General Motors Corp. v. Koscielski

• Decision Date: 04 October 1989
• Citation: 80 Md.App. 453,564 A.2d 114
• Parties: GENERAL MOTORS CORPORATION v. Anna KOSCIELSKI. 162 Sept. Term 1989.
• Court: Court of Special Appeals of Maryland

Page 453

80 Md.App. 453

564 A.2d 114

GENERAL MOTORS CORPORATION v. Anna KOSCIELSKI.

162 Sept. Term 1989.

Court of Special Appeals of Maryland.

Oct. 4, 1989.

Kevin P. Foy (Birrane, Harlan & Sharretts on the brief), Baltimore, for appellant.

P. Paul Cocoros, Baltimore, for appellee.

Argued before ALPERT, KARWACKI and ROBERT M. BELL, JJ.

ALPERT, Judge.

We are asked to decide whether the circuit court has the authority to order a stay, pending appeal, of the payment of certain legal fees awarded by the Workers' Compensation Commission, as a sanction pursuant to Maryland Code Article 101 § 57. Although we must dismiss the appeal, we believe that it is imperative to state the reasons why the trial court was in error in believing that it did not have authority to stay payment.

The facts in this case are not in dispute. Anna Koscielski, appellee, filed a claim for Workers' Compensation benefits on April 13, 1986, claiming that she sustained an accidental personal injury arising out of and in the course of her employment for General Motors Corporation (GMC), appellant. On November 13, 1987, a hearing was held before the Workers' Compensation Commission ("the Commission"), which found in favor of the appellee. The Commission further found that appellee was temporarily totally disabled from March 26, 1987, through the date of the hearing.

On appeal by GMC, the Circuit Court for Baltimore City affirmed the order of the Commission, and found that appellee was temporarily totally disabled from March 26, 1987, through March 20, 1988. Subsequently, the Workers' Compensation Commissioner issued an order pursuant to the decision of the circuit court, and also ordered the appellant to pay the appellee's attorney's fees regarding the unsuccessful appeal to the circuit court. A hearing was held by the Commission on December 9, 1988, on the nature and extent of the disability and the recommendation of the payment of attorney's fees. On December 12, 1988, the Commission issued an Award of Compensation for permanent partial disability, and once again ordered appellant to pay appellee's attorney's fees, said payment being in addition to, and not deducted from, the appellee's Award of Compensation. ¹

Appellant filed an appeal to the Circuit Court for Baltimore City from the order requiring it to pay appellee's attorney's fees. Appellant also filed a "Motion for Ex Parte and Interlocutory Injunctive Relief" requesting the circuit court to stay the order of the Commission. Apparently, in order to avoid the necessity for a hearing on the ex parte injunction request, on or about January 18, 1989, trial counsel entered upon a stipulation before the "general Master," causing the deposit of the sum of $1,354.01 into an interest-bearing account to be held by the Clerk of the Court, that sum representing the amount of the disputed counsel fee. On January 29, 1989, a hearing was held on appellant's motion. The trial court held that it had no authority, under Md.Ann.Code art. 101, § 56 (1985 Repl.Vol.) and Md. Rule B6, to grant such an injunction.

General Motors Corporation appeals, asking us to resolve whether:

1. [A]n appeal from an illegal, arbitrary and/or capricious act of the Workers' Compensation Commission is an appeal under Maryland Annotated Code Article 101 Section 56 or under the Circuit Court's inherent power to review actions of administrative agencies.

2. [T]he Circuit Court of Maryland has the authority to issue a stay from an Order of the Workers' Compensation Commission under the Court's inherent power to review actions of administrative agencies.

3. [T]he Order to pay the opposing party's attorney's fees, and the payment thereof, under Maryland Annotated Code Article 101 Section 57 is payment of compensation benefits within the meaning of Montgomery County v. Lake, 68 Md.App. 269 (1986).

I. Dismissal of Appeal

A. Denial of the Stay Is Moot

The order that brings this appeal to us effectively denied GMC's request for stay of the payment of attorney's fees and further ordered that "[t]he monies deposited in the circuit court by the appellant in the amount of $1,354.01 be paid to P. Paul Cocoros, Esquire, at 2 p.m. on Wednesday, January 25, 1989...." We have since learned that that sum has been paid to appellee's counsel and, thus, the actual payment to and receipt by appellee's counsel is a matter which the courts can no longer control. The "stay" issue is moot. We would point out, however, that the question of whether the Commission was correct in ordering counsel fee, pursuant to Art. 101, § 57, has never been decided by the Circuit Court for Baltimore City and is now pending before that tribunal. Had that issue been decided by the circuit court and thus before us on appeal, then the issue would not be moot by virtue of the mere payment of the attorney's fee. In Gillespie-Linton v. Miles, 58 Md.App. 484, 473 A.2d 947 (1984), we held that payment of the full amount of a jury's verdict in a personal injury case did not bar the defendant's cross appeal on the ground of mootness. See also Franzen v. Dubinok, 290 Md. 65, 72, 427 A.2d 1002 (1981), where the late Judge J. Dudley Digges, speaking for the Court of Appeals, opined "that the payment or performance of a final judgment does not normally bar an appeal...."

While it is arguable that we could order the return of the fee to the Clerk of the Court pending trial on the merits of the disputed attorney's fees, the posture of the case and common sense dictates otherwise. If the appellee prevails, the monies would then, for a second time, be paid to her attorney. Additionally, because the appeal is otherwise premature, we are compelled to dismiss the appeal rather than reverse the judgments of the circuit court. See Md. Rule 8-602(a)(10).

B. Denial of the Stay Is Not a Final Judgment.

The trial judge, in a sincere effort to allow appellate courts a prompt review so as to avoid a potential and conceptual unjust enrichment, certified that his order constituted a final judgment pursuant to Md. Rule 2-602(b). That rule provides that an order that adjudicates less than an entire claim is not a final judgment. Here, the claim itself has not been adjudicated, and the trial court ordered payment because it believed that it was powerless to do otherwise. The order of the circuit court was not a final judgment and should not have been certified as such.

In declaring its denial of injunctive relief, the trial court further stated:

You now have a separate right to whatever the statute says is your right to appeal from a final order denying an interlocutory injunction.... If you have some right to appeal from that, then you should go up on appeal on the issue of whether or not I've properly denied you an injunction, thereby allowing the B6 stay to take its normal course.

The denial of the stay effectively allowed the payment of the monies on deposit to appellee's counsel. As set forth earlier in this opinion, the court's order, in addition to denying the stay, provided for payment. Thus, actually and constructively, the court's order ought not be categorized as one "refusing to grant an injunction," Cts. & Jud.Proc.Code Ann. § 12-303(c)(3), but rather as one for the payment of money under § 12-303(c)(5). But even if arguably it was an order for "the payment of money," because the order is not equitable in nature it is not appealable under § 12-303(c)(5).

The Court of Appeals, in Yamaner v. Orkin, 310 Md. 321, 529 A.2d 361 (1987), held that an order directing the defendant to pay counsel fee as a sanction for filing a motion without substantial justification was not appealable under the Cts. & Jud.Proc.Code Ann. § 12-303(c)(5). Judge Rodowsky, speaking for the court, reasoned that:

The order appealed from cannot be one for the payment of money under Courts Article § 12-303(c)(5), whether assessed against Yamaner only, against his counsel only, or against both. The order is not equitable in nature and it does not proceed directly to the person so as to make one against whom it operates directly and personally answerable to the court for noncompliance. The court does not have available to it as a sanction for violation the sanction of imprisonment for contempt.

Yamaner, supra, at 324-25, 529 A.2d 361. See also Simmons v. Perkins, 302 Md. 232, 486 A.2d 1192 (1985) and Della Ratta v. Dixon, 47 Md.App. 270, 422 A.2d 409 (1980).

Here, the order is directed to the Clerk of the Court and not to GMC. We venture no opinion as to the potential result had the money not been in the hands of the court and if GMC was ordered directly to make payment. We would point out, however, that the nature of the assessed counsel fee as a sanction is practically indistinguishable from the sanctions imposed in Yamaner and Simmons, supra.

II. Circuit Court's Authority to Stay the Commission's Order to Pay Counsel Fees

We find ourselves in the awkward position of having to decide a legal issue in an appeal that we must dismiss. A fair reading of the record tells us that the able and experienced trial judge believed that the attorney's fee would not be recoverable and that its payment fell within the ambit of Art. 101, § 56 of the Maryland Code. He stated in pertinent part:

[A]s we have said, we think the language of our § 56(a) reflects a legislative intent to preclude "recovery back" upon any theory, except fraud perhaps. If we are mistaken in this regard, the General Assembly will know how to enlighten us.

The fact that now 18 years have passed and the General Assembly is faced with that Court of Appeals decision, provided with no recovery back mechanism means if you win on appeal even on the ground that the award of attorney's fees by the Workmen's Compensation Commission even was arbitrary and capricious, that you may win a paper victory, but there is no mechanism for the restitution and that there is not supposed to be one. You are not supposed to get your money back.

Obviously, the...