Montgomery County v. Soleimanzadeh

HARRELL, J. These two eminent domain cases were disposed of by the Circuit Court for Montgomery County by the entry of summary judgment, pursuant to Maryland Rule 2-501, in favor of the condemnor, Petitioner, Montgomery County, Maryland (the “County”). The facts in these cases are largely identical (except as noted) and, thus, we are able to answer in a consolidated opinion the questions presented. Earlier in the proceedings of both cases, the Circuit Court imposed discovery violation sanctions precluding the respective landowners, Respondents Khana Soleimanzadeh and Joseph Soleimanzadeh (the “Soleimanzadehs”) in No. 25 and Respondent Joseph Soleimanzadeh in No. 27, from introducing any evidence as to the fair market value of the taken properties. Because of these sanctions, the Respondents were unable to generate through affirmative evidence a genuine dispute of material ³⁸² fact concerning the County’s appraisal valuations of the taken properties in either case.

Thus, the Circuit Court granted the County’s Motions for Summary Judgment on the issue of just compensation in both cases. In No. 25, the Court of Special Appeals held, in a reported opinion, that the Circuit Court erred in granting summary judgment. Soleimanzadeh v. Montgomery County, 208 Md.App. 107 , 56 A.3d 349 (2012). The court reasoned that summary judgment is not available in condemnation proceedings on the question of just compensation because a landowner cannot be deprived of the constitutional right to have a jury determine just compensation.

In No. 27, the Court of Special Appeals, in an unreported opinion, adopted the reasoning and holding of the reported opinion in No. 25. In this consolidated opinion, we reverse both judgments and hold that summary judgment was available in each case and was granted properly. FACTS In 2007, the County took a portion of the subject properties, one owned by Joseph Soleimanzadeh and the other owned by the Soleimanzadehs collectively, 1 for the purpose of road improvement, pursuant to an Advance Take Action authorized by § 49-50 of the Montgomery County Code and Art. Ill, § 40A of the Maryland Constitution. After the parties were unable to agree upon the value to be paid for either of the takings, the County filed a Complaint for Condemnation in the Circuit Court on 10 April 2009, pursuant to Maryland Rule 12-205, in each case.

Because the proceedings in the Circuit Court were identical in these cases, we review in detail only the facts presented in the Soleimanzadehs’s case below and, to avoid repetition, simply note that the proceedings in the Circuit ³⁸³ Court were identical or parallel, for all relevant purposes of this appeal, for the case of Joseph Soleimanzadeh. On 5 October 2009, the County served the Soleimanzadehs with written discovery in the form of interrogatories and a request for the production of documents. Pursuant to Maryland Rules 2-421 (b) and 2-422(c), the Soleimanzadehs’s responses were due on 7 November 2009. On 6 November 2009, the day before the Soleimanzadehs’s responses were due, counsel for the Soleimanzadehs advised the County that the discovery requests had been misplaced and not re-discovered until 5 November 2009. 2 Counsel requested a forty-five day extension to comply fully with the requests.

The County agreed. On 14 December 2009, according to the County’s later Motion to Compel and/or for Sanctions, the Soleimanzadehs’s counsel advised the County that they “would not file any responses to the discovery requests served by the County” and that the County should “go to the court.” After the expiration of the initial and sole forty-five day extension, the County filed its Motion to Compel and/or for Sanctions on 23 December 2009. 3 The Soleimanzadehs did not file a response. On 25 January 2010, the Circuit Court granted the County’s unopposed motion, entering an order on 27 January 2010 that directed the Soleimanzadehs to file complete responses to the requested discovery within ten days ³⁸⁴ of the entry of the order. The order directed further that, if the Soleimanzadehs did not do so within the aforementioned ten days, they “shall not be permitted to introduce any evidence in support of their claims for just compensation and damages.” The Soleimanzadehs failed to file any responses to the requested discovery within the ten days of the entry of the order.

Accordingly, the sanctions would become self-executing had the matter come to trial. While the County’s Motion to Compel and/or for Sanctions was pending, the County filed a Motion for Partial Summary Judgment on 15 January 2010 as to three issues, each averred to be improper for a jury’s determination: “(1) public purpose and necessity, (2) the amount of area taken and entitlement to compensation, and (8) the right to condemn and legality of this condemnation proceeding.” 4 With regard to the issue of just compensation, the County requested that “the Court submit the issue of just compensation to be awarded to [the Soleimanzadehs] for the property rights taken to the jury.” The Circuit Court held a hearing on this motion on 31 March 2010 and granted the Motion for Summary Judgment as to public purpose and necessity, but denied other relief at that point in time. On 26 April 2010, the scheduled date of trial, the County filed a Motion for Summary Judgment or, in the Alternative, for Judgment by Default, on the issue of just compensation and damages on the grounds that the Soleimanzadehs were unable to present any evidence of value of the taken property greater than the appraisal value proposed by the County due ³⁸⁵ to the recently imposed discovery sanctions. The Circuit Court heard arguments on that same day and entered an Order on 3 May 2010, condemning the property and awarding the Soleimanzadehs $35,000, the amount proffered by the County’s expert witness in an affidavit filed with the County’s motion, as just compensation for the taking of the real property.

On the same day, the Circuit Court entered an Order condemning Joseph Soleimanzadeh’s property and awarding him $52,000. Joseph Soleimanzadeh and the Soleimanzadehs, with new counsel in tow, appealed to the Court of Special Appeals the grant of the County’s motions for summary judgment in both cases. Notably, neither Joseph Soleimanzadeh nor the Soleimanzadehs challenged in their appeals the Circuit Court’s imposition of discovery sanctions. On 26 November 2012, the Court of Special Appeals, in a reported opinion, reversed the Circuit Court’s grant of summary judgment in the Soleimanzadehs’s case.

Soleimanzadeh v. Montgomery County, 208 Md.App. 107 , 56 A.3d 349 (2012). The intermediate court held in Soleimanzadeh : Although the rules of civil procedure apply to condemnation proceedings in general, we hold that the summary judgment rule, Rule 2-501, does not apply in such cases to the issue of just compensation, because a landowner cannot be deprived of the constitutional right to have a jury award just compensation. In the instant case, the trial court’s grant of the County’s motion for summary judgment had the effect of denying the Soleimanzadehs their constitutional right to an award of just compensation by a jury, and thus the court erred in so doing. Id., 208 Md.App. at 134 , 56 A.3d at 365 .

In the case of Joseph Soleimanzadeh, the Court of Special Appeals, in an unreported opinion, reversed the Circuit Court’s grant of summary judgment, adopting the reasoning of Soleimanzadeh v. Montgomery County, 208 Md.App. 107 , 56 A.3d 349 (2012). The County petitioned this Court for writs of certiorari in each case and we granted the petitions, 430 Md. 644 , 62 A.3d 730 (2013), to consider the following questions: ³⁸⁶ (1) Where there is no genuine dispute of material fact as to the valuation of a property taken in an eminent domain proceeding, may the trial court enter judgment pursuant to MD Rule 2-501 in favor of the condemnor as a matter of law? (2) Does a condemnee have a constitutionally protected right to have a jury determine just compensation even when sanctions against the condemnee prohibit the condemnee from introducing evidence in support of a claim for just compensation and the condemnee fails to show the existence of a dispute of material fact as to the compensation to be awarded? (3) Does a condemnee have a burden to produce evidence when it disputes a condemnor’s estimate of fair market value?

(4) Did the award of summary judgment in favor of the condemnor impair the condemnees’ right to a jury trial? (5) Can the right to a jury trial in an eminent domain proceeding be waived by the landowner’s failure to follow clearly proscribed rules? On 25 September 2013 (after we issued our writ), a letter from the combined Soleimanzadehs’s counsel, dated 17 September 2013, was received asking that this Court treat the letter as a motion for the following relief in each case: “(1) That [this Court] accept the briefs [counsel] filed in the Court of Special Appeals as meeting [his] brief-filing requirements in this Court; and (2) That [counsel] be allowed to appear for oral argument. If [this Court] den[ies] my proposed relief, then [counsel is] willing to stand on the briefs [counsel] filed in the Court of Special Appeals and on Judge Woodward’s opinion.” In response, the County filed a letter opposing this request for several reasons, namely, that Joseph Soleimanzadeh’s and the Soleimanzadehs’s Briefs filed in the Court of Special Appeals were not responsive to the County’s Brief filed in this Court and addressed issues that are not within the ambit of the questions presented in this Court and, lastly, that, if the Respondents’ request to appear for oral argument ³⁸⁷ is granted, the County may be forced to confront arguments by Respondents’ counsel that the County has not seen first in writing prior to the argument date.

On 26 September 2013, the Court denied the relief sought by the Soleimanzadehs and Joseph Soleimanzadeh. Consequently, no briefs were filed with this Court by Respondents. At oral arguments, we heard solely from the County. ANALYSIS This Court must determine first whether the Circuit Court was permitted to grant summary judgment on the issue of just compensation in a condemnation proceeding.

The Court of Special Appeals held in its reported opinion in Soleimanzadeh that “the summary judgment rule, Rule 2-501, does not apply in [condemnation proceedings] to the issue of just compensation, because a landowner cannot be deprived of the constitutional right to have a jury award just compensation.” Soleimanzadeh, 208 Md.App. at 134 , 56 A.3d at 365 . We reverse the Court of Special Appeals and hold that the summary judgment rule may apply in condemnation proceedings to the issue of just compensation because Article III, § 40 of the Maryland Constitution provides the landowner with the opportunity to have a jury award just compensation in such cases, provided the landowner litigates properly the case according to the Maryland Rules. Next, we review whether summary judgment was granted properly in these specific cases. We conclude that, because the Soleimanzadehs were precluded from introducing any evidence as to the value of the taken property (an essential element of their claim in the condemnation action), the granting of summary judgment was indeed proper. 5 ³⁸⁸ I. The Issue of Just Compensation in Condemnation Proceedings Is Subject to the Maryland Rules of Civil Procedure, Including the Availability of Summary Judgment.

As recognized by the Court of Special Appeals in Soleimanzadeh, 208 Md.App. at 118 , 56 A.3d at 356 , condemnation actions are “special proceedings” that lack the “ ‘characteristics of ordinary trials’ ” and are “ ‘brought pursuant to the power of eminent domain, a power derived from the sovereignty of the state.’ ” Bryan v. State Roads Comm’n, 356 Md. 4, 10 , 736 A.2d 1057, 1060 (1999) (quoting Bouton v. Potomac Edison Co., 288 Md. 305, 309 , 418 A.2d 1168, 1170 (1980)). Regardless of the “special” and “unique” nature of the proceedings, this Court has treated repeatedly condemnation proceedings as civil procedures. As was stated in Bryan , [Condemnation proceedings are “not ordinary suits at law” but are “special proceedings.” [Bouton ], 288 Md. at 309 , 418 A.2d at 1170 , emphasis added. Nevertheless, this Court has consistently treated condemnation proceedings as civil actions at law.

See, e.g., State Roads Commission v. Adams, 238 Md. 371 , 374 n. 1, 209 A.2d 247 , 248 n. 1 (1965); D'Arago v. State Roads Commission, 228 Md. 490, 498 , 180 A.2d 488, 492 (1962); Bergeman v. State Roads Commission, 218 Md. 137, 142 , 146 A.2d 48, 51 (1958); Potomac Electric Power Co. v. Birkett, 217 Md. 476, 482 , 143 A.2d 485, 489 (1958); Herzinger v. City of Baltimore, 203 Md. 49, 56 , 98 A.2d 87 , 90 (1953); Davis v. Board of Education of Anne Arundel County, 168 Md. 74, 76 , 176 A. 878, 879 (1935); Ridgely v. Mayor & City Council of Baltimore, 119 Md. 567, 577 , 87 A. 909, 912-913 (1913). ³⁸⁹ Consequently, a condemnation case clearly falls within the language of “any civil proceeding.” Id., 356 Md. at 14 , 736 A.2d at 1062-63 (emphasis added). As such, “under Rule 1 — 101(b), the rules of civil procedure contained in Title 2 apply in general to condemnation proceedings.” Soleimanzadeh, 208 Md.App. at 129 , 56 A.3d at 362 (citing Hammond v. State Roads Comm’n, 241 Md. 514, 517 , 217 A.2d 258, 260 (1966)). At the center of the present dispute is the exception clause to Rule 1 — 101(b). The Court of Special Appeals opined, The County, however, overlooks the exception clause to Rule l-101(b).

Rule 1 — 101(b) states: “Title 2 applies to civil matters in the circuit courts, except for Juvenile Causes under Title 11 of these Rules and except as otherwise specifically provided or necessarily implied.” (emphasis added) See Hammond, 241 Md. at 517 , 217 A.2d 258 (stating that “[t]he acquisition of property by condemnation is a special proceeding and as such, as are other special proceedings, is regulated, not only by the particular rules concerning the specific proceeding involved, but also by such of the general rules of procedure as may be applicable.” (emphasis added)). Id., 208 Md.App. at 129-30 , 56 A.3d at 362 . Thus, according to the Court of Special Appeals, “[t]he question raised then is whether Article III, § 40 and Rule 12-207(a) specifically provide for an exception to the summary judgment rule on the issue of a jury trial in condemnation proceedings.” Id., 208 Md.App. at 130 , 56 A.3d at 362 . The Court of Special Appeals found that “the County was not entitled to judgment as a matter of law, because the Constitution requires that just compensation be awarded by a jury, not by a court” and concluded that “the rules of civil procedure apply to condemnation proceedings, except for the summary judgment rule, Rule 2-501, where the application of such rule would preclude the award of just compensation by a jury.” Id.

We disagree with the Court of Special Appeals’s conclusion. Condemnation proceedings are unique types of actions in ³⁹⁰ which, due to practical necessity, the burden of production facet of the burden of proof is the focal point of a trier of fact’s ascertainment of the value of just compensation. As explained further below, as a practical matter, the condemnee must bear that burden to produce some information demonstrating his theory of the value of the property. Otherwise, with all other issues decided (as was the case here), the jury had no triable issue to decide and the right to jury consideration was foregone.

This conclusion does not violate any right provided in the Constitution or the Rules. Article III, § 40 and Rule 12-207(a) provide that the condemnee have the opportunity to present evidence before a jury on the issue of just compensation in eminent domain proceedings. This right does not include, however, the right of the condemnee to sit on his, her or its hands, ignore legitimate and valid orders of the trial court, and then claim some special privilege conferred by the constitutional right to submit their “case” to the jury. The general rules of civil procedure apply still.

Thus, we conclude that summary judgment is available in condemnation proceedings on the issue of just compensation where no genuine question or triable issue of value is generated. Competent evidence offered by the condemnor established a value on which judgment may be entered. A. Due to the unique nature of condemnation proceedings and in order to get to the jury, the condemnee must produce some information demonstrating the value of the taken property. Particularly where value is concerned, “[cjondemnation cases are fundamentally different from other kinds of cases ...” Solko v. State Roads Comm’n, 82 Md.App. 137, 147 , 570 A.2d 373, 378 (1990).

The fundamental difference lies in the nature of what is being ascertained: “There is no ‘fact’ which one party is attempting to show; rather, there are experts who provide testimony tending to give credence to the value each party has assigned to the property.” Id., 82 Md.App. at 147-48 , 570 A.2d at 378 . We conclude that, due to ³⁹¹ practical necessity that stems from this unique nature of condemnation proceedings, each party must bear the burden of producing admissible and competent facts and/or opinions demonstrating the value of the land taken. This practical necessity is demonstrated further when evaluating the role that a jury plays in ascertaining just compensation in condemnation cases and the fact that the jury must base its award upon at least some evidence. The Court of Special Appeals discussed the unique nature of these proceedings and its implications in Solko , which held that “the usual burden of proof [jury] instruction as to value has no place in a condemnation case” because the burden of persuasion facet of the burden of proof is inapposite in condemnation proceedings.

Id., 82 Md.App. at 146 , 570 A.2d at 377 . The court noted and emphasized that the reasoning behind this difference in treatment was the unique nature of condemnation cases: Condemnation cases are fundamentally different from other kinds of cases where value is concerned. There is no “fact” which one party is attempting to show; rather, there are experts who provide testimony tending to give credence to the value each party has assigned to the property. Solko, 82 Md.App. at 147-48 , 570 A.2d at 378 .

To illustrate this unique nature and its implications further, the court quoted an opinion by the Supreme Court of Alaska, State of Alaska v. 45,621 Square Feet of Land, 475 P.2d 553, 555 (Alaska 1970), which interpreted that state’s constitutional requirement that landowners be paid just compensation for taken property: “In a condemnation proceeding ... where the sole issue is determination of just compensation, procedural rules involving the concept of risk of failure to persuade are inapposite. Here the focal point of the trier of fact’s inquiry is the ascertainment of just compensation. Thus, regardless of whether the condemning agency or the property owner meets a given burden of persuasion, Alaska’s constitutional mandate requires that the owner be awarded just compen ³⁹² sation for the property he has lost. In the usual condemnation case, the jury is confronted with conflicting opinions as to value.

The jury is not faced with the necessity of finding a particular value or no value at all. As to the issue of fair market value, both the condemning agency and the property owners may produce competent evidence of the fair market value of the condemned property. Absent the production of such evidence by either party, the triers of fact will determine fair market value solely from the other party’s evidence. The burden of production facet of burden of proof, rather than the risk of non-persuasion aspect, is the more meaningful concept in the trial of a condemnation proceeding.” Solko, 82 Md.App. at 147 , 570 A.2d at 378 (quoting 15,621 Square Feet of Land, 475 P.2d at 555 ) (emphasis added).

The Solko court emphasized that, even though condemnation actions are unique and the concept of risk of failure to persuade is inapposite in such cases, “[t]hat is not to say that no burden falls upon the condemnee. ” Solko, 82 Md.App. at 148 , 570 A.2d at 378 (emphases added). In fact, “[a]s a practical matter, ... he or she [the condemnee] bears the burden of producing the information which demonstrates that the land taken is worth more than the condemnor has established ... ”. Id. (emphasis added).

The practical necessity of this requirement appears further when analyzing the role of a jury in ascertaining just compensation in eminent domain proceedings. We have stated repeatedly that “[t]he question of fair market value is ultimately an issue for the trier of fact.” Id. (citing Colonial Pipeline Co. v. Gimbel, 54 Md.App. 32, 38 , 456 A.2d 946 (1983)). “The jury uses its independent judgment regarding the weight of any facts before it ...” Id. (citing Greater Baltimore Consol.

Wholesale Food Market Auth. v. Duvall, 255 Md. 90, 97 , 256 A.2d 882 (1969)). In exercising its independent judgment, “ ‘[t]he jury may properly consider various elements that influence market value at the time of the taking in its determination of damages.’ ” Id. (quoting Dodson ³⁹³ v. Anne Arundel Cnty., 294 Md. 490, 495 , 451 A.2d 317 (1982)). “So far as value is concerned, the jury is free to arrive at its own evaluation, so long as there is evidence to support such an award.” Id. (emphasis added).

This limitation on the judgment of a jury award is critical. The jury may not select an arbitrary amount of compensation and damages unsupported by any evidence. Although this Court and the Court of Special Appeals has permitted condemnees to dispute just compensation on the basis of a plethora of types of information, the Maryland courts have always — and rightfully so — required the condemnee to produce some information demonstrating value. “If the landowners disagree with the State’s estimate of the property’s value, they need to produce evidence that the land is, in fact, worth more.” Solko, 82 Md.App. at 148-49 , 570 A. 2d at 378 . Otherwise, there is no triable issue for a jury to decide.

B. Permitting summary judgment does not violate the constitutional right to have the opportunity for a jury trial to ascertain just compensation in condemnation actions. The Court of Special Appeals reasoned that summary judgment would never be appropriate in a condemnation action because it would violate the condemnee’s constitutional right to receive a jury award of just compensation. We conclude, however, that the grant of summary judgment, where appropriate, does not violate that right of the condemnee. Article III, § 40 of the Maryland Constitution provides the condemnee the opportunity to have a jury award just compensation for taken land, but only if the condemnee “tees-up” the issue by adducing some evidence of a value greater than that offered by the condemnor.

This right does not include the right to frustrate the efficient administration of the court system without any repercussions. Accordingly, we ³⁹⁴ hold that the right to a jury award of just compensation, like other civil disputes, is subject to the summary judgment rule, Rule 2-501. 6 To provide an appropriate background for this discussion, we begin with a brief analysis of the relevant constitutional provision and Rule providing the condemnee the opportunity to have a jury award of just compensation in condemnation proceedings. “At common law there was no right to an ordinary jury trial in condemnation cases, even on the issue of damages.” Bouton, 288 Md. at 309 , 418 A.2d at 1170 (citing 1 Nichols’ The Law of Eminent Domain § 4.105(1) (rev.3d ed.1973)). Instead, the customary practice varied depending on the jurisdiction. Early in the history of Maryland, the State “provided for a sheriffs jury to fix damages for the taking of land for certain purposes.” Id.

(citations omitted). For these reasons Article 23 of the Maryland Declaration of Rights which preserves the common law right to a jury trial in civil proceedings does not include condemnation cases which are special proceedings. Thus, absent specific consti ³⁹⁵ tutional or statutory provisions mandating a jury trial, the issues in a condemnation case should be tried by the Court. Id.

(citing 1 Nichols, supra § 4.105(5) at p. 4-119). “Article III § 40 of the Maryland Constitution is the specific constitutional provision that mandates a jury trial on the issue of just compensation in condemnation cases.” Soleimanzadeh, 208 Md.App. at 118 , 56 A.3d at 356 . This constitutional provision provides: The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation. Art. Ill, § 40, Maryland Constitution. In contrast, though, “the issue of the right to condemn has been for the court’s determination.” Bouton, 288 Md. at 310 , 418 A.2d at 1170 .

It is clear that Maryland Rule 12-207, formerly Md. Rule U15, “ ‘is intended to implement Art. Ill, § 40, which provides for a jury on the issue of the quantum of compensation due.’ ” Soleimanzadeh, 208 Md.App. at 125 , 56 A.3d at 360 (quoting Bouton, 288 Md. at 310 , 418 A.2d at 1171 ) (emphasis omitted). This Rule provides, in pertinent part: “An action for condemnation shall be tried by a jury unless all parties file a written election submitting the case to the court for determination.” Md. Rule 12-207(a). 7 According to the Court of Special Appeals, the alleged problem (or exception) arises in this case because of the explicit language in the Constitution and the Maryland Rules that a jury shall decide the issue of damages in condemnation cases. The Court of Special Appeals found that this explicit language mandates that the exception clause of Rule l-101(b) apply such that summary judgment is not available in condemnation actions and, therefore, the Circuit Court could not enter ³⁹⁶ judgment for the County as a matter of law. Contrary to the intermediate court’s opinion, we find this right does not guarantee a right free from reasonable restriction or regulation.

This Court has recognized previously that the right to a jury is not absolute in all circumstances, but rather is the opportunity for a condemnee to have a jury award of compensation. As stated in Baltimore Belt R.R. Co. v. Baltzell, 75 Md. 94 , 23 A. 74 (1891), The jury is the tribunal, and the sole tribunal, by whom the amount of compensation is to be determined, and, this being so, it would seem but fair and