Cooper v. Bikle

• Decision Date: 01 September 1993
• Docket Number: No. 128,128
• Parties: Susanne E. COOPER, Personal Representative of the Estate of Helen Virginia Bikle v. Josef F. BIKLE. ,
• Court: Maryland Court of Appeals

Page 608

334 Md. 608

640 A.2d 1120

Susanne E. COOPER, Personal Representative of the Estate of Helen Virginia Bikle v. Josef F. BIKLE.

No. 128, Sept. Term, 1993.

Court of Appeals of Maryland.

May 11, 1994.

Bradford G.Y. Carney and Janet A. Shearer (Weinberg and Green, all on brief), Baltimore, for appellant.

Mark D. Thomas (Meyers, Young & Grove, P.A., all on brief), Hagerstown, for appellee.

Argued before ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ., and CHARLES E. ORTH, Jr., ^* Judge of the Court of Appeals (retired) Specially Assigned.

CHASANOW, Judge.

Susanne E. Cooper and Richard A. Bikle are the co-personal representatives of the Estate of Helen Virginia Bikle. In that capacity, they brought a tort action against Josef F. Bikle for fraud, conversion and conspiracy. ¹ The plaintiff's complaint alleged that Josef Bikle and the now-deceased Austin H. Bikle, who was Helen Virginia Bikle's husband, fraudulently converted approximately $70,000.00 from certain joint accounts held by Austin and Helen Bikle. Josef Bikle denied these allegations, and sought to have the action dismissed for failure to join the Estate of Austin H. Bikle as a necessary party defendant. The Circuit Court for Washington County granted the defendant's motion to dismiss and the plaintiff appealed. Before the Court of Special Appeals could resolve the matter, this Court issued a writ of certiorari to decide the following issues:

1. Does the trial court's dismissal of an action without prejudice, for failure to join a necessary party defendant, constitute a final and appealable judgment; and

2. Did the trial court err in dismissing this action for failure to join as necessary party defendants, Susanne E. Cooper and Josef F. Bikle, the co-personal representatives of Austin H. Bikle's estate?

I.

The facts alleged by the parties in the instant case are as follows. Decedents Helen Virginia Bikle and Austin H. Bikle were married on July 18, 1938. During their marriage, Austin and Helen Bikle owned various accounts as "joint tenants with the right of survivorship" at the Hagerstown Trust Company and the Columbia First Federal Savings and Loan Association.

On August 14, 1981, Helen Bikle executed a Durable Power of Attorney that named her granddaughter, Susanne E. Cooper, and William E. Cooper as her co-attorneys in fact, and granted to them all powers necessary to properly manage her financial affairs. Six years later, Helen Bikle was adjudged disabled according to Maryland law, and Austin Bikle was appointed the guardian of her person and property. By a subsequent order of the Circuit Court for Washington County, dated July 30, 1991, Susanne Cooper was appointed the substitute guardian of Helen Bikle. That order also terminated Austin Bikle's appointment as the guardian of Helen Bikle's property in favor of Susanne and William Cooper, Helen's co-attorneys in fact.

The plaintiff alleges that between January 5, 1989 and July 24, 1989, while Austin Bikle was the guardian of Helen Bikle's person and property, he improperly withdrew a sum in excess of $70,000.00 from the joint accounts held by himself and Helen without her knowledge or consent and transferred these funds into an account jointly held with his brother, Josef Bikle. Austin and Josef Bikle held the new account as joint tenants with a right of survivorship. On August 27, 1990, Austin Bikle died and the funds in his joint account with Josef Bikle became the sole property of Josef pursuant to the joint tenancy's right of survivorship and without probate by the Estate of Austin H. Bikle. Subsequently, on January 22, 1992, Helen Virginia Bikle also died. Susanne Cooper and Josef Bikle were appointed the co-personal representatives of Austin Bikle's estate. Susanne Cooper and Richard Bikle were appointed the co-personal representatives of Helen Bikle's estate.

On or about March 10, 1992, Susanne Cooper and Richard Bikle, in their capacity as the co-personal representatives of Helen Bikle's estate, filed a complaint against Josef Bikle in the Circuit Court for Washington County. The three-count complaint claimed fraud, conversion, and conspiracy, arising out of the allegedly wrongful transfer of funds in excess of $70,000.00 from the joint accounts of Austin and Helen Bikle into the joint account of Austin and Josef Bikle. Josef Bikle filed an answer and moved to dismiss the complaint for failure to join the Estate of Austin H. Bikle as a necessary party defendant.

The Circuit Court for Washington County granted the defendant's motion to dismiss the complaint without prejudice and with leave to amend within thirty (30) days in order to join Susanne Cooper and Josef Bikle, the co-personal representatives of the Estate of Austin H. Bikle, as necessary party defendants. The plaintiff elected not to amend her complaint by adding an additional party, and after thirty (30) days expired, she filed a Notice of Appeal to the Court of Special Appeals. The intermediate appellate court ordered the appellant to show cause why the appeal should not be dismissed for lack of a final judgment. The appellant filed a response to the Order to Show Cause, and on December 9, 1992, the Court of Special Appeals dismissed the appeal and remanded the case to the circuit court for entry of a final judgment.

The circuit court failed to enter a final judgment in the action. Consequently, on February 3, 1993, the plaintiff filed a motion seeking an order of dismissal with prejudice and the entry of a final judgment. The defendant filed an opposition to the motion, and argued that the action should be dismissed without prejudice. While the motion was still pending, this Court rendered its decision in Moore v. Pomory, 329 Md. 428, 620 A.2d 323 (1993), which held that a dismissal without prejudice is a final and appealable judgment. Based on that decision, the plaintiff withdrew her motion for a dismissal with prejudice and asked that the case be dismissed without prejudice. On July 2, 1993, the Circuit Court for Washington County dismissed the action without prejudice. On July 19, 1993, the plaintiff filed a timely Notice of Appeal to the Court of Special Appeals. Prior to the intermediate appellate court's resolution of the case, we issued a writ of certiorari to consider the issues presented.

II.

The defendant in the instant case first contends that this appeal should be dismissed pursuant to Maryland Rules 8-602(a)(1) and 8-603(c) for want of a final judgment. ² In light of our decision in Moore v. Pomory, 329 Md. 428, 620 A.2d 323 (1993), we disagree with that contention.

The plaintiffs in Pomory filed a tort action in the Circuit Court for Baltimore City, and the action was subsequently dismissed without prejudice for failure to state a claim upon which relief could be granted. 329 Md. at 429-30, 620 A.2d at 324. See Maryland Rule 2-322. The plaintiffs appealed the circuit court's decision to the Court of Special Appeals, which held that "a dismissal of an entire action 'without prejudice' was the same as a dismissal 'allow[ing] leave to amend,' and, as such, 'it was interlocutory and not an appealable final judgment.' " Pomory, 329 Md. at 430, 620 A.2d at 324-25 (quoting the unreported opinion of the Court of Special Appeals).

This Court agreed with the intermediate appellate court's conclusion that an order dismissing a complaint with leave to amend is not a final appealable judgment. Pomory, 329 Md. at 431, 620 A.2d at 325 (citing Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 12-301 (providing a right of appeal from final judgments)). Notwithstanding that observation, this Court also declared the following:

"On the other hand, an order dismissing or granting a motion to dismiss a plaintiff's entire complaint, without granting leave to amend, and where there are no counterclaims, cross-claims or third-party claims, puts the plaintiff out of court and terminates the particular action in the trial court. This is true regardless of whether the dismissal was with or was without prejudice.

* * * * * *

The effect of the designation 'without prejudice' is simply that there is no adjudication on the merits and that, therefore, a new suit on the same cause of action is not barred by principles of res judicata." (Citation omitted).

Pomory, 329 Md. at 431-32, 620 A.2d at 325. Consequently, this Court held that "[t]he order ..., dismissing the entire complaint without prejudice, was a final and appealable judgment." Pomory, 329 Md. at 433, 620 A.2d at 326.

The relevant facts and circumstances of Pomory are virtually identical to those of the case before us. The circuit court judge in the instant case dismissed the plaintiff's entire complaint without prejudice. There are no other counterclaims, cross-claims or third-party claims pending in this action. Thus, this particular action was terminated, and the plaintiff was put out of court. This is true regardless of whether the dismissal was with or was without prejudice. See Pomory, 329 Md. at 431-32, 620 A.2d at 325. We therefore hold that the dismissal without prejudice of this action on July 2, 1993 was a final and appealable judgment.

III.

Our analysis of whether Austin Bikle's estate is a necessary party defendant depends upon the required joinder provisions of Maryland Rule 2-211(a):

"Rule 2-211. REQUIRED JOINDER OF PARTIES

(a) Persons to be Joined.--Except as otherwise provided by law, a person who is subject to service of process shall be joined as a party in the action if in the person's absence

(1) complete relief cannot be accorded among those already parties, or

(2) disposition of the action may impair or impede the person's ability to protect a claimed interest relating to the subject of the action or may leave persons already parties subject to a substantial risk of incurring multiple or inconsistent obligations by reason of the person's claimed interest."

As the defendant recogniz...