County Commissioners v. Schrodel

ELDRIDGE, Judge. The County Commissioners of Frederick County own and operate the county sanitary landfill, located on Reichs Ford Road, southeast of the city of Frederick. The state permit for operating this landfill will expire in April 1991. While ²⁰⁴ the County believes that it will receive a permit extension from the Maryland Department of the Environment, the Director of the County Department of Public Works estimates that the County will be unable to use the current landfill after late 1992 or early 1993.

Thus, the County is seeking additional land for a new landfill. William F. and Kathleen T. Schrodel own property adjacent to the current landfill and operate a dairy farm on that site. The County is attempting to acquire this land as a location for the new landfill. On October 3, 1988, the County submitted a purchase option to the Schrodels, offering to pay the higher of two appraisals for the farm.

The two sides were unable to negotiate an agreement for a purchase, and on September 13, 1989, the County instituted the present action by filing a condemnation petition in the Circuit Court for Frederick County. The Schrodels initially moved to dismiss the action, arguing (1) that the County had no right to bring it because the County was still entertaining offers and submitting bids on other parcels of land, and (2) that the County had breached its obligation to negotiate in good faith before filing the suit. The circuit court denied the motion, as well as a motion for reconsideration. The Schrodels appealed, taking the position that the order was appealable under the so-called “collateral order doctrine.” The Court of Special Appeals, however, dismissed the appeal, awarding costs and attorney’s fees to the County because “the appeal ... was without substantial justification.” A trial date was originally set for January 16, 1990.

The Schrodels moved for a continuance, and at a conference before Circuit Judge Dwyer all parties agreed upon a date of March 26, 1990. In January, the County filed a response to the Schrodels’ Request for Production of Documents. The Schrodels took the position that “[t]he substance of these documents made it apparent that the Schrodel farm was not geologically suitable for this landfill.” On February 20, 1990, the Schro ²⁰⁵ dels filed in the Circuit Court for Frederick County a separate action against the County Commissioners based on 42 U.S.C. § 1983 . The Schrodels in this separate action sought to enjoin trial of the condemnation suit, and sought $25,000,000.00 in damages, plus costs and attorney’s fees.

The seven counts in the § 1983 action, for the most part, paralleled the Schrodels’ defenses in the condemnation suit, although there was a negligence count based on alleged damage caused by the current landfill to the dairy farm. The circuit court issued an order in the § 1983 action, requiring the County Commissioners to show cause by April 9, 1990, why an injunction should not be granted against the condemnation proceedings. On March 2, 1990, the Schrodels moved for a second postponement of the trial in the condemnation case. In their written motion, they asked the court to “postpon[e] said condemnation trial on the merits [until] a date after the Show Cause order [in the separate civil action] is first heard [sometime after April 9, 1990].” The Schrodels also stated that an expert witness for them was “out of the country and [would] not be able to testify unless the trial [were] continued to at least April 22, 1990.” At a hearing on the motion for a postponement in the condemnation case, held on March 13 and 15, 1990, the Schrodels did not argue for a postponement because of their missing expert witness.

Instead, counsel for the Schrodels, in arguing that the court should postpone the condemnation trial, stated: “If we can convince you that [the County] will never get a permit for this property ... then they have no need for this property, and under the condemnation statute they’re not allowed to take this property____ [I]f [the County] get[s] a permit [for the landfill], ... the Schrodels will withdraw their opposition to the taking ... and the County will be able to take the property and the only issue before the court will be the value. And that will be a much simpler and much shorter trial and issue that will be tried. ²⁰⁶ “..;.[T]he Schrodels will give their permission.-to the County to do ... whatever it takes.... for purposes -of-obtaining a permit.” Counsel did insist that there would have to be “remuneration” in the event that a permit was denied. This remuneration would, compensate the Schrodels for, inter alia, test wells that would remain on their farm. The court attempted to make this suggestion a foundation for a consent decree,., asking the County, “where is the difficulty in reversing the order?

I mean doing the testing first.and.then, [the trial].” The County refused to enter a consent decree as suggested by the court. On the second day of the hearing, counsel for the Schrodels asked “the. court to render an order ,.. .granting the continuance until such time as a permit is issued for the landfill. At that time ... the issue ... can be set in for trial on the issue of damages.” The County opposed the motion, but the court granted it, stating that counsel “for the Schrodels ... has moved for a continuance in order to alleviate the necessity of á decision in the area of the necessity of the taking, and, ... beCausé if the County cannot'obtain the necessary permit he does not see the ■... rationale in having his. clients displaced. “Now, with alb of those'conditions [set'forth in the Order, infra ], I, quite frankly, can see nothing’ that' the County , would lose, or that there , would be any prejudice to the County, by- granting the motion for. continuance. “I will, therefore, grant the defendants’ . / .' motion for a continuance....” The court noted that “quite frankly, I can set the trial date right now at the conclusion of the time period- [for obtaining the. permit] — you know, [the .County would] have to give me a better time period as to when [it would] , get the permit____” The trial judge later said he would “set a date ²⁰⁷ ... based upon the approximate dates which I have been informed ... that these test wells take____” The judge then “set” a date eighteen months in the future and told the parties that “[i]f it appears that [the permit process] cannot be completed by [September 1991], I expect one or both parties to let me know so that the appropriate trial date can be set. But at this point we’re setting the September 1991 trial date because that date should be available.” An order was signed by the court on March 29, 1990.

It read as follows: “ORDER “This matter is before the Court on the Defendants’ Motion for Continuance of the scheduled trial date of March 26, 1990. “The Defendants, Schrodel, allege that they have substantial evidence that the Plaintiffs, County, will not be able to obtain a permit from the appropriate authority to construct a landfill and ask this Court to continue this matter until such a permit is granted. “The Plaintiffs, County, concede that it has no need for the said property if a permit for a landfill is not granted. “This Court is concerned that the County may condemn the Defendants’, Schrodel, property and thereafter be unable to use same for a landfill should the permit not be granted. “The Plaintiffs failed to present any prejudice they would suffer by the continuance, providing the Defendants, Schrodel, would give them free access to the property for the purpose of the permit applications and procedures. “WHEREFORE, upon consideration of the Defendants’ Motion and all counsel having been heard and other matters of record, it is this 29th day of March, 1990 by the Circuit Court for Frederick County, ²⁰⁸ “ORDERED, that the trial in the matter be continued to September 1991 or such other date [as] this Court shall subsequently] set and “IT IS FURTHER ORDERED, that “A. The Defendants, Schrodel, shall give, to the Plaintiffs, full access to the property, the subject matter of this suit, their agents or employees, as shall be necessary in the sole discretion of the County in order to attempt to obtain a permit for a landfill on the property. In the event a permit is issued which allows the use of the Defendants’ property for a landfill, Defendants shall not be permitted to contest the taking of their land by the Plaintiffs for the construction of a landfill. “B. The damages, if any, to which the Defendants, Schrodel, shall be entitled as a result of the condemnation of the property ... shall be limited to those damages which the Defendants could have proven as of March 26, 1990. “C. [Subsequently deleted by the circuit court] “D. The Defendants, Schrodel, shall maintain the property, the subject matter of this action, in the relatively same condition as it was on March 26, 1990, normal wear and tear excepted. “E. The Plaintiffs, County, shall have the right as part of their efforts to obtain a permit for a landfill [on] the Defendants’, Schrodel, property [to] construct certain wells on the said property. In the event no permit is issued, the Plaintiffs, County, shall pay to the Defendants, Schrodel, the sum of Thirty Thousand Dollars ($30,000.00) in damages for the wells which were constructed, the said monies to be paid within thirty (30) days of the denial of the said permit. “All subject to the further order of this Court. “/s/ G. Edward Dwyer, Jr. JUDGE DWYER” The County filed a notice of appeal from this order on April 2, 1990, and on the next day filed separate petitions in ²⁰⁹ this Court for a writ of certiorari and a writ of mandamus, arguing that the circuit court’s order was improper. The County also moved this Court to expedite consideration of the petitions and advance oral argument.

We granted the petition for a writ of certiorari and advanced oral argument. In light of our decision on the appeal, we need not consider the mandamus petition; it shall be denied as moot. The Schrodels first argue that the circuit court’s order was not appealable. They also maintain that, if appealable, the order was appropriate and should be affirmed.

I. The first issue is whether the March 29, 1990, order of the Circuit Court for Frederick County is appealable. Under Maryland Code (1974, 1989 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article, an appeal may be taken from a “final judgment.” In addition, § 12-303 of the Courts and Judicial Proceedings Article authorizes appeals from a few specified interlocutory orders, including an interlocutory order granting an injunction. Ordinarily a judgment is final, for purposes of an appeal under § 12-301, “only if it terminates the action in [the trial] court.” Bunting v. State, 312 Md. 472, 476 , 540 A.2d 805, 806 (1988). Obviously the circuit court’s order of March 29, 1990, was not final under this principle, as it did not terminate the condemnation action.

We have, however, adopted the so-called “collateral order doctrine” which “treats as final and appealable a limited class of orders which do not terminate the litigation in the trial court.” Public Service Comm’n v. Patuxent Valley, 300 Md. 200, 206 , 477 A.2d 759, 762 (1984). See, e.g., State v. Jett, 316 Md. 248, 251 , 558 A.2d 385 (1989); Bunting v. State, supra, 312 Md. at 476-477 , 540 A.2d at 806 ; Harris v. Harris, 310 Md. 310, 315-316 , 529 A.2d 356 (1987); Clark v. Elza, 286 Md. 208, 212 , 406 A.2d 922 (1979); Peat & Co. v. Los Angeles Rams, 284 Md. 86, 91-92 , 394 A.2d 801 (1978). See ²¹⁰ also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-547 , 69 S.Ct. 1221, 1225-1226 , 93 L.Ed. 1528 (1949). In arguing that it was entitled to appeal the order of March 29, 1990, the County primarily relies upon the collateral order doctrine.

In its petition for a writ of certiorari, the County also made the alternate argument that the appeal was authorized by § 12-303(3)(i) of the Courts and Judicial Proceedings Article, which, as previously mentioned, authorizes an appeal from an interlocutory order granting an injunction. Before deciding whether the March 29, 1990, order is appealable under either of the County’s theories, it is necessary to determine precisely what the March 29th order does. According to the County, the order “has the effect of enjoining the County from proceeding with its condemnation action until the County obtains a MDE [Maryland Department of the Environment] permit to construct a landfill on the Schrodel’s property some two years from now.” The Schrodels contend, however, that the trial judge merely “postponed the trial date to a date certain in September 1991,” without any condition that the County obtain the permit. We agree with the County.

The County’s position is supported by the language on the face of the order. The trial court expressed concern “that the County may condemn the ... property and thereafter be unable to use same for a landfill should the permit not be granted.” In fact, all four substantive paragraphs in the order, prior to the operative portion of the order, addressed the permit procurement procedure and nothing else. The circuit court noted that it was asked “to continue this matter until such a permit is granted.” There was no mention in the order of the separate suit, the Schrodels’ missing expert witness, or any other ground for the postponement. The new trial date was eighteen months away, based on the anticipated time for the permit process to run its course.

The date was far from “certain,” being “Sep ²¹¹ tember 1991 or such other date [as] this court shall subsequently] set.” Finally, those portions of the order which were directed at the Schrodels were aimed at facilitating the permit process. The hearing leading up to the order also supports the County’s position. The Schrodels clearly asked the court to continue the case “until such time as a permit is issued for the landfill.” The Schrodels stated that, if the County obtained the permit, there would “be a much simpler and much shorter trial” where “the only issue before the court will be the value.” The court acknowledged that the request was for “reversing the order” by “doing the testing first.” The court, in setting the trial date, stated that it was estimating that the permit process would be finished by September 1991, and if it was not, a later date would be set. Consequently, the circuit court’s order of March 29, 1990, was not simply an order postponing the trial.

Rather, it was an order staying the condemnation action until the County obtained a permit to construct a landfill on the Schrodel’s property. As such, we believe that the order was appealable under the collateral order doctrine. It is not necessary, therefore, to determine whether the order was also appealable as an interlocutory order granting an injunction. Following the lead of the Supreme Court, we have generally held that, for an order to be appealable under the collateral order doctrine, it must meet four requirements: “ ‘[T]he order must [ (1) ] conclusively determine the disputed question, [ (2) ] resolve an important issue [, (3) be] completely separate from the merits of the action, and [ (4) ] be effectively unreviewable on appeal from a final judgment.’ ” Clark v. Elza, supra, 286 Md. at 213 , 406 A.2d at 925 , quoting Peat & Co. v. Los Angeles Rams, supra, 284 Md. at 92 , 394 A.2d at 804 .

See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454, 2458 , 57 L.Ed.2d 351 (1978); Cohen v. Beneficial Industrial Loan Corp., supra, 337 ²¹² U.S. at 545-547, 69 S.Ct. at 1225-1226 ; State v. Jett, supra, 316 Md. at 251 , 558 A.2d at 386 , and cases there cited. As the March 29th order has the effect of blocking the County from prosecuting its condemnation action against the Schrodels unless and until it obtains a state permit to construct the landfill on the property, the order satisfies all four requirements of the collateral order doctrine. First, the order conclusively determined that the County must wait until it receives a permit from the Maryland Department of the Environment before it can go to trial with its condemnation action. Second, the issue of whether á court can lawfully impose such a condition on the government’s power to acquire property by condemnation is clearly important.

Many essential public projects begin with a taking of land and require various permits before completion. Third, the question of whether the County can be required to obtain the permit before having a trial is obviously distinct from the trial itself. The Schrodels argue that