Norman v. Sinai Hospital of Baltimore Inc. , 225 Md. App. 390 ( 2015 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0932
September Term, 2014
______________________________________
ELTON F. NORMAN, ATTORNEY FOR THE
ESTATE OF NANCY V. PUPPOLO BY ITS
PERSONAL REPRESENTATIVE CELESTE
A. PUPPOLO
v.
SINAI HOSPITAL OF BALTIMORE INC., et
al.
______________________________________
Eyler, Deborah S.
Graeff,
Hotten,
JJ.1
______________________________________
Opinion by Hotten, J.
______________________________________
Filed: October 28, 2015
1
Judges Timothy E. Meredith and Douglas R. M.
Nazarian did not participate in the Court’s
decision to designate this opinion for publication
in the Maryland Appellate Reports pursuant to
Maryland Rule 8-605.1
Elton F. Norman (“Mr. Norman”) appealed a decision of the Circuit Court for
Baltimore City, denying his Motion to Withdraw1 as counsel from a medical malpractice
action filed by Celeste A. Puppolo (“Ms. Puppolo”), personal representative of the Estate
of Nancy V. Puppolo (“the Estate”) against appellees, Sinai Hospital of Baltimore, et al.
Shortly after Mr. Norman entered his appearance on behalf of the Estate, he filed a
Motion to Modify the Scheduling Order, which the court denied. Subsequently, during a
pretrial conference, Mr. Norman advanced an oral motion for reconsideration of the court’s
scheduling order and an oral motion to withdraw, citing inter alia, lack of preparation and
trial experience to try the case. The court denied both motions, holding that Ms. Puppolo
appreciated the risk of procuring the late-retained Mr. Norman to her detriment and that
Mr. Norman failed to raise any grounds under the Maryland Rules in support of his motion
to withdraw. This appeal followed. Mr. Norman presents the following question for our
review:
I. Did the [circuit] court abuse its discretion under Maryland Rules and
[c]ourt opinions by denying Mr. Norman’s Motion to Withdraw?
For the reasons that follow, we shall dismiss Mr. Norman’s appeal.
FACTUAL AND PROCEDURAL HISTORY
In the underlying action, the Estate sought compensation for damages allegedly
caused by Sinai Hospital of Baltimore Inc. and Christine D’Arbela, M.D. (formerly Kajubi)
regarding the care and treatment of the decedent, Nancy Puppolo. The claim was originally
1
Mr. Norman filed the motion and this instant appeal on his own behalf, not on
behalf of his client, the Estate.
filed by Ms. Puppolo, pro se, on January 18, 2011 in the Health Care Alternative Dispute
Resolution Office. Ms. Puppolo proceeded pro se in this matter until she retained Lowell
J. Gordon, Esquire (“Mr. Gordon”), who entered his appearance on April 11, 2011. Mr.
Gordon’s representation was subsequently terminated in August, 2012 for reasons not
specified in this appeal. Thomas O’Toole, Esquire (Mr. O’Toole”) entered his appearance
on behalf of the Estate on July 25, 2013. On December 18, 2013, the court issued an order
setting a trial date for the underlying action to begin on July 8, 2014.
On May 10, 2014, Ms. Puppolo wrote a letter to Mr. O’Toole, terminating his
representation and citing several grievances relative to his performance as counsel. A
pretrial settlement conference was subsequently held on May 19, 2014. Appellees were in
attendance. Ms. Puppolo however, failed to appear, without securing prior approval from
the court or providing notice to appellees. Thereafter on May 27, 2014, Mr. Norman
entered his appearance on behalf of the Estate.
On May 30, 2014, Mr. Norman filed a Motion to Modify the Scheduling Order as
attorney for the Estate, seeking to postpone the July 8, 2014 trial date to conduct further
discovery and allow additional time to prepare for trial. In response, appellees filed an
opposition to the motion and requested the court to move the trial date one day, to July 9,
2014.2 On July 2, 2014, the court denied the Estate’s motion and the parties were
scheduled to appear before a trial judge on July 8, 2014 for a continued pretrial conference.
2
On May 28, 2014, the court granted appellees’ motion to postpone the trial date
by one day, to July 9, 2014, to allow representatives for Sinai Hospital of Baltimore, Inc.
to be present when trial commenced.
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During the pretrial conference held on July 8, 2014, Mr. Norman argued a Motion
for Reconsideration of the denial of the Motion to Modify the Scheduling Order and the
oral Motion to Withdraw as counsel.3 After hearing argument, the court denied both
motions.
Thereafter, Mr. Norman filed a Notice of Appeal of the court’s denial of his motions.
As a result, the trial did not commence on July 9, 2014. Additional facts shall be provided,
infra, to the extent they prove relevant in addressing the issues presented.
DISCUSSION
Mr. Norman avers that an order denying a motion to withdraw is appealable under
the collateral order doctrine. We disagree. The standard of review utilized in considering
the appealability of a court’s order denying a motion to withdraw was outlined by this
Court in In re Franke, 207 Md. App. 679 (2012):
[T]he exercise of appellate jurisdiction in Maryland is normally dependent
upon a final judgment rendered by the trial court[.] [However,] there are
three exceptions to that rule: appeals from interlocutory orders specifically
allowed by statute; immediate appeals permitted under Maryland Rule 2–
602; and appeals from interlocutory rulings allowed under the common law
collateral order doctrine. [In instances when an appeal] is neither allowed by
statute nor permitted by [Md.] Rule 2-602 . . . we look . . . to the collateral
order doctrine, in determining the appealability of [a] lower court’s ruling.
For an order to fall within that exception: (1) it must conclusively determine
the disputed question; (2) it must resolve an important issue; (3) it must be
completely separate from the merits of the action; and (4) it must be
effectively unreviewable on appeal from a final judgment.
Id. at 685 (internal citations and footnotes omitted).
3
On July 3, 2014, Mr. Norman also filed a written Motion to Withdraw. The trial
judge determined that his motion was not ripe for attention at the time of the pretrial
conference because the time for appellees to file an opposition had not yet expired. Mr.
Norman subsequently renewed his motion in open court.
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The collateral order doctrine is limited in scope. “Maryland caselaw consistently
emphasize[s] that the [collateral order] doctrine is to be tightly construed.” Kurstin v.
Bromberg Rosenthal, LLP, 191 Md. App. 124, 144-46 (2010); see also In re Franklin P.,
366 Md. 306, 327, (2001) (stating that the collateral order doctrine is to be applied “only
sparingly”); In re Foley, 373 Md. 627, 633–34 (2003) (stating that in Maryland, the four
requirements of the collateral order doctrine are strictly applied and appeals under the
doctrine may be entertained only in extraordinary circumstances).
We conclude that the circuit court’s order denying Mr. Norman’s Motion to
Withdraw is not appealable because the order satisfied only two of the requirements under
the collateral order doctrine. The order issued by the court conclusively determined the
disputed question of whether Mr. Norman will continue representation of the Estate and
that issue was separate from the merits of the malpractice action.
However, the order did not resolve an “important issue” because there was no
evidence of any harm to Mr. Norman by the court’s ruling. Moreover, the order was not
effectively unreviewable on appeal because Mr. Norman’s client would still have the
benefit of a remedy before a final judgment was rendered. Contra Franke, 207 Md. App.
at 688-89; C.f., Brandon v. Blech, 560 F.3d 536, 537 (6th Cir. 2009) (concluding that “[a]n
order compelling an attorney to continue work without compensation is just the sort of
order the doctrine contemplates [ ]” because “[i]t conclusively determined the withdrawal
question, is unrelated to the merits, [and] cannot be rectified after a final judgment [ ]”);
Fidelity Nat’l Title Ins. Co. of New York v. Intercounty Nat’l Title Ins. Co., 310 F.3d 537(7th Cir. 2002) (concluding that an order denying an attorney’s request to withdraw was an
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appealable order because it satisfied the requirements under the collateral order doctrine);
accord Whiting v. Lacara, 187 F.3d 317 (2d Cir. 1999); Galloway v. Clay, 861 A.2d 30(D.C. 2004).
Mr. Norman contends that pursuant to the holding in Franke,4 the court abused its
discretion by denying the motion to withdraw. Mr. Norman concedes that the case at bar
does not involve a matter of compensation as in Franke. However, he asserts that Franke
is analogous because “an agreement was reached between attorney and client that was not
upheld and it now creates a hardship for the attorney.” In support of this contention, Mr.
Norman recounts that, “[he] agreed to participate in this case solely in the role of support
counsel,” and as a result, “[b]ased his entire agreement to enter his appearance contingent
upon two things: (1) postponement of the trial date; and (2) the client obtaining a lead trial
attorney.” Nonetheless, he continues, “as of July 7, 2014, neither has transpired.”
Mr. Norman further asserts,
For the [c]ourt to deny Mr. Norman the opportunity to withdraw would have
a chilling effect on cases where attorneys are willing to play a support role
that gives the client more time to find a lead attorney and thus the [c]ourt
would create an undue hardship on the supporting attorney.
Even though this is not a matter of compensation as in [Franke], in denying
Mr. Norman’s [M]otion to [W]ithdraw, the lower court did not allow the
4
In Franke, we held that the court abused its discretion when it denied attorney’s
motion to withdraw as counsel for the following reasons: the attorney gave the client
advanced notice of his intent to withdraw; granting the motion would not cause undue
delay; any prejudice the client would suffer by the granting of the motion was self-inflicted
as counsel sought to withdraw because the client stopped paying his attorney’s fees; and
denial of the motion would require counsel, a solo practitioner, to work on the case pro
bono and would result in attorney not being able to work on cases for paying clients. See
generally Franke, 207 Md. App. 679.
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parties to obtain the benefit of their bargain in entering into the retainer
agreement and thus created an undue hardship upon Mr. Norman and his
client.
Mr. Norman’s argument is unpersuasive. The circuit court’s denial did not create
undue hardship, and was, in fact, a situation of Mr. Norman’s own doing. Rule 1.16 of the
Professional Conduct Rules, Sections (b)(5) and (c), provide, in pertinent part:
* * *
(b) Except as stated in paragraph (c), a lawyer may withdraw from
representing a client if:
* * *
(5) the client fails substantially to fulfill an obligation to the lawyer regarding
the lawyer’s services and has been given reasonable warning that the lawyer
will withdraw unless the obligation is fulfilled[.]
* * *
(c) A lawyer must comply with applicable law requiring notice to or
permission of a tribunal when terminating representation. When ordered to
do so by a tribunal, a lawyer shall continue representation notwithstanding
good cause for terminating the representation.
In determining the circumstances under which a client “fails substantially to fulfill
an obligation” under Rule 1.16(b)(5), we look to this Court’s holding in Franke for
guidance. In Franke, we concluded:
There is no dispute that Raymon, Franke’s client, has, in the words of
paragraph (b)(5) of Rule 1.16, ‘fail[ed] substantially to fulfill an obligation’
owed to Franke, regarding . . . the services provided by Franke as his lawyer.
In fact, Raymon has never disputed the amount of legal fees that he owes
Franke. It exceeds $120,000. Nor has he, as far as the record discloses, made
any attempt to either pay any portion, no matter how small, of the fee
arrearage or to obtain new counsel since his removal as trustee. . . .
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Moreover, there is no disagreement that Franke gave Raymon ‘reasonable
warning,’ as required by the same paragraph of Rule 1.16, that he would
withdraw unless Raymon fulfilled his obligation to cure the fee arrearage.
Two months before the scheduled trial, Franke advised Raymon of his
intention to withdraw, as Raymon’s counsel, for non-payment of fees and
suggested that Raymon should either obtain new counsel or notify the court
that he wished to proceed [pro se]. Thirteen days later, eight days more than
the five days mandated by the Maryland Rules of Procedure, Franke filed his
motion to withdraw, as well as a certificate that he had so informed Raymon
by letter of his intention to withdraw his representation . . . Thus, Franke fully
complied with paragraph (b)(5) of Rule 1.16, having established that
Raymon had “substantially” failed “to fulfill an obligation” to him and that
he had given Raymon “reasonable warning” of his decision to withdraw as
Raymon’s counsel.
Franke, 207 Md. App. at 691 (emphasis added) (internal citation omitted).
The circumstances of Franke are inapposite to the case before us, since Mr. Norman
did not establish that Ms. Puppolo substantially failed to fulfill obligations owed to him, as
contemplated in Franke. To the extent there was a hardship, it was one that Mr. Norman
created.
Cases where a court determined that a client substantially failed to fulfill an
obligation owed to counsel involved situations where the attorney would suffer immense
financial hardship or exposure to sanctions for ethical violations, or a significant conflict
of interest existed between attorney and client. See Franke, 207 Md. App. 679 (holding
that counsel would suffer undue hardship if motion to withdraw was not granted because
client failed to pay over $120,000 in legal fees, yet expected continued representation by
counsel); Fidelity, 310 F.3d 537 (reversing an order denying appellant’s motion to
withdraw because client failed to pay over $470,000 in legal fees and expenses). See also
Whiting, 187 F.3d 317 (holding that denying counsel’s motion to withdraw would result in
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undue hardship because continued representation while honoring client’s requests would
force counsel to violate ethical obligations). Notably, in those instances, there was either
actual harm or the potential for significant harm to the attorney seeking to withdraw that
was not of the attorney’s own doing.
The holding in Franke is dispositive. Mr. Norman did not show that he incurred
fees that his client refused to pay, and if not permitted to withdraw, that he would be placed
in a position to continue representation without compensation. In fact, Mr. Norman did
not mention anything regarding fees in support of his motion.
Additionally, Mr. Norman did not show that there was a conflict of interest between
him and his client, making continued representation impossible or otherwise harmful to
him. Rather, Mr. Norman demonstrated only that he was unprepared for trial and lacked
the expertise to try the case. This was not evidence of actual harm or the potential for
significant harm, i.e., undue hardship, because he was aware of those circumstances when
he entered his appearance and the contingency agreement was a result of his own doing.
The absence of actual harm or the potential for significant harm distinguishes the
case at bar from Franke and its predecessors, Whiting and Fidelity, supra, in which the
collateral order doctrine applied. Thus, the order denying Mr. Norman’s motion did not
resolve an “important issue” as required under the collateral order doctrine.
Moreover, the order does not meet the fourth requirement under the collateral order
doctrine because the circuit court’s order denying Mr. Norman’s motion was not effectively
unreviewable on appeal. We remain cognizant that the collateral order doctrine is limited
in scope and tightly construed. See Kurstin, 191 Md. App. at 144-46. A prominent feature
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of the collateral order doctrine cases is that there is a time-bound right that will be lost if
an appeal cannot be taken immediately. See Hudson v. Housing Authority of Baltimore
City, 402 Md. 18 (2007) (holding that “the collateral order doctrine permits a reviewing
appellate court to treat as final, without consideration of the procedural posture of a case,
a ‘narrow’ class of interlocutory orders in ‘extraordinary circumstances’”). That is not the
situation in the case at bar.
Assuming, arguendo, that Mr. Norman continued representation of the Estate and
the circuit court issued a verdict in favor of appellees, an appellate court on review of that
final judgment could decide whether the circuit court abused its discretion by denying his
motion to withdraw. In that regard, if the reviewing court determined that the circuit court
should have granted Mr. Norman’s motion and reversed the judgment, Mr. Norman’s client
would still have the opportunity to have a new trial without Mr. Norman representing the
Estate.
Thus, Mr. Norman would not continue to suffer any harm — assuming he
successfully demonstrated that he would suffer any harm or the potential for significant
harm at the outset — that would be impossible to remedy by the time of an appeal from a
final judgment. In absence of such harm, the order denying Mr. Norman’s motion does
not fit within the narrow class of interlocutory orders that are considered unreviewable
final judgments.
Accordingly, we decline to address whether the circuit court abused its discretion in
denying Mr. Norman’s motion because the court’s denial of his motion was not an
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appealable order and thus, was unreviewable by this Court.5 Cf. Franke, 207 Md. App.
689-90 (employing an abuse of discretion standard only after concluding that an order
denying a motion to withdraw was an appealable collateral order because it satisfied all the
criteria of the collateral order doctrine).
APPEAL DISMISSED. COSTS TO
BE PAID BY MR. NORMAN.
5
We acknowledge that now, an attorney may file a notice of limited appearance
with the circuit court pursuant to an agreement with a client under Maryland Rule 2-131(b).
However, that rule was not in effect when Mr. Norman noted the instant appeal.
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