Bell v. Bell

1

RIAN BELL, INDIVIDUALLY, AND RIAN BELL, AS MEMBER AND ON BEHALF OF SIMPLY COUNTRY, LLC Appellant v. HOLLY BELL, JOSHUA KIRK, AND WILLOW AND WILDFIRE, LLC Appellees

No. 95 MDA 2023

No. J-S29019-23

Superior Court of Pennsylvania

August 29, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Order Entered December 30, 2022 In the Court of Common Pleas of Perry County Civil Division at No(s) CV-CV-2021-0295

BEFORE: MURRAY, J., KING, J., and COLINS, J. ^[*]

MEMORANDUM

KING J.

Appellant Rian Bell, individually and as member and on behalf of Simply Country, LLC, appeals from the order entered in the Perry County Court of Common Pleas, which sustained the preliminary objections of Appellee, Holly Bell, and dismissed Appellant's complaint without prejudice. We reverse and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. Appellant Rian Bell and Appellee Holly Bell are married and in the midst of contentious divorce proceedings. Appellant and Appellee Bell each own 50% of Simply Country, LLC ("Simply Country"). Appellee Bell subsequently began dating Appellee Joshua Kirk, and the two formed Appellee Willow and Wildfire, LLC ("W&W").

[Appellant] filed a Complaint and Petition for Preliminary Injunction in this matter against [Appellees] on May 5, 2021.^[1] [Appellant] asserts in his Complaint, that [Appellees] breached a fiduciary duty that they had with both himself and with Simply Country, and that he has suffered damages as a result of these breaches. [Appellant's] complaint also asserts that [Appellees] stole property from Simply Country, tortiously interfered with contracts, and knowingly gave false statements or refused [to] disclose business records, causing him to suffer financial damages. [Appellee] Bell, promptly filed Preliminary Objections to the Complaint, and [Appellant] amended the Complaint. [Appellee] Bell filed Preliminary Objections to [Appellant's] Amended Complaint on July 1[9], 2021, and [Appellant] filed a Second Amended [C]omplaint on or about August [4], 2021. [Appellee] Bell filed Preliminary Objections to [Appellant's] Second Amended Complaint, on September 7, 2021.

[Appellee] Bell asserts in her Preliminary Objections that the claims made in [Appellant's] Complaint are based on matters that are solely [within] the province of equitable distribution of the couples' property that is being handled as part of the parties' separate divorce action. [Appellee] Bell further argues that these claims should be dismissed until the marital assets have been divided through equitable distribution, as Simply Country and both parties' equity in Simply County are marital assets and it would be impossible to determine whether [Appellant] suffered any damages at this time. [Appellee] Bell states, [Appellant's] damages are only speculative at this time and therefore he does not have a cause of action.

(Opinion in Support of Order, filed 12/30/22, at 1-2; R.R. at 26-27).

The court held argument on Appellee Bell's preliminary objections on September 28, 2022, after which the court reserved making its decision. On December 30, 2022, the court sustained the preliminary objections and dismissed Appellant's complaint "without prejudice." (See Order, filed 12/30/22, at 1; R.R. at 20). In doing so, the court explained:

In this case, [Appellant] and [Appellee] Bell have a pending divorce action. The Bells each own fifty-percent equity in Simply Country[;] Simply Country and the equity that [Appellant] and [Appellee] Bell each have in Simply Country is a marital asset. This marital asset is subject to equitable distribution, and until the marital property has been distributed, [Appellant] does not have a cause of action. The trial court has the power to account for any devaluation of the company and the causes of that devaluation as part of the equitable distribution of the couples' property within the pending divorce action. [Therefore, Appellant] cannot assert that he has suffered any losses or damages until the couples' assets have been distributed as part of the divorce.

(Opinion in Support of Order at 2; R.R. at 27).

Appellant timely filed a notice of appeal on January 17, 2023. On January 24, 2023, the court ordered Appellant to file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b). Appellant filed a Rule 1925(b) statement on February 16, 2023.^[2] Appellant raises the following issues on appeal:

Did the trial court err when it dismissed the entire second amended complaint containing sixteen (16) counts against three (3) defendants, when the court held [Appellant] did not have a cause of action until the company was distributed by equitable distribution and that all issues were to be entirely resolved as part of the equitable distribution of a marital estate of [Appellant] and [Appellee Bell].

Did the trial court err when it dismissed the entire second amended complaint when [Appellees] Joshua Kirk and [W&W] did not raise preliminary objections to the six (6) counts against those two (2) defendants.

(Appellant's Brief at 5).

As a preliminary matter, Appellee Bell claims that the order before us is not reviewable because it is not a final order, where the court dismissed Appellant's complaint "without prejudice." (See Appellee Bell's Brief at 1, 3, 5). "The appealability of an order directly implicates the jurisdiction of the court asked to review the order." In re Estate of Considine v. Wachovia Bank, 966 A.2d 1148, 1151 (Pa.Super. 2009). As a result, "this Court has the power to inquire at any time, sua sponte, whether an order is appealable." Id. Generally, "[a]n appeal may be taken from: (1) a final order or an order certified as a final order (Pa.R.A.P. 341); (2) an interlocutory order as of right (Pa.R.A.P. 311); (3) an interlocutory order by permission (Pa.R.A.P. 312, 1311, 42 Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P. 313)." In re Estate of Cella, 12 A.3d 374, 377 (Pa.Super. 2010) (some internal citations omitted).

In support of her claim that we must quash this appeal, Appellee Bell cites Mier v. Stewart, 683 A.2d 930 (Pa.Super. 1996). In that case, the appellant filed a malpractice and breach of contract claim against his former attorney. The trial court granted the appellee's demurrer and dismissed the malpractice count with prejudice. The court also dismissed the breach of contract count, but did so "without prejudice," giving the appellant additional time to file a more specific amended complaint on that count. Rather than filing an amended complaint, the appellant appealed. On appeal, this Court noted that Rule 341 only permits an appeal from a final order. This Court then explained that "[b]y granting a party leave to amend, the trial court has not finally disposed of the parties or their claims. For finality to occur, the trial court must dismiss with prejudice the complaint in full." Id. at 930. Accordingly, this Court quashed the appeal without prejudice to appeal once a final order dismissing the breach of contract claim was entered on the record. Id.

On the other hand, Appellant relies on Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978), to support his proposition that the appeal is properly before us. In that case, our Supreme Court explained that "[i]n determining what constitutes a final order…we look to 'a practical rather than technical construction' of an order." Id. at 73, 394 A.2d at 545 (internal citation omitted). In other words, "if the practical consequence of the order by the trial court is effectively to put an appellant 'out of court' the order will be treated as final. Similarly, an order is 'final' if it precludes a party from presenting the merits of his claim to the [trial] court." Id. (internal citation omitted).

Recently, in Rosenbaum and Associates, P.C. v. Scheff, No. 1604 EDA 2021, 2022 WL 15065527 (Pa.Super. filed Oct. 27, 2022) (unpublished memorandum),^[3] appeal denied, ___Pa.___, 2023 WL 4879871 (Pa. filed Aug. 1, 2023), this Court considered the practical effect of an order that sustained preliminary objections and dismissed a complaint without prejudice. In that case, the appellants filed a complaint against the appellees on March 24, 2021, asserting a claim for aiding and abetting a breach of fiduciary duty. Thereafter, the appellees filed preliminary objections. Subsequently, the trial court sustained the preliminary objections and dismissed the appellants' complaint "without prejudice." Id. at *4. In doing so, the trial court stated:

Since the alleged, threatened, aiding and abetting breach of fiduciary duty has not yet occurred, [the a]pellants are not presently able to allege that they sustained damages as a result of [the a]pellees' threatened conduct, rather than, or in addition to, the conduct of [the a]ppellees' clients, who are the defendants in the related action.

Id. The court added that "if additional information revealed in discovery shows that [the a]ppellees caused [the a]ppellants to suffer any harm other than that caused by [the a]ppellees' clients, then [the a]ppellants may file a new complaint against [the a]ppellees." Id. The appellants appealed.

On appeal, this Court initially addressed whether it had jurisdiction to hear the appeal, where this Court acknowledged that "an order dismissing a complaint without prejudice is generally considered interlocutory." Id. at *6 (citing Mier supra). Nevertheless, this Court explained that "because the trial court did not grant [the a]ppellants leave to amend while dismissing their complaint without prejudice, and instead directed that [the a]ppellants could only file a new complaint if additional information comes to light, we will consider the trial court's order as...