Cooper v. Bikle

CHASANOW, Judge. Susanne E. Cooper and Richard A. Bikle are the eo-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 plaintiffs 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: ⁶¹² 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 áccording 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 ⁶¹³ 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 ⁶¹⁴ 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 ⁶¹⁵ 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 RepLVol.), 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 plaintiffs 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 plaintiffs 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 ⁶¹⁶ 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 recognizes, Maryland Rule 2-322(b) provides that the defense of failure to join a necessary party under Rule 2-211 may be raised in a pre-answer motion to dismiss. Pursuant to Rule 2-322(c), the court may dismiss the action or grant the plaintiff leave to amend the complaint. “If leave to amend is granted and the plaintiff fails to file an amended complaint within the time prescribed, the court, on motion, may enter an order dismissing the action.” Md.Rule 2-322(c). As we said in Mahan v. Mahan, 320 Md. 262 , 577 A.2d 70 (1990), “[t]he primary purposes of [Rule 2-211’s] requirement that necessary parties be joined are ‘to assure that a person’s rights are not adjudicated unless that person has had his “day in court” ’ and, to prevent ‘multiplicity of litigation by assuring a determination of the entire controversy in a single proceeding.’ ” 320 Md. at 272 , 577 A.2d at 75 (quoting Bender v. Sec., Dep’t of Personnel, 290 Md. 345, 351 , 430 A.2d 66 , 69-70 ⁶¹⁷ (1981)).

See Reddick v. State, 213 Md. 18, 29-30 , 130 A.2d 762, 767-68 , cert. denied, 355 U.S. 832 , 78 S.Ct. 50 , 2 L.Ed.2d 44 (1957). See also 7 Charles A. Wright et al., Federal Practice and Procedure: Civil 2d § 1602, at 21 (1986) (interpreting Fed.R.Civ.P. 19, from which Md.Rule 2-211 is substantially derived, as “designed to protect the interests of absent persons as well as those already before the court from multiple litigation or inconsistent judicial determinations”). A As to the requirement of Rule 2-211(a)(1), we believe complete relief can be accorded among those who are already parties to this action. In arguing to the contrary, the defendant claims that “evidence pertaining to the source and use of [the] funds before and after their withdrawal from the [joint accounts of Austin and Helen Bikle], as well as evidence of the origins and use of the funds in the [subsequent joint account of Austin and Josef Bikle], is critical not only to establishing whether a fraud upon Helen V. Bikle ever occurred but also to proving that the funds in the Second Account[ ] constitute the proceeds of the First Accounts.” To respond to this contention, we must first assume the facts as asserted by the non-moving party (i.e., the plaintiff).

This proposition was summarized as follows in Sharrow v. State Farm Mutual, 306 Md. 754 , 511 A.2d 492 (1986): “Under Md.Rule 2-322, a motion to dismiss for failure to state a claim serves the same function as the demurrer under former Rules 345 and 371 b. Consequently, in considering the legal sufficiency of Sharrow’s complaint to allege a cause of action for tortious interference, we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings.” (Citations omitted). 306 Md. at 768 , 511 A.2d at 499-500 . The Court in Sharrow continued, however, by noting that “any ambiguity or uncertainty in the allegations bearing on whether the complaint states a cause of action must be construed against the plead ⁶¹⁸ er.” 306 Md. at 768 , 511 A.2d at 500 . The Court finally concluded as follows: “There is, of course, a big difference between that which is necessary to prove the commission of the tort and that which is necessary merely to allege its commission.

We think, therefore, in the circumstances that all [the] counts of the complaint, although lacking in desired specificity, are barely adequate to allege a claim.... ” Sharrow, 306 Md. at 770 , 511 A.2d at 500-01 . Like Sharrow , much of the case law regarding this issue deals with motions to dismiss for failure to state a claim as opposed to motions to dismiss for failure to join a necessary party. Nevertheless, we consider the reasoning of these decisions applicable to the instant case insofar as it pertains to acceptance of the facts alleged by the non-moving party. See Berman v. Karvounis, 308 Md. 259, 264 , 518 A.2d 726, 728 (1987) (stating that, “[s]ince we are dealing with a motion to dismiss, we consider [the plaintiffs’] well-pleaded allegations in the light most favorable to them”); Flaherty v. Weinberg, 303 Md. 116, 135-36 , 492 A.2d 618, 628 (1985) (stating that in order “[t]o withstand demurrer a party need only allege facts that, if proven, would entitle him to relief,” and the Court shall accept all the plaintiffs well-pleaded facts and inferences drawn therefrom as true).

The plaintiff in the instant case is not required to prove the commission of the torts claimed, but only to allege their elements with sufficient specificity. See Sharrow, 306 Md. at 770 , 511 A.2d at 500-01 . The plaintiff is suing Josef Bikle in tort for the funds he and Austin Bikle jointly converted from the accounts of Austin and Helen Bikle. Whether Josef Bikle is liable to the plaintiff depends on whether the plaintiff can prove he was a joint tortfeasor and does not require the joinder of Austin Bikle’s estate.

Therefore, for the purpose of the joinder issue, the plaintiffs allegations meet the standards espoused in Sharrow , and we shall assume the truth of the well-pleaded facts contained in the complaint. ⁶¹⁹ Thus, even though the defendant contends that there is no proof at this stage of whether the funds withdrawn from the accounts of Austin and Helen Bikle were the same funds deposited into the account of Austin and Josef Bikle, the plaintiff is only suing Josef Bikle as a joint tortfeasor. In that respect, the case law of this State clearly provides that a plaintiff has the right to bring an action against alleged joint tortfeasors either collectively or individually if the plaintiff so chooses. The plaintiff is under no obligation to join any and all potential tortfeasors when such parties are jointly and severally liable for the plaintiffs injuries. In Lanasa v. Beggs, 159 Md. 311 , 151 A. 21 (1930), we stated the following with respect to this principle: “Where several persons unite in an act which constitutes a wrong to another, each must assume and bear the responsibility for the misconduct of all, and the party injured may pursue all in one action or any one of them severally, or any number less than the whole without regard to the participation of the others.” 159 Md. at 319 , 151 A. at 25 .

See also Hatzincolas v. Protopapas, 314 Md. 340, 343-44 , 550 A.2d 947, 949 (1988) (concluding that “even though any negligence of [the alleged tortfeasors] is necessarily concurrent, the plaintiff may maintain the action without suing every joint tortfeasor”); Carroll v. Kerrigen, 173 Md. 627, 632 , 197 A. 127, 128 (1938) (quoting Lanasa, 159 Md. at 319 , 151 A. at 25 , with approval); Gordon v. Opalecky, 152 Md. 536, 550 , 137 A. 299, 304 (1927) (concluding “the rule is that one may proceed against any one of several joint tort feasors regardless of the others”). We also find support for this rule in the case law and commentary regarding Federal Rule of Civil Procedure 19 from which Maryland Rule 2-211 is substantially derived. See Md.Rule 2-211 source notes. An interpretive note to Federal Rule 19 clearly provides that a “[j]oint tortfeasor is not [an] indispensable party under Rule 19(a).” USCS Rules of Civil Procedure, Rule 19, at 379 n. 24 (citing Picard v. Wall St. Discount Corp., 526 F.Supp. 1248, 1252 (S.D.N.Y.1981)).

See also Temple v. Synthes Corp., 498 U.S. 5, 7 , 111 S.Ct. 315, 316 , ⁶²⁰ 112 L.Ed.2d 263, 267 (1990) (per curiam) (recognizing “[i]t has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit”); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1199 (6th Cir.1983) (stating that “ ‘a tortfeasor with the usual “joint and several” liability is merely a permissive party to an action against another with like liability’ ” (quoting Advisory Committee Notes to Fed.R.Civ.P. 19)); Tatham v. Hoke, 469 F.Supp. 914, 917 (W.D.N.C.1979) (recognizing that joint tortfeasors are not indispensable parties), aff'd, 622 F.2d 584 , 587 (4th Cir.1980); Letmate v. Baltimore and Ohio Railroad, 311 F.Supp. 1059, 1063 (D.Md.1970) (holding that “[a] joint tortfeasor is not per se an indispensable party under Rule 19”). In the instant case, the plaintiff may seek a judgment for the alleged injuries to Helen Bikle’s estate from either Josef Bikle or the Estate of Austin H. Bikle if, as she alleges, they are joint tortfeasors. Consequently, the circumstances of the instant case constitute a permissive joinder at most, but certainly not a required one. If the defendant considers Austin Bikle’s estate jointly and severally liable for the plaintiffs alleged injuries, then the defendant has the option of bringing an action for contribution against the estate.

The defendant cannot, however, compel the joinder of another joint tortfeasor under these circumstances. We therefore hold that complete relief could be accorded among those already parties, and Rule 2-211(a)(1) does not mandate the joinder of Austin Bikle’s estate. B. The defendant next contends that, unless the Estate of Austin H. Bikle is joined, disposition of this action may impair or impede the estate’s ability to protect a claimed interest relating to the subject matter of this action, or may leave Josef Bikle personally subject to a substantial risk of incurring multiple or inconsistent obligations. See Md.Rule 2-211(a)(2); Fed.R.Civ.P. 19(a) (stating that a person shall be joined if “the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the ⁶²¹ person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations”).

See also 7 Federal Practice and Procedure: Civil 2d § 1604, at 37-38. As to the defendant’s contention that he may incur multiple or inconsistent obligations absent the joinder of Austin Bikle’s estate, in accordance with our previous discussion, we find this argument is without merit. See Part III.A., supra. The plaintiff in the instant case has sufficiently alleged that Josef Bikle is jointly and severally liable in tort.

As a result, the plaintiff may sustain an action against Josef individually. As to any interest of Austin Bikle’s estate in the funds the plaintiff seeks to recover, we perceive no such interest which would be impaired by the disposition of this action among those already parties. The funds at issue in this case were allegedly deposited into a bank account held by Austin and Josef Bikle as joint tenants with a right of