to relief because the judgment in Edelmann’s favor was not appealed, and because Kirsner did not comply with Md.Code Ann.Real Property art. § 8-402(c)(3). Edelmann requested counsel fees and costs pursuant to Md.Rule 604, (effective July 1, 1984, Md.Rule 1-341) as well as the issuance of an injunction restraining Kirsner from initiating further litigation concerning the property. Bernard Dackman, who had purchased the property from Edelmann, was permitted to intervene as a defendant.

Thereafter, he demurred 3 on the grounds that the Bill of Complaint did not allege facts showing a confidential or fiduciary relationship and “contrary to Real Property Article 8-402, [Kirsner] did not file this proceeding within the six months after execution upon the judgment for possession.” Following a hearing, 4 the court by order dated April 29, 1983, sustained Dackman’s demurrer, dismissed Kirsner’s ¹⁹¹ Bill of Complaint with prejudice, enjoined and restrained Kirsner from instituting further proceedings regarding the property, and referred the matter of counsel fees to the master for a determination of “Whether or not the Bill of Complaint was filed in bad faith or without substantial justification.” Kirsner appealed to this Court. On June 7, 1983, while his appeal was pending, the master conducted a hearing on Edelmann’s request for counsel fees. In addition to arguing, as he had before, that he had timely tendered payment to cover the ground rent arrearages, which was all that § 8-402 required, Kirsner contended that the Circuit Court lacked jurisdiction to hear or decide the counsel fee question due to the pendency of his appeal in this Court. The master rejected both arguments.

Having found that Kirsner brought the suit without substantial justification, she recommended that Edelmann be awarded, pursuant to Md.Rule 604b, $500.00 toward his counsel fees. A hearing was held on Kirsner’s exceptions to the Master’s Report and Recommendation on January 9, 1985. By then, this Court’s opinion dismissing Kirsner’s appeal 5 for failure to comply with Rule 605a (present Md.Rule 2-602) had been filed. Kirsner argued before the trial court as he had before the master, that the Circuit Court lacked jurisdiction to determine the issue of counsel fees and that, ¹⁹² in any event, his action was brought with substantial justification.

The court ruled: I think the Master has given this matter thorough consideration, and that this case certainly falls within the Maryland Rule 604b, that this proceeding was instituted in bad faith or without substantial justification or for purposes of delay. That the Master generously stated it was without substantial justification — may have been all three things. I don’t have to resolve that. Therefore, the court accepted the Master’s recommendation and assessed Kirsner an attorney’s fee of $500.00, payable to Edelmann in respect of his counsel fees.

Kirsner has again appealed to this Court, this time from the judgment awarding counsel fees. While the appeal was pending, but prior to oral argument, Edelmann filed in this Court his Motion For Payment of Cost and Counsel Fee By Appellant. Kirsner’s primary argument is that the trial court lacked jurisdiction to hear and to decide Edelmann’s request for counsel fees. Relying on Staggs v. Blue Cross of Maryland, Inc., 57 Md.App. 576 , 471 A.2d 326 (1984), he asserts that the hearing before the master occurred, and her Report and Recommendation issued, while his appeal was pending in this Court.

Therefore, he continues, the court’s actions and, specifically, its order of January 9, 1985, because based on that Report and Recommendation, were null and void. 6 We disagree. It is well settled that “[ajfter an appeal has been perfected, [the appellate court] is vested with the exclusive power and jurisdiction over the subject matter of the proceedings, and the authority and control of the lower court with reference thereto is suspended.” (emphasis added). ¹⁹³ Lang v. Catterton, 267 Md. 268 , 297 A.2d 735 (1972). See also Buffin v. Hernandez, 44 Md.App. 247 , 408 A.2d 393 (1979) (The holding in Lang applies where the appeal is taken to the Court of Special Appeals). The lower court may act only with respect to collateral or independent matters not relating to the subject of the appeal.

Bullock v. Director, 231 Md. 629 , 190 A.2d 789 (1963), overruled on other grounds, 287 Md. 406 (1980), 4 Am.Jur.2d., Appeal and Error, § 355 (1962). One such matter is the award of counsel fees. Dent v. Simmons, 61 Md.App. 122, 130 , 485 A.2d 270 (1985). When the appellate court has decided the appeal and its mandate has issued, the lower court may again act, albeit only in conformity with the mandate, on those issues which were the subjects of the appeal.

Staggs v. Blue Cross of Maryland, Inc., 57 Md.App. at 578 , 471 A.2d 326 . In the case sub judice, the order of April 29, 1983 did not involve the counsel fee issue and that issue was not raised on appeal. Dent v. Simmons, supra. The lower court specifically reserved that issue, referring it to the master for hearing prior to making any decision on it.

In addition, the hearing before the court was not conducted until after Kirsner’s appeal had been decided and our mandate had issued. Staggs v. Blue Cross of Maryland, supra. A hearing before a master does not supplant the ultimate role of the judge in the judicial process. Dobrow v. Dobrow, 50 Md.App. 465 , 439 A.2d 596 (1982), Ellis v. Ellis, 19 Md.App. 361 , 311 A.2d 428 (1973).

A master is but a ministerial assistant of the judge, who alone can enter a binding judgment, Swisher v. Brady, 438 U.S. 204 , 98 S.Ct. 2699 , 57 L.Ed.2d 705 (1978), which in turn can only be entered following a hearing or review at which the master’s report and findings of facts, the exceptions taken and all relevant facts are considered. See Wenger v. Wenger, 42 Md.App. 596 , 402 A.2d 94 (1979). Thus, the court “acts” only when it hears or reviews the master’s findings. We conclude that the court had jurisdiction to consider and determine the issue of counsel fees and its jurisdiction was ¹⁹⁴ unaffected by the master’s hearing prior to the decision and mandate in Kirsner’s appeal.

Kirsner next attacks the hearing on his exceptions, contending that it “... was short of a trial in that there was no sworn testimony, and the court refused Mr. Fair’s request to have me testify, nor was he able to cross-examine Mr. Rechner ...”. A majority of the judges of a circuit may appoint masters, Md.Rule 2-541(a), 7 and refer to the masters so appointed certain matters, Md.Rule 2-541(c), for hearing and report, which, “[ujnless otherwise ordered, ... shall include findings of fact and conclusions of law and a recommendation”, Md.Rule 2-541(e) and (f). Exceptions to the master’s report may be filed within ten days, Md.Rule 2-541(h)(1), in which event, subsection (i) applies. It provides: Hearing on Exceptions.

The court may decide exceptions without a hearing, unless a hearing is requested with the exceptions or by an opposing party within five days after service of the exceptions. The exceptions shall be decided on the evidence presented to the master unless: (1) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the master, and (2) the court determines that'the additional evidence should be considered. If additional evidence is to be considered, the court may remand the matter to the master to hear the additional evidence and to make appropriate findings or conclusions, or the court may hear and consider the additional evidence or conduct a de novo hearing. Therefore, before the excepting party is entitled to have additional testimony heard two criteria must be met; “...

(1) the excepting party sets forth with particularity the additional evidence to be offered and the reasons why the evidence was not offered before the master, and (2) the court determines that the additional evidence should be ¹⁹⁵ considered.” Kirsner’s exceptions