Burns v. Scottish Development Co. Inc.

• Decision Date: 28 December 2001
• Docket Number: No. 0081,0081
• Citation: 787 A.2d 786,141 Md. App. 679
• Parties: Harold H. BURNS, Jr., et al., v. SCOTTISH DEVELOPMENT CO. INC., et al.
• Court: Court of Special Appeals of Maryland

787 A.2d 786

141 Md. App. 679

Harold H. BURNS, Jr., et al., v. SCOTTISH DEVELOPMENT CO. INC., et al.

No. 0081, Sept. Term, 2000.

Court of Special Appeals of Maryland.

December 28, 2001.

Howard J. Schulman (Schulman & Kaufman, LLC on the brief), Baltimore, for Appellants.

Laura Maroldy (Gertrude Bartel and Kramon & Graham, P.A. on the brief), Baltimore, for appellees, Westwicke, et al.

Dwight W. Stone, II (Whiteford, Taylor & Preston on the brief), Baltimore, for appellee, Scottish Development Co., Inc.

Herbert R. O'Connor, O'Conor & Grant, Towson, for John L. Kenneally.

Ira L. Oring, Fedder & Garten, Baltimore, for Michael and Jennifer Myers.

Daniel H. Scherr, Reese and Carney, LLP, Columbia, for Kevin and Marla B. Carney.

John J. Connolly, Murphy & Shaffer, Baltimore, for Thomas and Jennie Faust and Myo and Khin May-Myint Thant.

Ralph L. Arnsdorf, Franklin & Prokopik, P.C., Baltimore, for Michael and Karen Riger.

Argued before KENNEY, RODOWSKY, LAWRENCE, F. (Ret'd, specially assigned), THIEME, RAYMOND G., Jr. (Ret'd, specially assigned), JJ.

KENNEY, J.

Harold H. Burns, Jr. and Scott Fine appeal the Circuit Court for Baltimore County's dismissal without prejudice of their Second Amended Complaint and its denial of their motion to alter or amend judgment. Appellants raise three issues on appeal, which we have rephrased and consolidated as two questions:¹

I. Was the trial court's ruling on the issue of required joinder erroneous?

II. Did the trial court err in denying appellants' motion to alter or amend judgment?

For the reasons set forth below, we reverse and remand the case for further proceedings.

FACTUAL BACKGROUND

This case concerns a 64.6954 acre parcel of land located in Lutherville on the southwest side of Falls Church Road in Baltimore County, immediately north of Maryvale Preparatory School and south of Satre's Lane Baptist Church and cemetery. The property is developed as a gated private community with private roads and is known as Westwicke. Appellants and their wives own lots in the adjacent Greenwood Subdivision that adjoin the Westwicke property.

When the developer of Westwicke, appellee, Scottish Development Co., Inc. ("Scottish"), submitted its plan for development of the parcel to Baltimore County for approval, appellants opposed it before both the Hearing/Zoning Officer and on appeal to the County Board of Appeals. The reasons for appellants' opposition was described in their Second Amended Complaint:

[Appellants] opposed the development on the ground that the destruction of the forest and its buffer would destroy and interfere with the peace and enjoyment of their properties. [Appellants] also opposed the development on the ground that the development of Westwicke and the destruction of the forest buffer would cause sediment to flow into [nearby] Dipping Pond Run and settle in its bed, thereby causing the Run's trout population to decrease and the water that flows therein to rise and spread laterally against, around and over the banks of the Run. [Appellants] feared and alleged, at that time, that the development would cause the flow of the waters of the Run to change and the attendant and substantial erosion of the banks of the Run, including the banks on [appellants'] real property.

Appellants eventually came to an agreement with Scottish, which was memorialized in a Letter Agreement dated October 31, 1995.² According to the Second Amended Complaint, the Letter Agreement required Scottish to file a document entitled Declaration of Covenants, Conditions and Restrictions for Westwicke Homeowners' Association, Inc. (the "Covenants") in the Land Records. In addition, the Letter Agreement was contingent upon the Board of Appeals accepting it and the Covenants as an amendment to the development plan and incorporating them into its order. This apparently was done on November 15, 1995.

On June 21, 1999, appellants filed a complaint in the Circuit Court for Baltimore County claiming a number of violations of the Covenants and seeking injunctive relief. This complaint named multiple defendants, including Scottish, MacKenzie Commercial Real Estate Services, LLC ("MacKenzie"), Westwicke Homeowners' Association, Inc. ("WHA"), and a number of individuals who owned property in the Westwicke development.³ On September 1, September 10, and October 4, 1999, different defendants⁴ filed motions to dismiss the complaint, all citing failure to join an essential party. The alleged missing and essential parties were appellants' spouses, Margaret Burns and Susan Fine.

On November 1, 1999, appellants filed an Amended Complaint, which included additional factual allegations but no new counts. On November 15 and November 16, 1999, motions to dismiss the amended complaint were filed by Scottish, MacKenzie, Myo and Khin M. Thant, T. Kevin and Marla B. Carney, and Thomas J. and Jennie N. Faust. On November 18, 1999, the circuit court granted MacKenzie's motion to dismiss the complaint. It also granted other defendants' various motions to dismiss for nonjoinder but granted appellants leave to amend their complaint.

Appellants filed a Second Amended Complaint on December 6, 1999. That complaint added Count II, which was titled "declaratory judgment" and which named appellants' wives as defendants to the suit. This was apparently done to force the wives into the lawsuit and to set the stage for having them subsequently declared as involuntary plaintiffs. The remaining defendants, with the exception of John M. and Andrea T. Katz and Michael J. and Karen R. Riger, filed motions to dismiss the Second Amended Complaint.⁵ The court held a hearing on the motions on January 13, 2000. On January 21, 2000, the court dismissed the Second Amended Complaint without prejudice, finding:

The Plaintiffs have brought this action against the named defendants as property owners. Each of the Plaintiffs hold their respective property as tenants by the entireties with their wives. However, their wives have not joined them as Plaintiffs in this action. It is a well established principle of law that tenants by the entireties must act together when the property they own together is at issue. Specifically, the Court of Appeals of Maryland, in the case of Picking v. Yates, 265 Md. 1, 288 A.2d 146 (1972), held that persons holding property per tout et non per my must act together with respect to that property. The Court stated,

No principle is better established in our law than that tenants by the entirety, because, unlike joint tenants, they hold per tout et non per my, must act together to sell their property, to subject it to any interest or encumbrance, or to lease it. Similarly, both spouses must join in an action for damages to property which they own by the entirety not only because of the way title is held, but because Maryland may require on motion by a defendant that even tenants in common be joined as plaintiffs in an action ex delicto for damage to real property. (citations omitted.)

Picking, 265 Md. at 2, 288 A.2d 146.

The Plaintiffs seek to enforce their rights in this action as owners of property which they hold as tenants by the entireties with their wives. The Court of Appeals has clearly stated that tenants by the entireties must act together with respect to their property. Therefore, the Plaintiffs' wives must be joined as Plaintiffs to this action, not as Defendants. The failure to do so is fatal to the complaint.

Appellants filed a motion to alter or amend judgment on January 27, 2000, in which they attempted to join Margaret Burns as a party plaintiff.⁶ The court denied the motion on February 23, 2000. This appeal followed.

DISCUSSION

Finality of Judgment

As a preliminary matter, we note that the judgment in this case does not appear on the face of the record to be final with respect to all of the parties. Although appellees do not raise the issue of jurisdiction, the Court of Appeals has stated in the past that it is elementary "that parties may not by consent confer jurisdiction upon this Court or the Court of Special Appeals." Lewis v. Lewis, 290 Md. 175, 179, 428 A.2d 454 (1981). Accordingly, we raise the issue of jurisdiction nostra sponte.

According to appellees, the appellees in this case are: Scottish, WHA, Santiago and Marta J. Padilla, Michael and Jennifer Myers, Francis M. and Donna V. Dix, John L. Kenneally, Sudhir and Aruna Trivedi, F. Richard and M. Diana Pannoni, T. Kevin and Marla B. Carney, Myo and Khin M. Thant, Thomas J. and Jennie N. Faust, Michael J. and Karen R. Riger, Richard W. and Elaine E. Born, Francis X. and Gayle Kelly, William F. and Kathy F. Simmons, William J. and Kathleen F. Callis, and Albert F. and Claire A. Grimes.

On January 21, 2000, the court granted the motions to dismiss amended complaint of: Scottish, WHA, Santiago and Marta J. Padilla, Michael and Jennifer Myers, Francis M. and Donna V. Dix, John L. Kenneally, Sudhir and Aruna Trivedi, F. Richard and M. Diana Pannoni, T. Kevin and Marla B. Carney, Myo and Khin M. Thant, Thomas J. and Jennie N. Faust, Richard W. and Elaine E. Born, Francis X. and Gayle Kelly, William F. and Kathy F. Simmons, William J. and Kathleen F. Callis, and Albert F. and Claire A. Grimes. Robert Bland and Teresa Kelley East are not listed as appellees, but their motion to dismiss the second amended complaint was granted.

Michael J. and Karen R. Riger are listed as appellees, but it appears that they did not file a motion to dismiss the second amended complaint. They did, however, raise the issue of joinder in their answer to the second amended complaint. John M. and Andrea T. Katz appear to be active defendants. They had filed an answer to the complaint alleging nonjoinder of required parties as a defense. They had also filed a motion for summary judgment, which was denied by the court on November 18, 1999. They have filed no pleadings in response to the Amended Complaint or Second Amended Complaint, and we can find no...