# Petition for Writ of Certiorari — Wardell v. Tracy

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1563%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1994
- **Citation:** 512 U.S. 1220

## Text

r~
/

| 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,
Ve
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

1.

1.

1.

1.

26

30

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%

56

6.

7°

8.

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).

1.

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 -

3

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.

(c) When a state court or a
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 «

|
j

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

—

5

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
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 Mea

protection of the law, We address the
issue only because it is a clear example
of the type of unjustified proceeding
that Rule 1-341 was meant to address.
Had any party spent time or money
defending that claim, we would have,
upon proper motion, awarded attorney's
fees.

Por the foregoing reasons, .the
trial court's judgment awarding
attorney's fees under Maryland Rule

1-341 is affirmed.

JUDGMENT AFFIRMED; COST8 TO
BE PAID BY APPELLANT.

o We

Denied by
panel
AM Wilner
[pigned]
11/3/93
IN THE COURT OF SPECIAL
APPEALS OF MARYLAND
JAMES R. WARDELL, )
Appellant,
Ve No.
he Term, 1993
MARK M. TRACY,
)

Appellee.

MOTION FOR RECONSIDERATION
Appellant, James RB. Wardell,

respectfully represents unto Your
Honors,-Appellant’s Motion for
Reconsideration of the decision rendered
herein:
I. THE COURT OF SPECIAL
APPEALS SHOULD GRANT
BECONSI ION.

The Court of Special Appeals

affirmed the award of attorney's fees in

=

JAMES R. WARDELL®In the
*Court of Appeals
*of Maryland
ie *Petition Docket No.. 531
*September Term, 1993
MARK M. TRACY (No. 11, Sept. Term

1993, Court of Special
Appeals)

ORDER

Upon consideration of the petition
for a writ of certiorari to the Court of
Special Appeals, in the above entitled
case, it is

ORDERED, by the Court of Appeals of
Maryland, that the petition be, and it
is hereby, denied as there has been no
showing that review by certiorari is
desirable and in the public interest.

8/ ROBERT C. MURP
e e

Date: January 26, 1994

— 2

IN THE COURT OF SPECIAL
APPEALS OF MARYLAND

JAMES R. WARDELL, )
Appellant, !
Ve No. 11
September Term, 1993
MARK M. TRACY, )

Appellee.

APPEAL FROM THE CIRCUIT COURT
POR MONTGOMERY COUNTY

(Paul A. MoGuckian, Judge)

James R. Wardell, Appellant
870 Quince Orchard Blvd., #202
Gaithersburg, MD 20878

(301) 963-8279

Notes: Interlineation indicates
page numbers therein. E indicates
reference to the Printed Extract.

» Via

/9
V._ Argument

ae aoe 13 Whether the

lower court erre n finding that
the Motion to Rescind Protective
Order was without substantial
justification.

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 evi-
dence in the action or for both pur-
poses,"

In the instant case, Appellant
seeks to take Appellee's deposition in
the matter of a letter (E) of October 1,
1990 alleged to be from Appellee. The
letter was first introduced in this mt-
ter by Defendant Diamond Farms Condomin-
ium Association at the Hearing of March
23, 1992 (E), over Appellant's objection

(EZ), when the Appellee was not present

- 7h

at the Hearing. The letter addresses
the matter of (clothes) Washing machines
at Diamond Farms, and was the hie sub-
stantial evidence Supporting the deci-
sion then rendered (EZ). The issue was
whether Appellant has a constitutionaly
protected vested right to have a clothes
washer and a clothes dryer in his Unit
(See, Counts One and Two of the Com-
plaint, E). The Order of March 26, 1992
(EZ), by its own terms, is an interlocu-
tory order subject to revision at any
time before the entry of final judgment,
pursuant to Maryland Rule 2-602(a)(3).
Appellee failed to appear for his
deposition on April 24, 1992 (E).
Appellee'’s Motion for Protective
Order was granted without prejudice af-
a Hearing on August 3, 1992. The cir-
cumstances are clear from the record

(E):

o % «

MR. WARDELL: °oeee

Now, Your Honor, if I may go
on. We originally filed a motion
for body attachment of Mr. Tracy,
and we have withdrawn that motion
because we have obtained other
evidence,

However, we may wish to take
Mr. Tracy's testimony, his
deposition, later in this action.
We see no reason to file a
protective order. I have no
intention of taking his deposition
at the present time, but I may --

THE COURT: All right. I am
going to grant the protective
order without prejudice. If you
can show a basis for taking Mr.
Tracy's deposition down the road,
I will leave that open to yon.

The Motion to Revise was denied
(E). Appellant then moved to rescind
the protective order (E). The Court on
December 11, 1992 (See, E pp. 292 ff.)
found that oa lead had not shown good
cause to rescind the protective order
and awarded Appellee'’s attorney's fees
(E pe 307).

The grounds for rescinding the pro-

tective order are the same as the orig-

«We

inal grounds for the deposition, supra.
Appellant seeks to take Appellee'’s depo-
sition as to the letter entered in evi-
dence, and may then again move to revise
the Order of March 26, 1992.
The instant case is similar to
McKown v. Criser's Sales and Service, 48
Md.App. 739, 430 A.24 91 (1981), cert.
denied, where this Court observed at
751, 998
We note that after the appeal was
filed, the appellant filed and ob-
tained an order from the Circuit
Court for Baltimore County, to
permit the taking of Criser's em-
ployees’ depositions in the 8tate
of Virginia on not less than twen-
ty days’ notice of the time and
place.

See also, Coe v. Bass, 74 Md.App. 346,

537 A.2d 643 (1988), where nonparty at-

torneys and a State Trooper who had
worked for the opposing party were de-
posed.

Century I Condominium Association,

- 77 «-

Inc. v. Plaza Condominium Joint Venture,
(1985):

In Dent v. Simmons, 61
M4.App. 122, 485 A.2da 270 (1985),
we reversed a “without substantial
justification" award of attorney's
fees on the basis of abuse of dis-
cretion. We reasoned that eed
litigant ought not be penalize
for innovation or exploration be-
yond existing legal horizons un-
less such exploration is frivo-
lous." 61 Md.App. at 128, 485
A.24 270. In Blanton {infra}, we
meg? that an action is frivo-

12
lous if “it indisputably [has
merit...." 61 Md.App. at 166, 485
A.2a 694% (quoting In Re Marriage
of Plaherty, 31 Cal.3d 637, 183
Cal.Bptr. 508, 646 P.2d 179, 187
(Cal.App. i982). Brackets sup-
plied; braces added}

Although Appellant's effort to take
the deposition of an expert witness in
the circumstances of the instant case
might remotely be considered “explora-
tion beyond existing legal horizons" for
lack of an identical authority in Mary-
land case law, it is not frivolous. The

- 78 -

letter in evidence alleged to be from
Appellee is relevant to the pending is-
sue of Appellant's vested right. Nei-
ther did Appellee present any authority
suggesting that such an effort is frivo-
lous. Appellant's effort is certainly
not one that indisputably has no merit.

The Motion to Rescind ig clearly not
without substantial justification, ac-
cordingly.

Question No. 2: Whether the
award of attorney's fees is an

abuse of discretion, accordingly.

Century I Condominium Ass'n, Inc.
v. Plaza Condominium Joint Venture, su-
pra at 115, 7173

As we pointed out in Blanton v.
Equitable Bank, National Associa-
tion, 61 Md.Ap . 158, 161, 485
A.2d 69% (1985), 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."

The finding of the lower court (E

~ 99 «

/13
pe 305, 1. 6) that the Motion to Resoind

was "frivolously filed with no justifi-
cation" is clearly erroneous, supra
Question No. 1. The award of attorney's
fees is an abuse of discretion accord-
ingly and should be reversed. See also,
Dent v. Simmons, supra.

Question No. 3: Whether the
award of attorney's fees is
violative of the Equal Protection
Clause of the Fourteenth Amendment
to the Constitution of the United
States.

Section 1 of the Pourteenth Amend-
ment to the Constitution of the United
States requires, in part, as follows:

- « « nor [shall any State] deny
to any person within its jurisdic-
tion the equal protection of the
laws.
State of Missouri v. Lewis, 101 U.S. 22,
30, 25 L.Ed. 989 (1879):
[TJhe general objects and

purposes of the [Equal Protection
Clause of the] Fourteenth Amend-

- 80 -

ment « « « @F@ « « « to prohibit
the States ... from denying to
any person within their jurisdic-
tion the equal protection of the
laws. It contemplates persons and
Classes of persons .. . within
the places or municipalities for
which euch [laws] are made... ,
in like cases and under like cir-
cumstances,

Shelley v. Kraemer, 334 U.S. 1, 14,
68 S.Ct. 836, 842,.92 L.Ed. 1161 (1948):

That the action of state
courts and judicial officers in
their official capacities is to be
regarded as action of the State
within the meaning of the Four-
ya Amendment, is a proposition

1
which has long been established by
decisions of this Court.

And, Washabaugh v. Washabaugh, 285 Md.
393, 404, 404 a.2a 1027, 1033 (1979),
the test for constitutionality under the
Equal Protection Clause is

whether it complies with the so-

called “rational basis test," as

“pbear[ing].a rational relation to
or rest[ing] upon some ground of

difference having a fair and sub-
stantial relation to a legitimate
state objective." {brackets sup-

plied}

—-

The instant case is like the cases
cited herein and in the lower court.
The lower court is without any rational
basis for the discriminatory award of
attorney's fees, accordingly.

The award of attorney's fees is a
violation of the Equal Protection Clause
of the Fourteenth Amendment, accord-

ingly, and should be reversed.

Order of August 3, 1992, page 246
of Appellant's Brief, is to be found at
page 54 herein,

- 83 -

Hearing of December 11, 1992, pages
292-306 of Appellant's Brief, is to be
found at page 31 herein.

Order of December 11, 1992, page
307 of Appellant's Brief, is to be found
at page 29 herein.

~ 85 -

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1563%3A1. Public record. Not legal advice.