Kirkpatrick v. Gilchrist

LOWE, Judge. Contending that they were deprived of a statutory right to information sufficient upon which to decide whether to purchase units in a proposed condominium, tenants of the apartment complex subject to conversion sought a judgment in the Circuit Court for Montgomery County declaring that appellee Gilchrist (County Executive of Montgomery County) had approved improperly an incomplete “property report” required by law to be filed with him. In the suit, also directed against the owners and developers of the complex, appellants sought permanently to enjoin conversion, or at least until proper approval of a new report was obtained. They further sought to have the matter declared to be a class action.

Significantly there has been no effort to obtain a temporary injunction, or otherwise to forestall the conversion. A demurrer sustained (by Judge Fairbanks) to the original bill struck the tenants’ association as a party plaintiff and the court’s opinion narrowed the focus of any permissible cause of action to executive acts which might have been so arbitrary or capricious as to deprive plaintiffs of due process. The court expressly found that at that time it was unneces ²⁴⁶ sary to decide whether the action was properly a class action. In light of the ultimate disposition of the case hindsight reveals that decision to have been an unfortunate one.

Be that as it may, appellants filed an amended bill to which appellees demurred generally, alleging a failure to comply with the substantive restrictions suggested by the opinion sustaining the former demurrer. Without a hearing or opinion this demurrer was overruled by Judge Cahoon who subsequently explained his reasoning to have been that a demurrer to substantive matters was an inappropriate way to dispose of declaratory judgments. See, e.g., Urbana Civic Ass’n v. Frederick Co., 23 Md.App. 49 , 325 A.2d 755 (1974). Once again appellees requested a ruling on the question whether this case was an appropriate class action.

Although we are unable to glean the vaguest hint from the record that the judge addressed that issue, appellants argue ironically that the judge implicitly determined that this case is a class action. The judge dismissed the case, with prejudice, upon preliminary motion, for want of interested parties pursuant to Md.Cts. & Jud.Proc.Code Ann. § 3-405(a), noting that: “From this record it is abundantly clear that the contract purchasers of the 500 apartment units have not been joined nor have any of those having acquired a mortgage interest in the condominium regime. From a review of the scope of the declaratory relief sought, it is manifest that a declaration in these proceedings would affect the interest of those persons. For these reasons, the Court will grant the Motion Raising Preliminary Objection and dismiss the action.

There having been no efforts through this extended litigation to join these interested parties, the dismissal will be with prejudice.” Applying their implied holding of a “class action” principle, appellants argue that the judge even determined the bounds of the class (i.e., contract purchasers and mortgagees) and thus ²⁴⁷ “... the lower court abused its discretion by deciding on the initial pleadings that this suit is in effect a class action which should include all contract purchasers and mortgagees in the condominium regime.” Such an interpretation of Judge Cahoon’s opinion obfuscates the issue to appellants’ own detriment. We need not reach the question of whether the contract purchasers and mortgagees were necessary parties whose interests would be affected by a declaration. Cts. Art. § 3-405. 1 The issue is whether appellants’ inaction in adding them was so inexcusably dilatory as to warrant dismissal “with prejudice”, keeping in mind that amendments are being allowed with increasing liberality.

Judge Singley pointed out for the Court of Appeals in Crowe v. Houseworth, 272 Md. 481, 485 , 325 A.2d 592 (1974), that the Court has “said that amendments should be freely allowed in order to promote justice, Earl v. Anchor Pontiac Buick, Inc., 246 Md. 653, 656 , 229 A.2d 412, 414 (1967) so that cases will be tried on their merits rather than upon the niceties of pleading, Hall v. Barlow Corp., 255 Md. 28, 39-40 , 255 A.2d 873, 878 (1969). Additional parties plaintiff may be added, Ehrlich v. Board of Education of Baltimore County, 257 Md. 542, 547-50 , 263 A.2d 853, 856-57 (1970), subject only to the limitation contained in Rule 320 b 2(a) that ‘some one of the original plaintiffs and some one of the original defendants must remain as parties to the action.’ ” Appellants initially appear to have been cognizant of the problem concerning who should have been included as necessary parties (i.e., those persons who had or claimed any interest in the proceeding; § 3-405). Knowledge of the ²⁴⁸ possible standing of the unnamed parties is clear from the prayer for certification of the cases as a class action wherein appellants sought to be the “representatives of the class of tenants and prospective purchasers at the Willoughby Apartments, or of a lesser appropriate class.” While there is some question in our mind whether “prospective purchasers” following the institution of suit against the developer would be necessary parties (since they would seem to take subject to the rights of the owner under the doctrine of lis pendens once suit is filed), 2 appellants were not even permitted to amend to join them as they become prospective purchasers. 3 Appellants, however, had anticipated such problem by asking to be their representative in a class action which would have avoided the cumbersomeness apparent in joining these people as parties. Md.Rule 209, the class action rule, is by its very nature procedural.

Its popularity as a public interest device has obscured its practical procedural purpose, which-is readily apparent by its expressed applicability. “When there is a question of law or fact common to persons of a numerous class whose joinder is impracticable, one or more of them whose claims or defenses are representative of the claims or defenses of all and who will fairly and adequately protect the interests of all may ²⁴⁹ sue or be sued on behalf of all.” Md.Rule 209 a (emphasis added). If the request for a certification is opposed, whenever “a class action is maintained of right, the court may adjudicate and declare the non-representative character of the action and render judgment specifically determining that only the parties to the action are bound thereby.” Md.Rule 209 b. The court is admonished by Rule 209 c to require notice to class members, 4 and is urged to innovate in fashioning protections for them— “The court at any stage of the action may impose such terms as shall fairly and adequately protect the interest of the persons on whose behalf the action is brought or defended, including an order that notice be given in such manner as it may direct: (1) of the pendency of the action, (2) of a proposed settlement, (3) of rendition of judgment, (4) to come in and present