MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2017 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,	 the	

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	the	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.
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I.		BACKGROUND

[¶2]		In	March 2015,	Alanna	Brown	 filed	joined	petitions	in	 the	Waldo	

County	 Probate	 Court	 requesting	 that	 she	 be	 appointed as	 guardian	 and	

conservator for her	 mother,	 Ann	 B.	 Thomas.	 See	 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	 contentious	 discovery	 process	 followed.	 	On	Brown’s	 requests,	

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	sanctions	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.
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[¶4]	 	 The	 court	 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	 Thiem	 filed	 a	 motion	 to	 withdraw	 based	 on	 her	 assertion

that	 the	 court	 had	exhibited prejudice	and	 bias	against her.	 	Five	 days	later,	

the	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,	after the final day	of	hearing on	the petitions,	

where	Thomas	was	represented	by	new counsel and	Attorney	Thiem	was	not	

present,	 the	 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,	the	 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	 pay	
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reasonable	 expenses,	 including	 counsel	 fees,	 required	 by	 her” misconduct

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	amendment	of	the	order.		See	M.R.	Civ.	P.	52(b),	59(e).

4		The	court	granted	

the	motion,	but	only	to	the	extent	of	directing 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	necessitated	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	appear	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	 to	 the	 failure	 as	 are	 just	 .	 .	 .	 In	 lieu	 of	 any	 order	 or	 in	

addition	thereto,	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	 proceedings.	 	 See	 M.R.	

Prob. P. 52,	59.
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sanctioned	 conduct.	 	At	 oral	 argument,	 the	 parties	 stated	 that	 the	 court	 had	

not yet issued	an	order	specifying	the	amount	that	Attorney	Thiem	would	be	

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 (stating	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	 result, 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	 dismiss	 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	has	argued	 the	issue,	we	consider	sua
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sponte whether	 a	 matter	 is	 properly	 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	 consideration	 and	judgment	 of	 the	 court” (alteration	 omitted)	

(quotation	marks	omitted));	see	also M.R.	Civ.	P.	54(b)(1).

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[¶10]	 	 We	 have	 explicitly	 stated	 that	 an	 order	 imposing	 discovery	

sanctions	 pursuant	 to	Rule	 37	is	 “not	a	 final	judgment	 suitable	 for	appellate	

review”	 if	 the	 order does	 not	 “determine	 the	 amount	 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	 inviting	 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).
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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).

[¶11]	 	 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	appellate	review.

[¶12]	 	 We	 therefore	 dismiss	 this	 appeal without	 reaching	 the	 merits,

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 any

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

FOR	CLERK	REFERENCE	ONLY