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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1588 September Term, 1995

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CHARLES MICHAEL TOBIN v. MARRIOTT HOTELS, INC., ET AL. _______________________________ Wilner, C.J., *Bishop, Getty, James S. (Ret'd, Specially Assigned), JJ. ________________________________ Opinion by Getty, J. ________________________________ Filed: August 29, 1996

* Bishop, J., now retired, participated in the hearing and decision of this case while an active member of this Court; after being recalled pursuant to the Constitution of Maryland, Article IV, Section 3A and 18(b), he also

participated this opinion.

in

the

adoption

of

The appellant herein, Charles Michael Tobin, alleges in this appeal that the Circuit Court for Montgomery County erred in imposing a $750.00 sanction, payable to counsel for appellees, for appellant's failure to attend a court-ordered mediation

conference. The relevant facts are as follows. for the plaintiff in a claim Appellant was co-counsel Marriott Hotels and

against

Montgomery Elevator Company.

In June 1994, the parties agreed to

a settlement of plaintiff's claim, and the closing documents were forwarded to appellant's office in July. Appellant was unable to

contact the plaintiff, a nonresident, and the settlement papers were never executed. By letter dated October 3, 1994, appellant

notified appellees of his inability to locate his client. The Circuit Court for Montgomery County had previously

issued an order for mandatory mediation dated August 16, 1994, noting therein that the case was scheduled for trial on October 31. The mediation conference was scheduled for 9:00 a.m.,

Thursday, October 13, 1994, at the courthouse. part, the Order provided:

In pertinent

1. Upon receipt of this Order, the parties or counsel shall contact each other immediately to confirm calendars. Claim of not receiving notice shall not constitute reason for cancellation.

-2... 3. Personal attendance at the mediation conference and good faith participation is mandatory for all attorneys in this case.... ... 5. If a settlement is reached prior to the mediation date, the Assignment Office must be notified immediately.... 6. Parties and attorneys are put on notice that failure to attend and participate in good faith in the mandatory mediation conference without further Court Order cancelling or excusing such attendance could result in the imposition of sanctions. Sanctions could take the form of attorneys' fees and costs to the other side as well as findings of contempt with resulting penalties. (Emphasis in the original.) Counsel for appellees appeared for the conference on October 13. Appellant did not appear; neither did he inform anyone that Without the benefit of any motion, counsel

he would not appear.

for appellees appeared before Judge Pincus, seeking sanctions for appellant's action. unexplained absence, including dismissal of the

The court inquired if counsel had attempted to contact

appellant and counsel stated that they had not done so,1 but that a clerk in Judge Weinstein's success. office The had attempted commented to locate the

appellant

without

court

that

Assignment Commissioner who delivered the file to the court had also been unable to reach appellant by telephone. Judge Pincus

Counsel did not inform the court that settlement had been agreed upon but appellant had been unable to locate his client.

1

-3then assessed counsel fees of $750.00 against appellant after declining to dismiss the case "absent a rule that would allow me to dismiss it for failure to appear at a mediation conference." Counsel for appellees notified appellant by letter of the $750.00 sanction, suggesting that appellees would forego

enforcement of the sanction if a stipulation of dismissal of the underlying case could be executed before the October 19 calendar call. Appellant neither responded nor appeared at the calendar

call and the case was dismissed at that time by the court. Appellant's subsequent efforts to reinstate the case were denied by the court. The $750.00 sanction was not paid and appellees filed a show cause motion that was heard by the court on June 8, 1995. The

trial court did not hold appellant in contempt at the show cause hearing, judgment, but and instead entered filed the $750.00 assessment as a

appellant

this

appeal.

Appellant's

explanation for his failure to attend was that he was unaware of the proposed conference. He alleged that the entire case was

handled by his co-counsel, who went on maternity leave after the settlement had been agreed upon, and appellant believed his only function was to obtain his client's signature on the settlement documents. The firm, however, received notice of the conference.

Appellant raises the following issues: 1. Did the court have authority summarily to award counsel fees to opposing counsel for failure of counsel to appear for a court-ordered mediation?

-42. Was it error for the court to enter judgment and refuse to consider redressing the earlier erroneous imposition of the sanction? considering these substantive issues, there is a

Before

preliminary question that needs to be addressed: issues are properly before this Court.

whether those

The initial assessment of $750 by Judge Pincus was made on October 14, 1994. It was reflected in a written order signed by The order for the

the judge that day and docketed three days later. stated that "Charles M. Tobin, Esquire, counsel

Plaintiff, be and is hereby sanctioned, assessed and shall pay the sum of seven hundred fifty dollars ($750.00), as attorneys' fees, payable within 30 days from the date of this Order, to counsel for Defendants." In Simmons v. Perkins, 302 Md. 232 (1985), the Court held that an order such as this, when entered against a party under former Md. rule 604b (current Rule 1-341) was not immediately appealable under Md. Code, Cts. & Jud. Proc. Art.

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