Conservatorship & Guardianship of Ann B. Thomas

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2017 ME 11

Docket: Wal-16-110

Argued: October 25, 2016

Decided: January 19, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

CONSERVATORSHIP & GUARDIANSHIP OF ANN B. THOMAS

HJELM, J.

[¶1] In this action for appointment of a guardian and conservator, the

Waldo County Probate Court (Longley, J.) issued an order imposing sanctions

against Attorney Susan C. Thiem, who represented Ann B. Thomas, the

allegedly incapacitated person, during much of the case. The sanctions order

required Attorney Thiem to pay reasonable expenses, including attorney fees,

based on a finding that she had “unreasonably interfered” with the

proceedings and with the discovery process in particular. As the sole issue on

appeal, Attorney Thiem contends that the court abused its discretion by

imposing sanctions. Because the court has not yet issued an order

determining any amount that Attorney Thiem would be required to pay, we

dismiss the appeal as interlocutory.

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I. BACKGROUND

[¶2] In March 2015, Alanna Brown filed joined petitions in the Waldo

County Probate Court requesting that she be appointed as guardian and

conservator for her mother, Ann B. Thomas. See 18-A M.R.S. §§ 5-303(a),

5-401 (2016). The following month, after a pretrial conference, the court

issued a scheduling order establishing deadlines for filing motions and

completing discovery, and setting a hearing date.

[¶3] A contentious discovery process followed. On Brown’s requests,

the court held three telephonic discovery dispute conferences, see

M.R. Civ. P. 26(g)(2),1 resulting in several discovery orders. Brown

subsequently filed a motion for sanctions pursuant to M.R. Civ. P. 37(b),

alleging in part that Attorney Thiem had engaged in a pattern of refusing to

cooperate fully in the discovery process.2 The court deferred ruling on the

sanctions issue before the final hearing, and directed Brown’s attorney to file

an affidavit documenting her discovery-related fees and expenses. Brown’s

attorney did so, claiming fees and expenses totaling $3,780.80.

1

The Maine Rules of Civil Procedure pertaining to discovery apply in Probate Court

proceedings. See M.R. Prob. P. 26-37.

2 Brown also filed a separate motion for sanctions pursuant to M.R. Prob. P. 16(c). It is not clear

from the record whether the court issued an order disposing of that motion.

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[¶4] The court held a final hearing on the petitions and all pending

motions on July 21, 2015, but the hearing was not completed that day. On

July 23, Attorney Thiem filed a motion to withdraw based on her assertion

that the court had exhibited prejudice and bias against her. Five days later,

the court granted Attorney Thiem’s motion to withdraw with respect to future

representation of Thomas, but denied the motion with respect to the pending

sanctions issue. The order allowed Attorney Thiem seven days to, among

other things, submit evidence to support her allegations of bias. Attorney

Thiem filed further argument on that issue and also demanded a full

evidentiary hearing on the issue of sanctions.

[¶5] In September 2015, after the final day of hearing on the petitions,

where Thomas was represented by new counsel and Attorney Thiem was not

present, the court entered a judgment denying Brown’s petition to be

appointed as guardian for her mother, but granting her petition to be

appointed as conservator. Without further notice or hearing, on January 26,

2016, the court entered a separate order in which the court “sanction[ed]”

Attorney Thiem based on a finding that she “unreasonably interfered with

civil proceedings” by failing to act in good faith, follow discovery rules, and

comply with court orders. The court ordered Attorney Thiem “to pay

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reasonable expenses, including counsel fees, required by her” misconduct

pursuant to M.R. Civ. P. 37(a)(4) and (d),3 but the court did not specify the

amount that Thiem would be required to pay. The court granted leave for

Attorney Thiem to withdraw fully as counsel, conditioned upon her payment

of those still-unquantified expenses.

[¶6] Attorney Thiem filed a motion for additional findings of fact and

for amendment of the order. See M.R. Civ. P. 52(b), 59(e).4 The court granted

the motion, but only to the extent of directing Brown’s attorney to submit an

updated affidavit of expenses and attorney fees. Attorney Thiem then timely

appealed. See 18-A M.R.S. § 1-308 (2016); M.R. App. P. 2(b)(3).

[¶7] On March 22, 2016, while this appeal was pending, Brown’s

attorney filed an updated affidavit claiming $22,566.66 in attorney fees and

$2,173.80 in costs that she asserted were attributable to Attorney Thiem’s

3 M.R. Civ. P. 37(a)(4) provides that if a court grants a motion to compel discovery, “the court

shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the

motion or the party or attorney advising such conduct or both of them to pay to the moving party

the reasonable expenses incurred in obtaining the order, including attorney fees . . . .”

M.R. Civ. P. 37(d) provides that if a party “fails . . . to appear before [an] officer who is to take a

deposition, after being served with a proper notice . . . the court in which the action is pending on

motion may make such orders in regard to the failure as are just . . . In lieu of any order or in

addition thereto, the court shall require the party failing to act or the attorney advising that party or

both to pay the reasonable expenses, including attorney fees, caused by the failure . . . .”

4

Maine Rules of Civil Procedure 52 and 59 apply in Probate Court proceedings. See M.R.

Prob. P. 52, 59.

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sanctioned conduct. At oral argument, the parties stated that the court had

not yet issued an order specifying the amount that Attorney Thiem would be

required to pay as sanctions.

II. DISCUSSION

[¶8] On this appeal, we are asked to determine only whether the court

abused its discretion by imposing sanctions against Attorney Thiem pursuant

to M.R. Civ. P. 37. See Estate of Hoch v. Stifel, 2011 ME 24, ¶¶ 32, 34,

16 A.3d 137 (stating that “a trial court’s imposition of sanctions for discovery

violations [is reviewed] for an abuse of discretion”). Attorney Thiem argues

that there is no evidence in the record to support the court’s findings of

misconduct, that the findings are insufficient to support the result, and that

the court violated her due process rights by imposing sanctions without

holding an evidentiary hearing on that issue. Although neither party raises

the issue of whether the judgment is final, we determine that it is not, and we

therefore dismiss this appeal on our own initiative without reaching any of

Attorney Thiem’s substantive challenges to the sanctions order or the process

leading to its issuance. See Bank of N.Y. v. Richardson, 2011 ME 38, ¶ 7,

15 A.3d 756 (“Whether or not a party has argued the issue, we consider sua

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sponte whether a matter is properly before us on appeal from a final

judgment.”).

[¶9] The “final judgment rule requires that, with limited exceptions, a

party may not appeal a decision until a final judgment has been rendered in

the case.” Safety Ins. Grp. v. Dawson, 2015 ME 64, ¶ 6, 116 A.3d 948 (quotation

marks omitted) (stating that a judgment is “final” if it “fully decides and

disposes of the entire matter pending before the court leaving no questions

for the future consideration and judgment of the court” (alteration omitted)

(quotation marks omitted)); see also M.R. Civ. P. 54(b)(1).5

[¶10] We have explicitly stated that an order imposing discovery

sanctions pursuant to Rule 37 is “not a final judgment suitable for appellate

review” if the order does not “determine the amount of attorney fees to be

paid” but merely directs the moving party to file an attorney fees affidavit.

Flaherty v. Muther (Flaherty I), 2011 ME 32, ¶ 28 n.10, 17 A.3d 640. Were we

to treat an order that does not quantify the amount of sanctions as a final

judgment, then—as with any order that is not final—we would run the risk of

countenancing unnecessary delay, and wasting resources of the courts and the

parties by inviting piecemeal litigation and deciding issues on appeal that

5

Maine Rule of Civil Procedure 54(b) applies in Probate Court proceedings. See M.R.

Prob. P. 54(b).

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could “ultimately be mooted by subsequent actions in the trial court.”

Alexander, Maine Appellate Practice § 301 at 218-19 (4th ed. 2013).

Accordingly, we will not reach a challenge to a court’s decision to impose

sanctions pursuant to Rule 37 until the court has determined the amount of

sanctions to impose. See Flaherty v. Muther (Flaherty II), 2011 ME 34, ¶¶ 4-5

& n.3, 10, 17 A.3d 663 (addressing a challenge to an attorney fee award

pursuant to M.R. Civ. P. 37(c) and 54(b)(3) only after the court issued a final

order awarding a specific amount of sanctions based on an updated affidavit

filed by the moving party).

[¶11] Here, the court has not quantified the amount of any attorney

fees and expenses to be paid by Attorney Thiem as a sanction for her

discovery violations. As a result, the sanctions order is not a final judgment

suitable for appellate review.

[¶12] We therefore dismiss this appeal without reaching the merits,

and remand the matter to the Probate Court. We assume that the court will

provide Attorney Thiem a proper opportunity to be heard before issuing any

order that adjudicates the matter.

The entry is:

Appeal dismissed.

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Susan C. Thiem, Esq. (orally), Law Office of Susan C. Thiem, Lincolnville,

appellant pro se

Naomi C. Cohen, Esq. (orally), West Rockport, and Roger L. Hurley, Esq.,

Camden, for appellee Alanna Brown

Waldo County Probate Court docket number 2015-47

FOR CLERK REFERENCE ONLY