Petition for Writ of Certiorari — Wardell v. Tracy

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| Supreme Court, U.g,

' PILED

931708 APR 26 1994

OFFICE OF THE CLERK

PETITION NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER 1993 TERM

JAMES BR. WARDELL,.

PETITIONER,

MARK M. TRACY,

RESPONDENT.

ON WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

PETITION FOR WEIT OF CERTIORARI

James R. Wardell, Petitioner

870 Quince Orchard Blwd., #202

Gaithersburg, MD 20878

(301) 963-8279

I, Questions presented for Review

1. Whether the Equal

Protection Clause of the Fourteenth

Amendment prohibits arbitrary

discrimination by a state court in

imposing an award of attorney's

fees pursuant to rule of court and

the common-law policy of the state.

2. Whether sham appellate

review demonstrates discriminatory

purpose.

3. Whether the courts of the

State of Maryland denied

Petitioner's Fourteenth Amendment

right to the equal protection of

the laws, through imposition of an

award of attorney's fees for

maintaining a proceeding to rescind

a protective order entered without

prejudice, and sham appellate

review.

II. Table of Contents

I. Questions Presented for Heview

Cover eseeeeseseesesesesess Page 1

II. Table of ContentBeccccvcesecsese &

III. Table of AuthoritileSeccecccceces 4

IV. References to Official and

Unofficial Beports of

Opinions Delivered in the

Case by Other CourtBeceseescee 7

Vv. Statement of the Grounds on

Which the Jurisdiction of

this Court is Invoked....sseoe 8

VI. Constitutional Provisions,

Treaties, Statutes,

Ordinances, and Regulations..10

VII. Statement of the CaSCeccccccccels

VIII. Argument

1. This Court should grant

the Petition for Writ of

Cortiovariicccccecsccccceoseesoeceolre

2. The instant case.ccccocetl

APPENDIX

1. Order of the Circuit Court of

December 11, 1992

(attorney's TOOB) cevescseeeed

2. Hearing of December 11, 1992.31

92.

3. Order of the Circuit Court of

August 3, 1992 (protective

OTGCT )ccceescesesesssseseee

4, Opinion of the Court of

Special Appeals of

September 23> 1993ecees o00e 56

5. Order of the Court of Special

Appeals of November 3, 1993

(reconsideration denied)...71

6. Order of the Court of Appeals

of January 26, 1994

(certiorari denied)...seeee72

7. Appellant's Brief in the

Court of Special Appeals

(in Part )eccccvccceesecvese7 3

Vv. Argument (pages 9-14

therein

subadeeceeeoocet®

APPENDIX. Printed Extract

bb. Order of August 3,

1992 (page 246

therein) ececcccseee83

mm. Hearing of December

11, 1992 (pages 292

-306 therein)...++.84

mn. Order of December i1,

1992 (page 307

therein) .oceseeeee 085

III. ble of Authorities

Constitution

Constitution of the United States,

Amendment XIV, Section i

ecccccccecccoels 10, 15-17, 19, 24

Statute

28 U.S.C. § 1257. State courts;

Ccertioraricceccccccecccecececeos + J 10

Rules of Court

U.S. Supreme Court Rule 10,

Considerations Governing Review

on Writ of Certiorari.ccccceeds 11

Maryland Rule 1-341. Bad Faith--

Unjustified Proceeding......12, 21

Atchison, T. & 8.F. Bye COs Ve

Matthews, 174 U.Ss. 96, 19 8.Ct.

609, 43 L.Ed. 909 (1899) ..ccceee24

Atchison, T. & S.F. By. CoO. Vv.

Vosbureg, 238 U.8. 56, 35 8.Ct.

675, 59 LeBd. 1199 (1915)-+019, 2%

Bailey v. Bailey, 181 Md. 385, 30

A.24 249 (19435

Beck v. Washington, 369 U.S. 541,

@®eeeeeeeeeeees =-26

~-4%

7°

ii.

12.

13.

14,

82 S.Ct. 955, 8 L.Ed.2a 98

(1962) cccccccccccccccccccccccccest

Blanton v. Equitable Bank,

National Association, 61 Md.App.

158, 485 Ac2d 69% (1985) -ceeeeee22

Coppedge v. United States, 369

U.S. 438, 82 S.Ct. 917, 8

L.E4.24d 21 (1962) eccccccccessevsed

Dent v. Simmons, 61 Md.App. 122,

485 A.2da 270 (1985) ecvcccceeetl=22

Gulf, C. & 8.FP. Bye COe Ve Ellis,

165 U.S. 150, 17 S.Ct. 255, 41

L.EA. 666 (1897

Lano v. State, 195 Ma. 363, 77

A.2a 125 (1950) eccccccccsessvesers

covecccccoccoeceos®s

Legal Aid Bureau, Inc. v. Parmer,

74% MA.Appe 707, 539 Ae2d 1173

(1988 @eeeeeseseeeeeeeeeeeeeeee eee

Local 167 of International

Brotherhood of Teamsters,

Chauffeurs, Stablemen & Helpers

of America v. United States,

291 U.S. 293, 54 S.Ct. 396,

7B LeBde 80% (1934) once cceseeeetl

McParland v. American Sugar

Refining Co., 241 U.S. 79, 36

8.Ct. 498, 60 L.Ed. 890 (1916).24

Newman v. Reilly, 314 Ma. 364,

550 A.24 959 (1988) ecccccceesvcte

Pentecostal Holiness Church, Inc.

v. Mauney FPla.Appe, 270 So.2d

762 (1972)

ttumsadbvddsceeseeeeannne

o§@«

15. Shelley v. Kraemer, 334 U.S. 1,

68 8.Ct. 836, 92 L.Ed. 1161

(1948). cccccccccccccelGHl9, 27-28

16. Wayte v. United States, 470 U.S.

598, 105 S.Ct. 1524, 84% L.Ed.24 \

547 (1985) cccccccescceee0, 24, 27

Other References

1. Black's w Dictionar Sixth

eorcccscccseser ly 26

eae

IV. References to Official and

Unofficial Beports of Opinions

livered in the ge bd ther urts

1. Wardell v. Tracy, (unreported) 97

Md.App. 772 (1993), cert. denied

333 MA. 453, 635 Ae2a 1321 (1994)

Ve. Statement of the Grounds

on Which the Jurisdiction

of this Court is Invoked

Petitioner requests review by this

Court on Writ of Certiorari to the Court

of Special Appeals of Maryland, of an

Order of December 11, 1992 (page 29

hereinafter) of the Circuit Court for

Montgomery County, Maryland and of the

Maryland appellate review thereof

(Opinion, page 56 hereinafter), awarding

Respondent's attorney's fees incurred in

opposing Petitioner's Motion to Rescind

Protective Order, on the grounds that

the Maryland courts in this case have

decided the question of whether the

award of attorney's fees is violative of

the Fourteenth Amendment in a way that

conflicts with applicable decisions of

this Court, pursuant to the provisions

of 28 U.S.C. § 1257 and U.S. Supreme

- 8 «

Court Rule 10.1(c).

VI. Constitutional Provisions,

Treaties, Statutes,

Ordinances, and Regulations

Constitution of the Unites States,

Amendment XIV, Section 1.

All persons born or natural-

ized in the United States, and

subject to the jurisdiction there-

of, are citizens of the United

States and of the State wherein

they reside. No State shall make

or enforce any law which shall

abridge the privileges or immuni-

ties of citizens of the United

States; nor shall any State de-

prive any person of life, liberty,

or property, without due process

of law; nor deny to any person

within its jurisdiction the equal

protection of the laws,

28 U.S.C. § 1257. State courts;

certiorari.

(a) Final judgments or de-

crees rendered by the highest

court of a State in which a deci-

sion could be had, may be reviewed

by the Supreme Court by writ of

certiorari where the walidity of a

treaty or statute of the United

States is drawn in question or

where the validity of a statute of

any State is drawn in question on

the ground of its being repugnant

to the Constitution, treaties, or

laws of the United States, or

- 10 -

where any title, right, privilege,

or immunity is specially set up or

claimed under the Constitution or

the treaties or statutes of, or

any commission held or authority

exercised under, the United

States.

(b) For the purpose of this

section, the term “highest court

of a State" includes the District

of Columbia Court of Appeals.

U.S. Supreme Court Rule 10. Consid-

erations Governing Review on Writ

of Certiorari.

eile A review on writ of

certiorari is not a matter of

right, but of judicial discretion.

A petition for a writ of certiora-

ri will be granted only when there

are special and important reasons

therefor. The following, while

neither controlling nor fully

measuring the Court's discretion,

indicate the character of reasons

that will be considered:

(a) When a United States

court of appeals has rendered a

decision in conflict with the

decision of another United

States court of appeals on the

same matter; or has decided a

federal question in a way in

conflict with a state court of

last resort; or has so far de-

parted from the accepted and

usual course of judicial pro-

ceedings, or sanctioned such a

departure by a lower court, as

to call for an exercise of this

- ii -

Court's power of supervision.

(b) When a state court of

last resort has decided a fed-

eral question in a way that

conflicts with the decision of

another state court of last re-

sort or of a United States

court of appeals.

United States court of appeals

has decided an important ques-

tion of federal law which has

not been, but should be, set-

tled by this Court, or has de-

cided a federal question in a

way that conflicts with appli-

cable decisions of this Court.

°2. The same general consid-

erations outlined above will con-

trol in respect to a petition for

a writ of certiorari to review a

judgment of the United States

Court of Military Appeals.

4, Maryland Rule 1-341. Bad Paith--Un-

justified P. oceeding.

In any civil action, if the

court finds that the conduct of

any party in maintaining or de-

fending any proceeding was in bad

faith or without substantial jus-

tification the court may require

the offending party or the attor-

ney advising the conduct or both

of them to pay to the adverse par-

ty the costs of the proceeding and

the reasonable expenses, including

reasonable attorney's fees, in-

ocurred by the adverse party in op-

posing it.

- 12 «

II, Statement of the Case

1. Diamond Farms Condominium!

fined James R. Wardell, Petitioner, for

violation of Rules and Regulations pro-

hibiting washers and dryers, and served

Petitioner with a Motice of Intent to

Create a Lien for failure to pay the

fine.

2. Petitioner filed a Complaint in

the Circuit Court for Montgomery County,

Maryland, inter alia, (1) appealing from

the aforesaid fine, and (2) to determine

whether probable cause exists for the

establishment of a lien.

3. A relevant letter alleged to be

from Merk M. Tracy, Respondent, was

firet introduced by Diamond Farms at a

lwilliam P. Murphy and Condominium

Management, Inc..are also Defendants be-

low; none of the Defendante are parties

to the case in this Court.

ei3}-

Hearing in the Circuit Court, when the

appeal of the fine was dismissed and

probable cause for the lien was found,

4, Petitioner Noted a Deposition

of the Respondent.

5. Respondent filed a Motion for

Protective Order, and failed to appear

for the Deposition; the Motion was sub-

sequently granted without prejudice, Or-

der of August 3, 1992 (page 54 hereinaf-

ter).

6. Petitioner filed a Motion to

Rescind Protective Order, which was

heard (transcript, page 31 hereinafter),

and denied and Respondent's attorney's

fees were awarded, Order of December 11,

1992 (page 29 hereinafter).

7+ Petitioner filed an Appeal to

the Court of Special Appeals of Maryland

from the award of Respondent's attor-

ney's fees, which was affirmed, Opinion

(page 56 hereinafter).

8, Petitioner filed a Motion for

Reconsideration in the Court of Special

Appeals which was denied, Order of No-

venber 3, 1993 (page 71 hereinafter).

9. Petitioner filed a Petition for

Writ of Certiorari in the Court of Ap-

peale of Maryland which was denied, Or-

der of January 26, 199% (page 72 nerein-

after).

10. The Court of Appeals of Mery-

land is the highest court of the State

and the state court of last resort.

11. The federal question was

raised in the Circuit Court in Petition-

er's Motion to Rescind protective Order,

wherein the Equal Protection Clause of

the Pourteenth Amendment was quoted, and

at the Hearing thereto (page 35 herein-

after) when Petitioner stated:

Also at the outset, I would

- i$ -

like to say that we are, of

course, governed by the Equal Pro-

tection Clause of Section 1 of the

Pourteenth Amendment to the Con-

stitution of the United States.

The cases I cite this morning and

have cited in my Motions are gov-

erning. We believe that I am en-

titled to the equal protection of

the laws, as set forth in the

cases cited.

and was not addressed by the hearing

judge (page 50 hereinafter), Order of

December 11, 1992 (page 29 hereinafter).

The federal question was presented

to the Court of Special Appeals* in Pe-

titioner's Appellant's Brief (see pages

80-82 hereinafter) as follows:

Question 3. Whether the

award of attorney's fees is viola-

tive of the Equal Protection

Clause of the Fourteenth Amendment

to the Constitution of the United

States.

and was answered by that Court as fol-

2petitioner also invoked due proc-

ess and the equal protection of the laws

in the Motion for Reconsideration in

that Court.

- 16 «

lows (Opinion, pages 69-70 hereinafter):

3°

Appellant's Equal Protection

claim is utterly and completely

without merit. He presente us

with no law or facts to support

his contention that awarding at-

torney's fees denies him equal

protection of the law.

—\ 2

VIII. argument

1. This Court should grant

the Petition for Writ of Certiora-

ri,

That the action of state courts and

judicial officers in their official ca-

pacities is to be regarded as action of

the State within the meaning of the

Fourteenth Amendment, is a proposition

which has long been established by deoci-

sions of this Court. Shelley v. Krae-

mer, 334 U.S. 1, 14, 68 S.Ct. 836, 842,

92 L.Ed. 1161 (1948). State action in

violation of the Amendment's provisions

is equally repugnant to the constitu-

tional commands whether directed by

state statute or taken by a judicial

official in the absence of statute. Id.

at 16, 843. It has been recognized that

the action of state courts in enforcing

a substantive common-law rule (common

law policy) formulated by those courts,

may result in the denial of rights guar-

anteed by the Fourteenth Amendment. Id.

at 17, 844,

The Court of Special Appeals of

Maryland in the instant case held that

Petitioner's "Equal Protection claim

[alleging prohibited judicial discrimi-

nation] is utterly and completely with-

out merit,” Opinion, page 69 hereinaf-

ter. See Petitioner's Appellant's Brief

in that Court, pages 73-85 hereinafter.

The Equal Protection Clause prohib-

its arbitrary legislative classification

in imposing a statutory allowance for

attorney's fees. Gulf, C. & S.F. Ry.

Co. v. Ellis, 165 U.S. 150, 17 38.Ct.

255, 41 L.Ed. 666 (1897); Atchison, T.

& 8.P. By. Co. v. Vosburg, 238 U.8. 56,

35 S.Ct. 675, 59 LeBd. 1199 (1915).

However, this Court has not decided

—

whether the Equal Protection Clause pro-

hibits arbitrary judicial discrimination

in imposing an award of attorney's fees

pursuant to rule of court and common-law

policy. And, this Court has not decided

whether sham) appellate review demon-

strates discriminatory purpose. See

Wayte v. United States, 470 U.8. 598,

608-610, 105 S.Ct. 1524, 1531-1532, 8%

L.Ed.2d 547 (1985).

The Court of Special Appeals of

Maryland in the instant case decided the

federal question ina way that conflicts

with applicable decisions of this Court.

3sham pleadings are those which are

inherently false and must have been

known by the interposing party to be un-

true. Pentecostal Holiness Church, Inc.

Ve Mauney, Fla.App., 270 80.24 762, 769.

ck's Law Dictionar i

<ELD "a page 1375. Bee za pee

167 of International Brotherhood of

Teamsters, Chauffeurs, Stablemen & Help-

ers of America v. United States, 291

U.S. 293, 298-299, 54 8.Ct. 36> 399

(1934) (sham answers stricken

And, these are important questions of

federal law which have not been, but

should be, settled by this Court.

The Petition for Writ of Certiorari

should be granted, accordingly.

2, The instant case.

If a Maryland court finds that the

conduct of a party in maintaining a pro-

ceeding was without substantial justifi-

cation the court may award attorney's

fees pursuant to Maryland Rule 1-341

(the validity of this Rule is not ques-

tioned). See transcript, page 51 here-

inafter.

Applicable Maryland common-law pol-

icy includes the holdings of Dent v.

Simmons, 61 Ma.App. 122, 128, 485 A.2a

270, 272-273 (1985) (attempt to intro-

duce new cause of action in tort not

without substantial justification) that,

"A litigant ought not be penalized for

innovation or exploration beyond exist-

ing legal horizons unless such explora-

tion is frivolous,® and Blanton v..Equi-

table Bank, National Association, 61

Md.App. 158, 166, 485 A.2d 694, 698

(1985) (appeal without substantial jus-

tification where order appealed was not

appealable) that an action is frivolous

"'when it indisputably has no merit’"

(quote from Dent v. Simmons, supra, at

128, 273, ne 3). Applied, Legal Aid

Bureau, Inc. v. Parmer, 74 Md.App. 707,

722, 539 Ae2d 1173, 1180 (1988); accord,

Newman v. Reilly, 314 Md. 364, 380-381,

550 A.2d 959,.967-968 (1988) (see Opin-

ion,. page 66 hereinafter),

In the instant case where Peti-

tioner seeks to depose Respondent pursu-

ant to Maryland Rules, if not otherwise

justified Petitioner's Motion to Rescind

- 22 «-

Protective Order is “exploration beyond

existing legal horizons" for lack of an

identical authority in Maryland case

law. It is not frivolous, for lack of

any opposing authority.” The Motion is

not without substantial justification,

accordingly.

Inasmuch as the instant oase is

thusly similar to Dent v. Simmons where

there was no award of attorney's fees,

and thusly dissimilar to Blanton v. Eq-

uitable Bank, National Association where

there was an award of attorney's fees, \

the award of Respondent's attorney's

‘see transcript, pages 31-53 here-

inafter, Opinion, pages 56-70 hereinaf-

ter. In fact, the Respondent did not

cite any case-law authority whatsoever

in the proceedings in this matter.

The burden of showing that *he

right has been abused through the prose-

cution of frivolous litigation should,

at all times, be on the party making the

suggestion of frivolity. al ee Ve

United States, 369 U.S. 438, 7-448, 82

8.Ct. 917, 922 (1962).

s2-

fees is an arbitrary discrimination?

which denies Petitioner the equal pro-

tection of the laws. The disariminatory

effect is, that of all litigants simi-

larly situated only Petitioner must pay

attorney's fees. Wayte v. United

States, supra, at 608-609, 1531. Clas-

sification shall be reasonable, not ar-

bitrary, and shall rest upon distinc-

tions having a fair and substantial re-

lation to the object sought to be accom-

plished. Atchison, T. & S.F. By. Co. Vv.

Vosburg, supra, at 59, 676.

The Court of Special Appeals of

5The Equal Protection Clause for-

bids invidious picking out of one indi-

vidual to bear legal burdens not imposed

upon others similarly situated. Beck v.

Washington, 23 U.Ss. 541, 547, 82 8.Ct.

955, 969 (1962) (dissenting opinion)

citing Atchison, T. & 8.F. Ry. Co. v.

Matthews, 174 U.S. 96, ta 19 8.Ct.

609, 612-613, 43 L.Ed. 909 (1899),

McParland v. American Sugar Refining

Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501,

60 L.Ed. 890 (1916).

- 24 «

Maryland in affirming the award of Re-

spondent's attorney's fees, Opinion,

pages 56-70 hereinafter, omits relevant

facts ,° misconstrues the protective or-

der below, ? and otherwise expressly ig-

6opinion, pages 58-59 hereinafter

(numbering from Petitioner's Motion for

Reconsideration):

(11) Respondent allegedly wrote the

letter, Appellant's Brief, page 74 here-

inafter;

(1411) Petitioner offered to pay Re-

spondent's expert witness fee, tran-

script, page 34 hereinafter. Petition-

er's Opposition to the Motion for Pro-

tective Order, filed the day before the

deposition, offers to pay Respondent

prior to the deposition; and

(iv) Petitioner argued that the Or-

der of March 26, 1992 is subject to re-

vision, Appellant's Brief, page 75 here-

inafter.

7opinion, page 64 hereinafter:

(v) The circuit court had previ-

ously not made findings on the merits of

Respondent's Motion for Protective Order

--no new showing of good cause is re-

quired, Order, page 54 hereinafter.

Bailey v. Bailey, 181 Md. 385, 391, 30

A.2a 249, 252 (1943):

So when a dismissal is not upon

the merits, the decree should con-

tain the words “without pre Jjudice®

o 28

nores the arguments of Petitioner's Ap-

pellant's Brief in that Court.® ‘that

each of these several original defeots

in the Opinion works to the detriment of

Petitioner's appeal clearly reveals the

intent of that court. That court also

denied Petitioner's Motion for Beconsid-

eration (Order, page 71 hereinafter) ad-

dressed to the points first raised in

the Opinion (respondent filed no brief

and presented no oral arguments in that

in order to reserve to the com-

plainant the privilege of assert-

ing his rights in a subsequent ac-

tion,

Sopinion, page 65 hereinafter:

(vi) Petitioner does argue good

cause. apace jax piotionary, 8ixth

Edition at page e es good

cause as “legally sufficient ground or

reason." Petitioner argues accordingly,

Appellant's Brief, pages 74-77 herein-

after; and

(vii) Petitioner's arguments do ad-

dress the test for substantial justifi-

cation. See Appellant's Brief, pages 77

-79 hereinafter, and pages 21-24 herein-

pefore.

- 26 -~

court).

Such purposeful deprivation of

meaningful appellate review customarily

afforded similarly situated Maryland

litigants (see the Maryland cases cited

hereinbefore and Lano v. State, 195 Md.

363, 77 Ae2a 125 (1950) (motion for re-

argument on appeal granted)) renders ap-

pellate review in the instant case a

sham, and demonstrates the discrimina-

tory purpose of the Court of Special Ap-

peals in affirming the award of Respond-

ent's attorney's fees. “Discriminatory

purpose” implies that the decisionmaker

selected or reaffirmed a particular

course of action at least in part be-

cause of, not merely in spite of, its

adverse effects. Wayte v. United

States, supra, at 610, 1532.

Where it is clear that the action

of the State violates the terms of the

« 29-0

fundamental charter, it is the obliga-

tion of this Court so to declare. Shel-

ley v. Kraemer, supra, at 23, 847.

Respectfully submitted,

(AJarQere__

ames R. Wardell, Petitioner

870 Quince he yy Blvd., #202

Gaithersburg, MD 20878

(301) 963-8279

- 28 -

/307

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

JAMES R. WARDELL |

Plaintiff/Counter-

Defendant

Ve Civil Action

) No. 75721

DIAMOND PARMS CONDOMINIUM )

ASSOCIATION, et al. )

Defendants/Counter-

Plaintiff )

OR DER

Upon consideration of the Motion to

Rescind Protective Order, the Opposition

thereto and based on the entire record

in this matter, it is this 1ith day of

Decemter, 1992

ORDERED that the Motion be, and it

hereby is, DENIED. And it is

Note: Interlineation indicates page

numbers in Appellant's Brief in the

Court of Special Appeals (pages 73-85

hereinafter).

- 29 <

FURTHER ORDERED that Mr. James R.

Wardell shall pay to Mark M. Tracy

$450.00 representing Mr. Tracy's costs

and expenses associated with opposing

the Motion to Rescind Protective Order.

That payment shall be made within ten

(10) days of the date of this Order.

And it is

FURTHER ORDERED that Mr. James R.

Wardell shall not take any action

whatsoever by way of seeking a

deposition, affidavit or otherwise, to

obtain testimony from Mark M. Tracy

regarding any matter which Mr. Wardell

contends is related to any claim raised

by any party in this case, whether such

Claim has been dismissed or not.

(signed:

Paul A. McoGuckian}

Judge, Montgomery

County Circuit Court

—

ae Nd ets hai SME Rte RGA ght ASN eee See. hele SA

Sieh OO ot AE

2”

}

/292

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

JAMES R. WARDELL,

Plaintiff,

Ve Civil No.

375721

DIAMOND FARMS CONDOMINIUM,

WILLIAM P. MURPHY,

CONDOMINIUM MANAGEMENT, INC.,

Defendants.

HEARING

Rockville, Maryland December 11, 1992

CompuScribe

Professional Reporting

and Quality Transcription

9537 Elvis Lane

Seabrook, MD 20706

1-301-577-5882

Note: Interlineation indicates page

numbers in Appellant’s Brief in the

Court of Special Appeals (pages 73-85

hereinafter).

“7 -

/293

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

=_-— ses eo =: = -—-_s ese awa wo wow X

JAMES R. WARDELL,

Plaintiff,

Ve :Civil No.

875721

DIAMOND FARMS CONDOMINIUM,

WILLIAM P. MURPHY,

CONDOMINIUM MANAGEMENT, INC.,

Defendants.

Rockville, Maryland

December 11, 1992

WHEREUPON, proceedings in the

above-entitled matter commenced

BEFORE: THE HONORABLE PAUL A.

McGUCKIAN, Judge

- 32 -

ne eee eT RE RN mye Sires ee ES

aR A MOLE RE Rae SK a ey x

oe oe ‘

APPEARANCES:

FOR THE PLAINTIFF:

JAMES BR. WARDELL, Pro Se

870 Quince Orchard Boulevard, #202

Gaithersburg, Meryland 20878

FOR MR. MARK TRACY:

GARY M. ZINKGRAF, Esq.

1775 Pennsylvania Avenue, N.W.,

Suite 1000

Washington, D.C. 20006

[29%

INDEX

Page

Plaintiff's Motion for Body

Attachment and Fine and Motion to

Rescind Protective Order (34)

Argument on Behalf of Mr. Tracy [49]

Order of the Court [50]

e 3 -

/295

FRQOCEERINGS

THE CLERK: Civil 75721; James R.

Wardell versus Diamond Farms

Condominium,

MR. WARDELL: Good morning, Your

Honor. James Wardell,

MR. ZINKGRAF: Your Honor, Gary

Zinkgraf for Mark Tracy.

THE COURT: What was your name

again?

MR. ZINKGRAF: I'm sorry. Gary

Zinkgraf.

THE COURT: All right. Mr. Wardell,

it is your motion.

MR. WARDELL: Thank you, Your Honor.

At the outset I have a proposed Order

which I would like to submit at this

time. There was a Motion for Protective

Order. At that time, the matter of the

expert witness fee was an issue. This

+. re

additional proposed Order addresses the

issue of the expert witness fee.

Also at the outset, I would like to

say that we are, of course, governed by

the Equal Protection Clause of Section 1

of the Pourteenth Amendment to the

Constitution of the United States. The

cases I cite this morning and have cited

in my Motions are governing. We believe

that I am entitled to the equal

protection of the laws, as set forth in

the cases cited.

We are here on two Motions this

/296

morning, Your Honor. One is the Motion

for Body Attachment and Fine of a

putative deponent, and the second is a

Motion to Bescind the Protective Order

as to that deponent.

The Motion for Body Attachment and

Pire was previously withdrawn. Then

there was a hearing by Judge Weinstein,

o Me

and he in fact denied the Motion. But

it had been withdrawn. We have

reinstated the Motion. We believe that

his prior ruling on this matter is

nugatory.

Maryland Rule 2-411 provides that,

“Any party to an action may cause the

testimony of a person, whether or not a

party, to be taken by deposition for the

purpose of discovery or for use as

evidence in the action or for both

purposes.” Accordingly, we seek to take

the deposition of Mark M. Tracy in the

matter of a letter of October 1, 1990,

which we have submitted with our Motion,

alleged to be from Mr. Tracy, which

letter was first introduced in this

matter by defendant, Diamond Farms

Condominium Association, at the hearing

of March 23, 1992, over plaintiff's

objection, when Mr. Tracy was not

- ws

present at the hearing, which letter was

the only substantial evidence supporting

the decision then rendered.

The issue then addressed was

whether or not a rule imposed by the

condominium association is a valid

exercise of the police power, and we

believe it is not. Mr. Tracy's letter

THE COURT: Police power?

MR. WARDELL: Is a valid exercise of

the police power.

THE COURT: Who is exercising the

police power?

ME. WARDELL: The condominium

association established a rule

prohibiting a washer and dryer in the

units.

THE COURT: What makes you think

that is an exercise of the police power?

MR. WARDELL: Well, it’s an exercise

ir eae ate aa |

of --

THE COURT: It is an exercise of

their contractual rights, is it not?

MR. WARDELL: I suppose it might be

that, too, yes.

THE COURT: Go ahead,

MR. WARDELL: More particularly, I

might state what I stated in my

Complaint. The Complaint alleges, “That

the aforesaid Association's demand" to

remove the washer and dryer "arbitrarily

deprives Plaintiff of vested property

rights without due process of law, in

violation of Section 1 of the Fourteenth

Amendment to the Constitution of the

United States," and furthermore, "That

the aforesaid Rule is entirely arbitrary

and is not reasonably adapted to the

public interest or to any of Defendant

Diamond Farms’ lawful interests."

/298

That, in fact, is the specific

- 38 -

issue which we address. We believe it

is synonymous with the exercise of

police power in terms of the

interpretations of that statute.

Proceeding as to the Motion for

Body Attachment and Pine, the Order

which was entered subsequent to that

hearing is an interlocutory order, and

it is subject to revision at any time

prior to the entry of final judgment.

There has not yet been a final judgment

in this matter.

Discovery in this matter is not

required to be completed until 45 days

prior to May 5, 1993, pursuant to the

Trial Date Notice of January 9, 1992,

and ite relevant Order of May 7, 1992.

I served a Notice, a copy of which

is attached to the Motion, of a

Deposition Upon Oral Examination of Mr.

Tracy, which was to have taken place at

- 9 -

EE aE ee ee en ee

9:00 a.m, on April 24, 1992, and Mr.

Tracy failed to appear for that

deposition. Mr. Tracy was in fact

served with a Subpoena on April 7, 1992,

requiring his appearance, I have

submitted an Affidavit of the Court

Reporter who was present at the time of

the deposition which did not take place.

Accordingly, we are requesting

pursuant to Section 9-201(b) of the

Maryland Courts and Judicial Proceedings

Article and Maryland Rule 2-510(h), that

this Court forthwith issue a bench

warrant for + sag FR and that Mr. Tracy

be fined.

Our authorities in this matter are

several. We have already cited Maryland

Rule 2-411, which is our right to take

the deposition. The Court of Appeals

has frequently stated that the discovery

rules are to be liberally construed, and

- 40 «-

we have cited cases to that effect.

The case of A.V. Iaurins and

Company, Incorporated, versus Prince

George's County, cited in our Motion,

states as follows: "The proper procedure

for the Circuit Court's enforcement of

the subpoena would have involved

attachment and fine as described in

Maryland Rule 2-510(h) and interpreted

by the Court of Appeals in Evans versus

Howard. Bench warrants could have been

issued for the absent parties. See

Hainsworth versus State."

In Hainsworth the bench warrants

were in fact issued. In Evans versus

Howard, the Court set forth that the

sanction for the failure without

sufficient excuse to obey a summons

served under the Rule is that the

witness shall be liable to attachment

and fine.

- 41 -

As to the revisability of the

order, or rather the interlocutory

nature, the Court of Appeals has said

that all judgments are subject to

revision in multi-claim or multi-party

suit until the claims of all the parties

against each other have been disposed

of, absent both an expressed

determination that there is no just

/300

reason for delay and an express

direction for entry of judgment.

Also said by the Court of Special

Appeals, an interlocutory judgment

entered under this Rule is subject to

revision at any time by any judge having

jurisdiction over the matter.

We believe that the matter of the

pending appeal is really not in any way

controlling. However, although

generally the trial court’s jurisdiction

may be ousted once an appeal has been

- 42 -

perfected, the trial court is not

precluded from proceeding as to

collateral or independent matters; only

those postappeal orders which affect the

subject matter of the appeal have been

prohibited,

The case of McKown versus Criser's

Sales and Service, which we have cited,

sets forth as follows: "We note that

after the appeal" from an appealable

interlocutory order “was filed, the

appellant filed and obtained an order

from the Circuit Court for Baltimore

County to permit the taking of Criser's

employees’ depositions in the State of

Virginia on not less than 20 day's

notice of the time and place.“

We believe this case to be

controlling as to the instant

deposition. Mr. Tracy is similarly

situated as the employees in Criser

~ 43 -

were. He has provided a professional

opinion upon which the defendant relied

in a similar manner as which employees

provide professional opinions upon tt

their employers rely. We see no reason

for discrimination favoring Mr. Tracy

that would prohibit his deposition at

this time.

That is it as to the Motion for

Body Attachment and Fine. As to the

Motion to Rescind the Protective Order,

I really have very little to add except

to state that the Protective Order was

issued at a time when we had in fact

noted the deposition and Mr. Tracy had

failed to appear, and at which time we

had obtained other evidence which we

submitted in a Motion to Revise the

judgment. The Motion to Revise was

denied. So we are now seeking to take

Mr. Tracy's deposition.

~~ 4.

At that time we had indicated that

we would not need to take his deposition

at that time, but we would preserve the

Tight to do so. Now it is necessary for

us to take his deposition if we are to

prevail in this matter,

So we are requesting that the

Protective Order be rescinded. It was

in fact entered without prejudice

expressly, and we ask now that it be

rescinded,

We also -- if I may, Your Honor, as

to Mr. Zinkgraf's request for attorney's

fees, without prejudice to what we have

just said, we believe strongly that this

matter is not without substantial

justification and it is not within the

gambit of Maryland Rule 1-341.

As our authority thereto, we would

/302

quote from Century I Condominium

Association, Incorporated, versus Plaza

Condominium Joint Venture, 64 M4.App.

107, 494 aA.2d 713 (1985). Therein at

717, “As we pointed out in Blanton

versus Equitable Bank, National

Association, before Rule 1-341 sanctions

may be applied, one or both of two

predicates must exist. They are ‘bad

faith’ and ‘lack of substantial

justification.’ Ordinarily, a trial

judge faced with a Rule 1-341 motion

should make an explicit determination as

to the existence of these factors. See

Hess versus Chalmers."

Purthermore at 719, "In Dent versus

Simmons, we reversed a ‘without

substantial justification’ award of

attorney's feee on the basis of abuse of

discretion. We reasoned that ‘a

litigant ought not be penalized for

innovation or exploration beyond

existing legal horizons unless such

- 46 o-

exploration is frivolous.’ In Blanton

we explained that an action is frivolous

if ‘it indisputably has no merit.'"

"As we observed in Hess, ‘without

substantial justification’ should not be

interpreted to mean that the winning

party is entitled to counsel fees

simply because his opponent misconceived

the legal basis upon which he sought to

prevail.*

We believe -- well, it is obvious,

Your Honor, that the statute intends that

such depositions might take place.

There are express provisions for

remuneration of << ae witness fees, and

that has become an issue. While there

may not be any cases expressly

establishing the right as to an expert

witness, we believe that there are

sufficient controlling cases that we

have that right.

sit.

This is certainly not without

substantial justification, Your Honor,

We need to take this man's deposition in

light of the fact that a letter which

purports to be from him was introduced

in evidence.

Pinally, Your Honor, I might

request that, without prejudice once

again, if Your Honor is inclined to

award attorney's fees, that Your Honor

delete the ten days to make payment for

the award as Mr. Zinkgraf has requested.

The effeot of imposing such a time

for paying an award in circumstances

such as this case would effectively

force an appeal, and the courts have

repeatedly stated that piecemeal appeals

are not favored. We would prefer that

the issue go to appeal after the final

judgment in this matter.

THE COURT: All right. Thank you.

~- 48 .

| , .

ME. ZINKGRAF: Your Honor, my

client, Mr. Tracy, is not a party to

this action. Mr. Wardell sought his

deposition earlier. We moved for

protective order, supplemented that

protective order on the grounds that any

testimony that Mr. Tracy might heave,

the issues had been dismissed. It is my

understanding that may be on appeal,

but Mr. Tracy has no relevant testimony

to any issues before + yal

In light of that, Judge Weinstein

entered a Protective Order on August 3,

ordering that Mr. Wardell is prohibited

from obtaining a subpoena or noticing a

deposition or using any other court

process in an effort to obtain testimony

from Mr. Tracy. He did grant it without

prejudice, but it requires a showing of

good cause on how the proposed testimony

relates directly to an issue pending in

this action.

Mr. Wardell has put nothing in his

briefs which is new, and I have not

heard anything new today. We believe

this is a frivolous motion.

THZ COURT: What is Mr. Tracy's

legal fees in this matter?

MR. ZINKGRAF: I would estimate them

to be about $750.

THE COURT: For this hearing, this

motion?

MR..ZINKGRAF: By the end of today,

I would think. We can submit the exact

fees, if you would like then.

THE COURT: Mr. Wardell --

MR. WARDELL: Yes, Your Honor.

THE COURT: -- you are going to

learn one of these days that you cannot

go ahead and maintain these kinds of

frivolous actions in this court without

paying a penalty. Bringing people in,

—

causing them great expense. Judge

(stnetetn Was very clear that you had to

show good cause, You have not shown any

good cause here this morning. There was

nothing in your plsading that showed

good cause. You certainly have not

argued anything this morning. 80 the

Court is going to deny both of your

motions. I believe they were

frivolously filed with no justification,

And the Court will order $450 attorney's

fees against you in favor of Mr. Tracy.

Counsel, would you present an order

to that effect?

MR. WARDELL: Your Honor, will you

delete the ten days requirement as I

requested?

THE COURT: No, I will not. The

order has been entered.

ME. ZINKGRAP: Thank you, Your

Honor,

- $1 «

MR. WARDELL: Thank you, Your Honor.

THE COURT: All right.

(Whereupon, the hearing was

concluded. )

- 52 -

1306

CERTIFICATE

CompuScribe hereby certifies that

the attached pages represent an accurate

transcript of the electronic sound

recording of the proceedings in the

Circuit Court for Montgomery County in

the matter of:

CIVIL NO. 75721

JAMES R. WARDELL

DIAMOND PARMS CONDOMINIUM

By 3

(signed)

Gall A. Williams, transcriber

= $3 «

/246

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

JAMES R. WARDELL,

Defendant

Civil Action

No. 75721

DIAMOND FARMS CONDOMINIUM

ASSOCIATION, et al.

Defendants/Counter-

)

Plaintiff/Counter- :

Plaintiff )

ORDER

Upon consideration of the

Opposition to Motion for Body Attachment

and Fine, it is this jrd day of August,

1992

ORDERED that the Motion for Body

Attachment and Fine be, and it hereby

is, DENIED. And it is

Note: Interlineation indicates page

numbers in Appellant's Brief in the

Court of Special Appeals (pages 73-85

hereinafter).

- 54 -

PURTHER ORDERED that Mr. James R.

Wardell is prohibited from obtaining any

Bubpoena, noticing any deposition or

using any other Court process in an

effort to obtain testimony from Mark M.

Tracy unless permitted by an Order of

this Court after a showing of good cause

how the proposed testimony relates

directly to an issue pending in this

action. without prejudice [sic]

[signed:

Paul H. Weinstein]

Judge, Montgomery

County Circuit Court

~ 8

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

Q YLAND

No. 11

SEPTEMBER TERM, 1993

JAMES R. WARDELL

MARK M. TRACY

Bishop,

Cathell,

Motz,

JJe

Per Curiam

Piled: September 23, 1993

o«

James R. Wardell, appellant, was

ordered by the Circuit Court for

Montgomery County to pay $450 in

attorney's fees to Mark M. Tracy,

appellee, pursuant to Maryland Rule

1-341, for filing a motion without

substantial justification. Appellant

posits three questions, which we

rephrase as follows:

1. Did the lower court err

in finding that the Motion to

Rescind Protective Order and the

Motion for Body Attachment and

Fine were without substantial

justification?

2. Was the award an abuse of

discretion?

3- Does the award of

attorney's fees violate the Hgual

Protection Clause of the

Fourteenth Amendment to the United

States Constitution?

THE FACTS

The facts, pleadings, and

motivations in this case are quite

o $7 «

involved. The issues on appeal are,

however, quite narrow. We shall address

only those facts relevant to the issues

on appeal. Appellant has been

sutvehetine with the Diamond Farms

Condominium Association and its Council

of Unit Owners for several years. The

association governs a condominium

complex where appellant owns a unit.

Appellant has appeared pro se in

numerous proceedings before the Circuit

Court for Montgomery County, and in at

least one other appeal to this Court.

On April 7, 1992, Tracy was served

with a subpoena by appellant to appear

at a deposition. Tracy was not, and is

not now, a party to the underlying suit.

Appellant wished to depose him regarding

a letter he wrote which was introduced

into evidence by the Condominium

Association at a hearing on appellant's

complaint. Tracy's counsel informed

appellant that Tracy would not appear

for the deposition.

Tracy filed a Motion for Protective

Order on April 22, 1992, alleging that

appellant sought expert testimony from

Tracy, yet refused to pay any expert

witness fee. Although informed that

Tracy would not appear, and that a

Motion for Protective Order was pending,

appellant appeared for the deposition on

April 24th and subsequently moved for a

body attachment and fine against Tracy

for failure to appear pursuant to a

subpoena. On May 1, Tracy filed a

supplement to his motion, alleging that

those counts of appellant's complaint

relating to his testimony were dismissed

by the circuit court on March 26, 1992.

The trial court denied the Motion

for Body Attachment and Fine on August

3, 1992, and entered a protective order

prohibiting appellant "from obtaining

any subpoena, noticing any deposition or

using any other Court process in an

effort to obtain testimony from Mark M.

Tracy unless permitted by an Order of

this Court after a showing of good cause

how the proposed testimony relates

directly to an issue pending in this

action." The trial judge added that the

order was "without pre judice.*

On October 29, 1992, appellant

filed a Reinstatement of Motion for Body

Attachment and Fine and a Motion to

Rescind Protective Order.

THE LAW

Maryland Rule 1-341 reads:

In any civil action, if the

court finds that the conduct of

any party in maintaining or

defending any proceeding was in

bad faith or without substantial

justification the court may

- 60 -

require the offending party or the

attorney advising the conduct or

both of them to pay to the adverse

party the costs of the proceeding

and the reasonable expenses,

including reasonable attorney's

fees, incurred by the adverse

party in opposing it.

The Court of Appeals has expressly

adopted a standard of review for an

award of attorney's fees under this

rule.

eos [Before imposing

sanctions in the form of costs

and/or attorney's fees under Rule

1-341, the judge must make two

separate findings that are subject

to scrutiny under two related

standards of appellate review.

Pirst, the judge must find that

the proceeding was maintained or

defended in bad faith and/or

without substantial justification.

This finding will be affirmed

unless it is clearly erroneous or

involves an erroneous application

of law. Second, the judge must

find that the bad faith and/or

lack of substantial justification

merits the assessment of costs

and/or attorney's fees. This

finding will be affirmed unless it

was an abuse of discretion.

Inlet Associates v. Harrison Inn Inlet,

- 61 -

Inc., 324 MA. 254, 267-68 (1991). See

also Deleon Enterprises, Inc. v. Zaino,

92 Md.App. 399, 415 (1992); Art Form

Interiors, Inc. v. Columbia Homes, 92

Md.App. 587, 593-94, cert. denied, 328

Md. 567 (1992).

The trial judge must make explicit

findings of fact that a proceeding was

maintained or defended in bad faith

and/or without substantial

justification. Inlet Associates, 324

Md. at 269 (citing Zdravkovich v. Bell

Atlantic-Tricon Leasing Corp., 323 Md.

200, 210 (1991)). See also Talley v.

Talley, 317 Md. 428, 436 (1989); Beery

v. Maryland Medical Laboratory, Inc., 89

Md.App. 81, 98 (1991), cert. denied, 325

Md. 329 (1992); Legal Aid Bureau, Ino.

v. Bishop's Garth, 75 M4.App. 214, 220,

cert. denied, 313 Md. 611 (1988);

Century I dculinnhehan Assoc., Inc. Vv.

- 62 -

Plaza Condominium Joint Venture, 64

Md.App. 107, 115 (1985).

Awarding attorney's fees under this

rule is an extrordinary remedy, and it

should be used sparingly. Inlet

Associates, 324 Md. at 277, n.4& (Bell,

J. dissenting); Talley, 317 Md. at 438

(rule is extraordinary remedy and should

reach only intentional misconduct); art

Form Interiors, Inc., 92 Md.App. at 598

("sanctions should be reserved ‘for the

deterrence of unnecessary or abusive

litigation.'"); Black v. Fox Hills N.

Community Ass'n, Inc., 90 Md.App. 75,

84, cert. denied, 326 Md. 177 (1992)

(rule should be invoked only for clear,

serious abuses of judicial discretion).