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In re Calomiris


August 26, 2010


Appeal from the Superior Court of the District of Columbia (2008-INT-319) (Hon. Rhonda Reid Winston, Trial Judge).

The opinion of the court was delivered by: Kramer, Associate Judge

Argued April 27, 2010

Before RUIZ, KRAMER, and BLACKBURNE-RIGSBY, Associate Judges.

This case arises from a family dispute among siblings about the care and financial management of their incapacitated mother. Three siblings initiated intervention proceedings against their brother George, who is designated as their mother's attorney-in-fact, out of concern that George was not acting in their mother's best interests. The siblings petitioned the court to appoint a neutral, third-party conservator and guardian in lieu of, or possibly in addition to, George. After several months of litigation, the siblings moved for voluntary dismissal of the case because George had improved the care of their mother and their goals had thus been achieved. George, the defendant below, appealed to prevent repetitive litigation and to recover costs and attorneys' fees.*fn1 We conclude that the trial court did not abuse its discretion in dismissing the case, but that it did abuse its discretion in failing to explain its decision to deny George full or partial costs and attorneys' fees incurred. Thus, we affirm in part and remand in part.

I. Factual Background

Mary Calomiris is an eighty-eight-year-old woman suffering from advanced dementia. In 2006, Mrs. Calomiris asked her son George to be her attorney-in-fact. She executed a General Power of Attorney ("POA") on March 1, 2006, and a Health Care Power of Attorney on September 6, 2006. In October of 2008, George's siblings, Kathy Tompros, Jenifer Calomiris, and Charles Calomiris ("the siblings"), brought suit pursuant to the District of Columbia Guardianship Protective Proceedings and Durable Power of Attorney Act ("the Act") to appoint a conservator and guardian for Mary in lieu of, or possibly in addition to, George, alleging that he was not taking proper care of their mother or her finances. All parties agree that, at this time, Mary cannot make decisions or care for herself, and is thus incapacitated for the purposes of the Act.*fn2 The parties disagree, however, about whether Mary was competent at the time she signed over her power of attorney to George and about whether George, as guardian and conservator for Mary, has acted in her best interests since that time.

The siblings asked the court to appoint a visitor and an examiner to evaluate Mary and her living conditions.*fn3 The court granted this request and Mary was visited by the examiner on November 10, 2008, and by the visitor on November 7 and 11, 2008. Both reported inadequate living conditions. On December 10, 2008, the siblings filed a supplement to their original petition seeking to have a guardian appointed for Mary, as recommended by the visitor and the examiner.

At an initial hearing on December 2, 2008, Judge Winston ruled that the proceedings would involve two issues: (1) whether the POAs were valid, i.e., whether Mary was competent at the time she signed them, and (2) whether the court should appoint a guardian/conservator to manage Mary's care and finances in lieu of, or in addition to, George. The judge also ordered limited discovery on the issue of Mary's competency to execute the POAs. Subsequently, she bifurcated the two issues into separate proceedings, and scheduled a hearing on the validity of the POAs for March 23, 2009. Appellees responded by filing a praecipe in which they offered to move directly to the issue of Mary's best interests, in other words, to forego their challenge to the validity of the POAs, in order "to save the time and expense required to try issues that are not dispositive of the Petition . . . ." In response, George filed a Motion for Partial Summary Judgment seeking judgment on the validity of the POAs, arguing that the appellee siblings conceded in their praecipe that the validity of the POAs did not involve any "material facts in question." Judge Winston disagreed that appellees' praecipe was a concession and denied George's motion, holding that "the issue of Ms. Calomiris'[s] capacity to enter into the Powers of Attorney is a material fact still in dispute" which "cannot be circumvented."

On May 14, 2009, the appellee siblings filed a Motion to Dismiss without prejudice, explaining that George had made a number of improvements in the care of their mother "as a result of the filing of the Petition," and that "[i]n light of the improvements in Mrs. Calomiris'[s] care - improvements that now appear to be permanent - Petitioners have accomplished much of what they hoped to accomplish . . ., and do not wish to expend the substantial resources needed to continue to prosecute the petition." The judge granted the motion for voluntary dismissal without prejudice and did not impose terms or conditions. George filed a motion to amend the judgment, urging the trial court to require appellees to reimburse him for a portion of his costs and attorney fees. This motion was denied without any explanation, and George appealed.

II. Legal Analysis

A. The Denial of George's Motion for Partial Summary Judgment is Not Appealable

George asks us to review the trial court's denial of his motion for partial summary judgment on the issue of the legal sufficiency and enforceability of the two Power of Attorney documents. Appellees argue that a denial of partial summary judgment is not appealable after a voluntary dismissal. While "[t]he denial of a motion for summary judgment is usually not reviewable on appeal, as it is not a final judgment,"*fn4 the denial of a motion for partial summary judgment is uniquely appealable in conservatorship cases pursuant to the Act.*fn5 Nonetheless, we agree with appellees that their voluntary dismissal of this case rendered the denial of the motion for partial summary judgment moot. We have held that "dismissal without prejudice renders the proceeding a nullity and leaves the parties as if the action had never been brought."*fn6 Thus, the denial of George's motion for partial summary judgment will not have preclusive effect on future litigation and we lack jurisdiction to review it.*fn7

B. Voluntary Dismissal without Prejudice

1. Decision to Grant Voluntary Dismissal without Prejudice*fn8

A trial court's decision to permit a voluntary dismissal pursuant to Super. Ct. Civ. R. 41 (a)(2)*fn9 is reviewed for an abuse of discretion.*fn10 "Dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit."*fn11 Indeed, "[t]o compel a favorable ruling the defendant must show a real and substantial detriment."*fn12 To determine whether the defendant will endure legal prejudice, i.e., a real and substantial detriment, we consider the defendant's effort and expense in trial preparation, any excessive delay or lack of diligence in prosecution of the action on the part of the plaintiffs, the sufficiency of the plaintiff's explanation for moving for dismissal, and the stage of the litigation, specifically whether a motion for summary judgment was pending.*fn13 Because George did not suffer legal prejudice as a result of the trial court's dismissal of this case, we hold that the trial judge did not abuse her discretion.

George's strongest argument of legal prejudice is his contention that appellees will simply file this case again.*fn14 We have explicitly held, however, that "the incidental annoyance of a second suit" is not enough to prove prejudice.*fn15 With regard to the second factor, George has incurred expenses in defense of this suit, but "the fact that the defendant may have incurred substantial expense prior to dismissal does not amount to legal prejudice."*fn16 The substantial expense incurred by George is mitigated by the fact that his trial preparation efforts will likely benefit him in future litigation, including his current suit in Superior Court.*fn17 Rule 41 (a)(2) also provides for mitigation of this factor by permitting the trial judge to award the defendant costs and attorneys' fees when granting a voluntary dismissal. Indeed, such an award is customary.*fn18

George also fails to show that the appellees created excessive delay or demonstrated a lack of diligence, or that they presented an insufficient reason for dismissal. While appellees did cause the original hearing date to be cancelled by filing their praecipe, their effort to avoid litigation of one of the two contested issues was as likely to accelerate the proceedings as it was to cause delay. Appellees then moved to voluntarily dismiss the case because they recognized that George had already taken several significant steps to improve the care of their mother. The purpose of the Act is to promote the best interests of the incapacitated individual.*fn19 Appellees' explanation is thus not only sufficient, but it is the best possible reason for a dismissal of a conservator or guardianship probate matter in that it prioritizes the best interests of the incapacitated party.

Lastly, appellees did not file their motion at an unreasonably late stage in this litgation and we are unpersuaded by George's contention that appellees' motion to dismiss was an "improper attempt to evade a final judgment." "Most denials of voluntary dismissals are justified by the fact that . . . the parties were on the eve of trial," which is not the case here.*fn20 While appellees possibly were motivated by a desire to avoid litigating the validity of the POAs after the trial court concluded that this issue could not be circumvented, this is not a case where George had won beneficial rulings which the siblings might have wanted to eviscerate. Here, the trial judge denied George's motion for a partial summary judgment; thus, both parties presumably remained on relatively equal footing. George disputes this, arguing that the discovery produced up to the point of dismissal clearly supported his position and contending that appellees only moved for dismissal because the weight of the evidence was against them. This argument is a straw man because anything yielded by discovery in this case can, and likely will, be used in future litigation.

2. Failure to Impose Terms and Conditions or Amend Judgment

George contends that the trial court erred in failing to award him costs and attorneys' fees as a condition of the dismissal, and in failing to amend the dismissal to include such a condition after his Motion to Amend Judgment. We review both a trial court's decision to impose conditions on a dismissal and its decision on a motion to amend a judgment for abuse of discretion.*fn21 "Generally, courts condition the voluntary dismissal on the requirement that the plaintiff pay defendant's attorneys' fees and costs in order 'to compensate the defendant for the unnecessary expense that the litigation has caused' because 'the defendant may have to defend again at a later time and incur duplicative legal expenses.'"*fn22 Indeed, "such conditions should be imposed as a matter of course in most cases."*fn23 George claims to have incurred "hundreds of thousands of dollars in attorney fees."*fn24

While we review for an abuse of discretion, "[a]ppellate deference is less warranted . . . when the basis of the [lower] court's determination is unclear."*fn25 Where a trial court granted a motion for a voluntary dismissal but "did not explicitly rule on appellant's request [for conditions]," the Eleventh Circuit reversed and held: "We simply cannot properly evaluate the district court's exercise of its discretion in this regard without the benefit of some record of the factors it took into consideration in reaching its decision."*fn26

Similarly, here, where the judge failed to provide any explanation for her decision to not award costs and fees in granting voluntary dismissal or in denying appellants' motion to amend, we cannot determine whether the decision not to award costs and fees was a proper exercise of discretion.*fn27 Indeed, as George points out, we are unable to discern if the judge even considered the issue, "much less her reasons for rejecting the request."*fn28 We decline to surmise about the trial court's reasons by entertaining appellees' post-hoc arguments for why the refusal to award costs and fees might have been proper here.*fn29 We remand for reconsideration and a fuller explanation of the decision to deny costs.

IV. Conclusion

George Calomiris did not suffer prejudice when this case was dismissed at the request of appellees. Thus the trial court did not abuse its discretion in granting the dismissal without prejudice. The court did, however, abuse its discretion in failing to explain its decision to deny George full or partial costs and attorneys' fees incurred and we remand for an explanation of the judge's analysis on this issue.

Affirmed in part, remanded in part.

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