Muffoletto v. Towers & Cambridge Landing

Daniel S. Muffoletto v. Donna S. Towers and the Council of Unit Owners of Cambridge Landing Townehouse Condominium, No. 1850, September Term, 2017. Opinion by Kenney, J. STATUTE OF LIMITATIONS – COMPUTATION OF PERIOD OF LIMITATION – ACCRUAL OF RIGHT OF ACTION OR DEFENSE – CONTINUING INJURY The continuing harm doctrine rests on a new affirmative act, and does not apply to a continuing effect of an earlier act, which, in this case, was the alleged moving of the mooring piles. EQUITY – LACHES AND STALE DEMANDS – NATURE AND ELEMENTS IN GENERAL Laches is an equitable defense intended to ensure fairness in the judicial system. Based upon grounds of sound public policy, it discourages fusty demands for the peace of society.

It applies when an aggrieved party has burdened the defense by an unreasonable delay in asserting a cause of action. EASEMENTS – CREATION, EXISTENCE, AND TERMINATION – NATURE AND ELEMENTS An easement is a nonpossessory interest in the real property of another, and therefore, an incorporeal interest in real property. EASEMENTS – CREATION, EXISTENCE, AND TERMINATION – PRESCRIPTION – IN GENERAL An easement can be created expressly or by implication. A prescriptive easement arises when a party makes an adverse, exclusive, and uninterrupted use of another’s real property for twenty years.

A party’s use is adverse if it occurs without license or permission. When a person has used a right of way openly, continuously, and without explanation for twenty years, it is presumed that the use has been adverse under a claim of right. The burden then shifts to the landowner to show that the use was permissive. WATER LAW – RIPARIAN AND LITTORAL RIGHTS – IN GENERAL – WHO ARE RIPARIAN OWNERS Under Md. Code (1982, 2014 Repl.

Vol., 2019 Cum. Supp.), § 16-201(a) of the Environment Article, a riparian landowner is “the owner of land bounding on navigable water.” A riparian landowner’s rights include the right: of access to the water; to build a wharf or pier into the water; to use the water without transforming it; to consume the water; to accretions; and to own the subsoil of nonnavigable streams and other private waters. WATER LAW – RIPARIAN AND LITTORAL RIGHTS – EASEMENTS An easement or a license of a riparian right does not equate to the ownership of a riparian right. And the grant of an easement relating to water does not carry any riparian or other rights beyond those strictly necessary to the easement’s express purposes.

APPEAL AND ERROR – SCOPE AND EXTENT OF REVIEW – DISCOVERY – SANCTIONS When ruling on discovery disputes, circuit courts have broad discretion in determining whether sanctions should be imposed. But before imposing sanctions, a circuit court should consider the factors set out in Taliaferro v. State, 295 Md. 376 , 390– 91 (1983), and whether the sanctioned violations were persistent and deliberate. It is not necessary for the court to go through a checklist and note its consideration for each factor because these factors frequently overlap and do not lend themselves to a compartmental analysis. For that reason, we do not look at each incident in isolation, but rather we look at the entire history and context of the case.

Circuit Court for Dorchester County Case No. 09-C-16-23604 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1850 September Term, 2017 ______________________________________ DANIEL S. MUFFOLETTO v. DONNA S. TOWERS and THE COUNCIL OF UNIT OWNERS OF CAMBRIDGE LANDING TOWNEHOUSE CONDOMINIUM ______________________________________ Berger, Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.* ______________________________________ Opinion by Kenney, J. ______________________________________ Filed: January 31, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act *Kehoe, Christopher, J., did not participate in (§§ 10-1601 et seq. of the State Government Article) this document is authentic. the Court’s decision to report this opinion 2020-01-31 15:05-05:00 pursuant to Md. Rule 8-605.1. Suzanne C. Johnson, Clerk This is the tale of two adjacent boat slips that began over thirty years ago when John Tieder bought a boat. The boat slips were developed as part of a waterfront condominium project developed by Chas E. Brohawn & Bros. Inc. (“Brohawn Company”) and are now owned by the Council of Unit Owners of Cambridge Landing Townehouse Condominium (“Council”).

The slips are separated by mooring piles. What was once Mr. Tieder’s boat slip is nineteen-feet wide; the adjacent slip is thirteen-feet wide.1 The widths of the two slip spaces went uncontested through multiple condominium unit sales and beyond the deaths of Mr. Tieder and Lee Brohawn, who was a friend of Mr. Tieder and a principal in the Brohawn Company. Daniel Muffoletto, appellant, the successor-in-interest to Michael and Susan Dickinson (“the Dickinsons”), who first licensed the slip adjacent to Mr. Tieder’s slip, contests the widths of the two slips.2 Mr. Muffoletto contends that both of the two boat slips were intended to be sixteen feet in width and that the mooring piles separating the two slips were moved to accommodate Mr. Tieder’s boat. 1 Mr. Tieder bought Unit 311-A in the name of his company, John W. Tieder, Inc. For the purpose of this opinion, we will refer to Mr. Tieder as the owner of the unit and the licensee of the boat slip. 2 In the Circuit Court for Dorchester County, Mr. Muffoletto sued Donna S. Towers, an appellee and the successor-in-interest to Mr. Tieder, and the Council. The Council and Mr. Muffoletto have resolved this matter between them.

As a result, the Council is no longer participating in this appeal but agrees to be bound “by any final non-appealable decision of this Court or the Circuit Court on remand.” On appeal, Mr. Muffoletto presents four questions,3 which we have rephrased and consolidated into two: 1. Did the circuit court err in granting summary judgment to Mrs. Towers? 2. Did the circuit court err in awarding sanctions for discovery violations? We answer both questions in the negative and affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND The related condominium units are, like the two boat slips, adjacent to one another. One is unit number 311-A; its licensed slip is number 32. Unit 311-A was purchased by Mr. Tieder in 1983, and sold to Donna S. Towers in 2000. The other is Unit 312-B; its licensed slip is number 33.

Unit 312-B was purchased by Michael and Susan Dickinson in 1983. The Dickinsons sold it to Lloyd Godfrey who sold it to Mr. Muffoletto in 2004. 3 Mr. Muffoletto asked: 1. Did the trial court err in granting summary judgment to Mrs. Towers where appellant sought a declaratory judgment concerning riparian rights in a condominium regime? 2. Did the trial court err in holding that a portion of the non-corporeal license at issue in the case could be lost to adverse possession to a party that also had at most a non-corporeal interest? 3.

Did the trial court err in denying summary judgment to [Mr. Muffoletto] where the title instruments refer to unambiguous diagrams showing piling locations? 4. Did the trial court err in awarding sanctions for discovery violations without considering the Taliaferro [v. State, 295 Md. 376 (1983)] factors. 2 The Site Plan for Cambridge Landing, dated April 13, 1982, indicates that slips 32 (“Towers slip”) and 33 (“Muffoletto slip”) would be fourteen-feet-and-seven-inches wide with mooring piles separating the two slips. The Brohawn Company was responsible for the development and construction on the property. The marine-related construction, including the finger piers and mooring piles, was outsourced to Apple Marine Construction Company, a company owned by George Apple.

According to Mr. Apple’s affidavit, installation was completed in 1982. The actual location of the mooring piles between 1982 and 1984 is uncertain, and there are differences between the Site Plan and the installation. The combined width of the two slips shown on the Site Plan is approximately three feet less than the combined width of the two slips as presently configured and that difference is not reflected in the construction documents presented to the circuit court. The aerial photo taken in June of 1984 by the U.S. Army Corps of Engineers shows the Towers slip and the Muffoletto slip as being nineteen and thirteen-feet wide, respectively, for a consolidated width of thirty- two feet.

With regard to the widths of the two slips, three people, in four affidavits filed in this case, attested to different facts. Terry Robbins, daughter of Lee Brohawn and an employee of the Brohawn Company in 1983, avers that the pilings were originally placed as they are now—that they were never moved and that the Towers slip and Muffoletto slip, respectively, have always been nineteen-feet and thirteen-feet wide. George Apple, 3 owner of Apple Marine Construction Company, avers that the pilings were installed according to “drawings supplied with the permit” from the Army Corps of Engineers.4 John W. Tieder, III, the son of Mr. Tieder, submitted two affidavits. In the first, he states that his father and Lee Brohawn were “close friends,” but that he did not know what the initial plans for the slips may have been or about any conversations between his father and Lee Brohawn regarding them.

In a second affidavit, and without reference to when it happened, he remembered going with his father to mark “where he wanted the pilings moved in order to accommodate his boat, increasing the size of the slip for Unit 311A and decreasing the size for Unit 312B.” On April 7, 1983, the Dickinsons paid for the license to slip 33; Mr. Tieder paid for the license to slip 32 on April 13, 1983. Cambridge Landing records reflect receipts for both slip licenses. The Dickinsons’ Exclusive License for Boat Slip is in those records; the Tieder license is not. The actual widths of the slips are not reflected in the licenses or the unit purchase documents.

In 1996, the Brohawn Company granted all riparian rights, which it had previously reserved, to the Council, subject to prior licenses to boat slips issued by the Brohawn Company.5 Three years later, the Council adopted a policy requiring a unit owner who 4 The Army Corps of Engineers’ permit includes a version of the Site Plan. As previously described, the drawings included with the permit indicate that the combined width of the two slips would be twenty feet and two inches and that slips 32 and 33 would be fourteen-feet-and-seven-inches wide. 5 The Brohawn Company granted these rights to the Council in a Deed that stated, in pertinent part: 4 had made any changes to any mooring piles to return the piles to their “original” location when the unit is sold.6 Shortly after this policy was adopted, Mr. Tieder sold his unit to Mrs. Towers who was issued a Cambridge Landing Townehouse Condominium Deed of Easement for Boat Slip for slip 32, dated August 11, 2000. That document included a reference to a Site Plan for delineation of the slip and stated that the use of the slip was “as now constructed.” Mr. Muffoletto points out that Mrs. Towers’s husband, who was then-President of the Council, executed that easement on behalf of the Council, and contends that Mr. Towers was an interested party and therefore prohibited from granting the easement without the written consent of the Council. No one on the Council or any other unit owner has raised an issue in regard to Mrs. Towers’ easement for slip 32 in the sixteen (…continued) EXPRESSLY SUBJECT HOWEVER, to all of the prior Exclusive Licenses For Boat Slips previously executed and recorded by the Grantor to each of the twenty (20) unit owners of the condominium regime.” (Emphasis added). 6 Mr. Muffoletto indicates that he first learned of the policy at a Council meeting in 2010.

Minutes of that meeting state: SLIP ENLARGEMENT REQUEST. Unit 415 owner, Ralph Dill, submitted a request for permission to increase the size of the licensed boat slip for Unit 415, slip #37. Following discussion of the request and noting a precedent has been set by approval of previous requests, motion was made, seconded and passed unanimously to approv[e] Ralph’s request with the agreement that when it is no longer in use by him or prior to his departure from Cambridge Landing, the slip will be returned to the original dimensions at the unit owner[’]s expense. 5 years between the granting of the easement and the filing of this case. And, its terms are consistent with other licenses or easement agreements issued.

On June 18, 2004, twenty years and three days after the aerial photo showing the present location of the piles was taken, Mr. Muffoletto bought Mr. Godfrey’s condominium unit and licensed slip 33. Shortly after he “settled on the unit and attempted to get [his] boat in the slip,” he discovered the “difference in the [two] slips.” He later met with Mrs. Towers to inquire about the difference in the slip width. Mr. Muffoletto became a member of the Council in February of 2010. As previously noted, he claims that he gained “actual knowledge” of the 1999 policy at a Council meeting in September of 2010.

In his Opposition to [the Council’s] Motion for Summary Judgment, he asserts that in July of 2014 he discovered the possibility that the original placement of the mooring piles was different from what it is now and that the two slips were intended to be of equal width. On November 15, 2016, Mr. Muffoletto filed a complaint in the Circuit Court for Dorchester County against Mrs. Towers and the Council, alleging: Upon information and belief, after the Council took title to the Boat Slips, and before Mrs. Towers’ and Mr. Muffoletto’s ownership of their respective condominium units and corresponding boat slips, predecessors in title to Mrs. Towers and Mr. Muffoletto moved the pilings demarking the Towers Slip and the Muffoletto Slip to enlarge the Towers’ Slip from sixteen feet (16’) to nineteen feet (19’) and reducing the Muffoletto Slip from sixteen feet (16’) to thirteen feet (13’). 6 (Emphasis added). He sought a declaratory judgment that slips 32 and 33 were intended and initially constructed to be equal widths of sixteen feet each.7 He further requested, by way of specific performance relief, that the piles be moved to “deliver to him a slip measuring sixteen feet in width.” And he sought permanent injunctive relief that the piles be moved.8 In response to Mr. Muffoletto’s Complaint, Mrs. Towers and the Council moved for a dismissal or, in the alternative, summary judgment. On May 17, 2017, the circuit court ultimately denied the motion to dismiss, reasoning that it was “unable to resolve— at this juncture—a factual dispute as to the duration of time that the pilings have been located in their current position.” It also denied the defendants’ alternative motion for summary judgment because of the unresolved material dispute as to whether the piles between slips 32 and 33 had been moved: [Mr. Muffoletto] pointed the Court’s attention to a potential dispute as the fact of when, precisely, the pilings were moved by [Mr. Muffoletto]’s and [Mrs.] Towers’ predecessors in title.

This point would certainly be relevant and material to the Court’s determination as to whether [Mrs.] Towers has a quasi-prescriptive easement or an analogous right relating to Boat Slip 32. 7 “Mr. Muffoletto respectfully requests . . . that the Court declare that [slip 33] was originally constructed to be of equal size to [slip 32], measuring sixteen (16’) feet wide, and further order the Council and/or Mrs. Towers to pay the costs to have the pilings moved back to their original location as well as granting Mr. Muffoletto the costs of these proceedings.” 8 “Mr. Muffoletto respectfully requests that this Honorable Court . . . require Mrs. Towers and/or the Council, at their sole expense, to move the pilings dividing [slips 32 and 33] back to their original position such that both slips measure sixteen (16’) feet . . . and further order Mrs. Towers and/or the Council to pay Mr. Muffoletto’s costs and attorneys’ fees incurred as a result of these proceedings.” 7 The parties proceeded to discovery. Both Mrs. Towers and the Council served Mr. Muffoletto with interrogatories related to whether the piles had been moved. Having received what it considered non-responsive answers, Mrs. Towers filed a Motion for Order to Compel Proper Discovery Responses on July 27, 2017.9 In July of 2017, the circuit court ordered Mr. Muffoletto to submit proper discovery responses to each of the defendants in this case, but, due to a clerical error, that order was not sent. The Council filed a request for additional supplemental answers, which Mr. Muffoletto received on August 1, 2017.

On September 8, an amended Order to Compel Proper Discovery Responses was sent to Mr. Muffoletto, giving him ten days to comply. He submitted his answers on the tenth day, but only to the Council. Mrs. Towers responded with a Limited Motion for Sanctions. Based on that motion as amended, the court ordered that he respond by September 28, which he did not do.

On October 2, 2017, the circuit court considered sanctions for Mr. Muffoletto’s failure to provide proper discovery responses after confirming that: Mr. Muffoletto had not signed his initial set of Answers to Interrogatories establishing that they were made under oath; he had not responded to either the Limited Motion for Sanctions or the amendment; he had not consistently given answers to both opposing parties during the discovery process; and he had not consistently filed Certificates of Service with his 9 On appeal, Mr. Muffoletto explained that he was “pro se during much of the discovery period.” According to Mrs. Towers, Mr. Muffoletto’s first counsel withdrew after the circuit court filed its May 17, 2017 order and he was pro se up until the eve of the October 2, 2017 hearing. 8 discovery papers.10 Mr. Muffoletto responded that both defendant parties had then received all of his answers to interrogatories. Finding a failure to provide responses as 10 The circuit court’s comments regarding discovery at the October 2, 2017 hearing included: [COUNSEL FOR MRS. TOWERS]: We have had, and I’m sure you’ve seen this in the pleadings, some difficulties getting all the filings that Mr. Muffoletto makes. [The Council] gets some. I get some.

THE COURT: Yeah, I saw that. * * * THE COURT: . . . [Counsel for Mrs. Towers] . . . at some point you realized I think maybe from one of Towers’s pleadings that there was a response [or] there was some admission and then [counsel for the Council] shared that with you. * * * [COUNSEL FOR THE COUNCIL]: Your Honor, just briefly. I had a Motion to Compel as well and Mr. Muffoletto did provide me some supplement responses. He has never technically signed his initial Answers to Interrogatories. So I just want an admission that, “Hey, yes, they’re under oath” with regard to the initial set of Interrogatories that were propounded that didn’t have a verification associated with them.

THE COURT: Uh-huh. Okay. Do you want to respond to that, sir, in terms of representing the plaintiff here? [COUNSEL FOR MR. MUFFOLETTO]: All right.

THE COURT: I mean, that was pretty frustrating for the court. I was kind of a party to seeing some of the filings and letters and things like that. You know, as you know, the rules are precise rubrics to be followed and . . . [COUNSEL FOR MR. MUFFOLETTO]: [We’ll] sign the original Interrogatories. * * * 9 (…continued) [COUNSEL FOR MRS.

TOWERS]: [We did not] get a response to the limited motion [for sanctions]. THE COURT: Okay. So, so he didn’t respond to either one. * * * THE COURT: Well, here’s how I see it . . . this goes back to the initial Motion for Order to Compel Proper Discovery Responses . . . . * * * THE COURT: Mr. Muffoletto was certainly on notice that there was a discovery dispute. I issued my order . . . [which went out on] [t]he 8 th day of September 2017 and there was absolutely no response from Mr. Muffoletto to that order.

There was also no response to either the Limited Motion for Sanctions and Correction to Limited and Supplement to Limited Motion for Sanctions. That wasn’t filed on or before September 28, 2017 as I had requested . . . . The problem here is Mr. Muffoletto had an opportunity to respond and didn’t respond to even those. It just shows a contempt for the process.

And again, this, this case has been on track and has been scheduled and everybody has been here and has really put in their time, their talent and their treasure into this case and I can’t further delay it. And I do believe that the sanctions are appropriate[.] * * * THE COURT: . . . I clearly articulated what would happen if Mr. Muffoletto did not respond to the discovery requests identified in the Motion For Order to Compel, which he didn’t do that; and I also instructed him, or his counsel, to file responses to Defendant’s Limited Motion for Sanctions and Correction and Supplement to Defendant’s Limited Motion for Sanctions by September 28, 2017, which he did not do as well . . . Alternatively, he filed responses that are very much consistent with the 10 ordered and prejudice to Mrs. Towers, the circuit court concluded that sanctions were “appropriate.”11 (…continued) relief that [counsel for Mrs. Towers] is requesting and he didn’t follow the procedures and didn’t serve the rest of the parties involved in the litigation . . . it’s only by almost grace here that the parties here communicated and, and [counsel for Mrs. Towers] was able to glean from responses that there was information that Mr. Muffoletto provided to [counsel for the Council].

So again, this is his – this is all on [Mr. Muffoletto]. * * * [COUNSEL FOR MR. MUFFOLETTO]: . . . [W]hat is the prejudice on which these sanctions are based, because I really don’t see that? My client has produced in all the affidavits, all the documents that show everything that is known, the entire universe of what is known about when these pilings were installed and moved[.] * * * THE COURT: . . . [T]he prejudice is we’re on October 2 here and [counsel for Mrs. Towers] is sitting here with a client that has probably paid for his services and he doesn’t have those responses and so it is – [COUNSEL FOR MR. MUFFOLETTO]: He does.

He does have those responses. * * * THE COURT: He says he does not . . . and I didn’t receive – there hasn’t been any service of discovery that was noted with the court. Correct; [counsel for Mrs. Towers]? There hasn’t been anything in the court’s filing that discovery was served. [COUNSEL FOR MRS. TOWERS]: The only thing we’ve gotten is [the Council’s counsel] would bring me up to date when he’d get something. . 11 The circuit court responded: 11 The court scheduled a disposition hearing for November 8, 2017.

At that hearing, the court entered sanctions against Mr. Muffoletto in the amount of $4,331.12 Summary judgment in favor of Mrs. Towers and the Council was entered on November 20, 2017. Mr. Muffoletto filed a timely appeal to this Court. DISCUSSION I. Granting Summary Judgment to Mrs. Towers Contentions Because he had requested a declaratory judgment and the need for credibility findings as to the witnesses,13 Mr. Muffoletto contends that the court erred when it (…continued) [T]he fact is established, as I’m permitted to do pursuant to Rule 4, 4-233, because of your client’s failure to provide responses as he’s been ordered .... * * * [Mrs. Towers’s counsel] is sitting here with a client that has probably paid for his services and he doesn’t have those responses . . . I didn’t receive— there hasn’t been any, any service of discovery that was noted with the court.” 12 This amount was one-half the amount that Mrs. Towers’s counsel reported that she spent in her attempts to gather proper responses. 13 The circuit court found that “[t]he pilings . . . , if they were moved at all, were moved prior to June 15[], 1984[]” and that “[Mr. Tieder and Mr. Brohawn] would have had knowledge as to whether the pilings . . . were moved or not and if they were moved, when, and why.

Without this material information defendants are severely prejudiced[.]” We understand the court to be saying that it could not make the declaration requested by 12 granted summary judgment to Mrs. Towers and the Council. In his view, until the circuit court issued a declaration of the rights and duties of Mr. Muffoletto, Mrs. Towers, and the Council in regard to slips 32 and 33, it could not grant summary judgment to Mrs. Towers.14 In asserting that the court erred in granting summary judgment based on limitations or laches, Mr. Muffoletto contends that limitations renew every day that the mooring piles remain in their present location. Mrs. Towers contends that the circuit court “made its required declaration in its Order dated November 13, 2017,15 having explained the bases for its findings at the (…continued) Mr. Muffoletto and that engaging in credibility determinations would not be useful because none of the possible witnesses could answer all questions regarding whether the pilings were moved, and, if so, when and why. Moreover, it was not necessary to do so based on its rulings related to limitations and laches. 14 Mr. Muffoletto argues that the court “[had] to address the interrelated questions of whether the rights to the slips were intended to be of equal width, whether they were originally constructed in equal widths, and what rights were actually transferred.

At no point did the trial court engage in this determination. . . . Summary judgment should not have been granted to the Defendants for this reason as well.” 15 In its November 13, 2017 order, the circuit court declared the rights of the parties as follows: 1. The placement of the pilings marking the boundaries of Boat Slip 32 for Unit 311-A are correctly and lawfully located in their present position consistent with the presently recorded license and/or easement for the use of that slip and the pertinent documents of the Council of Unit Owners Of Cambridge Landing Townehouse; 2. The placement of the pilings marking the boundaries of Boat Slip 33 for Unit 312-B are correctly and lawfully located in their present position consistent with the presently recorded license and/or easement for the use of that slip and the pertinent documents of the Council of Unit Owners Of Cambridge Landing Townehouse; and, 13 hearing on November 8, 2017.” She further contends that continuing harm from a single act does not renew the statute of limitations, and that the single act in this case was the alleged moving of the piles that occurred sometime prior to June of 1984.

Standard of Review We have explained: The “‘standard of review of [a] [ ] declaratory judgment entered as the result of the grant of a motion for summary judgment is whether that declaration was correct as a matter of law.’” Olde Severna Park Improvement Ass’n v. Gunby, 402 Md. 317, 329 (2007) (quoting South Easton Neighborhood Ass’n v. Town of Easton, 387 Md. 468, 487 (2005)). Our review of the court’s entry of summary judgment is de novo. Am. Powerlifting Ass’n v. Cotillo, 401 Md. 658, 667 ; Tyma v. Montgomery County, 369 Md. 497, 504 (2002).

Prime Venturers v. OneWest Bank Grp., LLC, 213 Md. App. 122, 134 (2013) (cleaned up); see Emerald Hills Homeowners’ Ass’n v. Peters, 446 Md. 155 , 161–62 (2016). Analysis Statute of Limitations Md. Code Ann. (1974, 2013 Repl. Vol., 2019 Cum. Supp.), § 5-101 of the Courts and Judicial Proceedings Article (“CJ”) provides: (…continued) 3.

Neither [Mrs. Towers or the Council] is or will be required to modify the location of those pilings or to make any payment to [Mr. Muffoletto]. (Emphasis added). 14 A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced. Mr. Muffoletto’s argument against summary judgment rests generally on the need for credibility assessments to determine whether, when, and why the mooring piles were moved.16 But the circuit court concluded that the possible movement of the piles was not a disputed material fact because they were placed in their current location no later than June of 1984, and any action at law related to their present location was barred by limitations in 1987. In his Opposition to [the Council’s] Motion for Summary Judgment, Mr. Muffoletto claimed that he was justified in waiting twelve years to file the complaint because he did not discover that the original placement of the piles may have created two slips of equal width until July of 2014.

In response to that argument, the circuit court found that: 16 Relying on Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 256 , Mr. Muffoletto argues that the court could not enter summary judgment without first issuing a document outlining the rights of the parties as requested in his Verified Complaint for Declaratory Judgment, Breach of License and for Permanent Injunctive Relief. Here, instead of a separate document, the circuit court included the declaration of the parties’ rights in an amendment to the November 9 order, which was entered on November 20. But, as Lovell instructs, the failure to enter a separate declaration of rights “is not a jurisdictional defect,” and we can “review the merits of the controversy and remand for entry of an appropriate declaratory judgment.” 408 Md. at 256 (internal citation and quotation marks omitted); see also Moose v. Fraternal Order of Police, 369 Md. 476, 488 (2002) (explaining that an appellate court may also sua sponte, on public policy grounds, address the appropriateness of a case for a declaratory judgment). We will do so in this case by remanding to the circuit court to enter the rights declared in its November 13, 2017 Order as a separate declaratory judgment. 15 [Mr. Muffoletto’s] cause of action accrued when [he] knew or should have known of the breach, it is undisputed that [Mr. Muffoletto] was aware that his boat slip was narrower . . . in 2004 shortly after he purchased and took title to Unit 312B . . . . [Mr. Muffoletto] was present [in 2010] when the policy of moving pilings associated with boat, boat slips was discussed in and adopted by the Council of Unit Owners. [Mr. Muffoletto] then was on inquiry notice because he knew the slip was narrower in width than the Towers slip and he knew of the policy of moving slips at the very latest by 2010; yet, he waited until November 17[], 2016 to file his complaint, which is six years after he could have been on inquiry notice.

Mr. Muffoletto advanced the concept of “continuing harm,” to toll the statute of limitations. Litz v. Maryland Department of Environment, 434 Md. 623 (2013) and Walton v. Network Solutions, 221 Md. App. 656 (2015) are instructive. In Litz, the plaintiff filed suit against a nearby town for implementing sewage policies that polluted a lake on her property. 434 Md. at 630–33. Although she had been aware of the pollution for much longer than three years, the Court of Appeals concluded that, in the context of a motion to dismiss and claims of negligence and trespass, the statute of limitations could be tolled based on allegations in the complaint that the town had an ongoing duty to limit the pollution, but “‘continuously’ discharges [contaminated] ‘ground and surface water . . . onto Litz’s property.’” Id. at 649.

In addition, nothing in the complaint indicated that the town had not continued to approve septic systems that channel and discharge polluted groundwater onto the Litz property within three years of the complaint. Id. at 650. In Walton, the plaintiff had asked to be removed from an email solicitation but remained on an email list and continued to be sent solicitations and advertisements. 221 16 Md. App. at 660. He argued that the continuing emails tolled the statute of limitations.

Id. at 675. Reviewing the application of the continuing harm doctrine in the light of Litz and Duke Street Ltd. Partnership v. Board of County Commissioners of Calvert County, 112 Md. App. 37, 50 (1996), we concluded the single violation was the failure to remove the plaintiff’s name from the email list. Id. at 674. We explained that “[c]laims that are in the nature of a ‘continuous tort[]’ . . . can extend the period of limitations due to their new occurrences over time.” Id. at 676 (quoting Duke St. Ltd. P’ship, 112 Md. App. at 47 ).

But the continuing harm doctrine did not apply in that case because the continuation of emails was a “continuing ill effect[]” of the earlier breach. Id. Maryland appellate courts have consistently held that the continuing harm doctrine rests on a new affirmative act. See Litz, 434 Md. at 650 (stating that sewage leaking into a water source is an effect rather than an act directly traceable to the Town, but the Town’s continuing approval of problematic sewage plans would be a directly traceable act); see also MacBride v. Pishvaian, 402 Md. 572, 584 (2007) (holding that an apartment’s deteriorating state was not a new breach because deterioration is not a traceable act).

Here, the alleged directly traceable act causing Mr. Muffoletto’s loss of slip space—the alleged moving of the piles—occurred sometime prior to June of 1984. But leaving them in place is a continuing effect of that act. See Walton, 221 Md. App. at 674 , 676–77. 17 We turn now to issuance of the Deed of Easement to Mrs. Towers by the Council.17 The Deed of Easement granted on August 11, 2000 to Mrs. Towers provides: NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises, and other good and valuable considerations, the Grantor does hereby grant, convey and assign unto Donna S. Towers, and to her personal representatives, heirs and assigns, the “Grantee,” the exclusive use of boat slip number 32, as now numbered, and as delineated upon Exhibit A attached hereto and incorporated herein by reference, and as now constructed, which slip is adjacent to the aforesaid condominium regime as shown on the aforesaid recorded plats[.]18 (Emphasis added). In 1999, the Council adopted a policy requiring slip owners who had moved piles and who were selling their units to move piles to their original location.19 The minutes of that meeting do not indicate whether “original” means “as first built” or “as constructed when the Council acquired riparian rights in 1996.”20 But in regard to limitations, it does not matter.

If “original” refers to the location of the piles when the riparian rights were transferred to the Council, neither Mr. Tieder nor the Council would be required to do 17 As previously mentioned, Mr. Muffoletto advances procedural problems in granting Mrs. Towers her slip license, but issuance of the easement for slip 32 “as now constructed” was never objected to by anyone within the three-year limitation period. 18 The deed to the unit from Mr. Tieder to Mrs. Towers also conveyed all “right, title, and interest in and to boat slip No. 32, as now numbered and as now constructed[.]” 19 The Council explains the policy as: “a unit owner could seek to move pilings associated with a boat slip assigned to him or her. However, the owner was required to return the pilings to their original location and configuration when their use was no longer necessary or when the owner sold his/her unit.” 20 The Council’s objections to the request for documents prior to obtaining the riparian rights in its Answers to Mr. Muffoletto’s First Set of Interrogatories suggests that the Council considered “original” to mean as of 1996. 18 anything because, in 1996, the mooring piles were in the position they are now. And if it meant the initial placement and that the Council had a duty to enforce the policy for relocation of pilings that moved prior to its receipt of the riparian rights, Mr. Tieder could have been required to relocate the mooring piles when he sold this unit to Mrs. Towers in 2000. We are not persuaded that the Council’s issuance of the new license to Mrs. Towers without enforcing the policy was a new act under the continuing harm concept, but, if it were, it would only extend limitations to 2003.

Mr. Muffoletto, who bought his unit in 2004, contends that he was unaware of the pile relocation policy until September of 2010. If we were to accept that contention and attribute his unawareness of the policy to Mrs. Towers or the Council hiding information from him, limitations would have expired in September of 2013. See CJ § 5-203 (“If the knowledge of a cause of action is kept from a party by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.”) (emphasis added). This suit was filed on November 15, 2016, which was twelve years and five months after Mr. Muffoletto bought his property, and no less than twelve full years after he attempted to bring his boat into the slip.

In short, Mr. Muffoletto’s breach of license claims are barred by the statute of limitations. Doctrine of Laches A declaratory judgment is a form of discretionary relief “within the sound discretion of the court.” Sumrall v.