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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1807 September Term, 1998 _________________________________ JOHN W. HERMINA v. BALTIMORE LIFE INSURANCE COMPANY, et al. _________________________________ Thieme Sonner Bloom, Theodore G.
(Retired, specially assigned),

JJ. _________________________________ Opinion by Bloom, J. _________________________________

Filed: October 27, 1999

This appeal by John W. Hermina is from an order of the Circuit Court for Baltimore County finding him guilty of direct civil contempt of court and imposing a sanction of $8,500, with a provision that the contempt may be purged by paying $8,500 to Barrett W. Freedlander, Esquire, on or before 28 August 1998. The direct contempt found by the court was the failure of appellant, who was the attorney of record for Adel Alalfey and David Griggs, two of the defendants1 in a civil action brought by appellees, Baltimore Life Insurance Company and Life of Baltimore, Inc. (collectively, Baltimore Life), to appear for trial on 15 April 1998. On 23 April, Mr. Freedlander and another member of his

law firm, who were counsel for Baltimore Life in the suit against Alalfey, et al., filed in those proceedings a Motion for Sanctions, asserting that appellant was guilty of criminal contempt and asking for an award of sanctions against appellant in the amount of $8,500. The motion was accompanied by a lengthy memorandum, which derogatory allegations about appellant's conduct in

contained

proceedings totally unrelated to the case at hand. Appellant's supporting response to the a Motion for Sanctions attack also on and Mr. any

memorandum conduct

contained in various

personal It

Freedlander's

cases.

denied

contumacious intent by appellant and set forth an exculpatory explanation for his failure to appear in court on 15 April 1998.

The other defendant, Southwestern Life Insurance Company, entered into a settlement agreement with Baltimore Life and is not involved in these proceedings.

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There was no order issued by the court directing appellant to appear at a date and time certain to show cause why he should not be found to be in contempt and be punished therefore. On 29 July

1998, there was a hearing on pending motions, which included certain motions filed by the defendants, along with appellees' Motion for Sanctions. At that hearing, the court first addressed

and disposed of the defendants' motions by denying all of them, after which the court took up appellees' Motion for Sanctions. Counsel appearing for appellant on appellees' Motion for Sanctions addressed the court and outlined appellant's explanation for his failure to appear on 15 April. was 14 April. The scheduled trial date

On 13 April, in a telephonic conversation with

someone in the assignment office, appellant was advised that the case would not be tried on the 14th, because there were no judges available. On the basis of that information, appellant, who was Counsel denied the allegation of appellees'

ill, went home.

attorney that appellant was told to call the assignment office before 4 p.m. the next day to learn of the trial status. Appellant

never received word that the case was reset for trial on 15 April. Counsel presented a note from appellant's doctor, which stated that he saw appellant on 13 April and treated him for bronchitis on that day, and he also saw and treated appellant for an ear condition on 16 April. The court next took testimony from Linda Hopkins, the

Assistant Director for the Central Assignment Division of the -2-

Court.

Ms. Hopkins testified that her notes reflected that she appellant's office on 13 April 1998 and, because

telephoned

appellant was not available, she told a secretary that there was no judge available to start the trial on the 14th and explained the court's procedure in such cases. Her notes reflected that Mr.

Hermina called her back later in the day, and she repeated the procedure to him, as follows:

When we don't have a Judge to start the case, we can tell them that the case had to go on standby. We request the attorneys stay in the office and notify their client and any witnesses and tell them not to come into court and to please be available if we need to call. And we tell them, if you don't hear from us by noon, they are to call our office at four o'clock the next day to see if it would be on the assignment for the following day. We tell everybody this. And that we would allow an hour travel time. On cross-examination, Ms. Hopkins admitted that she was unaware that appellant's brother was his partner, so that, when she

received a call from Mr. Hermina on the 13th, she assumed she was speaking to appellant. Appellant then testified. Ms. Hopkins's testimony. His recollection conflicted with

He said that he called the assignment

office on the 13th to report that he was sick and to ask about the procedure followed by the court. He was told that for lack of a He

judge to begin the trial on the 14th the case was on standby.

understood that he would be notified when the case was reset for trial. He never received notice that the case was set for trial on -3-

15 April.

He stated that, in any event, he was too ill to appear

on the 15th. He assured the court that he had not intended any disrespect. There was also testimony from J. Joseph Curran, III, another attorney involved in the case, to the effect that appellant's brother, in a telephone conversation on 14 April, told him that appellant was in the Circuit Court for Baltimore County. Hermina, appellant's brother, then testified. George

He admitted that in

his conversation with Mr. Curran on 14 April he indicated that his brother might be at the courthouse in Towson. He also admitted

that he did not tell Mr. Curran that appellant was ill, because he did not want his brother to be harassed at home by appellees' attorneys. He assumed that, if it were important and the judge

wanted to get in touch with appellant, he would get a call from the judge's office. At the conclusion of all the testimony, the judge found appellant guilty of direct civil contempt, which could be purged by paying $8,500 to Mr. Freedlander, that sum being the amount of expenses that he had incurred or would incur "as outlined on Page six of his memorandum in support of his Motion for Sanctions." The

judge also found "beyond a reasonable doubt that Mr. Hermina has the ability to pay $8,500," and that those expenses were

reasonable.

A written Order of Contempt was later filed, along At appellant's request, those

with his "decision," or comments. comments were sealed. -4-

DISCUSSION Appellant presents the following assertions of error: I. The court did not follow appropriate procedures as mandated by the rules in holding the attorney in contempt. A. The court was in error in allowing a motion by a party to seek a finding of direct and criminal contempt. The court was in error in finding a direct civil contempt. The court was in error in not requiring notice to the alleged contemnor as to whether the court was considering civil or criminal, direct or constructive contempt. When the Movant called upon the court to consider his personal knowledge, the court was in error in not recusing himself and referring the hearing to another judge. The court was in error in failing to specify the evidentiary facts known to the court and any other evidentiary facts not so known in the written order which formed the basis of the court's finding.

B.

C.

D.

E.

II.

The court was in error in considering statements in motions and other evidence that had nothing to do with the attorney's failure to appear for trial.

III. The disdain that the court demonstrated in finding the attorney in direct civil contempt -5-

demonstrates bias, anger, or an emotional response such that the judge should have recused himself and referred the hearing to another judge. IV. The court was in error in the finding of the amount of attorneys' fee that constituted the sanction.

Appellees, in addition to responding to appellant's assertions of error, contend that the appeal should be dismissed because appellant did not appeal in his own name. contention complaints. first, before proceeding to We shall address that consider appellant's

I. The Notice of Appeal filed by appellant was "as to all rulings made by [the presiding judge], including those made on or about July 29, 1998 and including those rulings relating to civil

contempt in the above captioned case."

It was signed:

Respectfully Submitted, The Plaintiff, By [signature] John W. Hermina The rulings adverse to appellant's clients, Messrs. Alalfey and Griggs (who and, were defendants, not not "Plaintiff"), The were

interlocutory

therefore,

appealable.

contempt

judgment against Mr. Hermina, however, was a final and appealable judgment.

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At common law, there was no right of appeal in contempt cases. Harford County Education Association v. Board of Education, 281 Md. 574 (1977); Tyler v. Baltimore County, 256 Md. 64 (1969). By

statute (Maryland Code (1974, 1998 Repl. Vol.),

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