Must wе sew and sew solely to survive So some low so- and-so can thrive! No! He’ll fry in Hades if it’s up to the ladies, Waistmaker’s Union Local 25!
So sings the chorus of lady picketers in Fiorello!, the Broadway musical about the life of Fiorello H. LaGuardia.
Many state legislatures followed suit, enacting “Little Norris-LaGuardia Acts,” patterned on the federal legislation. Maryland’s Act, also known as the “Maryland Anti-Injunction Act” (“Maryland Act” or “Act”), became law in 1935, and now is codified at Md.Code (1991, 1999 RephVol., 2007 Supp.) sections 4-301 et seq. of the Labor and Employment Article (“LE”).
In the case at bar, Dang H. Vu, D.P.M., contends that his contract dispute with Allied Foot & Ankle, P.A. (“Allied Foot”), his former employer, is governed by the Maryland Act; and, under the Act, he is entitled to recover damages against a bond Allied Foot posted when it sought and obtained a Temporary Restraining Order (“TRO”) against him. As we shall explain, we disagree that the Act applies to the parties’ dispute. We therefore shall affirm the order of the Circuit Court for Carroll County denying Dr. Vu’s motion for damages against the bond.
FACTS AND PROCEEDINGS
Dr. Vu, the appellant, is a podiatrist. In 2002, he was hired as an at-will employee of Drs. Stroh and Butler, P.A. (“S & B, P.A.”). On April 17, 2003, he and S & B, P.A. entered into an employment agreement (“Agreement”) that contained a five-year non-competition clause. The following year, on January 1, 2004, Drs. Stroh and Butler divided their practice. Dr. Butler formed Allied Foot, the appellee. Under the terms of the division of the practice, Dr. Vu became an employee of Allied Foot, and S & B, P.A., purported to assign the Agreement to it.
On June 8, 2006, after purchasing another podiatry practice, Dr. Vu formed Family Podiatry, LLC (“Family Podiatry”).
The next day, August 24, 2006, Allied Foot’s counsel notified counsel for Dr. Vu and both appeared in chambers before the judge assigned to the matter (who remained assigned to the case). After hearing from counsel, the court granted the TRO, upon Allied Foot’s posting a $50,000 bond. The TRO prohibited Dr. Vu from practicing podiatry within a 20-mile radius of Allied Foot’s offices. That area included several of Family Podiatry’s offices and Carroll County Hospital Center, where Dr. Vu performed procedures. The bond as originally posted was for $25,000. It was increased to $50,000 at the judge’s direсtion. The bond is entitled, “PLAINTIFF’S INJUNCTION BOND TO DEFENDANT — Temporary Restraining Order.”
On August 29, 2006, Dr. Vu filed a motion to dismiss the complaint for failure to state a claim for which relief may be granted. He argued that, under the terms of the Agreement, Pennsylvania contract law applied and, under that law, the non-competition clause was unenforceable. He did not present any argument specific to Allied’s request for injunctive relief.
The motion to dismiss was heard by the court the same day it was filed. The court ruled in part to deny the motion and continued the hearing to the following day, August 30, 2006.
The court denied the motion for preliminary injunction on the primary ground that Allied Foot had not presented sufficient evidence to show that it was likely to prevail on the merits of its breach of contract and other claims. The court dissolved the TRO and ruled that the case would continue on a regular track.
On November 16, 2006, Dr. Vu filed a motion for summary judgment, which Allied Foot opposed. On March 1, 2007, not long before the scheduled hearing on the summary judgment motion, Dr. Vu filed a “Motion to Assess Damages Under Bond Number 30BSBED364” (“Bond Motion”). For the first time, he argued that the Maryland Act was controlling and entitled him to compensation against the bond for approximately $15,000 in lost income from the practice of podiatry during the seven days the TRO was in effect, and for attorney’s fees incurred in contesting the injunction.
The motion for summary judgment hearing was held on March 16, 2007, before the deadline for Allied Foot to respond to the Bond Motion. During the hearing, the court made reference to the Bond Motion, stating that it would be taken under consideration. The court held the motion for summary judgment sub curia. Thereafter, Allied Foot filed an opposition to the Bond Motion, and Dr. Vu filed a reply. Allied Foot argued, among other things, that the Maryland Act had had no application to its injunction request.
On July 19, 2007, the court issued a memorandum opinion and order granting summary judgment in favor of Dr. Vu, on the merits of the breach of contract and other claims. The memorandum opinion did not mention the Bond Motion. Two
Allied Foot noted an appeal from the grant of summary judgment and Dr. Vu noted a cross-appeal from the denial of the Bond Motion. Allied Foot voluntarily dismissed its appeal in this Court. Dr. Vu’s cross-appeal remains. He poses two questions for review, which we have rephrased:
I. Did the circuit court lack discretion to deny the Bond Motion, and therefore err in denying it?
II. If the circuit court had discretion to deny the Bond Motion, did it abuse its discretion in doing so?
For the reasons we shall explain, we hold thаt the circuit court had discretion to deny the Bond Motion, and did not abuse its discretion in doing so.
DISCUSSION
I.
(A)
We begin with a review of the Maryland Act. Part I consists of definitions and general provisions, about which we shall have more to say. Part II, consisting only of LE section 4-307, completely eliminates a circuit court’s jurisdiction to grant certain prohibitory injunctive relief.
LE section 4-316, entitled “Bonds,” requires that a bond be posted before a court may grant certain injunctive relief. It states, in relevant part:
(a) Required for temporary restraining order or temporary injunction. — Before a court issues a temporary restraining order or temporary injunction in a case that involves or grows out of a labor dispute, the plaintiff shall post bond with the court.
(b) Amount. — (1) Bond under this section shall be in an amount sufficient to compensate each person who is enjoined for any loss, expense, or damages that improvident or erroneous issuance of the temporary restraining order or temporary injunction causes.
(2) The amount shall include reasonable counsel fees and оther reasonable costs that a defendant incurs in defending against other injunctive relief in the same case if the court denies the injunctive relief.
(Emphasis added.)
Dr. Vu asserts that Allied Foot’s suit against him “involve[d] or gr[ew] out of a labor dispute,” so the court’s decision to issue a TRO was (or at least should have been) governed by
In Part III of the Act, a “[l]abor dispute case” is defined as follows:
A case shall be held to involve or grow out of a labor dispute when the case involves:
(1) persons who are engaged in a single industry, trade, craft, or occupation, employees of the same employer, or members of the same or an affiliated organization of employees or employers, regardless of whether the dispute is between:
(i) 1 or more employees or associations of employees and 1 or more employers or associations of employers;
(ii) 1 or more employees or associations of employees and 1 or more employees or associations of employees;
(iii) 1 or more employers or associations of employers and 1 or more employers or associations of employers; or (2) a conflicting or competing interest in a labor dispute of a person participating or interested in the labor dispute.
LE § 4-310 (emphases added). “Labor dispute” is earlier defined in Part I of the Act to
include[ ] any controversy, regardless of whether the disputants stand in the proximate relation of employee or employer, concerning:
(1) terms of conditions of employment;
(2) employment relations;
(3) the association or representative of persons in negotiating, setting, maintaining, or changing terms or conditions of employment; or
*673 (4) any other controversy arising out of the respective interests of employee or employer.
LE § 4-301(c) (emphases added).
Dr. Vu maintains that the dispute over whether he breached the non-competition clause of the Agreement was a “labor dispute,” under LE section 4 — 301(c)(4), because it was a controversy “arising out of the respective interests of the employee or employer”; and that Allied Foot’s suit against him was a “labor dispute case” because, notwithstanding that it was between only one (former) employee and one (former) employer, it involved people in the same occupation (podiatry). LE § 4-310(l)(i).
Allied Foot responds that the dispute over whether Dr.Yu violated the non-competition clause of the Agreement was not a “labor dispute” under LE section 4-301(c)(4), and its suit against Dr. Vu was not a “labor dispute case” under LE section 4 — 310(l)(i). It points out that LE section 4-303 directs that the Act be “interpreted and applied in accordance with the policy stated in § 4-302 of this subtitle”; and that policy and the legislative findings supporting it read as follows:
(a) Findings. — The General Assembly finds that:
(1) governmental authority has allowed and encouraged employers to organize in corporate and other forms of capital control; and
(2) in dealing with these employers, an individual worker who is not represented by an organization is helpless to exercise liberty of contract or to protect personal freedom of labor and, thus, to obtain acceptable terms and conditions of employment.
(b) Statement of policy. — The policy of the State is that:
(1) negotiation of terms and conditions of employment should result from voluntary agreement between employees and employer; and
(2) therefore, each individual worker must be:
*674 (i) fully free to associate, organize, and designate a representative, as the worker chooses, for negotiation of terms and conditions of employment; and
(ii) free from coercion, interference, or restraint by an employer or an agent of an employer in:
1. designation of a representative;
2. self-organization; and
3. other concerted activity for the purpose of collective bargaining or other mutual aid or protection.
LE § 4-302.
Citing LE section 4-302, Allied Foot argues: “It is beyond logic to suggest the underlying dispute in this case fits squarely into the stated public policy of the Act; which undoubtedly encourages organized labor, and frowns upon injunctions that restrict such activity.” It maintains that the Act does not apply, and therefore LE section 4-316, pertaining to “Bonds,” does not apply. Rather, in this case, the TRO was issued pursuant to the circuit court’s general equity powеr and in conformity with Rule 15-501 et seq., which cover injunctions.
Rule 15-504(a) provides that a TRO may be granted “... only if it clearly appears from specific facts shown by affidavit or other statement under oath that immediate, substantial, and irreparable harm will result to the person seeking the order before a full adversary hearing can be held on the propriety of a preliminary or final injunction.” Before the TRO is granted, a bond must have been filed, “in an amount approved by the court for the payment of any damages to which a party enjoined may be entitled as a result of the injunction.” Rule 15-503(a). Allied Foot posits that this language makes the decision by a court to grant relief against a bond issued on a TRO discretionary, not mandatory.
(B)
We conclude that Dr. Vu’s contеntion that the dispute in question was a “labor dispute,” and that Allied Foot’s case against him was a “labor dispute case,” within the meaning of
We have searched the record and have found nothing to show or even suggest that the TRO was issued pursuant to the Act, as opposed to pursuant to the court’s general equity power and Rule 15-514. No record was made of the August 24, 2006 in-chambers TRO hearing. That fact alone militates against the TRO’s having been issued under the Act, as the Act requires, as we have explained, that before a temporary injunction is issued, a hearing be held in open court. LE § 4-314(2).
If in opposing the TRO Dr. Vu was of the position that the court’s decision was controlled by the Act, it was incumbent upon him to raise that point immediately so as to afford the court the opportunity to conduct a hearing that would satisfy the requirements of the Act. Dr. Vu does not argue that he informed the court that its decision was governed by the Act but the court did not take measures in conformity. Rather, we only can glean from the record that Dr. Vu willingly participated, without objection, in proceedings on August 24, 2006, that were not in conformity with the Act. In other words, he proceeded as if the Act did not apply, but later asserted— and no w argues — that it did.
The TRO and the bond themselves make no mention of the Act. Dr. Vu did not file any written opposition to the issuance of the TRO based on the Act. Indeed, his only filing between the time suit was filеd and the court’s ruling on August 30, 2006, dissolving the TRO, was a motion to dismiss, asserting only that the non-compete covenant was unenforceable under Pennsylvania law, but not addressing the propriety of the TRO issuance. The transcript of the August 30 hearing reveals that Dr. Vu (through counsel) did not argue that the injunction was issued contrary to the Act, or that the court should dissolve it because it was granted in violation of the Act. Indeed, the argument Dr. Vu advanced that the injunction should be dissolved w as predicated upon the Maryland common law of injunctions, not upon statutory law.
In his argument to this Court, Dr. Vu overlooks that logical connection and assumes that an injunction may be found to have been issued “improvidently” or “erroneously” irrespective оf the requirements of Act. We disagree with that assumption. The “Bond” enforcement rule in LE section 4-316 is part of a statutory scheme and must be considered in its context, which is to limit injunction as a remedy in labor dispute cases. See Stachowski v. Sysco Food Services of Baltimore, Inc.,
Accordingly, if the Act applied to this case, as Dr. Vu maintains it does, he only would be entitled to damages against the bond if the temporary injunction were issued improvidently or erroneously under the Act. In order to challenge the issuance of the temporаry injunction under the Act, however, Dr. Vu had to have opposed its issuance under the Act when the injunction was sought. If a party opposing an injunction ever is to assert, later, that the injunction was issued improvidently or erroneously under the Act, he must have raised the Act as a defense to the issuance of the
Here, by not challenging the temporary injunction, when it was sought, as being in violation of the Act, Dr. Vu waived his right to pursue damages against the bond under the Act.
(C)
Even if the issue were not waived, we would find it without merit, because the dispute in this case is not a “labor dispute” in a “labor dispute case,” within the meaning of those terms in the Act. We note from the outset that neither party has cited any cases under the Maryland Act, similar Little Norris-LaGuardia Act state statutes, or the Federal Act that have addressed whether a dispute between a former employee and former employer about a violation vel non of a non-competition clause of an employment cоntract is a “labor dispute.” Our independent research has disclosed but two cases touching on the subject, both from the 1940’s.
In Cascade Laundry, Inc. v. Volk, 129 N.J.Eq. 603,
The nisi prius New Jersey equity court ruled that the employer’s injunction request was governеd by that state’s Little Norris-LaGuardia Act, where the dispute arose out of a strike:
There surely can be no doubt that the present controversy between [the employer and employees] has arisen out of their interests as employer and employee. The covenant [not to compete] was conceived to protect the interest of the employer; the employee, as a prerequisite to employment, signed it. The strike involves the respective interests of employer and employee; [the employer] charges that its customers are being taken from it by those who, as employees, were trusted to keep them for it while [the employees] claim they are servicing these сustomers during the strike to earn a living, but, also, to hold them for [the employer] until such time as the strike shall have been terminated. If the relationship of employer and employee had not been created there would have been no necessity for a covenant*679 and if there had been no strike the present alleged breach of the covenant would not be before this court.
129 N.J.Eq. at 607-08,
By contrast, in Saltman v. Smith,
On appeal, the employees argued that the injunction request was governed by the Massachusetts Little Norris-LaGuardia Act, enacted in 1935 and then codified at Mass. Gen. Laws ch. 214, § 9A (1935),
The bill is merely one for specific performance of covenants restraining trade or competition, inserted in contracts for personal service, covenants of a character that have long been held enforceable in this Commonwealth .... where the contract for personal service is not itself invalid, the interest to be protected is consonant with public policy, and the restraint is limited reasonably in time and space. The judge had authority to issue an injunction----
The holdings in Cascade Laundry and Saltman undercut Dr. Vu’s argument that the injunction request in this case was covered by the Maryland Act. Although the New Jersey Act, like the Maryland Act, broadly defined a “labor dispute” to include any controversy arising out of the respective interests of employer and employee, regardless of the remaining existence vel non of the employer/employee relationship, the New Jersey court’s opinion makes clear that the reason the case was found to have arisen out of a labor dispute was that it was the outgrowth of an employee strike, which without question is a “labor dispute.” Indeed, it was the strike that the court determined involved “the respective interests of employer and employee,” and thus was a labor dispute. There is nothing in the opinion that would suggest that, absent the employee strike, a controversy over whether the employees were violating the non-competition clauses in their contracts would be a “labor dispute,” within the meaning of the New Jersey Act.
Conversely, although the definition of “labor dispute” in the Massachusetts Act (as it then was worded) is not as broad as the definition in LE section 4-301(c), in that it does not include the general “any other controversy between em
The Maryland Act expressly directs courts to interpret the Act with reference to the guiding policies set forth in LE section 4-302. LE § 4-303. Like the Federal Act and other Little Norris-LaGuardia Acts enacted in the 1930’s and 1940’s, the Maryland Act makes plain that, notwithstanding any technical reading of statutory languagе to the contrary, the Act is meant to limit the remedy of injunction for disputes arising in the context of organized or union labor, not for private contract disputes. The General Assembly’s factual findings, as spelled out in LE section 4-302(a), are that governmental support for workers to organize aids individual workers because, through organized labor unions, they achieve parity with their employers in negotiating terms and conditions of employment. The policy findings, in LE section 4-302(b), are two-fold: that terms and conditions of employment between workers and employers should “result from voluntary agree
Historically, employers had sought and obtained the remedy of injunсtion to thwart workers in organized labor activities, most notably strikes and picketing, that gave them leverage and bargaining power. The anti-injunction statutes of the 1930’s and 1940’s, including the Maryland Act, were designed to limit and, in some circumstances, circumscribe entirely the remedy of injunction as it was being used by employers to suppress labor organization. See, e.g., Bhd. of R.R. Trainmen, Enterprise Lodge, No. 27 v. Toledo, Peoria & Western R.R.,
The broad interpretation of the Maryland Act, in particular LE sections 4-301 and 4-310, that Dr. Vu advocates would take the Act out of its historical and policy context, and have it apply to virtually any workplace and former workplace dispute. Citing LE section 4-301, he maintains that the dispute here is a “labor dispute” because it is a “controversy arising out of the respective interests of employee or employer,” notwithstanding (as the statute permits) that he and Allied Foot are no longer employee and employer. Thus, the mere fact that the dispute stems from the “respective interests of employee or employer” is sufficient to make it a “labor dispute.” Citing LE section 4-310, Dr. Vu maintains that this case is a “labor dispute case” because he and Allied Foot are engaged in “a single ... occupation” — podiatry—notwithstanding (as the statute permits) that the dispute is between
For all of these reasons, we hold that the decision whether to grant the injunction Allied Foot sought against Dr. Vu was not governed by the Maryland Act. Therefore, none of the provisions of the Act, including LE section 4-316, had a bearing on the court’s injunction ruling. Likewise, the question before the trial court on the Bond Motion — whether Dr. Vu could, should, or must recover against the bond monies allegedly lost as a result of the TRO’s issuance — was to be answered not in light of any entitlement that might be conferred by LE section 4-316 but rather in light of general Maryland common law and Rule 15-503 for injunctions. Accordingly, the answer to Dr. Vu’s first question, whether the trial court should have ruled that, under the Maryland Act, Dr. Vu could recover against the bond аs a matter of right, is “no.”
II.
Dr. Vu’s second contention also lacks merit. He argues that the trial court abused its discretion when it denied his Bond Motion because it did not exercise any discretion in doing so, and the failure to exercise discretion in that circumstance is itself error. See Maus v. State,
In advancing the Bond Motion, Dr. Vu submitted a memorandum of law setting forth his legal arguments. In opposing the Bond Motion, Allied Foot did the same. When the court ruled on the Bond Motion, it already had decided the underlying case on summary judgment, and so was well versed about the allegations of fact, including those on which it (by the same judge) had granted the TRO. The court had before it the legal arguments and facts particular to the Bond Motion as presented by affidavit. In its order denying the Bond Motion, the court stated that its ruling was made “[u]pon due consideration” of the motion and the response. Contrary to Dr. Vu’s contention, there is nothing in this record to suggest that the court did not exercise discretion when it ruled to deny the Bond Motion. Thus, the answer to Dr. Vu’s second appeal question, whether the court abused its discretion by denying the Bond Motion, is “no.”
JUDGMENT AFFIRMED. COSTS TO BE PAID BY THE APPELLANT.
Notes
. "Unfair,” from Fiorello! Original Cast Album (Capitol Records 1959), music by Jeriy Bock and lyrics by Sheldon Harnick.
. Dr. Vu did not contend below, and does not argue on appeal, that the Maryland Act does not apply or that Pennsylvania's Little NorrisLaGuardia Act, 43 Pa. Stat. Ann. § 206a, et seq. (West 2008), does apply. No argument has been made by either party about the application vel non of Pennsylvania law, and neither party gave notice, pursuant to section 10-504 of the Courts and Judicial Proceedings Article ("CJ"), that Pennsylvania law applies.
. LE section 4-307 states:
A court does not have jurisdiction to grant injunctive relief that specifically or generally:
(1) prohibits a person from ceasing or refusing to perform work or to remain in a relation of employment, regardless of a promise to do the work or to remain in the relation;
(2) prohibits a person from becoming or remaining a member of an employer organization or labor organization, regardless of a promise described in § 4-304 of this subtitle;
(3) prohibits a person from paying or giving to, or withholding from, another person any thing of value, including money or strike or unemployment benefits or insurance;
*670 (4) prohibits a person from helping, by lawful means, another person to bring or defend against an action in a court of any state or the United States;
(5) prohibits a person from publicizing or obtaining or communicating information about the existence of or a fact involved in a labor dispute by any method that does not involve the act or threat of a 'breach of the peace, fraud, or violence, including:
(i) advertising;
(ii) speaking; and
(iii) patrolling, with intimidation or coercion, a public street or other place where a person lawfully may be;
(6) prohibits a person from ceasing:
(i) to patronize another person; or
(ii) to employ another person;
(7) prohibits a person from assembling peaceably to do or to organize an act listed in itеms (1) through (6) of this section;
(8) prohibits a person from advising or giving another person notice of an intent to do an act listed in items (1) through (7) of this section;
(9) prohibits a person from agreeing with another person to do or not to do an act listed in items (1) through (8) of this section;
(10) prohibits a person from advising, inducing, or urging another person, without the act or threat of fraud or violence, to do an act listed in items (1) through (9) of this section, regardless of a promise described in § 4-304 of this subtitle; or
(11) on the ground that the persons are engaged in an unlawful conspiracy, prohibits a person from doing an act listed in items (1) through (10) of this section in concert with another person.
. The Act further provides at Part III, LE section 4-315, that a "temporary restraining order" may bе issued before a hearing is held if the plaintiff has met the requirements of LE section 4-314 and further has shown that without relief substantial and irreparable injury to the property in question is "unavoidable.” LE § 4-315(a). In that situation, the court must issue an order giving any party sought to be restrained a "reasonable period of at least 48 hours” to show cause why the TRO should not be granted. LE § 4-315(b). A TRO issued under LE section 4-315 "is effective for the period the court sets but not more than 5 days.” LE § 4-315(c)(l). The TRO becomes void at the expiration of that period, unless proper procedures are taken and findings made to extend or renew it. Id. at subsection (c)(3).
In the case at bar, a hearing was held before the TRO was issued. Therefore, if the Act applies at all, LE section 4-315 would not apply.
. Currently codified at NJ.S.A. 2A:15-51, et seq. (2000).
. Currently codified at Mass. Gen. Laws Ann. ch. 214, § 6 (West 2008).
. Currently codified at Mass. Gen. Laws Ann. ch. 149, § 20C(c) (West 2008).