Yamaner v. Orkin
| Decision Date | 01 September 1987 |
| Docket Number | No. 11,11 |
| Parties | Yilmaz YAMANER v. Irene Ruth ORKIN. (Adv.), |
| Court | Maryland Court of Appeals |
In this case we shall hold that an order directing a party to pay a fee to counsel for the adverse party, as a sanction pursuant to Maryland Rule 1-341, is not appealable under the collateral order doctrine. 1
Appellee and plaintiff below, Irene Ruth Orkin (Orkin), brought in the Circuit Court for Montgomery County an action to nullify the award of an arbitration panel rendered under the Health Claims Arbitration Act. 2 Defendants in the action were a hospital and the appellant, Yilmaz Yamaner, M.D. (Yamaner). The circuit court in May of 1985 set trial for September 15, 1986. In May of 1986, a summary judgment motion filed by Yamaner was heard by Judge Richard B. Latham and denied. 3
Shortly before the then scheduled trial date Yamaner filed a second motion for summary judgment. Orkin's response asserted that the motion raised no grounds which Judge J. James McKenna heard the second motion for summary judgment. After concluding that the motion had presented nothing new, the court ruled, saying in part:
That same day the clerk made the following docket entry:
Hearing on Defendant, Yilmaz Yamaner, M.D.'s Motion for Summary Judgment (# 37) (McKenna, J.) denied. Court awards attorney's fees in the amount of Three Hundred dollars ($300.00) to Plaintiff's attorney. [Tape reference omitted.]
From that award of fees Yamaner appealed to the Court of Special Appeals. We issued the writ of certiorari on our own motion prior to consideration of the merits by the intermediate appellate court.
Appellant's brief addressed appealability. He said Judge McKenna had assessed the fee against defense counsel and argued that the interlocutory order was appealable under Courts Article § 12-303(c)(5) in that it was an order "[f]or ... the payment of money[.]" The brief recognized that an order under the predecessor to Rule 1-341 directed to a party to pay a counsel fee as a sanction was held not to be In her brief Orkin moved to dismiss the appeal for want of a final order. She pointed out that the request for sanctions in her response to Yamaner's second summary judgment motion asked for sanctions only against "the defendant[.]" 5 She argues that the assessment here was not against counsel but only against a party defendant so that under Simmons, supra, the order was not a final judgment. Orkin conditionally moved in her brief, subject to a ruling in her favor based on the foregoing argument, that an attorney's fee on this appeal in the amount of $1,500 be awarded as a sanction. 6 Alternatively, appellee submits that the order appealed from is unclear and presents "[a] question of fact" which must be resolved before it can be a final order to pay money.
an order for the payment of money in Simmons v. Perkins, 302 Md. 232, 486 A.2d 1192 (1985). Yamaner sought to distinguish Simmons by contending that sanctioning counsel is an order for the payment of money because nonpayment could lead to an attorney's being held in contempt
In his reply brief, Yamaner shifts ground and argues that the order is a final judgment under the collateral order doctrine. See Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Peat, Marwick, Mitchell & Co. v. Los Angeles Rams, 284 Md. 86, 394 A.2d 801 (1978).
[t]he clerk shall enter a judgment by making a record of it in writing on the file jacket, or on a docket within the file, or in a docket book, according to the practice of each court, and shall record the actual date of the entry. That date shall be the date of the judgment.
Here, the award of $300 to the plaintiff's attorney must be interpreted to have been entered only against Yamaner. Yamaner's attorneys are not parties to the case. If the trial court intended the order to extend the sanction beyond a party to include that party's attorneys, the order should have specifically so provided. Moreover, Orkin limited the requested sanction to Yamaner. We do not interpret the order as entered to do any more than to grant the relief which Orkin had requested.
Yamaner refers to the transcript of the hearing before Judge McKenna where, in colloquy with defense counsel, the court discussed a possible motion by Yamaner for reconsideration which might be supported by a transcript of the hearing before Judge Latham. Judge McKenna said, in part:
If you can by ... supplying a copy of the transcript, and you pay for it; not him--
convince me by way of another memorandum ... that you're right, that this was the issue that was not settled before, then I'll rule that you don't have to pay him $300. But the ball is now clearly in your [c]ourt....
Yamaner says that Judge McKenna was using "you" and "your" to refer to the firm of defense counsel (or perhaps to those individual attorneys who signed the second motion for summary judgment). We assume, arguendo, that under proper circumstances a transcript may be utilized to clarify a judgment, but in this case the court's use of "you" and "your" is sufficiently ambiguous not to aid in extending the docket entry's effect beyond that requested by Orkin and to a nonparty or parties.
The issue then becomes whether a Rule 1-341 award against a party of a fee to the attorney for the adverse party is a final judgment under the collateral order doctrine. One of the prerequisites to applying the collateral order doctrine is "that there be a serious risk of irreparable loss of the claimed right if appellate review is deferred until after final judgment." Parrott v. State, 301 Md. 411, 424-25, 483 A.2d 68, 75 (1984). See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376-77, 101 S.Ct. 669, 675, 66 L.Ed.2d 571, 580 (1981). An order imposing a Rule 1-341 sanction will almost always fail to meet that requirement. If Judge McKenna erred, that error can be corrected on review after final judgment.
The same analysis is applied by the majority of United States Courts of Appeal. In Coleman v. Sherwood Medical Industries, 746 F.2d 445 (8th Cir.1984), the defendant sought to appeal immediately from an assessment against it of costs and attorney's fees pursuant to Fed.R.Civ.P. 37(b)(2) for discovery violations. The court said that the appellant would suffer no irreparable harm if it had to await final judgment and concluded:
We therefore join the majority of circuits that have held that orders imposing costs and/or attorneys' fees on a party for failing to comply with a discovery order are not immediately appealable under the collateral order exception.
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