Campbell v. Lake Hallowell Homeowners Ass'n

KRAUSER, J. The principal parties to this dispute are a homeowners’ association and a homeowner. Their quarrel, which began over a basketball hoop and a parking space, has resulted in at least four separate actions, with an intimation of more to come. At a loss as to why so little has generated so much conflict, we can only surmise that we are in the middle of what may be the litigatory equivalent of road rage. The number of actions, the sheer ferocity with which they have been pursued, and the inconsequential nature of what has been sought offer us little hope that we are wrong in this assessment.

Whatever the driving force behind this battery of cases, this appeal does present important questions as to the applicability of the collateral estoppel doctrine where an appeal is pending or where an appeal is subsequently dismissed as moot, questions which have not heretofore been fully addressed by our appellate courts. ⁵¹¹ To answer these and other questions posed by the parties to this appeal, we must delve into the three other actions between them, which we shall designate, to avoid confusion: the “administrative action,” the “injunction action,” and the “peace order action.” The instant action, on the other hand, defies facile labels. It combines a derivative action and claims of malicious use of process and abuse of process. It began when appellant Brian Campbell, the homeowner, filed a complaint against his homeowners association, appellee Lake Hallowell Homeowners Association and its Board of Directors, which we shall hereafter collectively refer to as the “Association” and its president, appellee Phillip D. Peters, in the Circuit Court for Montgomery County. That complaint contained three counts: a “derivative action” against the Association and the Board, and claims for malicious use of process and abuse of process against Peters.

Appellees responded by filing a motion requesting dismissal of the complaint or, in the alternative, summary judgment as to all three counts. That motion met with only partial success. While the court dismissed the abuse of process claim against Peters, it denied the motion as to the other claims. After the discovery deadline, imposed by the circuit court, had passed, appellant moved to compel the Association to produce documents that the Montgomery County Commission on Common Ownership Communities (“Commission”) had ordered were to be made available to appellant in one of the other actions between the parties.

When that motion was denied, appellees renewed their motion for summary judgment. This time, they were more successful. Granting that motion in its entirety, the circuit court entered judgment in favor of appellees as to all counts. From that judgment, appellant noted this appeal pro se, presenting two questions, which we have set forth below as they appear in appellant’s brief: I. Did the trial court err in entering summary judgment as to, or dismissing, any of the counts brought against the Association by appellant? ⁵¹² II.

Did the trial court err in denying Campbell’s motion, and/or denying Campbell’s request for a hearing on Campbell’s motion, to compel the Association to comply with the Commission’s order? For the reasons that follow, we shall affirm the judgment of the circuit court. Prior Litigation In 1990, appellant purchased a townhouse in the Lake Hallowell Community, a planned community in Olney, Maryland. By virtue of that ownership, appellant was, until he sold his property in 2002, a member of the Lake Hallowell Homeowners Association.

While appellant was living in the Lake Hallowell Community, a dispute arose between appellant and the Association as to where appellant was permitted to park his car. Upon learning that appellant and his family were parking their car in an overflow parking lot designated for visitors, the Association informed appellant that he was not permitted to park there. To comply with that directive, appellant began parking his car elsewhere. Unfortunately, the “elsewhere” was a “fire lane” in front of his townhouse.

The Association advised appellant that his new choice of a parking space—the fire lane—was even less acceptable than his previous selection. By letter, the Association requested, “[pjlease park your car on your property.” It should have been more specific. Appellant complied and parked his car on his front lawn—which, we are confident, was not what the Association had in mind. Unfortunately, the discord between the parties did not end here.

Indeed, it was only the first battle in what was to become a war. Appellant next placed a basketball hoop on his front lawn. The hoop, the Association claimed, violated the community’s architectural guidelines prohibiting the installation of basketball hoops in front of townhouses, and it demanded that appellant remove both his car and basketball hoop from his front lawn. That demand, to no one’s surprise, went unheeded. ⁵¹³ On September 11, 2001, appellant filed a complaint against the Association with the Montgomery County Commission on Common Ownership Communities (the “administrative action”).

The record does not disclose the details of the complaint but the Commission’s order lists the four issues that were before it: (1) “Does the Fire Lane Establishment Order of November 16, 1990, Order No. DFRS 39-90, prohibit [appellant] from parking [on the street in front of his townhouse]?”; (2) “May the Association prohibit the Complainants from parking in the 25 overflow spaces on Dumfries Circle as well?”; (3) “Do the documents of the Association, specifically the Declaration of Covenants and/or the revised Architectural Control Guidelines effective November 1, 1998, prohibit [appellant] from maintaining the movable, collapsible basketball goal in the front yard of [his] townhouse?”; and (4) “Has the Association improperly denied or limited [appellant’s] right to inspect the books, records and papers of the Association”? Following a hearing, the Commission found that the Association had properly prohibited appellant from parking his vehicle in the fire lane, but that nothing in the Association’s rules, regulations, or guidelines prohibited appellant from parking in the overflow visitors’ parking lot. It further found that the Association’s Declaration of Covenants, Conditions and Restrictions prohibited appellant from placing a basketball hoop in his front yard. On the other hand, it agreed with appellant that the Association had improperly denied him access to its records.

The Commission declared that the Association had “crossed the line” by “constructively precluding] inspection of [the Association’s records] through charging a substantial fee” to inspect those records. It therefore ordered the Association to permit appellant “to inspect all of [its] books, records and papers ... without restriction as to date,” subject to the payment by appellant of reasonable copying fees and costs. On September 12, 2001, one day after appellant filed his complaint with the Commission, the Association filed suit against appellant in the Circuit Court for Montgomery County seeking an injunction to enjoin him from parking his car on his ⁵¹⁴ front lawn and placing a basketball hoop in front of his townhouse (the “injunction action”) and requesting an award of attorneys’ fees. Granting the Association’s request for injunctive relief, the circuit court issued a temporary injunction ordering appellant and his wife to “remove the vehicle” and to place “all vehicles under their control ... in a designated parking [area].” Three weeks after the issuance of that injunction, appellant chose a new location for his vehicle—his backyard.

At the trial of the injunction action, Ed Thomas, the Association’s agent, testified that appellant “would have been permitted to park his car in the visitors’ lot all along, provided he moved it at least once a week,” but admitted that the Association had not conveyed this information to appellant until two weeks before trial. When appellant had his chance to testify, he attributed the actions of the Association to a desire to discriminate against him and his family because he had two young children while most of the homeowners in the community were childless. The Association, he claimed, “bent” the rules for other homeowners, but strictly applied them to him and his family, even to the extent of “interpreting the rules and regulations to prohibit actions that were not truly prohibited.” Dismissing appellant’s claim as “bizarre,” the circuit court granted the Association’s request for a permanent injunction requiring appellant to refrain from parking on his lawn and to remove his basketball hoop from his front yard. The circuit court found: [T]he covenants do apply to [appellant] and his wife and that the ... architectural guidelines do apply to him, and they clearly discussed the basketball issue[.] I think it is certainly worth saying that the ... actual words in the covenants are not specific, but their intent is clear, the intent being you don’t park your car on the grass and you don’t put a basketball hoop in the front of the yard, it is as clear as it can be. ⁵¹⁵ It further ordered appellant to pay the Association $12,500.00 in attorneys’ fees.

Appellant noted an appeal to this Court but, before argument, moved out of the Lake Hallowell Community. That act of relocation, we held, rendered his appeal moot, leaving only the issue of attorneys’ fees for our consideration. Campbell v. Lake Hallowell Homeowners Ass’n, 152 Md.App. 139, 148-49 , 831 A.2d 465 , cert. denied, 378 Md. 614 , 837 A.2d 926 (2003). In addressing that issue, the Association asserted that the award was lawful because it was authorized by resolution to recover attorneys’ fees incurred in enforcing community regulations and covenants.

Id. at 144, 831 A.2d 465 . We disagreed, observing that the Association’s membership had never voted on that resolution and that it had not been filed in the Montgomery County Land Records Office as required by the Community’s Declaration of Covenants, Conditions, and Restrictions. Id. at 150 , 831 A.2d 465 . We further noted that, “ ‘[i]n Maryland, the general rule is that costs and expenses of litigation, other than the usual and ordinary Court costs, are not recoverable in an action for [compensatory] damages’ ” but that “[attorney’s fees may be awarded where a statute allows for the imposition of such fees, ... and where parties to a contract have an agreement regarding attorney’s fees.” Id.

(quoting Hess Constr. Co. v. Bd. of Educ., 341 Md. 155, 159-60 , 669 A.2d 1352 (1996) (citations omitted)). Finding that “the award of attorneys’ fees was authorized by neither statute nor agreement,” we vacated the circuit court’s award of attorneys’ fees. Id. at 151, 831 A.2d 465 .

While the administrative and injunction actions were still pending, Peters filed a petition in the District Court for Montgomery County requesting that the court issue an ex parte temporary peace order, prohibiting appellant from any further contact with Peters or his family (“peace order action”). Peters alleged that appellant was stalking and harassing him and his family. The district court granted Peters’ request and issued an order, directing appellant to refrain from having any contact with Peters or his family and to stay ⁵¹⁶ away from Peters’ residence, place of employment, and Ms cMldren’s school, which appellant’s cMldren also attended. A hearing on the petition followed.

When that hearing ended, the district court issued a peace order, which largely incorporated restrictions imposed by the ex parte order 1 but also required appellant to participate in any anger management and psychiatric or psychological counseling deemed necessary by the Montgomery County Department of Health and Human Services. From that order, appellant noted an appeal to the circrnt court. Finding that there was “no evidence presented to support the allegations of stalking or harassment,” the circuit court vacated the peace order. That action prompted appellant to move for sanctions.

Claiming that Peters filed the petition for a peace order in bad faith and without substantial justification, appellant requested an award for counsel fees and costs. The circuit court denied that motion, stating that it “[did] not find that there was bad faith and a lack of substantial justification in the filing and prosecution of the Petition for Protective Order.” It added that “sanctions [were] not appropriate in a matter that went to hearing in both the District and Circuit Courts for Montgomery County, Md, after which the hearing judges reached opposite conclusions.” “On this basis alone,” the circuit court opined, “there was clearly a colorable claim.” The Instant Case Appellant filed a complaint against the Association, the Board, and Peters in the Circuit Court for Montgomery County. That complaint contained three counts. The first count was a derivative action against the Association.

It alleged that the counsel fees incurred by the Association in pursuit of an injunction against appellant “[was] not in the interest of the [Association] and [was] detrimental to the same” and that it was “fruitless and futile for [appellant] to ⁵¹⁷ make a demand upon the Board of Directors” to correct these expenditures. The second count was an abuse of process claim against Peters. It alleged that Peters had obtained a peace order with the “ulterior motive” of “preventing appellant from attending, presenting his position, and/or otherwise exercising his rights at meetings of the ... Association.” And the third and final count was a malicious use of process claim against Peters.

It alleged that Peters had maliciously sought the issuance of the peace order against appellant, that he did not have probable cause to do so, and that, as a result, he had been “damaged” by appellant; the nature of those damages was not spelled out. Appellees responded by filing a motion requesting dismissal of the complaint or, in the alternative, summary judgment as to all counts. Granting that motion in part, the circuit court dismissed appellant’s abuse of process claim against Peters, but granted him leave to amend that count. Appellant did, but to no avail as the circuit court again dismissed that count.

Appellant then filed a “Motion to Compel Fulfillment of Discovery Requests.” In that motion, he asked, among other things, that the circuit court compel the Association to make available to him certain records that he claimed he had requested and that the Commission had ordered the Association to produce in the administrative action. Finding that appellant had “not complied] with the applicable rules of procedure,” the circuit court denied the motion. On the day of trial, appellees moved for summary judgment as to the remaining two counts. The circuit court granted that motion and entered judgment in favor of the Association and Peters.

I Appellant contends that the circuit court erred in dismissing the abuse of process claim against Peters and granting summary judgment in favor of the Board on the derivative action and in favor of Peters on the malicious use of process claim. ⁵¹⁸ We begin our review of these contentions by first addressing appellant’s claim that summary judgment should not have been granted as to his derivative action. Derivative Action The circuit court granted summary judgment in favor of the Association as to appellant’s derivative action on the grounds that it was barred by collateral estoppel. The court erred, appellant claims, because that defense was waived by the Association and it was, in any event, not applicable to his claim. In reviewing a grant of summary judgment, we turn first to the rule that governs such decisions, Maryland Rule 2-501.

Th$t rule provides: “Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” Md. Rule 2-501. Thus, our task is to determine if there is a “genuine dispute of material fact” and, if not, whether the moving party “is entitled to judgment as a matter of law.” Id. “In determining whether a genuine dispute of material fact exists and, if not, what the ruling of law should be, the court examines the pleadings, admissions, and affidavits, etc., resolving all inferences to be drawn therefrom against the moving party.” Gross v. Sussex, Inc., 332 Md. 247, 256 , 630 A.2d 1156 (1993) (citations omitted). “In other words, all inferences must be resolved against the moving party when determining whether a factual dispute exists, even when the underlying facts are undisputed.” Id. But, we caution, “the mere existence of a scintilla of evidence in support of the plaintiffs’ claim is insufficient to preclude the grant of summary judgment; there must be evidence upon which the jury could reasonably find for the plaintiff.” Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738-39 , 625 A.2d 1005 (1993). Finally, “[i]n reviewing [the circuit court’s] decision to grant a motion for summary judgment, we evaluate ‘the same material from the record and decide[ ] the same legal issues as the ⁵¹⁹ circuit court.’ ” Crews v. Hollenbach, 126 Md.App. 609, 624 , 730 A.2d 742 (1999), aff'd, 358 Md. 627 , 751 A.2d 481 (2000) (quoting Lopata v. Miller, 122 Md.App. 76, 83 , 712 A.2d 24 (1998)).

Indeed, “an appellate court ordinarily may uphold the grant of a summary judgment only on the grounds relied on by the trial court.” Ashton v. Brown, 339 Md. 70, 80 , 660 A.2d 447 (1995). Having reviewed when summary judgment is appropriate, we turn to the question of whether summary judgment was appropriate in this instance. In doing so, we shall consider only the ground upon which that judgment was granted: that it was barred by collateral estoppel. “ ‘When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the doctrine of collateral estoppel renders that determination conclusive in a subsequent action between the parties, whether on the same or a different claim.’ ” Janes v. State, 350 Md. 284, 295 , 711 A.2d 1319 (1998) (quoting Murray Int’l Freight Corp. v. Graham, 315 Md. 543, 547 , 555 A.2d 502 (1989)). To invoke the doctrine of collateral estoppel, “[t]he proponent must establish that: (1) the issue sought to be precluded is identical to one previously litigated; (2) the issue must have been actually determined in the prior proceeding; (3) determination of the issue must have been a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment must be final and valid; and (5) the party against whom estoppel is asserted must have had a full and fair opportunity to litigate the issue in the previous forum.” Thacker v. City of Hyattsville, 135 Md.App. 268, 288-89 , 762 A.2d 172 (2000) (quoting Sedlack v. Braswell Servs.

Group, 134 F.3d 219 , 224 (4th Cir.1998)). Appellant argued in the injunction action that the Association was motivated, not by a wish to enforce the community’s covenants, rules, and regulations, but by a desire to discriminate against him because he had children. The circuit court ⁵²⁰ rejected that argument, characterizing it as “bizarre.” It then granted the Association’s request for injunctive relief and “order[ed] that [appellant and his wife] not park any of their motor vehicles ... on the grass in front or in the rear of their home, [and] that they remove the basketball hoops from the front of the property.” Having lost in the injunction action, appellant raises the same issue in the instant case. This time, however, he casts it in the form of a “derivative action.” In pleading that action, appellant argues, once again, that the Association was motivated by a discriminatory intent in bringing the injunction action against him.

But, instead of asking that the injunctive relief requested be denied, he seeks “to the use of all members” of the Association, legal fees and costs incurred in the prosecution of that action. Thus, the underlying issue in both cases is the same: whether the Association’s actions were prompted by an unlawful discriminatory intent or by a lawful desire to enforce community covenants, rules, and regulations. Indeed, appellant conceded as much below. 2 As there is no dispute that this issue was “a critical and necessary part of the decision in the prior proceeding” and that appellant had a “full and fair opportunity to litigate the issue in the previous forum,” only one question remains before we can conclude that the derivative action was, as found below, barred by collateral estoppel. That question, compound and complicated, is whether the finality of the judgment rendered ⁵²¹ in the injunction action was vitiated by either the filing of an appeal or the dismissal of that appeal as moot.

To answer that question, we begin by summarizing the litigatory events leading up to the dismissal of the derivative action. After the Association filed the injunction action, seeking the removal of the basketball hoop and appellant’s car, appellant filed a three count complaint in the instant case. Twelve days after the Association answered that complaint, the circuit court granted the Association’s request for injunctive relief. Challenging that decision, appellant noted an appeal.

That appeal was decided one week before trial commenced in the instant case. In a reported opinion, this Court dismissed all of the issues of that appeal, relating to the injunction, as moot. We explained: “Now that the Campbells have moved from the Lake Hallowell community, there is no reason for us to resolve whether they were properly barred from parking their car on their lawn or keeping a basketball hoop in the front portion of their property.” Campbell, 152 Md.App. at 149 , 831 A.2d 465 . But the mandate of this Court was not issued until after the circuit court granted summary judgment in favor of the Association.

Consequently, under Maryland Rule 8-606(a), the appeal was still technically pending when summary judgment was entered in the instant case. That rule provides that “[a]ny disposition of an appeal, including a voluntary dismissal, shall be evidenced by the mandate of the Court, which shall be certified by the Clerk under the seal of the Court and shall constitute the judgment of the Court.” Md. Rule 8-606(a). The finality of a judgment on appeal for purposes of res judicata and collateral estoppel remains, as of today, an open question in Maryland, In re Cmty. Mgmt.

Corp. of Md. v. Weitz, 288 B.R. 104, 110 (D.Md.2002), aff'd, Docket No. 03-1020, 2003 WL 22952624 (4th Cir., Dec.16, 2003) (unpublished table decision); Badders v. Uhler, 233 Md. 441, 442-43 , 197 A.2d 120 (1964); Davis v. Frederick County Bd. of County Comm’rs, 25 Md.App. 68 , 73 n. 4, 334 A.2d 165 (1975), though that issue was addressed by the United States Supreme Court ⁵²² more than a century ago. In Deposit Bank of Frankfort v. Board of Councilmen, 191 U.S. 499, 514 , 24 S.Ct. 154 , 48 L.Ed. 276 (1903), the Supreme Court held that a final judgment of a federal trial court is conclusive, for purposes of res judicata, until that judgment is modified or reversed. And that rule has defied the vagaries of time. As the United State Court of Appeals for the Federal Circuit recently observed: “[T]he established rule in the federal courts [is] that a final judgment retains all of its res judicata consequences pending decision of the appeal.... ” Pharmacia & Upjohn Co. v. Mylan Pharmaceuticals, Inc., 170 F.3d 1373, 1381 (Fed.Cir.1999) (quoting Warwick Corp. v. Md. Dept. of Transp., 573 F.Supp. 1011, 1014 (D.Md.1983), aff'd, 735 F.2d 1359 (4th Cir.1984) (mem.)).

Moreover, this rule—that a pending appeal does not affect the finality of a judgment—is now “followed by a majority of the states.” O’Brien v. Hanover Ins. Co., 427 Mass. 194 , 692 N.E.2d 39, 44 (1998). See, e.g., Cashion v. Torbert, No. 1020449, 2003 WL 22026396, at ⁶-7 (Ala. Aug.29, 2003); Wyatt v. Wyatt, 65 P.3d 825, 831 (Alaska 2003); Ariz.

Downs v. Sup.Ct., 128 Ariz. 73 , 623 P.2d 1229, 1232 (Ariz.1981); Dean Witter Reynolds, Inc. v. Hartman, 911 P.2d 1094 , 1098 n. 5 (Colo.1996) (dictum); Carnemolla v. Walsh, 75 Conn.App. 319 , 815 A.2d 1251, 1257 (2003), cert. denied, 263 Conn. 913 , 821 A.2d 768 (2003); Maldonado v. Flynn, 417 A.2d 378, 384 (Del.Ch.1980); Patton v. Klein, 746 A.2d 866 , 869 n. 6 (D.C. 1999); Capital Assur. Co. v. Margolis, 726 So.2d 376, 377 (Fla.Ct.App.1999); In re Estate of Barth, 339 Ill.App.3d 651 , 275 Ill.Dec. 84 , 792 N.E.2d 315, 328 (2003); Jones v. Am. Family Mut. Ins.

Co., 489 N.E.2d 160, 166 (Ind.Ct.App.1986); Johnson v. Ward, 265 N.W.2d 746, 749 (Iowa 1978); Roberts v. Wilcox, 805 S.W.2d 152, 153 (Ky.Ct.App.1991); Bartlett v. Pullen, 586 A.2d 1263, 1265 (Me.1991); Am. Druggists Ins. v. Thompson Lumber Co., 349 N.W.2d 569, 572 (Minn.Ct.App.1984); Norman v. Bucklew, 684 So.2d 1246, 1254-55 (Miss. 1996); Patrick v. Koepke Constr., Inc., 119 S.W.3d 551 , 557 (Mo.Ct.App.2003); Peterson v. Neb. Nat. Gas Co., 204 Neb. 136 , 281 N.W.2d 525, 527 (1979); Brunacini v. Kavanagh, 117 ⁵²³ N.M. 122, 869 P.2d 821, 827-28 (N.M.Ct.App., 1993); In re Amica Mut.

Ins. Co., 85 A.D.2d 727, 445 N.Y.S.2d 820, 822 (N.Y.App.Div.1981); Cully v. Lutheran Med. Center, 37 Ohio App.3d 64 , 523 N.E.2d 531, 532 (Ohio Ct.App., 1987); Lee v. Mitchell, 152 Or.App. 159 , 953 P.2d 414 , 420 n. 11 (1998); Shaffer v. Smith, 543 Pa. 526 , 673 A.2d 872, 874-75 (1996); Silva v. Silva, 122 R.I. 178 , 404 A.2d 829, 832 (1979); Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex.1986); State v. Harrison, 148 Wash.2d 550 , 61 P.3d 1104 , 1110 (2003); Town of Fulton v. Pomeroy, 111 Wis. 663 , 87 N.W. 831, 833 (Wis. 1901). A minority of states, on the other hand, have concluded that a lower court judgment is not “final” for purposes of res judicata or collateral estoppel when it is on appeal. 3 See, e.g., People ex rel.

Gow v. Mitchell Bros.’ Santa Ana Theater, 161 Cal.Rptr. 562, 568 (Cal.Ct.App.1980); Greene v. Transp. Ins. Co., 169 Ga.App. 504 , 313 S.E.2d 761, 763 (Ga.Ct.App.1984); Dupre v. Floyd, 825 So.2d 1238, 1240-41 (La.Ct.App.2002) (per curium), writ denied, 840 So.2d 546 (La.2003); Petition of Donovan, 137 N.H. 78 , 623 A.2d 1322, 1324 (N.H.1993); Benham v. Plotner, 795 P.2d 510, 512 (Okla.1990); McBurney v. Aldrich, 816 S.W.2d 30, 34 (Tenn.Ct.App.1991); Faison v. Hudson, 243 Va. 413 , 417 S.E.2d 302, 305