Frison v. Mathis

981 A.2d 57

188 Md. App. 97

E. Scott FRISON, Jr. v. Jerry J. MATHIS.

No. 2967, September Term, 2007.

Court of Special Appeals of Maryland.

October 1, 2009.

E. Scott Frison, Jr., Bowie, for Appellant.

Timothy F. Maloney (Koushik Bhattacharya, Joseph, Greenwald & Laake, PA, on brief), Greenbelt, for Appellee.

Panel: HOLLANDER, GRAEFF, MOYLAN and CHARLES E., JR. (Retired, Specially Assigned), JJ.

GRAEFF, J.

This appeal involves a request for attorney's fees by appellant, E. Scott Frison, Jr., related to his efforts to collect an unpaid legal bill owed by his former client, Jerry J. Mathis, appellee. Mr. Frison filed suit, pro se, in the Circuit Court for Prince George's County, to collect his legal fees. After a jury returned a verdict in Mr. Frison's favor for $35,818.13, Mr. Frison filed a motion for attorney's fees, alleging "willful and intentional violations of Maryland Rule 1-341." The circuit court denied Mr. Frison's request, concluding that Mr. Frison was not eligible to recover attorney's fees pursuant to Rule 1-341 because he represented himself pro se.

Mr. Frison appealed, raising an issue of first impression: Whether a pro se attorney litigant may recover attorney's fees pursuant to Maryland Rule 1-341.

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Mr. Mathis retained Mr. Frison, an attorney licensed in the District of Columbia, to represent him in a lawsuit filed against him by Aaron Hargrove.¹ The jury awarded judgment to Mr. Hargrove in the amount of $142,000. Mr. Mathis refused to pay Mr. Frison for the legal fees incurred during the lawsuit, claiming that Mr. Frison had committed errors in the trial that resulted in an unfavorable disposition.

On October 13, 2005, Mr. Frison filed suit, pro se, in the Circuit Court for Prince George's County against Mr. Mathis, to recover the unpaid legal bill.² A two-day jury trial commenced on January 3, 2007. At the conclusion of the trial, the jury entered a verdict against Mr. Mathis in the amount of $35,818.13. The jury awarded Mr. Frison $30,950.61 for the legal representation that Mr. Frison provided Mr. Mathis at trial and $4,867.52 for Mr. Frison's work on appeal. On January 12, 2007, Mr. Mathis noted an appeal.

On January 29, 2007, Mr. Frison filed a motion in the Circuit Court for Prince George's County for costs and reasonable attorney's fees pursuant to Md. Rule 1-341. Mr. Frison requested attorney's fees for 253 hours of work, asserting that "[t]he time spent responding to bad faith filings by Mathis interfered with cases Frison could have taken and earned fees." At the conclusion of the motion, Mr. Frison signed the following certification, requesting $57,900 in attorney's fees:

I HEREBY CERTIFY AND AFFIRM UNDER PENALTY OF PERJURY that the entire hours expended in the case, Frison v. Mathis amount to 253 hours as of this filing. I claim that 193 of those hours were expended as a result of the bad faith filings of Mathis [in] Frison v. Mathis. Frison claims entitlement to $57,900 in reasonable attorney's fees per Maryland Rule 1-341.

The circuit court reserved ruling on Mr. Frison's motion until after resolution of the underlying case on direct appeal. On October 26, 2007, this Court affirmed the jury's verdict in an unreported opinion. See Mathis v. Frison, No. 2583, Sept. Term, 2006 (filed October 26, 2007). On November 19, 2007, Mr. Frison filed in this Court a motion for attorney's fees under Rule 1-341, alleging that Mr. Mathis acted in bad faith in pursuing the appeal. On December 17, 2007, this Court denied the motion.

On February 1, 2008, the circuit court held a hearing to resolve Mr. Frison's outstanding motion for costs and attorney's fees under Rule 1-341. The circuit court did not address whether Mr. Mathis acted in bad faith; rather, it denied Mr. Frison's motion for attorney's fees based on the Court of Appeals' decision in Weiner v. Swales, 217 Md. 123, 141 A.2d 749 (1958). The court stated that, pursuant to Weiner, "if you're acting pro se, if you are a member of the Bar ... you cannot get attorney's fees." The court clarified that Mr. Mathis' status as an attorney licensed in the District of Columbia, but not licensed to practice law in Maryland, was irrelevant to its order. The court stated: "Were you a Maryland attorney down here ... I [would] rule in the same way."

This timely appeal followed.

DISCUSSION

Mr. Frison argues that the trial court erred in denying his request for attorney's fees. He acknowledges caselaw holding that, with respect to a contractual provision authorizing the recovery of attorney's fees, the attorney representing himself was not entitled to an award of attorney's fees. Mr. Frison contends, however, that under the circumstances of his case, i.e., an action taken to enforce a judgment for attorney's fees against the attorney's former client, he should be allowed to collect attorney's fees.³

Mr. Mathis counters that Mr. Frison is barred from recovering attorney's fees. He relies on Weiner v. Swales, supra, and Greenbriar Condo., Phase I, Council of Unit Owners, Inc. v. Brooks, 159 Md.App. 275, 283, 316, 859 A.2d 239 (2004), rev'd in part on other grounds, 387 Md. 683, 878 A.2d 528 (2005), for the proposition that an attorney representing himself, pro se, is not entitled to attorney's fees. Mr. Mathis further contends that the specific language of Rule 1-341 authorizes attorney's fees only for fees actually "incurred," and that Mr. Frison, representing himself, did not incur any attorney's fees.

The circuit court agreed with Mr. Mathis' argument and concluded that, pursuant to Weiner, Mr. Frison was not eligible to receive attorney's fees because he was representing himself pro se. The court's conclusion, that Mr. Frison was barred from recovering attorney's fees based on his pro se status, is a question of law, which we review de novo. See Henriquez v. Henriquez, 185 Md.App. 465, 476, 971 A.2d 345 (2009) (argument that "court has no authority under the statute to award attorney's fees unless that party actually incurred expenses for legal fees" is a question of law reviewed de novo), cert. granted, 410 Md. 165, 978 A.2d 245 (2009).

The issue whether a pro se lawyer litigant may receive an award for attorney's fees is one on which courts have taken different approaches. See C. Clifford Allen III, Annotation, Right of Party Who Is an Attorney and Appears for Himself to Award of Attorney's Fees Against Opposing Party as Element of Costs, 78 A.L.R.3d 1119 (1977) (discussing states that allow pro se attorney litigants to receive attorney's fees and those that do not); Connor v. Cal-Az Props., Inc., 137 Ariz. 53, 668 P.2d 896, 898 (1983) (same); Swanson & Setzke, Chtd. v. Henning, 116 Idaho 199, 774 P.2d 909, 911 (1989) (same). As explained below, we agree with courts from other jurisdictions that there are policy reasons for requiring the existence of an attorney-client relationship before attorney's fees may be recovered. Because there is no attorney-client relationship when an attorney represents himself, he should not be entitled to recover attorney's fees.

In this case, however, we need only decide whether a pro se attorney litigant is entitled to recover attorney's fees pursuant to Rule 1-341. We answer that question in the negative for two reasons. First, this Court and the Court of Appeals have held in other contexts that a pro se attorney litigant is not entitled to recover attorney's fees, and the analysis of those cases is applicable to a request for attorney's fees pursuant to Rule 1-341. Second, the plain language of Rule 1-341 limits the attorney's fees recoverable to those incurred. A pro se attorney litigant has not "incurred" any actual expenses in the nature of attorney's fees.

We turn first to the Maryland cases that have addressed the issue whether pro se lawyer litigants may receive an award for attorney's fees. Although the Maryland appellate courts have not addressed the issue pursuant to Rule 1-341, they have addressed the issue in the context of a contractual provision allowing for attorney's fees. In two cases, a contract providing for attorney's fees was construed as allowing for the recovery of attorney's fees only when the party has paid for representation.

In Weiner, the appellant, an attorney, loaned several thousand dollars to appellee, and he took a confessed judgment note, payable on demand. 217 Md. at 124, 141 A.2d 749. Upon default, pursuant to the terms of the note, he attempted to recover an "attorney's commission of fifteen (15%) per cent for collection (said 15% to be entered as part of the costs)." Id. The Court of Appeals, however, agreed with the trial court that the attorney was "not entitled to collect such additional compensation when he acts in proper person" because "`implicit in the provisions of the note [is] that the 15% commission shall be payable only to an attorney employed in the case or to the plaintiff in reimbursement for his expenses in employing such an attorney....'" Id. at 125, 141 A.2d 749. The Court of Appeals construed the word "charges" in the note as "`expenses which have been incurred....'" Id. at 125-26, 141 A.2d 749 (quoting BLACK'S LAW DICTIONARY 295 (4th ed.1951)). Reading the terms of the note in their usual meaning, the court concluded that "the agreement of the borrowers was only to reimburse Weiner for his actual monetary expenses or disbursements incurred in the collection of the note and no authority was given him to collect and retain as his own the attorney's commissions that would have been payable if he had employed and paid counsel." Id. at 126, 141 A.2d 749

Similarly, in Greenbriar, this Court discussed whether an attorney representing himself in foreclosure proceedings "could collect attorney's fees for work on his own behalf" pursuant to a contractual provision providing for an award of attorney's fees to "the prevailing party....