Edmunds v. Lupton
| Decision Date | 03 April 1969 |
| Docket Number | No. 175,175 |
| Parties | Elizabeth H. EDMUNDS, Conservatrix of the Estate of Vivian G. Edmunds v. Thomas F. LUPTON and Laura Lee Lupton. |
| Court | Maryland Court of Appeals |
Jules G. Ko rner, III, Washington, D. C. Ko rner, Doyle, Worth & Crampton, Washington, D. C., on the brief), for appellant.
William C. Staley, Rockville, for appellees.
Before HAMMOND, C. J., and MARBURY, BARNES, SINGLEY and SMITH, JJ.
This appeal involves the construction of Maryland Rule 314 a 1, with particular reference to whether or not the 'bill of complaint' or petition filed by the appellees, Thomas F. Lupton and Laura Lee Lupton, his wife (the Luptons), in the Circuit Court for Montgomery County, against the appellant Elizabeth H. Edmunds, conservatrix of the Estate of Vivian G. Edmunds, asserted a 'claim' against the conservatrix, and whether or not the appellant and appellees were 'opposing parties' within the meaning of Rule 314 a 1.
The appellant was appointed as conservatrix of the estate of Vivian G. Edmunds by the Circuit Court for Montgomery County in a case entitled 'In re Vivian G. Edmunds', Equity No. 27833, on January 23, 1964. She duly qualified as conservatrix. By an order of the Circuit Court dated April 30, 1965, she was also made responsible for the personal welfare of Vivian G. Edmunds.
On December 13, 1967, the Luptons filed a 'bill of complaint' for an order to show cause (the words 'bill of complaint' in the heading are stricken out and the word 'Petition' is inserted in pencil) in the pending equity case, No. 27833, in which the Luptons describe themselves as 'petitioners.' The petition alleges that Thomas F. Lupton 'is the nephew of Vivian G. Edmunds, whose estate is being administered in this proceeding' and Laura Lee Lupton is his wife; that the only other heir at law and next of kin of Vivian Edmunds is Beth Meade Edmunds McCoy, the daughter of the conservatrix; that the petitioners throughout the years had enjoyed a warm relationship with Vivian, who had stayed at their home in Plantation, Florida, for a portion of the year 1966, and Vivian had corresponded with them at fairly regular intervals but such correspondence had ceased recently; that Vivian is residing presently at the Fairland Nursing Home in Silver Spring; that recently the petitioner Laura Lee Lupton had come to Silver Spring to visit her daughter and Vivian; that the nursing home had refused her entry for the purpose of visiting Vivian and refused to allow her to communicate with Vivian by telephone, and the Luptons believe that the nursing home is discouraging Vivian from writing to them; that the petitioners 'also believe and aver that the actions taken by the Fairland Nursing Home are a direct result of the orders and instructions of Elizabeth H. Edmunds, conservatrix'; and that the petitioners are concerned for the welfare of Vivian, desire to visit her and 'believe and aver that the denial of visitation with Vivian G. Edmunds is unjustifiable and without merit.'
The three prayers for relief in the petition were that:
1. The court permit the petitioners to visit Vivian at the nursing home for a reasonable time during regular visiting hours.
2. The court 'issue an order to show cause to Elizabeth H. Edmunds why the relief prayed should not be granted.'
3. The court grant other and further relief.
Upon this petition, the Circuit Court for Montgomery County (Shure, J.) signed an order on December 22, 1967, which ordered that the Luptons be permitted to visit Vivian at the nursing home for a reasonable time during regular visiting hours 'unless cause to the contrary be shown on or before the 26th day of January, 1968 at 10:00 a. m., provided a copy of this order be served upon Elizabeth H. Edmunds, conservatrix of the estate of Vivian G. Edmunds on or before the 16th day of January, 1968.'
The show-cause order having been served upon the conservatrix, she filed an answer and counterclaim as conservatrix on January 18, 1968. In the answer, the conservatrix admitted certain allegations in the petition, denied others including the allegation that the petitioners were refused visitation rights with Vivian by the conservatrix, but averred that the conservatrix did instruct the nursing home that any visit of the petitioners to Vivian 'be conditioned upon there being a representative of * * * (the) conservatrix' with Vivian during the course of such a visitation. The conservatrix further alleged that she had imposed this condition for five reasons: (1) the petitioners had not paid a final judgment for $950.00 obtained by the conservatrix against them in Florida; (2) the petitioners and the conservatrix are adverse parties in a will contest now pending in Florida; (3) the petitioners and conservatrix are adverse parties in an action in Florida to recover the proceeds of a bank account held by Vivian; (4) it had been necessary for the conservatrix to institute a habeas corpus action in Florida in order to obtain Vivian's release from her visit to the petitioners; and (5) that because of Vivian's deteriorating physical and mental condition, plus the above four reasons alleged, the conservatrix was under an obligation to have someone present to protect her ward's interest during any visitation by the petitioners.
In the counterclaim, immediately following the answer, the conservatrix alleged that a counterclaim was permitted under Rule 314 a; that the conservatrix was duly appointed as conservatrix, resides in Maryland and 'makes this counterclaim on behalf of her ward in such capacity;' that Laura Lee Lupton is a niece by marriage of Vivian; that Vivian and her sister Marie E. Lupton opened a joint bank account in the Equitable Savings & Loan Association, a District of Columbia banking organization in 1951; that the conservatrix was appointed as conservatrix for Vivian in April 1964, but notwithstanding that appointment, Marie attempted to withdraw some of the money from the account, but was informed by the Association that in order to do this without the passbook, the signature of the other joint depositor would be required; that the Association subsequently received certain forms signed by both depositors, issued its check on February 15, 1965 for $3,450.46, the entire balance of the account, payable to Vivian and Mary; that the check was later endorsed by Vivian and Mary and also by Laura Lee Lupton and was collected by Laura Lee Lupton on or about February 21, 1965; that Marie died on April 5, 1965; that all of the funds in the account except interest credited, had been contributed by Vivian; that Laura Lee Lupton alleges that the proceeds of the check were used for room, board and incidental expenses of Vivian from February 21, 1965 until May 20, 1965 while Vivian was residing with the petitioners at their home in Plantation, Florida; that Laura Lee Lupton had made no further accounting to the conservatrix in regard to how the funds were expended; and, that the conservatrix believes it unlikely the $3,450.46 would be required for the room and board of Vivian during the three month period Vivian resided with the petitioners. It was prayed that (1) the petitioners be required to account to the conservatrix as to how the proceeds of the check were expended; (2) to the extent not expended for the ward, Vivian, that the conservatrix have judgment against the petitioners jointly and severally; (3) the conservatrix have other and further relief.
The answer and counterclaim were served on the Luptons by mail on their attorney, pursuant to Maryland Rule 306 c 1.
On January 30, 1968, counsel for the Luptons filed a 'line' in the proceedings directing the clerk to 'mark the petition of Thomas F. Lupton and Laura Lee Lupton for an order to show cause 'Settled and Off," and on February 2, 1968, filed a motion raising preliminary objections to the counterclaim of the conservatrix pursuant to Maryland Rule 323 a(2). This motion recited that the petitioners were residents of Florida; that they had not been previously served in Maryland with the counterclaim, but that jurisdiction over them was attempted by the conservatrix by serving it on their attorney of record; that under Rule 314 a 1, the Luptons were not 'opposing parties' and no 'claim' had been filed against them by the conservatrix and no part of the petition 'concerned itself with the merits of the conservatrixship;' and that under the constitution and laws of Maryland and the due process clause of the Fourteenth Amendment of the Federal Constitution, the petitioners 'may not be served in this action.' A hearing was requested on the motion.
The conservatrix, on February 15, 1968, filed an opposition to the motion to quash alleging that the petition had alleged certain wrongful acts by the conservatrix with respect to her ward; that a show-cause order was directed against her, as conservatrix; that the service on the petitioners was in accordance with Rule 306 c 1; and, that there was no merit in the contentions of the petitioners that they were not 'opposing parties', or that the Luptons had not 'asserted a claim' against the conservatrix within the meaning of Rule 314 a 1.
The Chancellor filed a memorandum on May 13, 1968, indicating that, in his opinion, the Luptons were not opposing parties and did not assert a claim against the conservatrix. He passed an order the same day quashing the service upon the Luptons and a timely appeal was taken from that order by the conservatrix.
We are of the opinion that the Chancellor was in error and we will reverse the order of May 13, 1968.
The relevant portion of Rule 314 entitled, 'Counterclaim and Cross-claim' is as follows:
'a. Counterclaim
1. Right to Plead Counterclaim.
In any action any party, against whom a claim, counterclaim, cross-claim or third-party claim has been asserted, may plead as a counterclaim any claim he has against any opposing party.' (Emphasis supplied.)
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