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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 800 September Term, 1997 _______________________________

AUGUST STYDLE DEITZ, JR., ET AL.

V.

ANTHONY P. PALAIGOS, ET AL.

_______________________________ Salmon, Kenney, Norton, John L., III (Specially Assigned), JJ. _______________________________ Opinion by Salmon, J. _______________________________ Filed: April 2, 1998

This

case

originates of the

from of

the

mistakes S.

made

in Sr.

the (the

administration

estate

August

Deitz,

"decedent") by his son, August S. Deitz, Jr. (Deitz), the estate's personal representative, and by Peter B. Turney (Turney), counsel for the personal representative. Deitz's siblings, who were among

the beneficiaries named in the decedent's will, filed a petition in the Orphans' Court for Baltimore County to compel the personal representative and Turney to close the estate and to reimburse them for their attorneys' fees. The orphans' court ruled against the

personal representative and Turney, but the exact nature of its ruling is not shown by the record. In any event, the matter was

appealed to the circuit court where, in a de novo review, Deitz's siblings received a judgment in their favor, in the amount of $15,439.90. The ensuing complex procedural history will be discussed below in detail, but to summarize briefly, as a result of the judgment, Deitz's wages were garnished at $75.00 per week. When

approximately $4,000 had been garnished, Deitz filed a tort action in the Circuit Court for Baltimore County against his siblings (and also against one sibling's husband) and their attorneys, claiming that the defendants had tortiously represented to the circuit court in the garnishment proceeding that the judgment they sought to enforce was against "Deitz, individually," when, according to Deitz, the judgment was against "Deitz" in his representative

capacity.

John E. Harris, Sr. (Harris) represented Deitz in the

tort action. The circuit court (Hinkel, J.) dismissed Deitz's complaint and granted sanctions against Harris for $12,325.18. noted timely appeals, which were docketed Deitz and Harris as one action.

Appellants present five questions for our review, which we have condensed and rephrased: 1. Did the trial judge err in not allowing Deitz to relitigate the issues of whether the judgments of the circuit court were against him, individually, and whether he, individually, was a party to the underlying suit filed in the orphans' court? Did the trial judge err in dismissing Deitz's complaint for failing to state a cause of action? Did the trial judge err sanctions against Harris? in awarding

2.

3.

I. A.

FACTS

Background

The decedent's will called for the personal representative to subdivide one of three parcels of real property in the estate. Deitz hired Turney to act as the attorney for the estate. As a

result of Deitz's and Turney's unsuccessful attempts at subdividing the parcel, the estate remained open more than five years after the decedent's death. Deitz's three siblings retained Anthony P.

Palaigos and Thomas A. Bowden of Blum, Yumkas, Mailman, Gutman &

2

Denick, P.A. (collectively, "Blum, Yumkas") to represent their interests as beneficiaries of the estate. On March 2, 1992, the siblings filed a petition in the Orphans' Court for and Baltimore his County to to compel the "the estate Personal and to

Representative

attorney"

close

reimburse them for their attorneys' fees.

Deitz answered the

petition as "August S. Deitz, Jr., Personal Representative, by Peter B. Turney, his attorney." to the siblings. The orphans' court granted relief

Pursuant to Maryland Code (1974, 1989 Repl.

Vol.), section 12-502(a) of the Courts & Judicial Proceedings Article, an appeal was filed in the Circuit Court for Baltimore County. The circuit court (Bollinger, J.) heard the matter de novo during a two-day trial and entered a judgment on April 22, 1993, against the "Personal Representative" and Turney in the amount of $15,439.90. Order, Judge In the first paragraph of the Amended Opinion and Bollinger stated, "Petitioners aver that their

brother, August S. Deitz, Jr., Personal Representative of their late father, in concert with the Personal Representative's

attorney, Peter B. Turney, Esquire, improperly administered the estate, causing unnecessary legal expenses and unnecessary use of estate funds." The court later stated that it was "convinced that

there [was] both a breach of the fiduciary responsibility of the Personal Representative of the estate and his attorney." Judge

Bollinger entered judgment against "the Personal Representative and his attorney jointly and severally" for $6,700.00, with interest 3

from March 25, 1993, to reimburse the siblings for additional expenses incurred in attempts to subdivide the property. The

siblings had paid Deitz these funds to close the estate, but Deitz had used the $6,700 in order to make additional attempts to subdivide the property even though the orphans' court previously had ordered him to make no further attempts at subdivision. The

court also entered judgment against "the Personal Representative" and his attorney for $7,905.00 (with interest) to cover the

siblings' attorneys' fees and for $834.90 (with interest) to reimburse fiduciary attorney." B. The First Appeal and Its Immediate Aftermath the estate of "for the expenses Personal incurred outside of and the his

activity

Representative

Upon an appeal to the Court of Special Appeals, a panel of this Court on February 4, 1994, initially affirmed the judgment of the circuit court. Following a motion for reconsideration,

however, the Court found, "Although the [lower] court clearly made a finding of both bad faith and a lack of substantial justification as to Mr. Turney, it made no such finding as to Mr. Deitz." Deitz

v. Edens, No. 918, slip op. at 1 (Md. Ct. Spec. App. May 2, 1994). The Court noted, "This may have been an oversight, for the record indicates that it was Mr. Deitz who was the driving force behind the lack of settlement of the estate, but the omission exists nonetheless." fees was Id. It also stated that the award of attorneys' calculated and should have amounted to

incorrectly

approximately $4,500.

On May 2, 1994, the court vacated the award 4

of $7,905 for attorneys' fees, which the panel said was "[p]art of the judgment entered by the circuit court . . . against August S. Deitz, Jr. and his attorney." Id. at 2 (emphasis added). The

Court of Appeals denied certiorari. (1994).

Deitz v. Edens, 336 Md. 224

On remand to the circuit court, Judge Bollinger entered a judgment on February 15, 1995, against "the [d]efendant, August S. Deitz, Jr. and his attorney, Peter B. Turney, Esquire, jointly and severally," for $4,500.00 in attorneys' fees. (Emphasis added.)

To summarize, the $4,500.00 judgment was entered against "Deitz and Turney" and the $7,534.90 judgment (comprised of the $6,700.00 and $834.90 judgments) remained entered against "the Personal

Representative and his attorney." C. The Second Appeal

Deitz and Turney filed a second appeal to this Court, and, on April 2, 1996, a panel of the Court affirmed the judgment of the circuit court. Deitz v. Edens, No. 810, slip op. at 7 (Md. Ct. The Court rejected appellants' argument

Spec. App. Apr. 2, 1996).

that the circuit court lacked subject matter jurisdiction to enter judgments against them. The panel emphasized that Maryland Code

section 12-502(a) of the Courts & Judicial Proceedings Article commands that an appeal from an orphans' court judgment is to be heard de novo and that the circuit court is required to "`give judgment according to the equity of the matter.'" slip op. at 3-4 (quoting

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