Marney v. Stack, 282

• Decision Date: 10 February 1971
• Docket Number: No. 282,282
• Citation: 261 Md. 78,273 A.2d 426
• Parties: Jana MARNEY, Substituted Trustee, v. Paul Carroll STACK et al.
• Court: Maryland Court of Appeals

Page 78

261 Md. 78

273 A.2d 426

Jana MARNEY, Substituted Trustee, v. Paul Carroll STACK et al.

No. 282.

Court of Appeals of Maryland.

Feb. 10, 1971.

Alan W. Margins, Silver Spring (Hillel Abrams, Silver Spring, on the brief), for appellant.

Kurt Berlin, Washington, D. C., for appellees.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY and DIGGES, JJ.

FINAN, Judge.

This appeal involves a dispute over the payment of attorneys' fees and the trustee's fee incurred by the appellant in her attempt to foreclose on a deed of trust, and the litigation which followed that attempt.

In June, 1964, the appellees (the Stacks) execute a note secured by a deed of trust which by mesne assignment came to be the property of Mrs. Ruth Torr, the present holder. There came a time when the Stacks were in default in payments on the note, and Mrs. Torr placed the note and the deed of trust in the hands of Rudolph D'Agaris, Esq. (D'Agaris) a member of the Maryland Bar and instructed him to substitute trustees and commence foreclosure proceedings. The appellant in the present suit (Jana Marney) was made the substituted trustee. Everything preliminary to a foreclosure sale was accomplished (including the hiring of an auctioneer for the purposes of conducting the sale) when the Stacks obtained an ex parte order enjoining Jana Marney from proceeding with the sale. D'Agaris was paid $350 for legal services rendered to that point, and Jana Marney retained the services of another attorney, Hillel Abrams, to represent her in the injunction proceedings.

After a hearing on the petition for injunctive relief, Judge Pugh, sitting as a chancellor in equity, dismissed the Stacks' petition and bill of complaint and assessed 'costs' against them. The Stacks appealed to this Court. In order to stay any further proceedings, they executed a supersedeas bond, in which they bound themselves to pay 'the indebtedness secured by the deed of trust' as well as 'all costs, interest and damages for delay' if their appeal was dismissed or Judge Pugh's order should be affirmed. We affirmed Judge Pugh's order in Stack v. Marney, 252 Md. 43, 248 A.2d 880 (1969).

The Stacks confessed judgment in an amount which represented the principal and interest on the note and certain other costs, including a $350 attorney's fee for Hillel Abrams' representation of Jana Marney in the injunction proceedings before Judge Pugh. The appellant brought suit on the supersedeas bond, claiming that the appellees were also liable for the $350 fee paid to D'Agaris by Ruth Torr (for the work done preliminary to the foreclosure sale), $1,000 additional attorney fees to Hillel Abrams for his representation of Jana Marney in successfully resisting the first appeal, and the $50.95 trustee fee paid to Jana Marney under the terms of the deed of trust, which provided for one-half of the normal fee in the event that foreclosure proceedings were instituted, but the sale was not completed. On March 23, 1970, the trial court in Queen Anne's County (Turner, J.) denied any of the additional amounts claimed by Jana Marney, and she brings this appeal.

We are of the opinion that the lower court's ruling was correct. In this regard, it is important to note that the appellant brought suit on the supersedeas bond, and not on the deed of trust.

The deed of trust executed by the Stacks clearly states that they were to pay 'all costs and expenses,' including 'reasonable counsel fees' incurred by the appellant 'on account of any litigation at law or in equity' which would arise regarding the deed of trust, trust property, or the note secured by the deed of trust. However, Judge Pugh, in assessing costs in the original action to enjoin the foreclosure sale, did not allow anything other than a $350 fee to Hillel Abrams, and the appellant offered no objection that ruling.

By the terms of the supersedeas bond executed by the appellees (to stay proceedings pending their appeal from Judge Pugh's decision dismissing their petition and bill of complaint) they obligated themselves to pay 'the indebtedness secured by the deed of trust' and any costs, interest, or damages arising from a delay should Judge Pugh's...