Preview:

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 287 September Term, 2002

JAMES P. OWINGS

v.

WILLIAM D. FOOTE, JR.

Davis, Adkins, Rodowsky, Lawrence F. (retired, specially assigned), JJ.

Opinion by Davis, J.

Filed: December 30, 2002

Appellant James P. Owings appeals from an order dated February 12, 2002, wherein the trial judge of the Circuit Court for

Montgomery County granted appellee William D. Foote, Jr.'s third and fourth petitions for interim attorney's fees and awarded appellee fees and expenses in the amount of $52,934.94. On

February 22, 2002, appellant filed a motion to alter or amend the judgment, which was subsequently denied. appeal on April 12, 2002. Appellant noted his

Appellee filed a brief in response, in

which he presented one question, restated as follows: I. Was the notice of appeal filed by appellant on April 12, 2002 timely, with respect to the judgments that were entered in favor of appellee for attorney's fees?

Because we answer appellee's question in the affirmative, we will address appellant's single question, which we rephrase as follows: II. We answer Did the trial court err in awarding appellee's petitions for attorney's fees? question in the affirmative, thereby

appellant's

reversing the trial court's judgment.

FACTUAL BACKGROUND
Appellant's mother, Jeanette Owings, is the life beneficiary of two trusts (the residuary trust and the marital trust)

established by Osbourn Owings, appellant's father, at the time of his death. Ms. Owings also has a life interest in the Jeanette S.

- 2 Owings trust. Appellant and Interested Person Gail Hiser1 are Furthermore, appellant is the The parties contest whether

beneficiaries of the three trusts. named trustee of the three trusts. Hiser is a co-trustee.

On January 29, 1999, Ms. Owings filed a complaint against appellant for declaratory and injunctive relief, accounting, return of assets, breach of fiduciary duty, and removal as trustee.2 Appellant, on February 19, 1999, filed a petition for the

appointment of a guardian of the person and property of Ms. Owings, alleging that his mother was unable to make responsible decisions concerning her person, property, and affairs. Also on February 19, 1999, Judge Martha Kavanaugh of the Circuit Court for Montgomery County, who considered the guardianship petition, signed an order that stated: ORDERED that pursuant to Estates and Trusts Article, section 13-201, et. seq., Annotated Code of Maryland, and Maryland Rule 10-106(a), [appellee], be and hereby is appointed to serve as counsel for [Ms. Owings], to appear and answer the [p]etition in this proceeding and to represent [Ms. Owings] in any subsequent proceedings arising from this [g]uardianship [p]etition and to act as [Ms. Owings's] temporary [g]uardian of her property.

Hiser is appellant's sister and the daughter of Osbourn and Jeanette Owings. The suit filed by Ms. Owings was captioned "Owings v. Owings, Circuit Court for Montgomery County, C.A. No. 196648." Judge Chapin presided. We will refer to it as the "Track IV litigation."
2

1

- 3 Below her signature on the order, Judge Kavanaugh also handwrote the following: "This investigation has the consent of the alleged disabled person's two adult children. Moreover, this [c]ourt finds that this investigation is necessary due to the pending lawsuit, Owings v. Owings (196648)." On April 30, 1999, appellee entered his appearance in the Track IV litigation. James Chapin, He informed as a the presiding of a judge, The

Honorable

that,

result

guardianship

petition filed by appellant, he had been appointed as Ms. Owings's attorney. Appellee also asserted that he was the temporary

guardian of Ms. Owings's property as a result of the pending Track IV litigation, noting that Judge Kavanaugh had indicated that, because "there is the issue out there as to whether [Ms. Owings] can handle her own affairs, we had better have a temporary guardian look into this because there is a fair amount of property involved in the other lawsuit, which is this lawsuit right here." Appellee

filed various motions in the Track IV litigation and prosecuted the case on behalf of Ms. Owings. Appellee also continued to act as

Ms. Owings's attorney in the guardianship case. On November 18, 1999, appellant, Ms. Owings, and Hiser reached an oral settlement issues agreement to (the the settlement Track IV agreement) litigation, that the

resolved

pertaining

guardianship petition, and other Owings family matters.

The terms

of the settlement agreement were reduced to writing on November 22, 1999 by appellant's attorney at the time. Appellant, however,

- 4 refused to sign the agreement. Consequently, appellee, on behalf

of Ms. Owings, filed a motion to enforce the settlement agreement on December 27, 1999. The motion was granted on May 9, 2000. On

December 11, 2000, appellant signed the agreement, but noted next to his signature that he was signing "under protest." The settlement agreement stated that the guardianship

proceeding would be dismissed within ten days of the execution of the agreement. Nonetheless, appellant filed oppositions to

appellee's two separate motions to have the guardianship petition dismissed. Additionally, on October 18, 2000, appellant filed an

emergency motion requesting that the court order Ms. Owings to undergo mental and psychological evaluations, to strike appellee's involvement as attorney and temporary guardian, and to appoint a separate guardian, attorney, and investigator. the emergency motion. Furthermore, the settlement agreement stated that "[t]he The court denied

trustees of the [Jeanette S. Owings] [t]rust and the [m]arital [t]rust shall pay, from the principal of those trusts . . . the fees and expenses incurred for the services of [appellee] in connection with the guardianship and fiduciary proceedings and in the negotiation and execution of this agreement. . . ." The

settlement agreement required payment of appellee's fees through May 9, 2000. When appellant failed to pay his fees, appellee filed various petitions for interim attorney's fees. At issue in this appeal are

- 5 appellee's third petition for interim attorney's fees and petition for entry of judgment against appellant, filed on January 2, 2001, and appellee's fourth petition for interim attorney's fees and petition for entry of judgment against appellant, filed on

September 17, 2001.

The third petition sought to recover fees for

services rendered from May 18 through December 15, 2000 in the amount of $25,769.94. The fourth petition requested fees for

services rendered from December 16, 2000 through September 7, 2001 in the amount of $27,165. Furthermore, the third and fourth

petitions included requests that the award of fees be reduced to judgments against the various trusts and against appellant. On February 7, 2002, a hearing on appellee's third and fourth petitions for attorney's fees was held. Although the trial court

refused to enter judgment against appellant personally, it did enter judgment against the trusts for the requested amounts. Appellant filed a motion to alter or amend the judgment. When that

motion was denied on April 5, 2002, appellant noted his appeal on April 12, 2002.

DISCUSSION I
Appellee contends that we may not address appellant's issue because he did not file a timely notice of appeal. According to

appellee, the trial judge entered final judgment at the hearing on

- 6 February 7, 2002. Appellant did not note his appeal within thirty

days of February 7, 2002. Although appellant filed a post-judgment motion, pursuant to Md. Rule 2-534, appellee claims that his motion, which was filed February 22, 2002, was also untimely and did not stay the thirty days within which appellant could note his appeal. Appellant responds that the trial court did not enter judgment until February 14, 2002. Thus, according to appellant, his post-

judgment motion was timely because it was filed within ten days after entry of judgment, causing his appeal to be timely because it was filed within thirty days of the trial court's denial of the post-judgment motion. Generally, a notice of appeal must be filed within thirty days of the entry of final judgment. Md. Rule 8-202(a). Any party,

however, has the option of filing a motion to alter or amend a judgment within ten days after entry of final judgment. Md. Rule

2-534. If a party files a timely post-judgment motion, a notice of appeal must be filed within thirty days "after entry of (1) a notice of withdrawing the motion or (2) an order denying a motion pursuant to Rule 2-533 or disposing of a motion pursuant to Rule 2532 or 2-534." Md. Rule 8-202(c).

Maryland Rule 2-601(b) addresses the method of entering a judgment: The clerk shall enter a judgment by making a record of it in writing on the file jacket, or on a docket within the file, or in a docket

- 7 book, according to the practice of each court, and shall record the actual date of the entry. That date shall be the date of the judgment. Thus, in determining whether a final judgment has been entered, we must reference the docket entry. 332 Md. 375, 378 (1993). Waller v. Maryland Nat'l Bank,

Docket entries ending with statements

such as "order to be filed" or "attorneys to prepare orders" certify that a ruling was not final. Id. at 377-78; Atlantic Food

v. City of Annapolis, 70 Md. App. 721, 725-27 (1987). In the case sub judice, the docket entries in question dated February 7, 2002 provide: 2/07/2002 #145 JI HEARING ON [APPELLEE'S] THIRD PETITION FOR INTERIM ATTORNEY'S FEES AND PETITION FOR ENTRY OF JUDGMENT (#109)(WOODWARD, J.) - GRANTED. ORDER TO BE SUBMITTED. PETITIONER'S COUNSEL APPEARED. RESPONDENT'S COUNSEL APPEARED. . . . 02/07/2002 #146 JI COURT (WOODWARD, J.) ENTERS JUDGMENT IN FAVOR OF [APPELLEE] AGAINST THE TRUST IN THE AMOUNT OF TWENTY-FIVE THOUSAND SEVEN HUNDRED SIXTY[-] NINE DOLLARS AND NINETY-FOUR CENTS ($25,769.94). ORDER TO BE SUBMITTED. . . . 02/07/2002 #147 JI HEARING ON [APPELLEE'S] FOURTH PETITION FOR INTERIM ATTORNEY'S FEE AND PETITION FOR ENTRY OF JUDGMENT (#126)(WOODWARD, J.) - GRANTED. ORDER TO BE SUBMITTED. . . . 02/07/2002 #148 JI COURT (WOODWARD, J.) ENTERS JUDGMENT IN FAVOR OF [APPELLEE] AND AGAINST THE TRUST IN THE

- 8 AMOUNT OF TWENTY-SEVEN THOUSAND ONE HUNDRED SIXTY[-]FIVE DOLLARS ($27,165.00). ORDER TO BE SUBMITTED. . . . 02/07/2002 #149 477 JI [APPELLEE'S] ORAL MOTION FOR JUDGMENT AS TO ATTORNEY FEES GRANTED ON JUNE 29, 2000 AT TAB #91 (WOODWARD, J.) - GRANTED. . . . 02/07/2002 #150 JI COURT (WOODWARD, J.) ENTERS JUDGMENT IN FAVOR OF [APPELLEE] AGAINST THE TRUST IN THE AMOUNT OF THIRTY-TWO THOUSAND EIGHT HUNDRED EIGHTY DOLLARS AND THIRTY CENTS ($32,880.30) WITH INTEREST OCCURRING FROM JUNE 29, 2000. ORDER TO BE SUBMITTED. In all but one docket entry, the language "order to be submitted" is included. The only entry that does not include the

language "order to be submitted" references "Tab #91," which is a docket entry concerning appellee's second petition for interim attorney's fees. Because a docket entry establishes an order's

finality and date of finality, final judgment regarding appellee's third and fourth petitions was not entered on February 7, 2002. Instead, judgment was entered on February 12, 2002, as indicated by subsequent docket entries. Therefore, appellant's appeal was

timely noted and we may address its merits.

II
Appellant contends that the trial court erred when it granted appellee's third and fourth petitions for attorney's fees.

- 9 Specifically, appellant avers that the award of attorney's fees was improper in light of our holding in In re Sonny E. Lee, 132 Md. App. 696 (2000). awarding Appellant also contends that the court erred in fees because appellee exceeded his court

attorney's

appointment and appeared as Ms. Owings's attorney in the Track IV litigation. Finally, appellant asserts that the trial court "erred in awarding attorney's fees against the trustee of the Jeanette S. Owings Trust, the residuary trust and the marital trust where the trustee was not a party to the guardianship proceedings in his capacity as trustee." We will address each of appellant's

contentions in turn.

A
In this appeal we are asked to revisit In re Lee, in which we decided that counsel assumed conflicting roles when he attempted to discharge the duties of a guardian ad litem and counsel

representing the same party.

Appellant claims that the holding of

In re Sonny E. Lee requires us to hold that the trial court erred in granting appellee's petitions for attorney's fees. According to appellant, appellee acted as Ms. Owings's counsel, temporary

guardian of property, and court investigator.

Appellant states,

"[Appellee], thus, engaged in a clear conflict of interest, which tainted these proceedings and precludes the award of attorney's fees at issue." We will first address whether a conflict of

- 10 interest arose as a result of appellee's alleged appointment as a court investigator. Subsequently, we will discuss whether a

conflict existed because appellee acted as Ms. Owings's courtappointed attorney and the temporary guardian of her property.

1
In In re Lee, Lee's daughter filed a petition for the

appointment of a guardian of the person and property for her father, seeking specifically to have herself declared as legal guardian. Id. at 701. Shortly thereafter, the trial court issued

an order appointing an attorney to represent Lee in the pending guardianship proceeding. Lee's court-appointed attorney filed a

motion for protective order to prevent the deposition of her client. Furthermore, court[-]appointed counsel waived [Lee's] presence at trial in spite of his statutory right and desire to be there, prepared and submitted to the court a report containing recommendations that flatly contradicted [Lee's] wish that a person other than a member of his family be appointed as his guardian, and sought to prevent a hearing on the issue of his disability by declining to request such a hearing and then by objecting to the introduction of all testimony on that issue. Id. at 718. When the court found that Lee's daughter should be the

guardian, Shannon, Lee's son and an interested party, appealed. Shannon contended that Lee was not afforded adequate legal

representation throughout the guardianship proceeding as required

- 11 by Maryland law and the Rules of Professional Conduct. Id.

Specifically, Shannon asserted that Lee's counsel was "acting throughout [the] proceeding as an investigator for the court, or perhaps a guardian ad litem, but not as his attorney." agreed. We opined that, under certain circumstances, an attorney's duties may directly conflict with the duties of a guardian ad litem. Due process demands that an attorney "explain the Id. We

proceedings to his client and advise him of his rights, keep his confidences, interests." advocate his position, and protect his

Id. at 718-19 (citations omitted).

A guardian ad

litem, on the other hand, impartially investigates the facts of the case, independently assesses the need for a guardian, and renders a report to the court. The investigator's report may disclose the

alleged disabled person's confidences and may make recommendations that conflict with his or her wishes. Id. at 719. We held that,

because Lee's attorney acted as an independent investigator for the court and "became virtually the principal witness against [Lee's] stated position," Lee was denied adequate legal representation throughout the guardianship proceedings. Id. at 721.

In the case sub judice, appellant submitted two orders to the court

Download Owings v. Foote.pdf

Maryland Law