MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 11 Docket: Wal

- 16

- 110 Argued : October	25,	2016 Decided: January	19 ,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER , MEAD, GORMAN ,	JABAR , HJELM , and HUMPHREY, JJ.

CONSERVATORSHIP	& GUARDIANSHIP	OF	ANN	B.	THOMAS

HJELM,	J. [¶1] In this action for	appointment	of	a	guardian	and	conservator ,	 t he Waldo	County	Probate	Court	( Longley,	J. ) issued	an order imposing sanctions against Attorney Susan	 C. Thiem ,	 who	 represented Ann	 B.	 Thomas, the allegedly incapacitated	person , during	much	of the	case

. The	sanctions	order required	Attorney	Thiem	to	pay	reasonable	expenses,	including	attorney	fees , based	 on a	 finding that she had “unreasonably	 interfered”	 with	 the proceedings and	with the discovery	process in	particular

. As	t he	sole	issue	on appeal ,	 Attorney	 Thiem	 contends	 that the	 court	 abused	 its	 discretion	 by imposing	 sanctions. Because	 the court	 has	 not	 yet	 issued	 an	 order determining any amount that	Attorney	Thiem would	 be	 required	 to	 pay ,	we dismiss	the appeal	as	interlocutory.2 I.		BACKGROUND [¶ 2 ] In	March 2015, Alanna Brown	 filed	joined	petitions	in	 the	Waldo County	 Probate	 Court requ esting	 that	 she	 be	 appointed as	 guardian	 and

conservator for her	 mother,	 Ann	 B. Thomas

. S ee 18

- A	 M.R.S.	 §§ 5

- 303 (a ) , 5

- 401 (2016 )

. The	 following	 month , after a	 pretrial	 conference ,	 the	 court issued	 a	 scheduling	 order establishing deadlines	 for	 filing	 motions	 and completing	discovery,	and	setting a hearing	date

. [¶ 3 ] A	 contenti ous	 discovery	 process	 followed. O n	Brown’s	 request s , the	 court held three	 telephonic discovery	 dispute conferences, see M.R. Civ. P. 26(g) (2) , 1 resulting	 in	 several discovery orders. Brown subsequently filed a motion	 for	 sanctions	 pursuant	 to M.R. Civ. P. 37(b) , alleging	in	 part	 that	Attorney	Thiem had engaged	in	a	 pattern	 of	 refusing	 to cooperate fully	 in the	 discovery	 process

. 2 The	 court deferred ruling	 on	 the sanctions	issue	before	the	final	hearing, and	directed	Brown’s	attorney to	file an	 affidavit	 documenting	 her discovery

- related fees and expenses. Brown’ s attorney	did	so,	claiming fees	and	expenses totaling	$3,780.80.

1 The	 Maine	 Rules	 of	 Civil	 Procedure	 pertaining	 to	 discovery apply	 in	 Probate	 Court proceedings

. See M.R.	Prob.	P.	26

- 37.

2 Brown also filed	a	separate	motion	for	sanctio ns	pursuant	to M.R.	Prob.	P.	16(c ) .		It	is	not	clear from	the record	whether	the	court	issued	an	order	disposing	of	that	motion.3 [¶ 4 ] The	 co urt	 held	 a	 final	 hearing	 on	 the	 petitions	 and all	 pending
motions on	 July	 21,	 2015 ,	 but	 the hearing was	 not	 completed	 that	 day. On July 23,	 Attorney	 Th iem	 filed	 a	 motion	 to	 withdraw	 based	 on her	 assertion
that	 the	 court	 had	exhibited prejudice	and	 bias against her

. Five	 days	later,

t he	court	granted	Attorney	Thiem’s	motion	to	withdraw	with	respect	to	future representation of	Thomas ,	but	denied	the	motion	with	respect	to	the	pending
sanctions	 issue. The	 order allowed	 Attorney	 Thiem	 seven	 days	 to , among other	 things, submit	 evidence to	 support her	 allegations	 of	 bias. Attorney Thiem	 filed	 further	 argument	 on	 that	 issue and also demanded a	 full evidentiary	hearing	on	the	issue	of	sanctions. [¶ 5 ] In	September	2015,	a fter the final day	of hearing on	the petitions , where Thomas	was	represented	by	new counsel and Attorney Thiem	was	not present ,	 t he	 court	 entered	 a	 judgment denying	 Brown’s petition to	 be appointed	 as	 guardian	 for	 her	 mother,	 but	 granting her petition to	 be appointed	as	conservator. Without	 further notice	or hearing, on	 January	26, 2016, t he	 court entered a separate	 order in	 which	 the	 court	 “sanction[ed]” Attorney	 Thiem based	 on	 a	 finding that	 she	 “unreasonably	 interfered	 with civil	 proceedings”	 by	 failing	 to act	 in	 good	 faith, follow discovery	 rules , and comply	 with	 court	 orders. The	 court ordered	 Attorney	 Thiem	 “to	 pay4 reasonable	 expenses,	 including	 counsel	 fees,	 required	 by	 her” mis conduct pursuant to	 M.R.	 Civ.	 P.	 37 (a)(4)	 and	 (d) , 3 but the	 court did	 not	 specify	 the

amount that Thiem	 would	 be	 required	 to	 pay

. The	 court	 granted leave	 for Attorney	Thiem	to	withdraw	 fully	as	counsel, conditioned	upon her	payment
of	those	still

- unquantified	expenses. [¶ 6 ] Attorney	Thiem	 filed	a	motion	 for	additional	 findings	 of	 fact	and
for	amend ment	of	the	order. See M.R.	Civ.	P.	52(b),	59(e)

. 4 The	court	granted the	motion,	but	only	to the	extent	of direct ing Brown’s	attorney to	submit	an updated	affidavit	of	expenses	and attorney	 fees. Attorney	Thiem	then	timely appealed

. See 18

- A	M.R.S.	§ 1

- 308	(2016 ) ; M.R. App.	P.	2 (b)(3)

. [¶ 7 ]	 	 On	 March	 22,	 2016,	 while	 this	 appeal	 was	 pending, Brown’s attorney filed	 an	 updated	 affidavit claiming $22,566.66	in	 attorney	 fees	 and $2,173.80	 in	 costs that	 she asserted	 were attributable to	 Attorney	 Thiem’s

3 M.R.	Civ.	P.	37(a)(4) provides	 that	if	a court	grants	a motion	 to	compel	discovery,	“the	court shall,	after	opportunity	for	hearing,	require	the	party	or	deponent	whose	conduct	necessita ted	the motion	or	the	party	or	attorney	advising	such	conduct	or	both	of	them	to	pay	to	the	moving	party the	reasonable	expenses	incurred	in	obtaining	the order,	including	attorney	fees	.	.	. .” M.R.	Civ.	P.	37(d)	provides that if	a	party	“fails	.	.	.	to	a ppear	before	[an]	officer	who	is	to	take	a deposition,	after	being	served	with	a	proper	notice	.	.	.	the	court	in	which	the	action	is	pending	on motion	 may	 make	 such	 orders	 in	 regard	 t o	 the	 failure	 as	 are	 just	 .	 .	 . In	 lieu	 of	 any	 order	 or	 in addition	the reto,	the	court	shall	require	the	party	failing	to	act	or	the	attorney	advising	that	party	or both	to	pay	the	reasonable	expenses,	including	attorney	fees,	caused	by	the	failure	.	.	.	.”

4 Maine	 Rules	 of	 Civil	 Procedure	 52	 and	 59	 apply	 in	 Probate	 Court	 pr oceedings. See M.R. Prob. P. 52 , 59

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sanc tioned	 conduct. At	 oral	 argument,	 the	 pa rties	 stated	 that	 the	 court	 had

not yet issued	an	order	specifying	the	amount	that	Attorney	Thiem	would	b e required	to	pay	as	sanctions.
II.		DISCUSSION [¶ 8 ]		On this	appeal,	we	are	asked	to	determine	only	whether	the	court abused	its	discretion	by imposing sanctions	against	Attorney	Thiem pursuant
to	 M.R.	 Civ.	 P.	 37

. See Estate	 of	 Hoch	 v.	 Stifel , 2011	 ME	 24,	 ¶¶	 32,	 34,
16 A.3d 137 (sta ting	that	“a	trial	court’s imposition	of	sanctions	for	discovery violations	 [is	reviewed]	 for	an	abuse	of	discretion”). Attorney	Thiem	argues that	 there	 is	 no	 evidence	 in	 the	 record	 to	 support	 the	 court’ s	 findings	 of
misconduct ,	 that	 the	 findings	 are	insufficient	 to	 support	 the	 res ult, and	 that
the court	 violated	 her	 due	 process	 rights	 by	 imposing	 sanctions	 without holding	 an	 evidentiary	 hearing	 on	 that	 issue. Although	 neither	 party	 raises the	issue	of	whether	the	judgment	is	final, we	determine	that	it	is	not ,	and	we
therefore dis miss	 this	 appeal on	 our	 own	 initiative without	 reaching any	 of Attorney	Thiem’s substantive	challenges	to	the sanctions order or	the	process leading	 to	 its	 issuance

. See Bank	 of	 N.Y.	 v.	 Richardson ,	 2011	 ME	 38,	 ¶	 7, 15 A.3d	756 (“ Whether	or	not	a	party	ha s	argued	 the	issue,	we	consider sua6 sponte whether	 a matter	 is	 prop erly	 before	 us	 on	 appeal	 from	 a final judgment .”)

. [¶ 9 ] The	 “final	judgment	rule	requires	 that,	with	limited	exceptions,	a party	may	not	appeal	a	decision	until	a	 final	judgment	has	been rendered	in
the	case.” Safety	Ins.	Grp.	v.	Dawson ,	2015	ME	64,	¶	6,	116	A.3d	948 (quotation marks	 omitted) ( stating	 that	 a	 judgment	 is	 “final”	 if	 it	 “fully	 decides	 and disposes	 of	 the	 entire	matter	 pending	 before	 the	 court	leaving	 no	 questions for	 the future	 consider ation	 and	judgment	 of	 the	 court ” (alteration	 omitted) (quotation	marks	omitted) ); see	also M.R.	Civ.	P.	54(b)(1)

. 5 [¶1 0 ] We	 have	 explicitly	 stated	 that	 a n	 order	 imposing	 discovery sanctions	 pursuant	 to	Rule	 37 is	 “not	a	 final	judgment suitable	 for	appellate
review”	 if	 the	 order does	 not	 “determine	 the	 amo unt	 of	 attorney	 fees	 to	 be paid ” but	 merely directs	 the	 moving	 party	 to file	 an	 attorney	 fees	 affidavit. Flaherty	v.	Muther	(Flaherty	I) ,	2011	ME	32,	¶ 28	n.10,	17	A.3d	640

. Were	we to	 treat	 an	 order	 that	 does	 not	 quantify	 the	 amount	 of	 sanctions	 as	 a	 final judgment, then

— as	with	any	order	that	is	not	final

— we	would	run	the	risk	of countenancing	unnecessary	delay,	and wasting	resources of	the	courts	and	the parties	 by	 inviti ng	 piecemeal	 litigation	 and	 deciding	 issues	 on	 appeal	 that

5 Maine	 Rule	 of	 Civil	 Procedure	 54(b)	 applies	 in	 Probate	 Court	 proceedings. See M.R. Prob. P. 54(b).7 could “ultimately	 be	 mooted	 by	 subsequent	 actions	 in	 the	 trial	 court.” Alexander, Maine	 Appellate	 Practice §	 301	 at	 218

- 19	 (4th ed.	 2013). Accordingly,	 we	 will	 not	 reach	 a	 challenge	 to	 a	 court’s decision	 to	 impose
sanctions pursuant	 to	Rule	37 until	 the	court	has	determined	 the	amount	 of sanctions	to	impose. See	Flaherty	v.	Muther	(Flaherty	II) ,	2011	ME	34,	¶¶	4

- 5 &	 n.3,	 10,	 17	 A.3d	 663 ( addressing a	 challenge	 to	 an	 attorney	 fee	 award pursuant	to M.R.	Civ.	P.	37(c)	and	54(b)(3)	only	after	the	court	issued	a	 final order	awarding	a	specific	amount	of	sanctions	based	on	an	updated	affidavit filed	by	the	moving	party ). [¶1 1 ]	 	 Here,	 the	 court has	 not	 quantified the	 amount	 of any attorney fees	 and	 expenses	 to	 be	 paid	 by	 Attorney	 Thiem	 as	 a	 sanction	 for her discovery	 violations. As a	 result,	 the	sanctions	order is not	a	 final	judgment suitable	for	appe llate	review. [¶1 2 ] We	 therefore	 dismiss	 this	 appeal without	 reaching	 the	 merit s, and	remand	 the	matter	 to	 the	Probate	Court. We assume that	 the	court	will provide	Attorney	Thiem a	proper opportunity	to	be	heard	before issuing an y order that	adjudicates	the matter

. The	entry	is: Appeal	dismissed

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Susan	 C.	 Thiem,	 Esq.	 (orally ),	 Law	 Office	 of	 Susan	 C.	 Thiem,	 Lincolnville, appellant pro	se Naomi	 C.	 Cohen,	 Esq.	 (orally),	 West	 Rockport,	 and	 Roger	 L.	 Hurley,	 Esq., Camden,	for	appellee	Alanna	Brown

Waldo	County	Probate	Court	docket	number	2015

- 47 F OR C LERK R EFERENCE O NLY