DOWNTOWN BREWING v. Mayor and City Council of Ocean City

RAKER, J. This appeal by Downtown Brewing Company, Inc., appellant (Downtown Brewing), arises out of a condemnation proceeding initiated by the Mayor and City Council of Ocean City, Maryland, appellees (Ocean City), an incorporated municipality, condemning certain property to be used to expand a portion of Route 50, a state highway, in Ocean City. Downtown Brewing argues that Ocean City had no authority to condemn its private property for a state highway project. We shall grant Ocean City’s motion to dismiss this appeal because, ¹⁴⁷ by accepting the condemnation award, Downtown Brewing has waived the authority issue. I. Downtown Brewing was the owner in fee simple of a .28 acre, improved parcel of real property located at 201 Caroline Street, Ocean City, Worcester County, Maryland.

The subject property is located adjacent to the eastbound side of the Route 50 bridge, at the entrance to Ocean City. On December 18, 2000, Ocean City, after consulting with the State Highway Administration (SHA), enacted Ordinance 2000-34, declaring it a public necessity to acquire Downtown Brewing’s property and authorizing its condemnation. Ocean City sought the subject property in order to expand the base of the state highway, Route 50, at its point of entry into the city. Condemnation Ordinance 2000-34 confirms that the purpose of the condemnation was to facilitate an SHA project: “[T]he Mayor and City Council of Ocean City, together with the State Highway Administration, deem it in the best interest of the public health, safety, and general welfare to expand the Rt. 50 bridge at the entrance into Ocean City.” Ocean City, Md., Ordinance 2000-34 (Dec. 18, 2000).

On January 4, 2001, Ocean City filed a complaint for condemnation in the Circuit Court for Worcester County to acquire the subject property, pursuant to Ordinance 2000-34, against Downtown Brewing, and the following lienholders: John and Barbara Davenport, Ocean City Ice and Seafood, Inc., Department of the Treasury, Internal Revenue Service, Richard Lohmeyer, Atlantic Recovery Services, Inc., and Faw, Casson & Co., LLP. The trial court granted Ocean City’s motion for partial summary judgment, finding that the Route 50 project had a public purpose and that it was necessary for Ocean City to take the property for the project. Following a jury trial in the Circuit Court, the jury returned a verdict awarding defendants $135,000.00 as compensation for the condemned property. On August 27,. 2001, Downtown Brewing filed a motion for a new trial or, in the alternative, a ¹⁴⁸ motion to amend or alter judgment.

Although Downtown Brewing had asserted in its answer that the acts of Ocean City were ultra vires, it asserted for the first time in its post-trial motion that the statutory grant of condemnation authority to the SHA preempted a municipality from condemning property to be used for part of a state highway system and that Ocean City did not have the capacity to condemn property for use in connection with a state highway project. On August 28, 2001, Ocean City deposited the full amount of the condemnation award into the registry of the Circuit Court for Worcester County. On September 24, 2001, the trial court denied Downtown Brewing’s post-trial motions. On October 4, 2001, pursuant to motions filed by Downtown Brewing’s lienholders, the trial court ordered disbursement of funds to those lienholders. 1 Shortly thereafter, on October 12, 2001, Ocean City took possession of the property and demolished the improvement constructed thereon.

On October 17, 2001, Downtown Brewing requested that the trial court disburse to it the balance of the condemnation award. 2 Downtown Brewing noted a timely appeal to the Court of Special Appeals. This Court, on our own initiative, issued a writ of certiorari prior to consideration by the intermediate appellate court, to answer the question of whether the trial court erred in holding that Ocean City had the authority to condemn the property to be used for a state highway project. We shall not reach that issue because we agree with Ocean City that Downtown Brewing, by its conduct, has waived that issue for appellate review. ¹⁴⁹ II. In this Court, Ocean City filed a Motion to Dismiss, asserting that Downtown Brewing has waived the issue that it now argues on appeal for two reasons: first, by failing to raise it during the trial 3 and, second, by accepting the condemnation award.

The general rule in this State is that “an appellant cannot take the inconsistent position of accepting the benefits of a judgment and then challenge its validity on appeal.” Shapiro v. Md.-Nat. Park Comm., 235 Md. 420, 424 , 201 A.2d 804, 805 (1964). This general preclusion has been variously termed as waiver, estoppel, acceptance of benefits creating mootness, and acquiescence in judgment. See Franzen v. Dubinok, 290 Md. 65, 68-69 , 427 A.2d 1002, 1004 (1981).

We said, in Rocks v. Brosius, 241 Md. 612 , 217 A.2d 531 (1966), that “[t]he right to appeal may be lost by acquiescence in, or in recognition of, the validity of the decision below from which an appeal is taken or by otherwise taking a proposition which is inconsistent with the right to