Unger v. Berger

• Decision Date: 25 September 2013
• Docket Number: Sept. Term, 2012.,No. 1018,1018
• Citation: 214 Md.App. 426,76 A.3d 510
• Parties: Elizabeth UNGER v. Marilyn BERGER, Personal Representative of the Estate of Ann Freeman, et al.
• Court: Court of Special Appeals of Maryland

214 Md.App. 426

76 A.3d 510

Elizabeth UNGER

v.Marilyn BERGER, Personal Representative of the Estate of Ann Freeman, et al.

No. 1018, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Sept. 25, 2013.

George E. Brown (Ryan A. Mitchell, Kramon & Graham PA, on the brief) Baltimore, MD, for appellant.

James P. Scholtes (David B. Hamilton, Womble, Carlyle, Sandridge & Rice, LLP, on the brief) Baltimore, MD, for appellee.

Panel: ZARNOCH, GRAEFF, JAMES P. SALMON (Retired, Specially Assigned), JJ.

GRAEFF, J.

This appeal involves a dispute between sisters over the final resting place of their aunt, Ann R. Freeman, who is buried in Arlington Cemetery of Chizuk Amuno Congregation (“Arlington”) in Baltimore City. The issue presented is one of subject matter jurisdiction, i.e., where a will is probated in one state and the deceased is buried in another state, which court has jurisdiction to resolve a subsequent dispute regarding the proper place of burial. The answer depends on the nature of the claim raised.

Elizabeth Unger, appellant, filed a Petition for Disinterment and Complaint for Specific Performance in the Circuit Court for Baltimore City, alleging that Ms. Freeman's Last Will and Testament (the “Will”) directed Marilyn Berger, appellee, to bury Ms. Freeman's remains in a burial plot next to her deceased husband in King Solomon Cemetery (“King Solomon”) in New Jersey.¹ Ms. Berger filed a Motion to Dismiss the Complaint, which the circuit court granted on the ground that it lacked subject matter jurisdiction.

On appeal, Ms. Unger raises a single question for our review, which we have rephrased as follows:

Did the circuit court err in dismissing the Complaint on the grounds that it lacked subject matter jurisdiction?

For the reasons set forth below, we shall affirm in part and reverse in part the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On August 28, 2007, while residing in Florida, Ms. Freeman executed the Will and appointed Ms. Berger as her Personal Representative. The Will indicated that Ms. Freeman previously had made arrangements to be buried at King Solomon, and she had directed her “Personal Representative to take whatever action may be necessary to assist in fulfillment of those instructions.”

At some point after executing the Will, Ms. Freeman moved to DeKalb County, Georgia, where she resided with Ms. Berger until she required hospitalization. In October 2009, she moved into Summer's Landing, an assisted living facility in Georgia.²

On April 21, 2010, Ms. Freeman died in Georgia. Ms. Freeman was deeply religious, and therefore, Ms. Berger arranged for her body to be cared for in accordance with strict Jewish law, including the ritual bathing of her body by a Jewish burial society and a watcher who guarded her body prior to burial. Ms. Freeman's body was then transported from Georgia to Maryland and buried in Ms. Freeman's family plot in Arlington.

Ms. Berger asserts that Ms. Freeman was buried at Arlington because, after executing the Will, Ms. Freeman “clearly and unambiguously” instructed Ms. Berger to bury her there. Ms. Berger explained that, in addition to being Personal Representative, she also had a full power of attorney and authority over Ms. Freeman's affairs.

On February 28, 2011, Ms. Unger filed a petition to probate the Will with the Probate Court of DeKalb County, Georgia.³ In the petition, Ms. Unger sought to have the Will admitted to probate “so that she can petition for sanctions against [Ms. Berger] for failing to carry out the deceased's burial instructions as set forth in ... the Will.” Both Ms. Unger and Ms. Berger engaged counsel in Georgia to represent them in the dispute.

On August 9, 2011, prior to a ruling by the DeKalb County Probate Court, Ms. Unger filed a voluntary dismissal of her petition, without prejudice. ⁴ Three days after filing her voluntary dismissal in the DeKalb County Probate Court, a Notice of Disinterment was published in The Daily Record in Maryland on behalf of Ms. Unger and Ted Freeman, Ms. Freeman's step-grandson. On September 21, 2011, Ms. Unger filed an unverified ex parte Petition for Disinterment and Reinterment in the Circuit Court for Baltimore City.⁵ On November 1, 2011, the circuit court dismissed the ex parte petition, finding, inter alia, that it was “improper as it was not brought as an adversarial action” against Ms. Berger.

On November 15, 2011, Ms. Berger, in her capacity as Personal Representative, filed a Complaint for Damages in the Superior Court of DeKalb County against Ms. Unger and Mr. Freeman, seeking damages for their unlawful actions and wrongful conduct with respect to Ms. Berger's administration of Ms. Freeman's estate. Ms. Unger and Mr. Freeman subsequently filed a Motion to Dismiss the Complaint, asserting that the Superior Court did not have personal jurisdiction over them. On April 11, 2012, the Superior Court denied Ms. Unger and Mr. Freeman's motion finding that it did have personal jurisdiction.

In the interim, on December 20, 2011, Ms. Unger filed the Petition for Disinterment and Complaint for Specific Performance that is the subject of this appeal. Ms. Unger asserted that “[t]his case involves the willful disregard of Ann R. Freeman's Last Will and Testament, wherein she directed her Personal Representative, Defendant Marilyn Berger, to bury her in New Jersey, in a burial plot next to her deceased husband.” Ms. Unger alleged that, in addition to the explicitly stated desires in the Will, Ms. Freeman also had expressed to Ms. Unger, in “multiple conversations,” her desire to be buried beside her husband. The Complaint contained three counts: (1) a petition for disinterment, alleging that the Will unequivocally reflected Ms. Freeman's intention to be buried in New Jersey, but that Ms. Berger wrongfully had buried her in Maryland; (2) Ms. Berger had breached her fiduciary duty as Personal Representative by failing to carry out the express terms of the Will; and (3) specific performance against Ms. Berger and Arlington. The Complaint requested that Ms. Freeman be disinterred from her current burial site, that her remains be reinterred in New Jersey, and that Ms. Berger pay the costs associated with this relief.

On March 12, 2012, Ms. Berger filed a motion to dismiss asserting, inter alia, that the circuit court did not have subject matter jurisdiction because the Georgia probate court had original, exclusive jurisdiction over controversies arising from the administration of Ms. Freeman's estate. She asserted that the proper procedure was to seek relief in the probate court, in Georgia, and in the event that Ms. Unger was successful, to then seek disinterment in Maryland.

On July 9, 2012, the court held a hearing on the Motion to Dismiss. At the conclusion of the hearing, the court found that it lacked subject matter jurisdiction, noting that “the true subject matter in this case” was not where the body was buried, but rather, “the testamentary and estate issues,” which the court found should be litigated in the Georgia probate court. Accordingly, it granted Ms. Berger's Motion to Dismiss.

STANDARD OF REVIEW

“ ‘The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct.’ ” Higginbotham v. Public Service Comm'n of Maryland, 171 Md.App. 254, 264, 909 A.2d 1087 (2006) (quoting Britton v. Meier, 148 Md.App. 419, 425, 812 A.2d 1082 (2002)). Accord Reichs Ford Road Joint Venture v. State Roads Comm'n of the State Highway Administration, 388 Md. 500, 509, 880 A.2d 307 (2005) (“We review the grant of a motion to dismiss de novo.”). We will find that dismissal was proper only “ ‘if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.’ ” Sprenger v. Public Service Comm'n of Maryland, 400 Md. 1, 21, 926 A.2d 238 (2007) (quoting Pendleton v. State, 398 Md. 447, 459, 921 A.2d 196 (2007)) (citations omitted). Dismissal of an action on a preliminary motion for lack of subject matter jurisdiction is proper only if the facts and allegations establish a lack of subject matter jurisdiction. Lewis v. Murshid, 147 Md.App. 199, 203, 807 A.2d 1170 (2002).

DISCUSSION

Ms. Unger contends that the circuit court erred in ruling that it lacked subject matter jurisdiction for three reasons. First, she argues that, because Ms. Freeman's remains are buried in Maryland, they are “in the custody of Maryland law,” and only a Maryland court has subject matter jurisdiction over the claim for disinterment of the remains. Second, she asserts, “the language in the Will concerning Ms. Freeman's burial wishes is clear and unambiguous and, therefore, does not require any interpretation.” Third, Ms. Unger contends that, “whether Ms. Berger breached her fiduciary duties as the Personal Representative is irrelevant to the determination of whether Ms. Unger should be permitted to disinter Ms. Freeman's remains.”

Ms. Berger contends that the circuit court “properly dismissed appellant's complaint because it lacked subject matter jurisdiction over this testamentary dispute.” She argues that both Georgia and Maryland law provide that the county where the deceased was domiciled is the proper probate court, and therefore, the “proper venue for probating the Will and administration of the Estate lies in DeKalb County, Georgia.” Ms. Berger asserts that the proper procedure would be for Ms. Unger to re-file her petition to probate the Will in the Georgia probate court, and if she is successful in enforcing the provision in the Will concerning the place of burial, “Ms. Unger could then seek disinterment of Ms. Freeman's body in Maryland and reinterment in New Jersey with the proper legal support of an Order from the DeKalb County Probate Court—the court with subject matter jurisdiction over this testamentary dispute.”

In her Reply Brief, Ms. Unger concedes that “Georgia is the appropriate venue for an action...