Norman v. Sinai Hospital of Baltimore Inc.

HOTTEN, J. Elton F. Norman (“Mr. Norman”) appealed a decision of the Circuit Court for Baltimore City, denying his Motion to Withdraw 2 as counsel from a medical malpractice action filed by Celeste A. Puppolo (“Ms. Puppolo”), personal representative of the Estate of Nancy V. Puppolo (“the Estate”) against appellees, Sinai Hospital of Baltimore, et al. Shortly after Mr. Norman entered his appearance on behalf of the Estate, he filed a Motion to Modify the Scheduling Order, which the court denied. Subsequently, during a pretrial conference, Mr. Norman advanced an oral motion for reconsideration of the court’s scheduling order and an oral motion to withdraw, citing inter alia, lack of preparation and trial experience to try the case. The court denied both motions, holding that Ms. Puppolo appreciated the risk of procuring the late-retained Mr. Norman to her detriment and that Mr. Norman failed to raise any grounds under the ³⁹² Maryland Rules in support of his motion to withdraw. This appeal followed.

Mr. Norman presents the following question for our review: I. Did the [circuit] court abuse its discretion under Maryland Rules and [c]ourt opinions by denying Mr. Norman’s Motion to Withdraw? For the reasons that follow, we shall dismiss Mr. Norman’s appeal. FACTUAL AND PROCEDURAL HISTORY In the underlying action, the Estate sought compensation for damages allegedly caused by Sinai Hospital of Baltimore Inc. and Christine D’Arbela, M.D. (formerly Kajubi) regarding the care and treatment of the decedent, Nancy Puppolo.

The claim was originally filed by Ms. Puppolo, pro se, on January 18, 2011 in the Health Care Alternative Dispute Resolution Office. Ms. Puppolo proceeded pro se in this matter until she retained Lowell J. Gordon, Esquire (“Mr. Gordon”), who entered his appearance on April 11, 2011. Mr. Gordon’s representation was subsequently terminated in August, 2012 for reasons not specified in this appeal. Thomas O’Toole, Esquire (“Mr. O’Toole”) entered his appearance on behalf of the Estate on July 25, 2013.

On December 18, 2013, the court issued an order setting a trial date for the underlying action to begin on July 8, 2014. On May 10, 2014, Ms. Puppolo wrote a letter to Mr. O’Toole, terminating his representation and citing several grievances relative to his performance as counsel. A pretrial settlement conference was subsequently held on May 19, 2014. Appellees were in attendance.

Ms. Puppolo however, failed to appear, without securing prior approval from the court or providing notice to appellees. Thereafter on May 27, 2014, Mr. Norman entered his appearance on behalf of the Estate. On May 30, 2014, Mr. Norman filed a Motion to Modify the Scheduling Order as attorney for the Estate, seeking to postpone the July 8, 2014 trial date to conduct further discovery and allow additional time to prepare for trial. In re ³⁹³ sponse, appellees filed an opposition to the motion and requested the court to move the trial date one day, to July 9, 2014. 3 On July 2, 2014, the court denied the Estate’s motion and the parties were scheduled to appear before a trial judge on July 8, 2014 for a continued pretrial conference.

During the pretrial conference held on July 8, 2014, Mr. Norman argued a Motion for Reconsideration of the denial of the Motion to Modify the Scheduling Order and the oral Motion to Withdraw as counsel. 4 After hearing argument, the court denied both motions. Thereafter, Mr. Norman filed a Notice of Appeal of the court’s denial of his motions. As a result, the trial did not commence on July 9, 2014. Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issues presented.

DISCUSSION Mr. Norman avers that an order denying a motion to withdraw is appealable under the collateral order doctrine. We disagree. The standard of review utilized in considering the appealability of a court’s order denying a motion to withdraw was outlined by this Court in In re Franke, 207 Md.App. 679 , 55 A.3d 713 (2012): [T]he exercise of appellate jurisdiction in Maryland is normally dependent upon a final judgment rendered by the trial court[.] [However,] there are three exceptions to that rule: appeals from interlocutory orders specifically allowed by statute; immediate appeals permitted under Maryland Rule 2-602; and appeals from interlocutory rulings allowed ³⁹⁴ under the common law collateral order doctrine. [In instances when an appeal] is neither allowed by statute nor permitted by [Md.] Rule 2-602 ... we look ... to the collateral order doctrine, in determining the appealability of [a] lower court’s ruling. For an order to fall within that exception: (1) it must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment.

Id. at 685 , 55 A.3d 713 (internal citations and footnotes omitted). The collateral order doctrine is limited in scope. “Maryland caselaw consistently emphasize[s] that the [collateral order] doctrine is to be tightly construed.” Kurstin v. Bromberg Rosenthal, LLP, 191 Md.App. 124, 144-46 , 990 A.2d 594 (2010); see also In re Franklin P., 366 Md. 306, 327 , 783 A.2d 673 , (2001) (stating that the collateral order doctrine is to be applied “only sparingly”); In re Foley, 373 Md. 627, 633-34 , 820 A.2d 587 (2003) (stating that in Maryland, the four requirements of the collateral order doctrine are strictly applied and appeals under the doctrine may be entertained only in extraordinary circumstances). We conclude that the circuit court’s order denying Mr. Norman’s Motion to Withdraw is not appealable because the order satisfied only two of the requirements under the collateral order doctrine. The order issued by the court conclusively determined the disputed question of whether Mr. Norman will continue representation of the Estate and that issue was separate from the merits of the malpractice action.

However, the order did not resolve an “important issue” because there was no evidence of any harm to Mr. Norman by the court’s ruling. Moreover, the order was not effectively unreviewable on appeal because Mr. Norman’s client would still have the benefit of a remedy before a final judgment was rendered. Contra Franke, 207 Md.App. at 688-89 , 55 A.3d 713 ; Cf., Brandon v. Blech, 560 F.3d 536, 537 (6th Cir.2009) ³⁹⁵ (concluding that “[a]n order compelling an attorney to continue work without compensation is just the sort of order the doctrine contemplates []” because “[i]t conclusively determined the withdrawal question, is unrelated to the merits, [and] cannot be rectified after a final judgment [ ]”); Fidelity Nat’l Title Ins. Co. of New York v. Intercounty Nat’l Title Ins.

Co., 310 F.3d 537 (7th Cir.2002) (concluding that an order denying an attorney’s request to withdraw was an appealable order because it satisfied the requirements under the collateral order doctrine); accord Whiting v. Lacara, 187 F.3d 317 (2d Cir.1999); Galloway v. Clay, 861 A.2d 30 (D.C.2004). Mr. Norman contends that pursuant to the holding in Franke , 5 the court abused its discretion by denying the motion to withdraw. Mr. Norman concedes that the case at bar does not involve a matter of compensation as in Franke . However, he asserts that Franke is analogous because “an agreement was reached between attorney and client that was not upheld and it now creates a hardship for the attorney.” In support of this contention, Mr. Norman recounts that, “[he] agreed to participate in this case solely in the role of support counsel,” and as a result, “[b]ased his entire agreement to enter his appearance contingent upon two things: (1) postponement of the trial date; and (2) the client obtaining a lead trial attorney.” Nonetheless, he continues, “as of July 7, 2014, neither has transpired.” Mr. Norman further asserts, For the [c]ourt to deny Mr. Norman the opportunity to withdraw would have a chilling effect on cases where attorneys are willing to play a support role that gives the client ³⁹⁶ more time to find a lead attorney and thus the [c]ourt would create an undue hardship on the supporting attorney.

Even though this is not a matter of compensation as in [.Franke ], in denying Mr. Norman’s [M]otion to [Withdraw, the lower court did not allow the parties to obtain the benefit of their bargain in entering into the retainer agreement and thus created an undue hardship upon Mr. Norman and his client. Mr. Norman’s argument is unpersuasive. The circuit court’s denial did not create undue hardship, and was, in fact, a situation of Mr. Norman’s own doing. Rule 1.16 of the Professional Conduct Rules, Sections (b)(5) and (c), provide, in pertinent part: * * * (b) Except as stated in paragraph (c), a lawyer may