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In re Calomiris

August 26, 2010

IN RE MARY CALOMIRIS, APPELLANT.


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 ...


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