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Fraternal Order of Police, Montgomery County Lodge 35 v. Montgomery County

Court of Special Appeals of Maryland

March 27, 2014

FRATERNAL ORDER OF POLICE, MONTGOMERY COUNTY LODGE 35
v.
MONTGOMERY COUNTY, MARYLAND

Krauser, C.J., Meredith, Woodward, JJ. Opinion by Meredith, J.

OPINION

Page 888

[216 Md.App. 635] Meredith, J.

The Circuit Court for Montgomery County denied a Petition for Award of Costs and Disbursements that was filed by Fraternal Order of Police, Lodge 35 (" appellant" or " FOP" ), which was seeking reimbursement of the fees it incurred in fending off a motion to stay a request for arbitration. FOP's claim for attorneys' fees and costs was filed after appellant scored a court victory over Montgomery County (" appellee" or " the County" ); the Court of Appeals ruled that a grievance filed by FOP was subject to arbitration pursuant to a collective bargaining agreement between the parties. Montgomery County, Maryland v. Fraternal Order of Police, Montgomery [216 Md.App. 636] County Lodge 35, Inc ., 427 Md. 561, 567, 50 A.3d 579 (2012) (hereafter referred to as " FOP I " ). After the Court of Appeals ruled in FOP I that the grievance was indeed subject to arbitration, FOP filed its petition asking that the Circuit Court for Montgomery County order the County to reimburse FOP for the litigation expenses and costs it had incurred up to that point in its efforts to establish and confirm that the grievance was arbitrable. The circuit court rejected FOP's argument that § 3-228(b) of the Courts and Judicial Proceedings Article of the Maryland Code authorizes such an award of litigation expenses at that preliminary stage in the arbitration proceedings, and the court denied FOP's fee petition. This appeal followed.

Page 889

QUESTION PRESENTED

Appellant presents a single question for our review:

Does Section 3-228(b) of the Maryland Uniform Arbitration Act permit a court, following litigation of a petition to stay arbitration, to award the prevailing party reasonable attorneys' fees and costs?

We will affirm the circuit court's denial of the appellant's Petition for Award of Costs and Disbursements.

FACTS AND PROCEDURAL HISTORY

The proceedings that led to the present dispute were described as follows by the Court of Appeals in FOP I :

The Fraternal Order of Police, Montgomery County Lodge 35, Inc. (" FOP" or " Appellee" ) filed a grievance under the " Maintenance of Standards" provision of its collective bargaining agreement (" CBA" or " Agreement" ) with Montgomery County (" County" or " Appellant" ) following the County's unilateral decision to discontinue a long-standing practice of allowing shop stewards to sit in on disciplinary interrogations for training purposes. The County filed a motion to dismiss the grievance, arguing that arbitration of the issue was preempted by the Law Enforcement Officers' Bill of Rights . . . [LEOBR]. The arbitrator determined [216 Md.App. 637] that the grievance was not preempted and denied the motion to dismiss. The County then filed a petition to vacate the " arbitration award" in the Circuit Court for Montgomery County. The Circuit Court affirmed the arbitrator's decision and granted summary judgment on behalf of the FOP. We affirm the judgment of the Circuit Court that the LEOBR is not implicated by the steward training grievance and, therefore, does not preempt its arbitration under the CBA.

427 Md. at 564 (emphasis added) (footnote omitted).

The Court of Appeals observed in FOP I that the County had been mistaken in labeling its motion as a petition to vacate an arbitration award; there was no award to be vacated . Consequently, the Court of Appeals treated the claim for relief which the County had labeled a " petition to vacate" as a motion to stay arbitration. The Court explained, id. at 568-69:

Preliminarily, we take this opportunity to clarify the procedural issue raised by the trial judge when, in confirming the determination of the arbitrator, he noted confusion as to whether a petition to " vacate" was the " correct terminology," under the circumstances. Indeed, by filing a petition to vacate the " arbitration award," the County suggested that an award was, in fact, made by the arbitrator. It used language throughout the petition that referred to the arbitrator's denial of its dispositive motion as an " award," despite its preliminary nature and the fact that arbitration on the merits had not taken place.
Appellant apparently relied on Montgomery County v. Fraternal Order of Police Montgomery County Lodge 35, Inc ., 147 Md.App. 659, 810 A.2d 519 (2002) (" Lodge 35" ), as the blueprint for pursuing this procedural error. In that case the FOP requested arbitration, and the County, rather than petitioning the circuit court for a stay of arbitration, filed a motion to dismiss before the arbitrator, arguing that the particular dispute was not arbitrable. After the arbitrator denied the motion to dismiss, the County filed a " petition [216 Md.App. 638] to vacate arbitration award" in the circuit court. The circuit court affirmed the determination

Page 890

of arbitrability, which was then appealed. On appeal, the intermediate appellate court stated that although the arbitrator issued a preliminary decision rather than a final award, " [n]evertheless, the parties have not argued that an arbitrator has to render a final award before a petition to vacate a preliminary decision can be filed, and we are not aware of any authority compelling that conclusion." Lodge 35, 147 Md.App. at 666, 810 A.2d at 523. The intermediate appellate court then continued to evaluate whether the arbitrator exceeded his powers and whether the " award" should be " vacated" under the Arbitration Act, Maryland Code § 3-224 of the Courts and Judicial Proceedings Article.
The reasoning of the intermediate appellate court in Lodge 35 is incorrect because it is clear, pursuant to our case law, that a petition to vacate an arbitration award requires an actual award, i.e., a final decision by an arbitrator on the merits. See Messersmith, Inc. v. Barclay Townhouse, 313 Md. 652, 663, 547 A.2d 1048, 1053 (1988) (noting that Md. Code § 3-208 and § 3-224 of the Courts and Judicial Proceedings Article are " mechanisms through which a court (based upon its independent assessment of the evidence thereby concluding that no agreement to arbitrate exists) is authorized to either stay an arbitration proceeding, under § 3-208, or invalidate it after the fact, under § 3-224(b)(5)." (emphasis added)); Brewster v. Woodhaven Bldg. & Dev., Inc ., 360 Md. 602, 620, 759 A.2d 738, 753-54 (2000) (noting that § 3-224 is one of three sections of the Arbitration Act which " permit parties who have been through arbitration to file certain post-award petitions in the Circuit Court . . ." (Wilner, J., dissenting on other grounds)); Stauffer Constr. Co. v. Bd. of Educ ., 54 Md.App. 658, 664, 460 A.2d 609, 612 (1983) (" When such an [arbitration] agreement exists, or is alleged to exist, the courts are generally enjoined by the statute from interfering with the arbitration process. Indeed, the court's jurisdiction [before arbitration is completed] may properly be invoked in but [216 Md.App. 639] two limited contexts -- to compel arbitration or to stay it." ); MARTIN DOMKE, DOMKE ON COMMERCIAL ARBITRATION, § 39:6 at 15-16 (3d ed. 2012) (" Before an [arbitration] award is ripe for review, it must be 'definite and final,'" and resolve the parties' dispute. (footnote omitted)).
Despite [the fact that the County filed] an incorrect motion, however, we treat the County's " petition to vacate arbitration award," in the present case, as a motion to stay arbitration.

The Court of Appeals ruled in FOP I that the circuit court's denial of the County's motion to stay the arbitration was immediately appealable because such an order " 'exhausts the court's jurisdiction.'" Id. at 570 (quoting Brewster, supra, 360 Md. at 631). Similarly, the order as to which FOP noted the present appeal exhausted ...


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