Inlet Associates v. Harrison Inn Inlet, Inc.

аnd people money drugs stole from the victims. We Henry’s further conclude that death sentence was not im- under posed the influence of passion, prejudice, or other arbitrary 414(e)(1). factors. Art. § AFFIRMED, JUDGMENT THE EXCEPT SENTENCE FOR CONSPIRACY TO COMMIT IS ROBBERY VACAT- ED.

596 A.2d 1049 ASSOCIATES, Piper Marbury George INLET & A. Nilson INLET, INN King HARRISON INC. and K. Burnett. 151, Sept. Term, No. 1990. Maryland. Appeals Court of Oct. 1991. Preston, (Louis D. Ruzzi, Whiteford,

Wilbur Jr. P. Taylor Preston, brief), Baltimore, and all on petitioners/cross- for respondents. (Nolan, Hanley,

Robert L. Jr. Plumhoff & Williams Char- tered, brief), Towson, all on Alvin I. Frederick (George D. Wolf, Bogris, brief), Baltimore, Eccleston & all on for respondents/cross-petitioners. MURPHY, C.J.,

Argued ELDRIDGE, before and RODOWSKY, McAULIFFE, CHASANOW, KARWACKI BELL, M. ROBERT JJ.

CHASANOW, Judge. granted We in the certiorari instant case to determine appellate what standard of applied review should be when a trial imposed court has sanctions in the form of costs and attorney’s pursuant Maryland fees to Rule 1-341. The giving facts rise this controversy cannot stated as be as the issue simply succinctly before the Court. $22,000,000 This appeal arises out of a filed by lawsuit (Inlet) Inlet Inlet, Inc., Associates Harrison Inn Inc., Harrison, Inn Sixty-Six, Harrison Hale John Harrison (the Harrisons), Burnett, attorney, King and their K. of process abuse and malicious interference prospec- with tive Inlet is advantage. Maryland partnership business that was formed in 1984 for the purpose developing land, parcel of as Holt’s Landing, City, known Ocean Maryland. managing partner architect, Inlet’s is an Leo (D’Aleo). D’Aleo The Harrisons property adjacent own Holt’s Landing. design high-rise

In the Harrisons hired D’Aleo to a building to be located on their proрerty adja- condominium Landing time, to the site. At cent Holt’s about same Inlet had jointly the Harrisons and discussions about devel- constructing adjacent a marina front of their oping For reasons that shall properties. apparent, become development the marina never occurred. As a joint litigation by neighboring owner, result of another property height the Harrisons lost a to variance was essential thereafter, high-rise project. Shortly their they approached him portion D’Aleo and asked to abate a of his architectural high-rise project. suggested fees for their It was to D’Aleo that, so, longer unless he did the Harrisons would no participate joint development property. the marina D’Aleo refused to abate of his architectural fees and would, informed the Harrisons that Inlet without the Harri- sons, marina, develop the as well as a hotel and condomin- (the ium Inlet project project). D’Aleo sued the Harrisons fees, and recovered his architectural and the Harrisons a began legal series of actions to block the Inlet project. Initially, the Harrisons to sought prohibit the town of Inlet, ordinances, from City transferring Ocean without portion public riparian rights street and the at the end street, of the which were to be used for the Inlet project. an They successfully injunction prohibiting obtained transfer, which was affirmed on apрeal. Inlet Associates v. House, (1988). 313 Md. 545 A.2d 1296 Assateague While the appeal injunction pending, Inlet amended the plans project and submitted the amend- ed plans appropriate agencies of the City. town Ocean Harrisons, The with Burnett as their attorney, challenged plans. the amended The City Planning Zoning Ocean and zoning Commission administrator approved Inlet’s plans amended and issued a building permit. The Harri- sons filed three separate appeals Zoning with Board of Appeals, and when those appeals unsuccessful, were they sought review in the Circuit Court for Worcester County. separate appeals Harrisons filed Zoning Board of decisions,

Appeals’ oral as well as its “in opinions written of caution preservation abundance to insure the of the right did, however, appeal.” They to request that all of the consolidated, appeals be and this done by the trial The judge. seeking Harrisons also filed suit declaratory and relief injunctive “solely protective as a action due to uncertainty concerning right to take an administrative from the decision appeal Planning of the and Zoning Com- Thus, mission.” there were six circuit court actions by filed Harrisons, all of which were consolidated for trial. early represented Until Inlet was by Gerard P. Martin. Martin contacted A. George Nilson to inquire firm, (here- whether Nilson and his Piper law and Marbury, Nilson) take collectively representation would ovеr the litigation Inlet in its with Harrisons. On February 1988, Nilson entered into an agreement represent to Inlet. Under the terms of that agreement, Nilson would receive a of an if bonus additional of his rate he hourly was able 50% persuade drop opposition Harrisons to their to Inlet’s one month. The project provision within bonus apparently was extended for an additional month. provided

Martin also Nilson with a draft of complaint bill against of Inlet the Harrisons alleging process abuse of prospective malicious interference advantage. with business complaint defendants, This draft named the Harrisons as but did not name their The attorney, day Burnett. after Inlet, Nilson was retained he to Burnett by advising wrote him if parties did not meet March before differences, resolve their suit filed by would be Inlet against the Harrisons process and Burnett for “abuse of letter, and related matters.” With that Nilson also enclosed a draft of complaint. bill This draft differed from the one provided by to Nilson Martin that Burnett was added as a defendant.

The meeting parties suggested by Nilson did not interest, take place. Citing a conflict of Burnett informed Nilson that he longer participate could no settlement negotiations or advise Harrisons about settlement. conflict of interest was based on Burnett’s concern about a might his of the Harrisons be representation his belief that him personally. the suit See compromised by Conduct, Rule 1.7 Rules Professional Maryland Lawyers’ that, (1991). if he had counseled the Burnett was concerned to the Inlet opposition project, Harrisons to withdraw their motivated might perceived being partially his be as advice might give appearance It his own self-interest. being a defendant avoiding his actions were directed at his clients’ lawsuit, being solely by rather than motivated interest. best Inlet, 11, 1988, Nilson, on filed suit April

On behalf process and Burnett for abuse of against the Harrisons advantage business prospective malicious interference with suit). The ad (herein process the of collectively abuse dam- sought punitive and compensatory damnum clause $22,000,000. For ages approximately in the amount of months, the claims assert- steps prosecute Nilson took no by ed Inlet. suit, the filing process to the of the abuse of

Subsequent the decisions County affirmed Circuit Court Worcester Zoning challenges of Appeals, rejecting of the Board Harrisons that deci- appealed filed the Harrisons. The and, decision, Special of unreported sion in an Court court, that the Appeals thereby finding reversed the circuit found- challenges project Harrisons’ to the Inlet were well ed. of the

Following Special Appeals’ the Court of resolution favor, Inlet in the Harrisons’ challenges project in Harrisons and Burnett in circuit court found favor of the (abuse I process) Inlet’s suit. Count process abuse defendants, (malicious II as to all and Count was dismissed advantage) interference was dis- prospective with business entered in Summary judgment missed as to Burnett. was on II. The Harrisons and favor Harrisons Count pursuant motions and fees attorney’s Burnett filed for costs the circuit court denied the hearing, to Rule 1-341. After a granted motion Burnett’s motion and as- Harrisons’ but Inlet, Nilson, attorney’s and fees and sessed costs $15,368.23. In render- Marbury in the amount of Piper and decision, trial stated: ing judge his in put the facts are. To them “Everybody knows what terms, to the court that simplest appears their litigation originally jointly to this were involved parties property City, Maryland. certain Ocean developing say falling among an—I don’t want to out That there was thieves, falling among parties. out That Inlet but Associates, action, particular attempt- this plaintiff certain project pursuance scale ed to down received, previously had but permits which been hearings Zoning the Board of ongoing there were before administrative bodies in Worcester Appeals and other City. Ocean I think there were County and/or [six] appeals____ at that going point all this was on these cases were

While County either in the Circuit Court for Worcester pending, appellate to the courts of this State. appeal or on firm Piper Mr. Nilson of the plaintiffs George hired Martin____ assume, I at of Mr. Marbury, the behest finds, if that the court to see express purpose, for the ongoing there not some manner in which all the other was settled. litigation could be of the retainer of Mr. Nilson was provisions

One of the if the case settled within a provision for a bonus time, paid if then he short would be period to the court that his office rate. It is obvious regular there, it’s not in time being provision, though even efforts to effect settlement of the essence. His was of time did not come period the short negotiations within fruition____ of, modifica- this a draft with some During period copy in this tions, ultimately was filed which Burnett, thinking court’s being case sent to Mr. intimidation to effect a settlement. act of obvious this matter in thinking hearing It court’s in a on is the 1988, on 12 of this member of County Worcester October granted—October 20, 1988, the court granted Mr. Bur- nett’s motion to dismiss both counts of the complaint, first count of alleged which abuse of process, and the second count alleged which malicious interference with a business relationship. The motion was denied as to mali- cious interference with a business relationship as far as the Harrisons were concerned.

As a matter of law those are the facts boiled down to very their basics. That’s not as lengthy statement as give I’d like to I you, but think I touched the major points.

As a matter of law believing reasonable basis for that a case is colorable and/or has a colorable claim or defense generates that it a factual issue for the fact finder at trial, and that provides substantial justification for initiat ing action, I defending an as understand the law to be

as set White, forth 81 Md.App. 568 A.2d [.Needle denied, cert (1990) 319 Md. 573 A.2d ], ... I’ll take the Harrisons first.

I me, cannot on the facts before and which were heard argument October of say that that whole case lacked substantial justification. count, The second mo- dismiss, tion to was to the contract, interference with a was denied because the court at that time stated or at stated, least felt—if it wasn’t it opinion was the court’s if the facts alleged that court proved could be as to the Harrisons there may have well been substantial justification for the institution of the action. do, however,

We find that the claim against Mr. Bur- nett was instituted in bad faith and without substantial justification. Mr. Nilson to his credit very ad- candidly mitted oral argument in October of ’88 that there was post-process no abuse to substantiate the claim for abuse process, and that frankly pertained to the Harrisons count; under the first I and think the granted motion was as to both parties as to the first count.

But as to the second count as pertains to Mr. Bur- nett, I find there claim; was not a again, colorable malice, there

frankly allegation no evidence of nor was for the of that claim. any filing therefore, are, grant to Burnett’s We constrained Mr. sanctions, of I think is motions the amount which for $15,368.23. undisputed against Thаt is be assessed Inc., Associates, George Inlet Piper Marbury, Nilson.

Motion for sanctions the Harrisons is denied.” by appealed Inlet assessment of costs and and Nilson the The in favor of Burnett. attorney’s fees them the of the trial court appealed denying Harrisons decision ap- fees. Inlet also attorney’s their motion for costs and in Burnett pealed the favor of Harrisons and judgments in tort underlying action. petition for filed granted

This Court writ certiorari by Inlet of the case by prior and Nilson to consideration outset, the As stated at the Special Appeals. Court we petition issue of certiorari was what by raised writ a trial applied standard of should be where appellate review imposes attorney’s form of costs and court sanctions Rule pursuant fees 1-341. for Inlet argument,

At oral we were informed counsel Inlet is and no seeks a longer and Nilson that defunct of the defendants on the reversal of the favor judgment prospec- interference abuse and malicious with process advantage of these validity tive business counts. remaining appeals, the two may counts still be relevant to i.e., Nilson of the award costs and attor- appeal by Burnett, Harrisons’ appeal fees to and the ney’s attorney’s failure to them costs and fees. award

STANDARD OF REVIEW provides: 1-341 Rule action,

“In if finds conduct the court that the any civil defending maintaining any proceeding party faith or without substantiаl bad require offending party attorney court or the may advising the conduct or both of them to pay to the party adverse costs of the proceeding and the reason- expenses, including able fees, reasonable attorney’s in- curred adverse in party opposing it.” Apparently recognizing that the standard of may review dispositive well be of this appeal, Nilson and Inlet assert that the “clearly erroneous” standard is not the appropriate standard of review of a trial ‍‌‌‌‌​​​​‌‌‌​‌‌​​​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​‌​​​‌‌​‌‌​‌‌‍court’s decision to award costs and attorney’s pursuant fees to Rule 1-341. They contend that de novo review is desirable order to “create uniform- ity the treatment of Rule 1-341 cases.” They point out that other courts recognized have applied de novo standard of review to test the legal conclusion of whether the imposition of sanctions justified and cite by way of example, Zaldivar v. City Los Angeles, (9th 780 F.2d 823 Cir.1986); Eastway Const. Corp. York, v. City New 762 (2nd Cir.1985), F.2d 243 denied, 918, cert 484 U.S. 108 S.Ct. 269, (1987); 98 L.Ed.2d 226 Turner v. Duke 325 University, N.C. 381 (1989). S.E.2d 706 parties The agree that this Court has never expressly adopted a standard of review where sanctions have been imposed under Rule 1-341. however, They disagree, as to what standard we should apply. Court of Special Appeals spoken has on the issue and has adopted the “clearly erroneous” standard. See, Needle, e.g., 81 Md.App. 463, 568 856; A.2d Bohle v. 78 Thompson, Md.App. 614, 639, 818, 830, 554 A.2d cert denied, 316 Md. (1989); 558 A.2d 1206 Dent v. Sim- mons, 122, 127, 61 Md.Apр. 485 A.2d (1985). 272 Compare Cooter & Gell v. U.S.-, Hartmarx 496 Corp., 110 S.Ct. (1990), L.Ed.2d 359 where the Supreme Court held that federal appellate courts should apply the abuse of discretion standard in reviewing a district court’s decision impose sanctions under Rule of the Federal Rules of Civil Procedure.

The standard for appellate review depends some mea- sure on whether we finding view a of bad faith or lack of justification as a finding of fact which should not be set erroneous, aside unless clearly 8-131(c), Rule to de novo review. We find subject conclusion of law

as a recent case of Ameri- reasoning in the logic and persuasive Sullivan, 938 F.2d 216 Association Hospital can the court stated: (D.C.Cir.1991) where credi- a court to determine requires question “When items, an evidentiary weights compare or to bility (1) humbling factors: must remember two court appellate to make position judge’s of the trial superiority ‘the (2) the principle credibility,’ determinations fact, role is the determination major judge’s trial ‘[t]he exper- that role comes fulfilling experience and with 564, 574,105 City, v. Bessemer 470 U.S. tise.’ [Anderson Therefore, 518, (1985) 1512, L.Ed.2d 529 ]. S.Ct. in faith the context the of bad question conclude that we rule on to the American exception law of the common determina- credibility it does fees—involving as counsel applica- to the opposed as evidentiary weighing tions and (either conceded of fact of the law to matters tion of rules a determined)—is requiring clearly one of fact already de review, requiring not one of law of erroneous standard in a case specific certainly possible It is novo review. of findings not might support evidentiary base that an matter of of faith as a finding bad consistent with fact might on such evidence findings subsidiary or that law faith.” finding ultimate bad support Id. at 221-222. of a appellate review aspect

There is an additional Rule 1-341. sanctions under to award decision judge’s trial litigant acted finding that a requisite If makes judge judge justification, substantial in faith or without bad finding After sanctions. automatically impose should not judge justification, of substantial faith or lack bad those light deciding, discretion then exercise should fees should be attorney’s costs and/or findings, whether awarded. That rule Rule 604b. 1-341 was to Rule predecessor

provided: action, “In an part action or of an if the court finds that (1) any proceeding faith, (2) was had in bad without (3) justification, substantial for purposes delay, require court shall the moving party to to the ad- pay party verse the amount of the costs thereof and the reasonable expenses incurred by adverse party opposing such proceeding, including reasonable attorneys’ added.) fees.” (Emphasis

Rule made 604b sanctions after mandatory finding of bad faith or lack of justification. August On McAuliffe, the Honorable John F. then Chairman of the Rules Court, Cоmmittee and now a member this in a letter to this acknowledged Court the change from the nature mandatory of sanctions under former Rule 604b permissive nature of sanctions under present Rule 1-341,

“While the subcommittee acknowledges the substitution ‘may’ word for the Rule, word ‘shall’ this notes that change this is not consistent with the current trend towards strengthening the provisions for sanctions designed to curb abuses of the Supreme rules. The Court recently ordered amended, that FRCP be effective August 1983. The amendment substitutes mandatory language permissive language relative to imposition court of sanctions. 604b, Current Maryland Rule from derived, which Rule 1-341 is is also phrased terms of mandatory imposition of sanctions once the court makes a finding proceeding that a was had for an improp- er purpose.”

Thus, before imposing sanctions in the form of costs and/or attorney’s 1-341, fees under Rule the judge must make separate two findings that are subject to scrutiny under two related appellate First, standards of review.

judge must find that the proceeding was maintained or defended bad faith and/or without substantial justifica- tion. finding This will be affirmed unless it is clearly erroneous or involves erroneous application of law. Sec- ond, the judge must find that the bad faith and/or lack of

268 of costs merits the assessment unless finding This affirmed fees. will be attorney’s and/or of discretion. it was an abuse BAD FAITH OR LACK OF SUBSTANTIAL

JUSTIFICATION concur, that agreement, are in and we pаrties determining justification, lack of substantial test for case, is in the instant whether applied should be which the claims believing for had a reasonable basis Nilson finder. This fact for the fact an issue of generate would Special Appeals utilized Court test has been White, 81 Md.App. in Needle v. example For several cases. 863, Special Appeals the Court of 476, 568 A.2d at at as “a reasonable basis defined substantial for the a factual issue generate that a case will believing 314 Md. Reilly, at trial.” See also Newman fact-finder that, to stated 364, (1988), 959 where this Court 550 A.2d parties position justification, constitute substantial the realm and “within “fairly debatable” should be 381, at 967-68. Addi 550 A.2d Id. legitimate advocacy.” to Rule 3.1 in the comment are also found guidelines tional Conduct, Rules of Professional Lawyers’ the Maryland is lawyer if “the that an action frivolous states which on the merits argument faith good either to make unable good aby the action taken support taken or to of the action extension, or reversal modification argument for faith existing law.” purpose for the vexatiously, means

“In bad faith” improper or for other delay, or unreasonable harassment 752, 447 U.S. Piper, Inc. v. Roadway Exp., reasons. See (1980); John 2455, 2464, L.Ed.2d 501 65 100 S.Ct. denied, 521, 581 A.2d cert. Baker, Md.App. son v. (1990). A.2d 13 Md. APPEAL THE HARRISONS’ erred in trial judge assert that the The Harrisons pursuant fees attorney’s them costs failing to award that the in error if he They argue judge Rule 1-341. was against them did not lack substantial found that Inlet’s suit facts set forth and previously Based on the justification. hold that the opinion judge, judge the oral of the trial we the Harrisons had against did conclude that Inlet’s suit not clear- finding substantial and that this was erroneous. ly that,

The Harrisons also contend because the Burnett, against found faith in Inlet’s suit judge clearly bad he must also found bad faith Inlet’s by implication have agree. not In against suit them. We do Zdravkovich v. 323 Md. 592 A.2d Leasing Corp., Bell Atlantic-Tricon (1991), this Court stated: to Rule 1-341 imposition pursuant “The of sanctions ‘in that a claim or defense was requires explicit finding an justification.’ faith or substantial The record bad without find- requisite must reflect that the trial made the judge findings.” for those ings, as well as the basis 503. the trial though judge Id. at 592 A.2d at Even Burnett, against judge found faith in Inlet’s suit did bad the Harrisons against not find that Inlet’s suit explicitly filed or faith. The failure to find bad pursued was bad not clearly faith the suit Harrisons Thus, express finding erroneous. since there was no either or lack of justification, bad faith costs Harrisons were not entitled to an award of 1-341. note that if the counsel fees under Rule We even suggestion judge Harrisons were correct their that the a deci- justification, found bad faith or lack of substantial fees to the Harrisons deny attorney’s sion to costs or would an of discretion. be abuse APPEAL NILSON’S in pursu Burnett acted as counsel for the Harrisons and tax ing aggrieved property their remedies as owners case, purposes For the of this we will assume that payers. could for an abuse of attorney personally be liable prospective or malicious interference with business process 270 filed on of a client. See on a suit behalf

advantage based Pro- Abuse Attorney Annotation, Liability Civil of for that the (1980). first contends 688 Nilson cess, 97 A.L.R.3d for deter- misapplied the standard and court misstated trial instituted without substantial an action was mining whether statement upon argument This based justification. that: the by judge made believing that reasonable basis matter of law

“As a claim or defense has a colorable is colorable and/or a case the fact finder at factual issue for generates is that it for initiat trial, provides that action, I the law to be as understand defending an ing or A.2d White, 81 Md.App. forth in as set [Needle the Harrisons first.” (1990) I’ll take ], ... statement single ambiguous this that do not believe We the law. misapplied misperceived the judge indicates that In opposite. fact, just in context it indicates In taken suit that Inlet’s sentence, the determines judge next justification. lack substantial Harrisons did not against negate not out of context does taken single That statement properly trial knew judge that presumption the law. applied erroneous sanc clearly not trial judge

The suit process for the abuse and Inlet tioning Nilson faith not find did bad Although judge Burnett. against against suit in Inlet’s or lack of substantial in Inlet’s suit Harrisons, he found both expressly suit, as process in the complaint The abuse Burnett. as defen Martin, named the Harrisons drafted originally conclude could dants; judge Burnett. it did not name several pursued simply Burnett had Nilson knew that that no had clients and that Nilson of his on behalf lawsuits maliciously intent to Burnett had the reason to believe or the intent advantage business prospective interfere with for a manner or improper in an process legal to utilize law. Nilson’s bill contemplated by result of merit of on the lack predicated of Inlet was on behalf Burnett Inlet challenges project. to the legal Harrisons’ Appeals Special Court of and convinced the believed ex- The trial judge had merit. challenges Harrisons’ case, of this that, under the circumstances found pressly act of intimi- Burnett was an complaint mailing the draft and the Harrisons to force Burnett intended clearly dation facts, the From these litigation. collateral settle other in the joined that Burnett was have inferred could judge Nilson wished suit, not Inlet and because process abuse of him him, to intimidate from but damages tort to recover challenges legal their to dismiss encouraging his clients into may faith be inferences bad Inlet Further project. to the telling Nilson that Martin to Nilson a letter drawn from (counsel retained to I. Frederick inform Alvin he should that, litigation) process in the abuse of Burnett represent lawsuits drop their simply “if Harrisons would matter the entire County, for Worcester Circuit Court go away.” would on con attorney an based against a lawsuit

Filing of purpose is filed not for the advocate that duct as an the attor redress, coercing of purpose for the seeking but certainly justify can litigation, collateral ney to settle other not clearly The trial finding judge of faith. bad of faith and lack finding erroneous both bad Burnett, and the judge in Inlet’s suit and attor assessing costs his discretion did abuse under Rule 1-341. ney’s fees FOR THE CIRCUIT COURT OF

JUDGMENT BE AFFIRMED. COSTS TO WORCESTER COUNTY BY PAID PETITIONERS. BELL, dissenting. Judge, M.

ROBERT Leasing Corp., In v. Bell Atlantic-Tricon Zdravkovich Chasanow, 200, (1991), Judge 592 A.2d 498 323 Md. Court, for the opinion, speaking majority author of the concerning applica- comments insightful made several the assessment Beginning 1-341. Rule Maryland tion discussion, he fees observed: counsel 1-341 an tool for the deterrence of “Rule can be effective litigation. like unnecessary Unfortunately, abusive abused, tools, if used or if it is many improperly capable inflicting injury.” excessive unwarranted 209, Id., Concluding 323 Md. at 592 A.2d at 503. discussion, Judge Chasanow ‍‌‌‌‌​​​​‌‌‌​‌‌​​​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​‌​​​‌‌​‌‌​‌‌‍asserted: simply litigation

“Rule 1-341 is not intended to shift purpose on relative fault. Its is to deter expenses based litigation. imposition The unnecessary abusive requires explicit findings supported by sanctions factual record, of judicial as well as a careful exercise discre- tion.”

Id., 323 Md. at 592 A.2d at 504. McAuliffe, Judge speaking for the Court Tally (1989), 564 A.2d noted that 317 Md. Tally, finding an faith” or “lack of substantial evidentiary “bad made, required supported, by justification” be trial court: for this lies not in the requirement only rule, logic

clear also in the language but sanction is there extraordinary imposed before such upon that there has a clear focus should be evidence been specific finding the criteria it and a that these justifying Moreover, some exposition criteria have been met. brief finding the facts which the is and an upon based particular finding articulation of the involved are neces- sary subsequent review.

Thus, logic ensuring the that trial recognized judges we right applying the focus when the rule and also the have of its articulating of a trial court the basis desirability So, cases, the earlier v. finding. e.g. Reilly, while Newman 364, 380, 959, (1989); 314 Md. 550 A.2d 967 Yamaner v. Orkin, 508, 509, 1345, (1988); Legal 313 Md. 545 A.2d 1345 214, 1175, Garth, 220, 75 540 A.2d Bishop’s Md.App. Aid v. (1988), on find- focusing specific 1179 are consistent the I read as also a on ing requirement, Tally imposing duty court to enumerate facts to them. One support the trial requirement danger basis for such a of abuse identi-

273 another. purpose provides The rule’s in Zdravkovich. fied 380, at 967 at 550 A.2d Reilly, v. 314 Md. Newman See and/or penalize party is not intended (“Rule 1-341 Yam defense.”); or claim asserting colorable counsel for (same). See also 516, aner, 313 Md. at 545 A.2d at 1349 856, 861, White, Md.App. 568 A.2d 81 v. Needle (1990), it is denied, 319 Md. 582, 573 A.2d 1338 where cert. said: judicial fine-tune the the rule is to objective the tend- arising from eliminating the abuses by

process or initiating and their counsel litigants of a few ency merit. The that is without litigation clearly continuing pursuit is that overzealous process dаnger inherent Court, in Eastway may result what objective of the York, F.2d New Corp. City Construction enthusiasm Cir.1985), “stifling as (2nd described of the that is the lifeblood creativity very chilling law.” 1180, the Garth, Md.App. 540 A.2d at

In Bishop’s is not that Rule 1-341 opined Special Appeals Court ques- have a persons to force who weapon “as a intended of a fear it because cause abandon tionable innovative of sanctions.” imposition of the do not trial court facts found

I that the believe faith or lack support its bad King K. Nilson filed and that the claims

“findings” matter of as a not lack substantial Burnett did Therefore, I dissent. law.1 wrong standard or trial court used the

1. I that either the also believe respect to the apply. With what standard to was confused as to be, former, applicable law to it believed the its statement of what dismiss, and the prior grant motions to to its references it made motions for as to the Burnett and Harrisons different results reached that, from the court determined lead me to conclude that sanctions dismiss, of substantial grant motion to both “lack of Burnett’s latter, I inexorably As to the justification" "bad faith” followed. facts, court on basis of which the persuasive the fact that the find Burnett, faith”, yet apply much to the Harrisons as to found "bad as granted. only was Burnett’s motion FACTUAL SUPPORT sure, To be the trial court summarized it some—what characterized as “the major points”—of the facts. Al- though may we assume that fact the court mentioned found, was a fact notwithstanding rather lengthy hear- ing issue, conducted on the the trial court found precious best, few facts. At the court found the following facts: (1) there “a falling was out” between Inlet Associates Harrisons, and the in protracted which resulted proceed- ings before the Worcester County Zoning Board of Ap- peals and other administrative bodies and the Worcester County Circuit Court.

(2) while the cases pending were either in the Circuit for Court Worcester or on County appeal, Nilson was hired “for the express purpose, finds, that the court see if there was not some manner which all the other ongoing litigation settled”; could be (3) Nilson’s retainer had a bonus provision, which would be effective should the matter be settled within relative- ly period time; thus, short it was “obvious to the court time ... was of the essence”. No settlement effect- was time, ed within the applicable period however; (4) a copy complaint, draft of a “with some modifica- tions”, filed, which ultimately was sent to Burnett. The court found that to “an be obvious act of intimidation settlement”; to effect a

(5) the court granted dismiss, Burnett’s motion to in its entirety, motion, and the Harrisons’ in part.

The court made no additional findings of fact2 when it separately considered the counts pled. Although it stated 2. The argument court did assert that Nilson “admitted in oral ... post-process there was no abusе to substantiate the claim for abuse of process.” finding, To the extent this is a factual is not and, therefore, supported by clearly the record erroneous. agree record reflects that whether Nilson did that the did he, allege Nilson, times, anything filings, additional to those at all filing multiple appeals maintained that the of the declaratory and the was, tort, judgment purposes action post-process abuse. claim Mr. Burnett was it found “that the that justification,” in bad faith and without substantial instituted conclusion; no facts to was no more than a finding this addressing the second supplied. Similarly, it were support no claim” the the court found “colorable complaint, count of malice, nor was of there allegation “no evidence or and claim.” no filing Again, for of that justification substantial Moreover, the fact provided. of were supporting findings allegation “no or that there was evidence conclusion the count does not use wrong. While second malice” was word, “malice,” multiple actions were alleged it that the the In Natural De- justifiable or cause.” right filed “without 663, 675 Co., 485 A.2d Md. Inc. Rouse sign, In any “malice.” (1984), equated phrase that with we infer- strong event, complaint entirety produces the its of malice. ence

Thus, provide exposition the did not the “brief court faith lack of findings of bad and upon the facts” which Moreover, it the facts justification were based. substantial mention, demonstrate, to that suggest, find do not not did focused, facts. required, court as on relevant tell us much very summarized do not The facts court of the sanctions imposition the appropriateness about all, relate they only, If are relevant at they this case. rule. very prong not to the bad faith strongly, then addresses whether directly, indirectly, None of the facts filing the complaint. for Nilson had substantial settling ongoing find a Nilson was hired to ofway That neces- example, does not litigation parties, between the faith,” in “bad litigation indicate that he filed sarily filed indicative it was without sub- certainly presence Nor does a bonus justification. stantial agreement mean that whatev- Nilson’s retainer provision agreement undertaken pursuant did to that was er he whether justification, faith and/or without substantial bad found, not, may time of the essence. It as court was Burnett sending copy draft be which, Burnett when Nilson’s intent intimidate evidenced coupled filing with the of the complaint, may support faith; inference of not, bad that fact however, does without more, provide any support for the assertion that the com- plaint filed without justification.

The lack of prong of the rule was only addressed when the trial court focused on the separate counts of complaint. then, Even as pointed out, the trial court did little more than merely state the conclusion that Nilson acted without substantiаl justification.

Apparently, the majority has similar problems with trial court’s focus findings. and It relies only on the trial court’s conclusions that Nilson acted bad faith and with- out justification, not the facts “used” by the trial support court to them. This is most apparent in the case of the bad faith conclusion.

Rather than focus on the reasons, trial court’s majority scoured the record for facts it supported believed the court’s faith” “bad finding, facts neither explicitly, nor on, relied implicitly, reveals, as far as the record by trial Thus, court.3 the majority notes that Nilson added Burnett as a defendant in the draft complaint he received from Inlet’s former lawyer and asserts that it is a fact from which the court “could conclude ... that Nilson had no reason to believe that Burnett had the intent to maliciously interfere prospective with advantage business or intent to legal utilize process an improper manner or for a result not contemplated by law.” Similarly, Harrisons’ suc- appellate 3. The standard of review of a trial court’s bad faith or lack justification "finding", of substantial applied uniformly by the Court Special White, 463, 470, Appeals, e.g., Needle Md.App. v. 582, 81 568 A.2d 856, 859, denied, (1990), cert. adopted 319 Md. 573 A.2d 1338 by today, this clearly Court is whether it is erroneous. That standard one, is a may encourage deferential greater which tend to use of interesting sanctions. adopt It is that we this standard so soon after commеnted, we Leasing, Zdravkovich v. Bell Atl-Tricon Md. 200, 212, (1991), 592 A.2d purpose deterrent "[t]he because, re-emphasized cases, Rule 1-341 should be many in too pleadings that evidence the most bad faith and the least requesting are motions attorney’s costs and fees." by rendered decision appeal the adverse cessful administrative the trial appeals in the circuit court naming Burnett as draft finding that the court’s to Burnett as an act intimidation mailed a defendant was Burnett inference that permissible as presenting are cited to force improper purpose: for an as a defendant joined Inlet challenges to the legal their the Harrisons abandon to Nilson from relies on letter majority The also project. that, “if the counsel, suggested in which was prior Inlet’s in the Circuit drop their lawsuits simply Harrisons would go matter would the entire County, for Court Worcester indicated, faith. As the inference of bad support away,” reveals, of these reasons was none as far as the record upon the trial court. relied adopt- its explain rationale majority does even to the lack of substan- finding respect with

ing the court’s rejects argu- Nilson’s prong. merely It tial wrong standard on basis applied ment that the court out certain of the trial court’s statements that it takes judge that “the trial and, apparently, presumes context applied the law.” properly knew and is opinion fact, consequently, majority In point of to its provide the trial court failed strong evidence that lack of substantial justi for bad faith and finding rationale re reversal and fication, necessitating as Tally requires,4 proceedings. mand for further required Ordinarily, of their judges are to set out details trial not

4. 1, 11-12, State, A.2d thought processes, see v. 306 Md. 506 but Smith record, is, 1165, (1986); to enough that in the evidence 1170 it is there attorney’s for fees and costs support the result reached. The award extraordinary actions is an bringing of frivolous or bad faith the sanction, 777, 428, 436, (1989), Tally, 564 781 as Tally v. 317 Md. A.2d party pays his or her rule that each well as a deviation from usual Moreover, attorney's the sanction has been deter- fees. because own innovation, creativity it must be to or mined not to be intended stifle Consequently, I sparingly, believe judiciously, perhaps, even used. require to more of the trial appropriate be instance which this to it, necessary—to appropriately that it has burden if ensure court—to awarded sanctions. 278

COLORABLE CLAIMS majority opinion The focuses most heavily on the bad faith prong Implicit the rule. in the majority’s position is word, “or”, that permits use prong that on stand its From premise, that, own. this if follows even one case, finding, this is prong, deficient, is affirmance nevertheless justified by other, i.e., the bad I prong. faith am not convinced.

Maryland 1-341, cases have addressed Rule and its purpose, make clear that thе rule is not intended to chill the rights by exercise of with one a “colorable claim.” See 380, (“Rule v. 314 Md. at Reilly, Newman 550 A.2d at 957 1-341 not penalize is intended to a party and/or for counsel asserting defense.”); Zdravkovich, claim or colorable 323 212, (Rule Md. at 592 A.2d at 504 1-341 is not intended to stifle enthusiasm or chill the creativity ‍‌‌‌‌​​​​‌‌‌​‌‌​​​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​‌​​​‌‌​‌‌​‌‌‍that very law.); White, lifeblood 470, Needle v. 81 Md.App. at 860; 224, 568 A.2d at Garth, 75 Bishop’s Md.App. at 540 A.2d 1180. at recognize do cases that the rule’s use the word

“or” Thus, indicates its prongs independent. are at Reilly, Newman Md. 550 A.2d at we said: “In to impose order sanctions requires the trial [Rule 1-341] find or judge to one both of predicates: two bad faith lack justification.” of substantial Zdravkovich, See also 503; at Garth, Md. 592 A.2d at Bishop’s at Md.App. mean, 540 A.2d 1178. This does not however, litigant that a with a claim” “colorable and an will, improper should, motive 1-341 subject be Rule and, therefore, sanctions. That issue not presented was ruled upon. It addressed in Needle and Bishop’s Garth. Needle,

In the issue was whether the plaintiff's action prosecution malicious and intentional infliction of emotional against distress her former employer was filed in faith bad and/or justification. without substantial The plaintiff had been of previously acquitted embezzlement and her civil

279 judgment for summary survived motions had in Following a favor jury for verdict judgment. sanctions, pursu- court assessed former the trial employer, counsel. 1-341, plaintiff and her against to ant Rule reversed, rule’s noting the Special Appeals of The Court litiga- of continuance eliminate the initiation or purpose to Id., at Md.App. merit. 81 clearly without tion that may be concluded that before sanctions 568 A.2d at 860. It action is “clear evidence that the there must be imposed, improper other color and taken entirely without added) (Emphasis amounting to had purposes faith.” A.2d 861. Id., 81 at at Md.App. Bishop’s in Garth. expressed

A similar sentiment was Legal Aid Bureau There, Garth sued clients of Bishop’s Court, lease. On alleging breach their the District trial, counsel, there prayed jury the defendants a advice of Following a two removing the case the circuit court. by trial, presen minutes which only 63 involved day jury defense, returned verdict favor jury, tation of the of deliberation. The Bishop's only after minutes Garth order timely for failure was dismissed appeal defendants 1-341 motion transcript. Bishop’s Garth’s Rule the trial court, a fact both the trial which found as granted by were subsequent appeal trial and the ill-fated jury that the faith, “for bad and without purposes delay, taken jury trial was although [and] ‘additional dis requested purpose obtaining for the issues, request well as to decide the factual covery,’ as intimidate delay in order to the trial and to was made defen Bishop’s dismissing into its suit Garth [the 540 A.2d at 1178.5 Md.App. dants].” 1-341, Rule 5. Like Rule Federal Rules of Civil Procedure impose counterpart, sanc- federal district courts to federal authorizes clients, аttorneys, pleadings upon file not reason- tions and their who purpose. ably grounded improper It in fact or law and for well part: provides, pertinent signature attorney party certificate of an or a constitutes a motion, signer signer pleading, has read the or other 280 Special

The Court of Appeals Relying reversed. on the Comment Rule 3.1 of the of Maryland Rules Lawyers’ Conduct,6 Professional it rejected the argument that the Id., of purpose trial jury prayer was to the trial. delay also v. 1199; 540 at Miller, See Miller 1, A.2d 70 Md.App. 12, (Where 1298, (1987) 519 A.2d 1303 dilatory conduct justifiable grounds, based on Rule 1-341 does not apply.). The then against using hindsight, court cautioned stressing signer's paper; knowledge, and that to the best of the information inquiry grounded and belief formed after reasonable it well in is interposed any improper purpose fact as to and that it not for ... is such unnecessary delay or harass to cause or needless increase litigation____ of the cost justification”, Rather than "bad faith” and “lack of substantial Rule 11 motions, speaks pleadings, being terms of papers or other “well grounded "any Although improper purpose”. fact” and filed for not different, language prongs quite is the two of the rules are similar. 11, Interpreting Rule Fifth and Ninth held Circuits have "that the filing existing well-grounded by of a is that in fact and warranted law, cannot aas matter of law constitute harassment for the 11,” U.S.A., purposes of Rule Corp., Sheets v. Yamaha Motor 891 F.2d 533, trict, (5th Cir.1990); Jennings Independent 538 v. Joshua School Dis- 313, (5th Cir.1989); F.2d Company 877 320 Aetna Insurance Life Services, Inc., 1470, (9th Cir.1988); v. Alla Medical Greenberg 855 F.2d 1476 882, Sala, (9th Cir.1987); City 822 F.2d 885 Zaldivar v. of (9th Angeles, Cir.1986). holdings

Los 780 F.2d 832 These are supportive interpreting insulating of Rule 1-341 as colorable com- plaints imposition only from sanctions based on “bad faith" prong the rule. duty legal procedure 6. “The advocate has a to use for the fullest cause, duty legal benefit procedure. client’s but also a to abuse law, substantive, procedural both and establishes may proceed. within an limits which advocate However the law always Accordingly, determining is not clear never is static. proper scope advocacy, the ambiguities account must be taken of the law’s potential change. for filing of The is not frivolous substantiated or because the an action defense or similar action taken for a client merely fully because the facts first have not been lawyer expects develop vital evi- only by discovery. though dence Such is not action frivolous even lawyer position ultimately believes that client’s will not frivolous, however, prevail. The action is client if the desires to primarily purpose harassing have the action taken for maliciously injuring person lawyer a or if the is unable either to good argument make a support faith on the merits of the action taken or to еxtension, by good argument the action taken faith existing modification or reversal of law.’.’

281 initiation, result, not the that point is the 1179. More- at 540 A.2d at Md.App. important. excep- over, represents “Rule 1-341 limited stating that not recover- attorney’s fees are general to the rule tion counsel],” an opposing party from party able one [or Aid quoting Legal at 540 A.2d Md.App. 707, 722, 539 A.2d Farmer, Md.App. Bureau, Inc. v. (1988) original), urged judicious 1173, (Emphasis it 1180 Finally, the court Id., 540 A.2d at 1180. rule. use asserted: intended, not, and never Rule 1-341 is

Maryland ques- persons force who have weapon used as a be of a abandon it because or innovative cause to tionable 1-341 sanctions sanctions. Rule imposition fear pro- at those who guided pointed missiles judicially are right to so. colorable do in the courts without ceed Bank, Associa- See, v. National Equitable Blanton e.g., 158, one avails tion, 485 A.2d No who Md.App. 694]. [61 in a redress right or to seek himself herself punished merely should be Maryland court of law exercising right. 224, 540 A.2d at 1180. Md.App.

75 at litigation sel pre"ails party ultimately That the sued dom, ever, party if sanctions justifies imposing 478- White, 81 at Md.App. it. who initiated See Needle v. 222, Garth, at 79, Md.App. 75 Bishop’s 568 A.2d at 864.7 pursu of sanctions imposition at 1179. To 540 A.2d avoid 1-341, or only need initiate Maryland party ant to Rule believing “a basis for maintain the action with reasonable for the trier of generate a factual issue case will [that] 476, A.2d at 863. Needle, at 81 at 568 Md.App. fact triаl.” 338, 341, A.2d Dowell, 81 567 Md.App. See also Kelley (1990). 182 521, 522, denied, 303, 572 A.2d 319 Md. cert. the circuit court 7. is filed the before It true that Nilson Nevertheless, and, therefore, ruling. rely on that court’s ruled did not conclusion, and, hence, the it is the reasonableness Nilson’s because not, the circuit he that renders the claim colorable action filed judgment. ruling indirectly confirmed Nilson’s court’s 282 differently,

Stated a claim has substantial if “fairly is debatable” “within the ‘legitimate realm of ”, advocacy’ 364, Newman v. 314 Reilly, Md. 550 A.2d 959, 967-68, Bureau, quoting Legal Farmer, Aid Inc. v. 74 707, 722, Md.App. (1988), 539 A.2d 1180 or is “color Garth, Bishop’s Md.App. 221-22, able.” at 540 A.2d at Thus, 1179. a claim whether lacks involves assessment of the reasonableness of legal position If it “colorable”, asserted. is “within the realm of advocacy”, “fairly debatable”, reasonable good or a faith argument, either on the merits or in support of an exten sion, modification, or existing law, reversal of see Dent v. Simmons, 122, 127, 61 Md.App. (1985), 485 A.2d Thus, then are inappropriate. sanctions inap sanctions are propriate even where a has party legal misconceived the for the he basis claim or she makes. I Century Condo v. Plaza Ven., Condo Joint 64 Md.App. 107, 119, 494 A.2d (1985). of the legal position reasonableness must be assessed point when the complaint filed, from the point of vantage hindsight. Garth, Bishop’s See 75 Md. 222, at App. 1179; Needle, 540 A.2d at 476, 81 Md.App. at Moreover, 568 A.2d at 802. pursuit of Rule 1-341 sanctions differs from maintaining the underlying action in that the Farmer, former is a 713, collateral mattеr. 74 Md.App. at 539 A.2d at 1175. Consequently,

the fact that a court the rejects proposition advanced by counsel and finds it to be without merit does not mean the proposition was advanced without justification substantial inor bad faith. There would no inconsistency be whatev- iner an appellate affirming court the judgment the action and underlying reversing a Rule 1-341 judgment as an abuse of discretion.

Id. perspective

Whether from the existing viewed of or law attempt an explore, to or expand modify existing law, a claim justification lacks substantial “when there nois basis in law and/or in support claim,” fact to Johnson v. [the]

283 (1990), 521, 529, A.2d 52 cert. Baker, Md.App. 84 581 or it denied, (1991), 586 13 when is 322 Md. A.2d make proponent is when its cannot It frivolous frivolous. support the or in of faith on merits good argument either a Id., existing at reversing law. modifying, extending, Garth, 529-30, Bishop’s Md.App. 75 quoting 581 A.2d at Comment, Maryland 221-22, (quoting 540 A.2d at 1179 at 3.1). Rule of Professional Conduct See also Rules Lawyers’ (1979), 5th Ed. 601 which defines a Dictionary Black’s Law on insufficient its “clearly as one that is pleading frivolous points the material not controvert face does presumably interposed mere and is apposite pleading, opponent.” Con delay or to embarrass purposes justifi not lack substantial versely, a “colorable” claim does cation. valid, but, is “apparently

A claim is which “colorable” Law Black’s Dic- reality legally is in insufficient.” which “color”). Where, then, considera- (defining tionary at argu- claim and the allegations underlying tion apparent, reveals support ments advanced action, scrutiny claim withstands cause of prima facie, of Rule 1-341. prong under the substantial a high cannot have The test of substantial Indeed, of “lack of reference to definition threshold. all is clear that re- makes justification” is and/or fact. See Johnson v. quired “some” basis law Baker, is Md.App. question A.2d at 52. The in rela- only can be answered how much is “some”? This more an to Rule 1-341. The unsuccess- purpose tion filing or maintain- litigant required justify ful show claim, greater chilling effect and the his or her ing file but the litigant more will be to reluctant easier it is to assess the Similarly, clearest actions. fees, the more the usual rule— losing attorneys’ with party each his or own counsel fees—is under- party pays that mined. in a and/or

Moreover, whether a claim has basis law question from apart is issue and separate fact complaint whether the in which is pled can survive motions to dismiss or judgment. for A summary claim dismissed for failure state a claim is not automatically a 1-341 basis Rule sanctions. That a party inartfully pleads a cause action or the judge is not inclined to stray existing from law does not mean that the claim has “no” fact, basis law or for purposes of rule 1-341 sanctions. Similarly, a claim is not ipso without basis or law facto fact because it did not survive a motion for summary judgment; alleging complaints even the most well estаb- torts, lished for want of sufficient factual allegations, often generate do not a factual dispute.

I conclude that it is more than the bare answer, or disposition its that must be considered when Rule 1-341 sought. sanctions are More than critical what motivated the party what party knew should have concerning known the viability of the claim or defense. In rendering decision, its paid trial court little or no to the allegations attention either of the complaint or Nil- son’s testimony concerning why Indeed, he filed it. as I out, pointed have it is unclear on what court focused. All really we know is that the court concluded that complaint was filed both in bad faith and without substan- tial justification.

Although as a for the instant backdrop litigation, majority opinion contains some of the facts and the circum- surrounding stances the initiation of the Inlet/Holt’s Land- ing Project, the Nilson complaint alleges them in greater detail. complaint alleged

The Harrisons Inlet con- templated jointly developing marina in constructing a front their adjoining properties. That joint venture nev- er came fruition because Harrisons litigation lost contesting height ‍‌‌‌‌​​​​‌‌‌​‌‌​​​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​‌​​​‌‌​‌‌​‌‌‍variance to the necessary construction high of a rise project they contemplated. Harrisons architect, D’Aleo, asked their who also principal Inlet, to forego fees, some of threatening his the joint if done. only this were When venture would continue Harrisons, the recov- subsequently refused and sued D’Aleo fees, an assault on Inlet’s the “the Harrisons mounted ering filing in the of actions project, multiple which culminated Appeals (“BZA”) City Ocean Zoning the Board of before County.” for Worcester and in the Circuit Court Harrisons, to according Among by the actions taken the the the City Council to revoke complaint, petition the was to to certain to Inlet neces- property “consent transfer City’s then completion project planned.” its as it was sary for they filed suit the Circuit Court Ultimately, the County injunction enjoining Worcester and obtained an on appeal. That was affirmed Inlet judgment transfer. House, 313 Md. 545 A.2d v. Assateague Associates (1988). House, as the trial with Burnett During Assateague Inlet counsel, argued that, for to downscale the Harrisons proceed disputed city property, its and without the project “minor” to Inlet’s which require only change plans, would a to position had been This was taken already approved.8 Inlet that it the testimony rebut would downscale change plans for fear a the would be project that such maintained, case, the Inlet it “major.” deemed Were again, time process had to all over this would have start laws, unfavorable, new, face of and which would economically unfeasible. project make the appeal, on pending While the House case was Assateаgue suggest- plans, downscaling project its as Inlet revised Administrator, Although Zoning characterizing ed. one, approval recommended change as “minor” v to according complaint: project, downscaled Harrisons, launched a formal immediately, almost calling now approval plan, revised objection insisting Inlet forced change,” should be “major new, favorable, height under the less proceed testimony Zoning elicited to that effect from the Administra- 8. Burnett tor, Harrisons. whom he called as a witness for the density Inlet, laws. Harrison Inn Inc. and Harrison Inn Inc., Sixty-six, at the direction of the Harrisons and with advice, counsel and encouragement of defendant Bur- nett, filed separate two actions before the BZA ... at- tacking the approval of the plans. process, revised In the the and Harrisons their counsel position took a wholly inconsistent with that taken by litigation them the pending in the Court Appeals. Indeed, of at the same they time arguing were the BZA that Inlet’s revised plan “major change”, was a filed a they brief with the Maryland of Appeals arguing, that, Court Inlet, “... grandfathered under rules, the old density could build the same its project entirely on own property ...” and insist- ing that there would no hardship be on if Inlet it were required to so. do Zoning (“BZA”) Board of Appeals ruled the

. Harrisons, who, consequently, appealed the circuit court. Burnett, Still counseled the Harrisons additional, filed separate, and appeals of the oral opinion and written complaint BZA.9 The alleged that one of the appeals was taken the “wholly improper purpose attempting to achieve a in the stay pending appeals before the circuit court, posting without appeals.” bond those After filing several appeals, Harrisons, administrative Burnett, through yet filed another against Inlet, lawsuit “seeking this declaratory one and injunctive relief based on the same facts their BZA underlying five appeals concur rently pending in the circuit court.”

Finally complaint alleged that Burnett anwas active impediment to resolution the dispute Inlet between and the Harrisons. Specifically, stated:

When recently advised of the herein, claims set forth defendant Burnett wrote that “I do not I believe that should represent my client in any negotia- settlement and, tions” quoting interest, a conflict of “I that cannot appeals Zoning 9. One to the BZA from the Administrator’s signature plan. to Inlet’s or even advise negotiations settlement any participate any or should be there should client as to whether my negotiations____” such complaint Nilson view, significant

In it is my based, on essentially, multiple appeals,10 alleged filing aim—avoid and, the same certainly, conduct with the same the Harrisons completion project of a ing approval used the word Thus, or not the whether opposed. seen, actions, have Burnett’s as we “malice”, to describe declaratory multiple appeals that the alleged Nilson right justifiable action were initiated “without judgment event, of the circumstances totality In cause”. for Nilson’s belief a reasonable basis alleged presented prospective business for malicious interference with a claim Burn lay against claim process advantage and/or abuse ett.11 separate appeals points five and the majority out that the

10. The the Harrisons’ by consolidated at the Harrisons were action filed This, separate impact suggests, of the request. ameliorates the were, separate after may actions attention from filings. be commendable that the It consolidated, fact, the that should not deflect but the the effect consideration of they separately filed or from that were fact separate each filings. the Harrisons filed purpose of When those upon to to decide whether appeal, Inlet was called administrative so, and, Maryland Rule B9. Of manner. See participate course, if in what Inlet, required under declaratory judgment action the default, answer. pain of file an lacked argument that count 1 of the 11. Burnett’s against process premise issued proceeds that no on Zoning Appeals’ the Board of appeals were noted from Inlet when post- allege any argues complaint did not that the He also decisions. process significance Burnett is the narrowness Of to abuse. brief at 21-22. in the tort. See Burnett’s “process” as used term Whether or not the term the tort “process” in connection with as used Maryland, interpreted there are process narrowly is of abuse of states, interpretation that a broader which indicate cases from other Wetzel, e.g. 133Ariz. appropriate. See Nienstedt v. of the term (1982); Association Barquis Collection v. Merchants P.2d 876 (1972). Oakland, also Cal.Rptr. See 496 P.2d 817 7 Cal.3d 495-96, Torts, n. 49 Gray, 4.9 at Harper, § The Law of James & existing modify expand (1986). attempt Accordingly, an to since and, 1-341, court need not Rule is not intended to be stifled law indeed, solely lack of substantial should not have found A permissible filing inference to be from the drawn on same multiple appeals subject based and acts is that improper purpose—inter alia, they were filed to harass, alleged as 23 of the paragraph complaint, and to title, And, alleged paragraph cloud Inlet’s as 27. because counsel is not obliged blindly follow the directions of his lawsuits, or her clients and file effect of only which is to defendants, harass or otherwise I injure point pre- majority dispute, sume the does not inference applies Indeed, than to the lawyer no less to client. because it, Rule 1-341 contеmplates sanctioning lawyers who violate an action files filing lawyer appeals who complaints to harass is consistent both with its letter and spirit. case,

There is more in In this however. addition to the counsel made multiplicity litigation, conflicting legal12 time, albeit before different same arguments, tribu nals. Those are arguments appropriately attributable Burnett. This is an additional factual circumstance which malice to as permits be inferred to Burnett. Furthermore, judge, the circuit court before whom the appeals declaratory judg- various administrative and the consolidated, ment action were found merit none of the actions. He had difficulty framing disposing little the issues he presented. Significantly, found that was, of the Inlet as Burnett downscaling project originally Maryland explicitly recognize on the basis that tort with the contours Nilson law does not now sought to achieve. presumably As to Count the trial court’s determination was based to, upon allege present Nilson’sfailure to evidence as "malice.” As out, already pointed complaint may alleged, the well have albeit not as like, "malice”, and, event, explicitly any as Burnett would in the That, totality allegations presented of the inference an of "malice”. in view, my finding. is a sufficient rebuttal to the court’s event, only In if both of the counts fail for lack of substantial sanctions; enough would Burnett be entitled to it is thаt one, both, pass not of the counts muster. project plans "major” 12. Whether an amendment to is or "minor" is factual, primarily legal, a rather than issue. “minor” modification to the alleged, Inlet argued and albeit, indirectly, argu- Inlet’s supports, This plans. project against Burnett was colorable. that its claim ment Harrisons, and Burnett remind us the majority, the Court court was reversed judgment the circuit decision to note that that It relevant Special Appeals. exception special height that a ground on the was based had project in to accommodate the Inlet granted law, exten- Inlet obtained an operation of before lapsed, by of process heart of Inlet’s abuse The issues at the sion. action not reached. interference were and malicious focus on the issue properly court failed to The trial test apply appropriate It did not the this case. presented Inlet had substantial determining whether the real the court never examined filing complaint; for it—whether, filed, color- the claim was when issue before it done able, advocacy. Had legitimate the realm of within that a to conclude so, compelled I it would have been believe and, therefore, imposition presented, claim was colorable agree. cases impermissible. Our sanctions of the judgment In we reversed a Reilly, Newman v. imposed affirmed sanctions Special Appeals which Court a health nullify an action to against plaintiff filing for justification. award without substantial claims arbitration one of the There, brought an action plaintiff plaintiff’s need for the involun- who certified the physicians commitment, failure to follow alleging physician’s tary Spe- commitment. procedure involuntary statutory that, physician spoke he contended because cifically examine” him “personally him he did not only phone, on the expert required. Despite having statute as the him personally that failure to examine viola- testify care, plaintiff, standard of who applicable tion arbitration, that assertion continued to make lost plaintiff’s court. That court determined that circuit plausible legal argu- position unsupported by any “was deciding A.2d 967. ment.” 314 Md. at Without examination”, as used in meaning “personal of the term statute, we held that a theory require which would doctor patient to examine a physically present who is is a Id., “legitimate one.” 314 Md. at 550 A.2d at 968. The defendant’s justification filing a second motion for summary judgment, the court having denied the first one because there was a factual dispute, was at issue in Yamaner v. Orkin. The second motion did not clearly grounds disclose how the asserted differed from those Upon asserted the first. being assessed counsel fees for filing the second summary judgment motion without sub- justification, stantial thе defendant filed a motion to recon- sider the denial of the motion for summary judgment the imposition it, of sanctions. In he averred that second motion was on based additional factual material developed at the arbitration hearing, including testimony that the plaintiff’s expert, having isolated the injury time of period to a the plaintiff when was not under the defendant’s care, changed had his mind as to the plaintiff’s cause of the injury. The motion also noted the expiration of the dis- covery plaintiff deadline without the naming any additional expert. of the opinion We were that “Prior to Yamaner’s motion sanction, for reconsideration of the for Yamaner’s September 1986 summary judgment motion might not have made as Judge been clear to McKenna as it been, could have but substantial plainly was spelled out that reconsideration motion and its supporting 313 Md. at exhibits.” 545 A.2d at 1349. explained We (313 516-17, 1349): Md. at 545 A.2d at

Here Yamaner strings had two to his His legal bow. ipsa loquitur res argument was does not apply malpractice argument medical cases. That was rein- forced deadline discovery passed which after Judge Latham’s ruling. Arguably there no opinion Mayle implicating Dr. Yamaner and Orkin had not produced other expert. From the standpoint evi- dentiary record, material submitted in the the facts on the issue of when the injury changed. occurred had also additional of Dr. use arbitration Mаyle’s hearing testimo- relied arguably generality testimony eliminated ny Latham and isolated the time of upon by Judge injury Yamaner had no for the period responsibility when patient. of the positioning the by Special Appeals,

The cases decided Court of bringing fees for an action attorney’s which the award upheld have been are con without substantial Also, because, them, are instructive from we they sistent. In parameters concept. know the of that All adjudicated (1988), 77 550 A.2d 728 Comptroller, Md.App. nut per the issue was the example, validity Maryland’s for and, dependency Mary sonal income tax due to the of the structure, income tax necessar land scheme on the federal of former 205 of the ily, constitutionality “either § proper statutes of the United States or the rat revised ification of the 16th Amendment of the United States Con Id., at 550 A.2d at 728. Md.App. stitution.” 77 “Con cases, federal all sidering plethora rejecting recent asserted and a very argument appellants which have the sources of Maryland explaining number of cases ... taxing power,” the court found that Allnut’s Maryland’s of the appeal of the circuit court’s dismissal action was Id., Md.App. taken without substantial at 430, 550 A.2d at 731. There, v. Baker is another informative case.

Johnson Johnson sued Baker for breach of contract and fraud. Baker dismiss and moved to Johnson countered amend- ing his to render motion moot. that When Baker complaint, moved to dismiss the amended Johnson amended complaint. pattern through that This continued the third however, complaint; granted amended the court Baker’s complaint, awarding motion to dismiss the second amended counsel fees to attorney appealed. Baker’s and Johnson The Court of this Special Appeals affirmed and Court requested denied the of certiorari. writ Baker filed a seeking motion sanctions to Rule 1-341. pursuant Granting motion, hearing court concluded “ig- that Johnson nored precedent” give Judge was unable to Heise any for his support proposition.” 84 at Md.App. [Johnson’s] affirming, A.2d at 51. In the Court of Special a distinction between the initiation of the

Appeals drew that, prosecution appeal, noting and the litigation case, sanctioned for pursuing appeal Johnson was apparent “it had that he had no patently when become Md.App. claim.” 84 581 A.2d at 51. As to colorable substance, the lack of the court said: level, case that a theory At the trial Johnson’s his party may attorney third sue advice which client on a given has matter which attorney personal pressed by has no interest. When attorney law, could offer no case nor judge, Maryland Johnson from other jurisdiction, support case law judge proposition considered Johnson’s theory. “fundamentally change erratical the law” which would change attorney-client the nature of relation- radically litigation explosion. judge and creatе a con- ships cluded that claim was ... with- Johnson’s “frivolous [and in in basis law or fact based on out] [Johnson’s] allegations.” part on this case was of the record prior opinion

Our hearing. the circuit court at the sanctions judge before it, In Johnson had no cause of action explained why we and affirmed the circuit court’s dismissal of Johnson’s Blumenthal. attorney’s and award of fees to us provided In this Johnson still has not with appeal, that would his legal theory precedent justify viable claiming He prior begins by of his to us. pursuit appeal claim,” has no clearly that he has a which basis “colorable law, in that he entitled in fact or and then contends was appeal the action he had one as of to continue because assume—erroneously—that ap- an right. appears He give and to an peal right legitimize can substance (Footnote is merit. omit- action that otherwise without ted) 530, at Md.App.

84 at 581 A.2d 52-53. Ass’n, Bank, Equitable Blanton v. Nat’l Md.App. In 61 158, (1985), defendant the denial appealed 485 A.2d 694

293 A motion to dismiss the of his motion for continuance. fees, seeking having counsel filed appeal, and been focused on plaintiff, Special Appeals the Court of whether for the and concluded that appeal there was conclusion, reaching there not. In that the court noted was continuance neither enumerated appeal that from a an rule, 163, to thе final at exception judgment Md.App. A.2d at and citing Maryland Courts Jud.Proc.Code Atkinson, 12 Md.App. Ann. 12-303 and Smiley § (1971), (1972), 280 A.2d 277 265 Md. 287 A.2d 770 aff'd, appealable under the collateral order doctrine. 61 Md. nor 163-165, 485 A.2d at 699-98. This determination App. a matter of was made as law.

An argument pursu- that counsel fees cannot be awarded ant to Rule 1-341 to one who is not a member of the bar Edelmann, considered 65 Md. specious was Kirsner v. 185, 197, (1985). 499 A.2d That court App. of counsel rejected argument sup- likewise advice plied previously where it had been dicta, considered on a rejected, prior appeal. albeit Id., 499 A.2d at 1319.

The Rule 1-341 issue I was multi- Century Condo court, faceted. As to the claim for fees incurred in the trial denied, Special Appeals which the trial the Court of judge hold, law, plaintiffs refused to as a matter of brought action justi- maintained without substantial it, filing fication even though, maintaining plain- skating tiffs on thin ice.” 64 “may very Md.App. have been at 494 A.2d at 719. It held as to part otherwise costs incurred on in a appeal—because pending decision case, ‍‌‌‌‌​​​​‌‌‌​‌‌​​​​​‌​‌​‌‌​‌​‌​‌‌‌​‌​‌​​​‌‌​‌‌​‌‌‍appeal argument decided before oral was res judicata Md.App. as to that case. 64 494 A.2d at 720. through

What comes loud and clear is that it is where the quite initiating law is clear and the party maintaining aware, aware, action is should be that fact that lack of uphold is found. To a trial court’s determination under other circumstance place and, hence, litigants on to retard the

significant damper Rule 1- purpose of the law. That is not the development 341.

I would reverse.

596 A.2d 1069 HOSPITAL, SUBURBAN INC.

William DWIGGINS. Term, Sept. No. 1990. Appeals Maryland. Court

Oct. 1991.

Case Details

Case Name: Inlet Associates v. Harrison Inn Inlet, Inc.

Court Name: Court of Appeals of Maryland

Date Published: Oct 11, 1991

Citation: 596 A.2d 1049

Docket Number: 151, September Term, 1990

Court Abbreviation: Md.