Bond v. Slavin

• Decision Date: 18 June 2004
• Docket Number: No. 203,203
• Citation: 851 A.2d 598,157 Md. App. 340
• Parties: William C. BOND v. William H. SLAVIN, et al.
• Court: Court of Special Appeals of Maryland

851 A.2d 598

157 Md. App. 340

William C. BOND v. William H. SLAVIN, et al.

No. 203, Sept. Term, 2003.

Court of Special Appeals of Maryland.

June 18, 2004.

Howard J. Schulman (Schulman & Kaufman, LLC, on brief), Baltimore, for appellant.

Caroline A. Griffin (McDaniel & Griffin, on brief), E. Hutchinson Robbins, Jr. (Miles & Stockbridge PC, on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., EYLER, DEBORAH S., JOHN J., BISHOP, JR., (Retired, specially assigned), JJ.

MURPHY, C.J.

This appeal from the Circuit Court for Baltimore City presents issues that are usually resolved by agreement of the parties and/or counsel.¹ Unfortunately, for reasons that are of no consequence to our resolution of these issues, neither the parties nor their counsel could reach an agreement, and their failure or refusal to do so has resulted in two appeals, the second of which is No. 1042, September Term, 2003. For the reasons that follow, we hold that William C. Bond (Mr. Bond), appellant, is entitled to a hearing on the issue of whether the circuit court should enter a protective order that would prohibit the unauthorized disclosure of financial records produced in a domestic relations case, and we remand for further proceedings not inconsistent with this opinion. In No. 1042, we hold that the award of counsel fees to William H. Slavin (Mr. Slavin) and Bank of America (the Bank), appellees, must be vacated as premature.

Background

Appellant is currently married to Alyson Bond (Mrs. Bond), who was formerly married to Mr. Slavin. Mrs. Bond and Mr. Slavin have two minor children from their previous marriage and have been involved in support, custody, and other litigation for several years.² The case at bar stems from Mr. Slavin's petition for change of custody and child support. A hearing on that petition was scheduled to be held on February 18, 2003.

On January 24, 2003, Mr. Slavin's attorneys issued a subpoena duces tecum to the Bank, requiring that a custodian of records or a corporate designee appear at the February 18th hearing and produce certain of Mrs. Bond's financial records—including Mr. and Mrs. Bond's joint accounts.³ A copy of the subpoena was mailed to Mrs. Bond's counsel. On or about January 27, 2003, Mr. Slavin's attorneys filed a Certificate of Service certifying that the lawyer for the account holder had been notified that the subpoena had been issued.⁴ Mr. Slavin's counsel notified a representative of the Bank that no Bank employee would have to appear at the hearing if the records were forwarded directly to her. On February 14, 2003, before it received any objection to disclosure of the records, the Bank delivered the subpoenaed records directly to Mr. Slavin's counsel. A snowstorm caused a postponement of the February 18, 2003 hearing, which was rescheduled to June 23, 2003.⁵ Appellant objected to the disclosure of any joint account records.⁶

On March 11, 2003, appellant filed Motions For a Protective Order and a Restraining Order,⁷ requesting that (1) Mr. Slavin's counsel be ordered to place in the custody of the court all original copies and other copies of appellant's records obtained from the Bank, and make no direct or indirect use of those records or the information contained therein for any purpose unrelated to the litigation;⁸ and (2) the Bank be ordered to cease any further production of appellant's banking records.⁹ Appellees responded by arguing that appellant's motions were incorrectly filed, frivolous, and without merit.¹⁰ In addition, Mr. Slavin requested an award of counsel fees.

On April 2, 2003, after mistakenly entering an order granting appellant's motions and thereafter "striking" that order, the circuit court entered orders that (1) denied appellant's motions and (2) provided that counsel for Mr. Slavin "may submit a petition for expenses, including attorney's fees pursuant to Md. Rule 1-341." The April 2, 2003 orders were docketed in the domestic violence case on April 7, 2003. On April 17, 2003, appellant filed a Notice of Appeal,¹¹ but did not pay the required filing fee until June 16, 2003.¹² The circuit court clerk did not docket the notice until June 11, 2003.¹³

On May 5, 2003, Mr. Slavin filed a Petition for Expenses. On June 12, 2003, the circuit court entered an order requiring appellant's lawyers to pay $6,024.94 in attorney's fees to Mr. Slavin's counsel. On June 19, 2003, appellant filed a Motion to Alter or Amend the sanction award and a request for a hearing on that motion.

Appellant also filed Motions for Protective Order and for Restraining Order (renamed Motion for Injunctive Relief) in the child custody case.¹⁴ On June 23, 2003, the circuit court denied those motions, declaring them moot, and instructed appellees to submit additional petitions for attorney's fees. Through an order entered June 26, 2003, the circuit court denied appellant's Motion to Alter or Amend the June 12, 2003 order.

On July 29, 2003, the circuit court entered an order that (1) memorialized its June 23rd rulings, and (2) awarded additional attorney's fees to Mr. Slavin, in the amount of $1,714.04, and to the Bank, in the amount of $956.25. On July 30, 2003, appellant filed a third Notice of Appeal,¹⁵ this one in the child custody case. Appellant's first Notice of Appeal has resulted in the case at bar, No. 203, September Term 2003. His third Notice of Appeal has resulted in Case No. 1042, September Term, 2003, in which we address issues involving orders entered subsequent to the date on which appellant filed his first appeal.¹⁶ Appellee's Motions to Dismiss

I. The Filing Fee Issue

The Orders at issue were signed on April 2, 2003 and entered on April 7, 2003. Appellant's Notice of Appeal was received by the Clerk of the Circuit Court on April 17, 2003, and was date-stamped at 12:29 p.m. Although the Notice was filed that day,¹⁷ the Clerk did not docket the Notice until June 11, 2003. According to appellees, because appellant did not pay the filing fee until June 16, 2003, Md. Rule 8-201 requires that his appeal be dismissed.¹⁸ We reject the argument that an appeal is not actually filed until the filing fee is paid.¹⁹

According to MD.CODE, CTS. & JUD. PROC. § 2-201(b) (2003), the clerk has no duty "to record any paper filed with him [or her]" until costs are paid.²⁰ We are persuaded that to "record" means to "docket," rather than to "file." If an appellant fails to pay the filing fee, the clerk is not required to docket the Notice, but the clerk is required to file it.²¹ "The only authority that a clerk has to refuse to accept and file a paper presented for filing is that contained in Md. Rule 1-323." Director of Fin. v. Harris, 90 Md.App. 506, 511, 602 A.2d 191 (1992).

"The date that a pleading or paper is `filed' is the date that the clerk receives it...." PAUL V. NIEMEYER & LINDA M. SCHUETT, MARYLAND RULES COMMENTARY 47 (3d.ed.2003). "A pleading or paper is filed by actual delivery to the clerk...." Id. Rule 8-201 does not provide that failure to pay the filing fee prohibits a Notice of Appeal from being "filed." We therefore hold that, except for notices of appeal that fail to comply with the certificate of service requirement of Md. Rule 1-323,²² the notice of appeal is filed on the date that the clerk receives the notice, not the date on which the clerk receives the filing fee.

In the case at bar, (1) the circuit court did not strike the Notice, and (2) appellees did not move to have it stricken. Those actions are permitted under Rule 8-203(a)(3). Furthermore, the clerk actually filed the Notice before receiving the fee. There is no evidence whatsoever that (1) appellees were prejudiced by the late payment of the fee, or that (2) the course of the appeal was delayed in any way.²³ While we recognize that it is generally within our power to dismiss an appeal if the appeal was not properly taken pursuant to Rule 8-201,²⁴ it is the practice of this Court to decide appeals on the merits rather than on technicalities. We hold that appellant's Notice of Appeal satisfied the requirements of Rule 8-201, and therefore deny appellees' motion to dismiss the appeal on the ground of appellant's tardy payment of the filing fee.

II. Jurisdiction and Mootness Issues

Mr. Slavin argues that this Court does not have jurisdiction over the circuit court's denial of appellant's Motion for a Temporary Restraining Order. We disagree. Under C.J. § 12-303(3)(iii), a party may appeal from an order refusing to grant an injunction. Maryland Rule 15-501(c) defines a "temporary restraining order" as an "injunction granted without opportunity for a full adversary hearing on the propriety of its issuance." (emphasis added). The circuit court's refusal to grant appellant's temporary restraining order is an appealable order, and this Court has jurisdiction to address it.

The Bank argues that the issues presented in this case are moot because (1) the Bank has already disclosed appellant's financial records to Mr. Slavin's counsel, and (2) it is too late to provide a remedy. In Estate of Martin Luther King, Jr., Inc. v. CBS, Inc., 184 F.Supp.2d 1353 (N.D.Ga.2002), the United States District Court for the Northern District of Georgia held that the failure to file two depositions under seal did not render moot a subsequently filed motion to seal the depositions, even though (1) the unsealed depositions had been placed in the court's public file, and (2) the file had been transferred to a federal public storage facility. Id. at 1365-67. We agree with that analysis, and shall apply it in the case at bar.

Appellees also argue that, because Mr. Slavin and Mrs. Bond have settled the custody and child support issues that prompted the request for financial records, this case has become moot.²⁵ Appellate courts generally do not decide academic or moot questions. There are, however, "`rare instances,'" in which "`the urgency of establishing a rule of future conduct in matters of important public concern is...