Tobin v. Marriott Hotels, Inc.

JAMES S. GETTY, Judge, Retired, Specially Assigned. The appellant herein, Charles Michael Tobin, alleges in this appeal that the Circuit Court for Montgomery County erred in imposing a $750.00 sanction, payable to counsel for appellees, for appellant’s failure to attend a court-ordered mediation conference. The relevant facts are as follows. Appellant was co-counsel for the plaintiff in a claim against Marriott Hotels and Montgomery Elevator Company.

In June 1994, the parties agreed to a settlement of plaintiffs claim, and the closing documents were forwarded to appellant’s office in July. Appellant was ⁵⁶⁸ unable to contact the plaintiff, a nonresident, and the settlement papers were never executed. By letter dated October 3, 1994, appellant notified appellees of his inability to locate his client. The Circuit Court for Montgomery County had previously issued an order for mandatory mediation dated August 16, 1994, noting therein that the case was scheduled for trial on October 31.

The mediation conference was scheduled for 9:00 a.m., Thursday, October 13, 1994, at the courthouse. In pertinent part, the Order provided: 1. Upon receipt of this Order, the parties or counsel shall contact each other immediately to confirm calendars. Claim of not receiving notice shall not constitute reason for cancellation. 3.

Personal attendance at the mediation conference and good faith participation is mandatory for all attorneys in this case.... 5. If a settlement is reached prior to the mediation date, the Assignment Office must be notified immediately____ 6. Parties and attorneys are. put on notice that failure to attend and participate in good faith in the mandatory mediation conference without further Court Order cancel-ling or excusing such attendance could result in the imposition of sanctions. Sanctions could take the form of attorneys’ fees and costs to the other side as well as findings of contempt with resulting penalties.

(Emphasis in the original.) Counsel for appellees appeared for the conference on October 13. Appellant did not appear; neither did he inform anyone that he would not appear. Without the benefit of any motion, counsel for appellees appeared before Judge Pincus, seeking sanctions for appellant’s unexplained absence, including dismissal of the action. The court inquired if counsel had attempted to contact appellant and counsel stated that they ⁵⁶⁹ had not done so, 1 but that a clerk in Judge Weinstein’s office had attempted to locate appellant "without success.

The court commented that the Assignment Commissioner who delivered the file to the court had also been unable to reach appellant by telephone. Judge Pincus then assessed counsel fees of $750.00 against appellant after declining to dismiss the case “absent a rule that would allow me to dismiss it for failure to appear at a mediation conference.” Counsel for appellees notified appellant by letter of the $750.00 sanction, suggesting that appellees would forego enforcement of the sanction if a stipulation of dismissal of the underlying case could be executed before the October 19 calendar call. Appellant neither responded nor appeared at the calendar call and the case was dismissed at that time by the court. Appellant’s subsequent efforts to reinstate the case were denied by the court.

The $750.00 sanction was not paid and appellees filed a show cause motion that was heard by the court on June 8, 1995. The trial court did not hold appellant in contempt at the show cause hearing, but instead entered the $750.00 assessment as a judgment, and appellant filed this appeal. Appellant’s explanation for his failure to attend was that he was unaware of the proposed conference. He alleged that the entire case was handled by his co-counsel, who went on maternity leave after the settlement had been agreed upon, and appellant believed his only function was to obtain his client’s signature on the settlement documents.

The firm, however, received notice of the conference. Appellant raises the following issues: 1. Did the court have authority summarily to award counsel fees to opposing counsel for failure of counsel to appear for a court-ordered mediation? ⁵⁷⁰ 2. Was it error for the court to enter judgment and refuse to consider redressing the earlier erroneous imposition of the sanction?

Before considering these substantive issues, there is a preliminary question that needs to be addressed: whether those issues are properly before this Court. The initial assessment of $750 by Judge Pincus was made on October 14, 1994. It was reflected in a written order signed by the judge that day and docketed three days later. The order stated that “Charles M. Tobin, Esquire, counsel for the Plaintiff, be and is hereby sanctioned, assessed and shall pay the sum of seven hundred fifty dollars ($750.00), as attorneys’ fees, payable within 30 days from the date of this Order, to counsel for Defendants.” In Simmons v. Perkins, 302 Md. 232 , 486 A.2d 1192 (1985), the Court held that an order such as this, when entered against a party under former Md. rule 604b (current Rule 1-341) was not immediately appealable under Md.Code, Cts. & Jud.Proc.Art. § 12-303(3)(v), as an order for the payment of money, because it was not “equitable in nature” and did not “proceed directly to the person so as to make [him] directly and personally answerable to the court for noncompliance.” 302 Md. at 236 , 486 A.2d 1192 .

As a result, “imprisonment for contempt is not available to the trial court for any violation of its order that [the party] pay money under Md.R. 604 b.” Id. That view, as to sanctions imposed against parties to the action, was confirmed in Yamaner v. Orkin, 310 Md. 321 , 529 A.2d 361 (1987), and Blake v. Blake, 341 Md. 326 , 670 A.2d 472 (1996). In Yamaner , the Court also held that such an order, when directed against a party, could not be immediately appealed under the collateral order doctrine, although, in a footnote, it expressly reserved judgment on “the appealability under the collateral order doctrine of a sanctions order which is directed to counsel.” 310 Md. at 327 n. 7, 529 A.2d 361 . The Court noted a split among some of the federal circuit courts when considering appeals by attorneys from sanction orders entered under Fed.R.Civ.P. 11. ⁵⁷¹ In Newman v. Reilly, 314 Md. 364 , 550 A.2d 959 (1988), the Court held that an attorney could appeal from an order entered under Md. Rule 1-341 after final judgment had been entered in the case.

As the assessment in Newman was made at the time the trial court dismissed the plaintiffs complaint, there was no occasion in that case to consider whether, had the assessment been made at an earlier point in the litigation, an appeal could have been taken by the attorney under the collateral order doctrine. Judge Pincus did not purport to base the assessment on Rule 1-341, for maintaining or defending a proceeding in bad faith or without substantial justification. He imposed it, instead, for appellant’s disobedience of a court order to attend a mediation conference. The underlying rationale for the assessment, however, would seem to be essentially the same, at least for purposes of determining whether it is appealable by appellant under the collateral order doctrine.

Assuming that to be the case, it would present the interesting question of whether, if such an order were immediately appealable under the collateral order doctrine, an immediate appeal would have to be taken and not delayed until final judgment in the underlying action. One necessary component or element of the collateral order doctrine is that the order be effectively unreviewable if not immediately appealable; it would be anomalous, indeed, to conclude that the order satisfies that test but that the attorney can nonetheless wait until the case is over to appeal. Fortunately, we do not need to resolve that issue in this case. Whether the assessment, as ordered by Judge Pincus on October 14, 1994, could have been appealed under the collateral order doctrine, it surely became appealable when reduced to a money judgment on June 8, 1995.

That order gave it a quality it did not formerly possess; it became a lien on any land owned by appellant and subjected his personalty to seizure through writs of attachment. Appellant’s notice of appeal was filed within 30 days after entry of the judgment on the docket; therefore, the issues subsumed in that judgment are properly before us. It is regrettable, however, in light of ⁵⁷² the nature of his attack on the assessment, that appellant did not raise these issues earlier in the circuit court, but chose instead to wait until a proceeding was brought to hold him in contempt of court to challenge the validity of the underlying assessment. Prudence, it seems to us, would have suggested a motion for Judge Pincus to reconsider his ruling.

The Merits By Order dated June 7, 1994, the Court of Appeals, having considered proposed rule changes submitted by the Standing Committee on Rules of Practice and Procedure in its 124th report, rescinded Rule 2-504 and adopted new Rules 2-504, 2-504.1 and 2-504.2, effective October 1, 1994. On the same date, the Court adopted proposed amendments to Rule 1211. These changes have been characterized as “Management of Litigation” rules designed to expedite and control the orderly flow of civil litigation in the circuit courts. The heart of the program is the development of systems for differentiated case management authorized by Rule 1211b(l), which states, in pertinent part, as follows: “The County Administrative Judge shall develop and, upon approval by the Chief Judge of the Court of Appeals, implement and monitor a case management plan for the prompt and efficient scheduling and disposition of actions in the circuit court.

The plan shall include a system of