Warfel v. Brady

• Decision Date: 01 September 1992
• Docket Number: No. 546,546
• Parties: William WARFEL, Jr., et al. v. Robert W. BRADY, Personal Representative of the Estate of Robert John Brady. ,
• Court: Court of Special Appeals of Maryland

Page 1

95 Md.App. 1

619 A.2d 171

William WARFEL, Jr., et al. v. Robert W. BRADY, Personal Representative of the Estate of Robert John Brady.

No. 546, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Jan. 28, 1993.

Certiorari Denied June 24, 1993.

Robert G. Skeen (Goldman & Skeen, P.A. on the brief), Baltimore, for appellants.

Kevin P. Murphy (Scherr, Cole & Murphy on the brief), Glen Burnie, for appellee.

Argued before ALPERT, WENNER and FISCHER, JJ.

WENNER, Judge.

Appellants, William Warfel Jr. and Susan Warfel, personal representatives of the estate of William Warfel, have appealed from a judgment of the Circuit Court for Anne Arundel County dismissing their amended complaint against appellee, Robert W. Brady, personal representative of the estate of Robert John Brady. Appellants present six issues for our consideration, which they characterize as follows:

I. That the ruling of Judge Rushworth overturning the decision of Judge Lerner who denied appellee's motion for summary judgment and motion to reconsider and/or revise the denial of summary judgment violated the law of the case doctrine;

II. In the case at bar appellants filed a lis pendens action with the complaint and amended complaint and that with the filing of the lis pendens action timely notice was given to the personal representative of the lis pendens action and an outstanding claim against the property of the estate;

III. That the filing of a lis pendens action creates a sufficient lien against the property of an estate the perfection and enforcement of which cannot be negated by Section 8-103 of the Estates and Trusts Article;

IV. That the standard as set forth in Tulsa Professional Collection Services, Inc. v. Pope that executors make "reasonably diligent efforts" to ascertain creditors was not met in the case at bar;

V. That the appellants were not required to file a claim pursuant to Section 8-104(b) & (c) of the Estates and Trusts Article as suit has been filed against the estate of the decedent within nine months of the death of the decedent;

VI. That Section 8-103(a) of the Estates and Trusts Article is unconstitutional in requiring that whether or not reasonably diligent efforts are made by the executor to locate ascertainable creditors claims will be extinguished nine months after the date of death of the decedent or two months after the personal representative mails notice to a creditor.

For ease of discussion and analysis, we have combined issues II. and III., and issues IV. and VI.

Concluding that appellants' amended complaint was properly dismissed, we shall affirm the judgment of the circuit court.

BACKGROUND

The genesis of this appeal was the death of William Warfel (Warfel), on April 2, 1989. Warfel was the father of William Warfel, Jr. and Susan Warfel. According to appellants, Warfel died as the result of an assault and battery committed upon him by Robert John Brady. On April 2, 1990, appellants filed a complaint in the Circuit Court for Anne Arundel County, seeking damages of twenty nine million dollars and establishing lis pendens against real property owned by Robert John Brady.

Unfortunately for appellants, the complaint was riddled with inaccuracies and mistakes. The first count was a survival claim on behalf of Warfel. According to the complaint, appellants were the personal representatives of Warfel's estate. ¹ Actually, Warfel's estate was not opened and appellants were not appointed personal representatives until May 17, 1991.

Instead of naming Robert John Brady as defendant, appellants' complaint named Robert John Bray as defendant. In addition, the address given for the defendant was not Robert John Brady's address. Moreover, when they filed their initial complaint, appellants were not aware that Brady had died on November 24, 1989. In any event, the initial complaint was never served. ²

Appellee was appointed personal representative of Robert John Brady's estate on April 19, 1990. As required, he published a notice of appointment and notice to creditors on April 25, May 2, and May 9, 1990. ³ The notice to creditors warned that claims not filed within the earlier of nine months from the date of Brady's death, or two months after delivery of notice by appellee, would be unenforceable. During that period, appellants filed no claim against Brady's estate.

Appellants learned of Brady's death and filed an amended complaint on December 19, 1990, substituting appellee as defendant. The amended complaint also named the decedent correctly as Robert John Brady. Appellee responded to appellants' amended complaint, claiming it was barred by limitations. Appellee subsequently moved for summary judgment, contending that appellants' action was barred by their failure to file a claim with the estate in compliance with § 8-103 of Md.Code, (1974, 1991 Repl.Vol., 1992 Cum.Supp.) Estates and Trusts Article. ⁴ Appellee also contended that appellants' initial complaint was a nullity because it had been filed against a dead man.

Following a hearing, appellee's motion for summary judgment was denied, as was appellee's motion to reconsider and/or revise the denial of summary judgment.

Thereafter, appellee moved to dismiss appellants' amended complaint, again asserting that it was barred by limitations. A hearing was held on February 3, 1992, and appellee's motion to dismiss was granted.

This appeal followed.

DISCUSSION

In ruling on appellee's motion to dismiss, the hearing judge received evidence from outside the pleadings and found, as a matter of law, that appellants' complaint was barred by limitations. In doing so, the hearing judge apparently treated appellee's motion to dismiss as a motion for summary judgment. We note that Md. Rule 2-322(c) empowers the court to rule on a motion to dismiss for failure to state a claim upon which relief may be granted as one for summary judgment, when matters outside the pleadings are presented to and considered by the court. A defense of limitations may be raised by a motion to dismiss for failure to state a claim upon which relief may be granted. Antigua Condo. Ass'n v. Melba Investors Atl., Inc., 65 Md.App. 726, 501 A.2d 1359, vacated and remanded on other gr'ds, 307 Md. 700, 517 A.2d 75 (1986).

When reviewing a grant of summary judgment, we must determine whether the trial court was legally correct. Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972), Hurt v. Stillman & Dolan, Inc., 35 Md.App. 644, 371 A.2d 1137 (1977).

Issue I.

Appellants first contend that the hearing judge was precluded from considering the issues raised by appellee's motion to dismiss. According to appellants, the issues raised by the motion to dismiss were the same issues previously raised by appellee's motion for summary judgment, and the rulings of the previous hearing judge were the "law of the case." Thus, the subsequent hearing judge had violated the law of the case doctrine by granting appellee's motion to dismiss.

As we observed in Ralkey v. Minnesota Mining & Mfg. Co., 63 Md.App. 515, 492 A.2d 1358 (1985):

"The law of the case doctrine generally provides that a legal rule of decision between the same parties in the same case controls in subsequent proceedings between them. Typically, a ruling by the trial court remains binding until an appellate court reverses or modifies it." (Citations omitted.)

Id., 63 Md.App. at 520, 492 A.2d 1358. See also, Kline v. Kline, 93 Md.App. 696, 614 A.2d 984 (1992).

According to Maryland law, the law of the case doctrine applies to decisions finally disposing of the case. Ralkey, supra, 63 Md.App. at 521, 492 A.2d 1358. It is beyond cavil that the doctrine has no application to courts of coordinate jurisdiction before entry of a final judgment. Placido v. Citizens Bank and Trust Co. of Md., 38 Md.App. 33, 379 A.2d 773 (1977). Moreover, summary judgment may be properly granted in a case even though it was denied earlier. Joy v. Anne Arundel County, 52 Md.App. 653, 451 A.2d 1237 (1982), cert. denied, 295 Md. 440 (1983).

In the case sub judice, the denial of appellee's motion for summary judgment and to reconsider and/or revise did not "finally dispose" of the case. Quite the contrary, those rulings permitted appellants to proceed. The denial of summary judgment is not a final judgment from which an appeal may be taken. See, Melbourne v. Griffith, 263 Md. 486, 283 A.2d 363 (1971).

In short, the subsequent hearing judge was not precluded from granting appellee's motion to dismiss. There was no error.

Issues II. and III.

As we mentioned earlier, appellants' complaint and amended complaint sought to establish lis pendens and to enjoin the transfer, conveyance, encumbrance or other disposition of real property owned by Robert John Brady.

Issues II. and III. concern whether appellants' attempt to establish lis pendens timely notified appellee of appellants' claim, and whether it created a lien against real property belonging to the Brady estate, despite the provisions of § 8-103(a). Inasmuch as lis pendens applies neither to appellants' initial complaint nor to appellants' amended complaint, we need not address the specific issues raised by appellants.

Lis pendens literally means a pending action; thus, the doctrine of lis pendens concerns the jurisdiction, power, or control that a court acquires over real property involved in an action, pending final judgment. 54 C.J.S. Lis Pendens § 2 (1987). The doctrine applies only to cases in which the complaint directly relates to the property, or the ultimate aim of the complaint is to subject the property to disposal by a decree of court. Angelos v. Maryland Casualty Co., 38 Md.App. 265, 380 A.2d 646 (1977); Permanent Fin. Corp. v. Taro, 71 Md.App. 489, 526 A.2d 611, cert. granted, 311 Md. 193, 533 A.2d 670 (1987), appeal dismissed, Jan. 26, 1988; Feigley v. Feigley, 7 Md. 537 (1855); Applegarth v. Russell, 25 Md. 317 (1866).

It is generally recognized that lis pendens may not be predicated upon an...