Soleimanzadeh v. Montgomery County

WOODWARD, J. The instant appeal arises from a condemnation action brought by appellee, Montgomery County, Maryland (“the County”), to take a portion of the real property owned by appellants, Khana and Joseph Soleimanzadeh (“the Soleimanzadehs”). Following the Soleimanzadehs’ failure to comply with certain discovery requests, the Circuit Court for Montgomery County imposed sanctions prohibiting them from introducing any evidence in support of their claim for just compensation and damages (“just compensation”). 1 On May 8, 2010, the County filed a motion for summary judgment as to the issue of just compensation, reasoning that the Soleimanzadehs’ inability to introduce any evidence in support of their claim on this issue resulted in a lack of any genuine dispute of material fact. The Soleimanzadehs filed an opposition to this ¹¹⁰ motion on May 14, 2010. Following a motions hearing on July 19, 2010, the court granted the County’s motion for summary judgment.

On July 21, 2010, the court entered a judgment in favor of the County that determined the just compensation due to the Soleimanzadehs to be $35,000, which was based solely on the County’s appraisal of the property subject to condemnation. On appeal, the Soleimanzadehs present three questions for our review, which we have slightly re-phrased: I. Did the trial court err in denying the Soleimanzadehs a jury trial on the issue of just compensation in a condemnation proceeding?

II

Was it improper for the trial court to grant judgment without any testimony as to damages?

III

Did the Soleimanzadehs have a right to cross-examine the witnesses of the County as to compensation? For the reasons set forth herein, we answer the first question in the affirmative and therefore reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion. In light of our decision, we need not address the remaining questions presented. BACKGROUND On April 10, 2009, the County filed a Complaint for Condemnation in the circuit court seeking to acquire 975 square feet in fee simple and 1,300 square feet of revertible slope easement from the real property owned by the Soleimanzadehs and located at 13923 Travilah Road, Rockville, Maryland, in furtherance of the County’s Travilah Road improvement project. 2 After filing an amended complaint on September 10, ¹¹¹ 2009, the County served the Soleimanzadehs on October 5, 2009, with interrogatories and requests for production of documents, and the Soleimanzadehs’ responses were due on November 7, 2009.

See Md. Rule 2-421(b), 2-422(c). On November 6, 2009, counsel for the Soleimanzadehs sent a letter to the County notifying the County that the interrogatories and requests for production of documents were misplaced and were discovered on November 5, 2009. Counsel for the Soleimanzadehs asked for a 45-day extension within which to comply with discovery, and the County had no objection to the request. On December 14, 2009, however, counsel for the Soleimanzadehs 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.” On December 23, 2009, after the expiration of the 45-day extension, the County filed a Motion to Compel and/or for Sanctions.

The Soleimanzadehs filed no opposition to this motion. On January 19, 2010, the circuit court granted the County’s motion and entered an order on January 21, 2010, directing the Soleimanzadehs to provide the requested discovery to the County within 10 days of the entry of the order. The order also provided that, if the Soleimanzadehs failed to produce the requested discovery within said 10 days, the Soleimanzadehs would be precluded from introducing “any evidence in support of their claims for just compensation and damages.” The Soleimanzadehs did not produce any interrogatory responses or documents within 10 days of the entry of the order, and accordingly, the aforesaid sanctions were imposed. 3 While the County’s Motion to Compel and/or for Sanctions was pending, the County filed a Motion for Partial Summary Judgment on January 15, 2010. The County sought summary judgment with respect to the following issues: (1) the public ¹¹² purpose and necessity of the taking of the property, (2) the amount of area taken by the County, and (3) the County’s right to condemn the Soleimanzadehs’ property and the legality of the condemnation proceeding.

The County did not move for summary judgment on the issue of just compensation, requesting instead that “the Court submit the issue of just compensation to be awarded to the [Soleimanzadehs] for the property rights taken to the jury.” On February 25, 2010, the trial court granted the County’s motion for partial summary judgment. 4 As a result of the imposition of sanctions on the Soleimanzadehs, the County filed on May 3, 2010, a Motion for Summary Judgment or in the Alternative Judgment by Default, seeking judgment on the issue of just compensation. In its motion, the County argued that the circuit court should grant summary judgment because the Soleimanzadehs “waived their right to an adversarial proceeding to contest the County’s claims,” and thus, “because of the sanctions imposed, there is no longer a controversy between the parties that presents a genuine dispute of material fact.” The Soleimanzadehs filed an opposition to this motion and asserted therein that “[t]he issue of just compensation in this case is disputed and cannot be determined, absent an agreement between the parties, by summary judgment or default.” On July 19, 2010, the circuit court held a motions hearing to consider, among other things, the County’s motion for summary judgment. On the issue of just compensation, the court engaged in the following discussion with the Assistant County Attorney: THE COURT: Why would [the issue of just compensation] not go to a jury? [ASSISTANT COUNTY ATTORNEY]: It wouldn’t go to a jury because there can no longer be and there is no ... genuine issue of material fact that’s in dispute. ¹¹³ THE COURT: What if the jury disbelieved your expert? It happens.

THE COURT: ... [CJouldn’t the property owner generate ... an issue of material fact simply by getting on the witness stand and saying, “I think the property’s worth X because,” and then the because is, “you know, I’ve lived there 100 years.” ... They can do that without an expert. Wouldn’t that take it to a jury? [ASSISTANT COUNTY ATTORNEY]: That’s correct, but not in this case, Your Honor, because the sanctions preclude the defendant from taking the stand, because of the failures of discovery. So there is nothing to controvert— ... [T]he sanctions really preclude the defendants from presenting or contesting our evidence.

And the defendants, if they want to contest the evidence of value, have a burden of production to do so, and the defendants, because of the sanction, are precluded from doing so. There’s a case that does state that, Solko v. State Roads Commission, 82 Md.App. 137 , at pages 147 to 149 [ 570 A.2d 373 ]. ... I’ll be candid with the Court that the issue of summary judgment of just compensation is certainly a new area. I can’t really find anything directly on point.... \Solko ], at pages 147 to 149 [ 570 A.2d 373 ], does state that the property owner has specific burdens of production if they wish to contest evidence of value.

And since the property owners cannot meet that burden in this case, and are precluded from doing so, the County is entitled to summary judgment. At the conclusion of the motions hearing, the trial court made the following ruling: ¹¹⁴ [T]he County has demonstrated under Maryland Rule 2-501(f) that there is no genuine dispute of material fact as to the value of the property, they have supported their motion by competent evidence, meaning an affidavit under oath on personal knowledge, that is, that the testimony would be otherwise admissible at trial, and that they have set forth an expert opinion as to value. And there being no evidence to the contrary and the defendants not having fulfilled their burden as set forth in Educational Testing v. Hildebrant, nor filed an affidavit under Maryland Rule 2-501 (d), for all the reasons I’ve said, the motion for summary judgment is granted and the value is established. And, unfortunately, what that means, folks, is there won’t be a trial.

Accordingly, the circuit court granted the County’s motion for summary judgment and on July 21, 2010, entered a Judgment and Inquisition that vested title to the subject property in the County and ordered the disbursement to the Soleimanzadehs as just compensation the sum of $85,000, which was based exclusively on the County’s appraisal of the subject property. The Soleimanzadehs filed a Notice of Appeal with this Court on August 16, 2010. Additional facts will be set forth below as necessary to resolve the questions presented. DISCUSSION The Parties’ Contentions The Soleimanzadehs assert that condemnation actions are “special proceeding's],” and “the trial of a condemnation case must satisfy the procedural requirements of Title 12, Chapter 200 of the Maryland Rules.” The Soleimanzadehs argue that, in granting the County’s motion for summary judgment, the trial court in the instant case violated the plain language and intent of Md. Rule 12-207.

According to the Soleimanzadehs, Rule 12-207(a) requires that an action for condemnation be ¹¹⁵ tried by a jury unless all parties file a written election submitting the case to the court for determination. The Soleimanzadehs also argue that, because a condemnation is a special proceeding at law, the specific scheme set forth in Rule 12-201 et seq. “must be strictly followed” and “takes over the general procedures involving civil cases.” In addition, the Soleimanzadehs argue that a trial court may not rely on the general summary judgment rule “in derogation of the landowners’ right to a jury trial as mandated by the Maryland Constitution,” because “a rule of procedure is subordinate to the Maryland Constitution and must yield to it.” Citing to Bouton v. Potomac Edison Co., 288 Md. 305 , 418 A.2d 1168 (1980), the Soleimanzadehs assert that “the Maryland Constitution requires that the issue of just compensation be determined by a jury.” Finally, the Soleimanzadehs argue that summary judgment is not appropriate because members of the jury in a condemnation case are given a view of the condemned property before hearing any other evidence. According to the Soleimanzadehs, the jury can “use its view of the property as real evidence and as a guide to determine how much weight to give to the testimony of experts and other witnesses[ ] when valuing the property in a condemnation action.” The County agrees with the Soleimanzadehs that condemnation actions are indeed “special proceedings,” but argues that these actions remain civil proceedings, and thus the Maryland Rules of Civil Procedure continue to apply. In particular, the County cites to Hammond v. State Rds.

Comm’n, 241 Md. 514, 517 , 217 A.2d 258 (1966) for the proposition that the general rules of procedure are applicable to condemnation proceedings. The County also asserts that “Rule 12-206(a) makes clear that condemnation actions are subject to the discovery rules in civil proceedings, which would include sanctions for failures of discovery.” The County next contends that the Soleimanzadehs have given no reason “why condemnation proceedings should not be subject to the summary judgment rule when the right to a ¹¹⁶ jury trial has been extended to other civil matters by the Maryland Constitution, but are still subject to summary judgment.” In other words, according to the County, “summary judgment does not impair the right to [a] jury trial but determines simply what if any issues are to be tried.” The County concludes that Rule 12-207(a) is “a rule of administration, designed to facilitate assignment procedure ... by presumptively assigning condemnation cases to the jury trial track.” Finally, the County argues that summary judgment was appropriate because the Soleimanzadehs could not meet the burden required of defendants in a condemnation proceeding as a direct result of the Soleimanzadehs’ discovery violations. The County asserts that landowners bear the burden of producing evidence of the value of their property if they disagree with the County’s evidence of value. Because of the discovery sanctions, the County concludes that the Soleimanzadehs were unable to meet the required burden of producing evidence of the value of their property, which is necessary to raise a genuine dispute as to the value of the property.

Standard of Review This Court in Warsham v. Muscatello, Inc., 189 Md.App. 620 , 985 A.2d 156 (2009) recently set forth the requirements of, and standard of review for, granting a motion for summary judgment: Maryland Rule 2-501 governs summary judgment. Summary judgment is appropriate where there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. In deciding whether summary judgment is appropriate, the court must determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. A material fact is a fact that, depending on how it is decided by the trier of fact, will affect the outcome of the case.

The party opposing a motion for summary judgment must show disputed material facts with precision in order to ¹¹⁷ prevent the entry of summary judgment. Put another way, summary judgment is not defeated by bare allegations or a mere scintilla of evidence. In determining whether the trial court correctly entered summary judgment as a matter of law, we apply a de novo standard of review. Like the trial court, we must make the threshold determination as to whether a genuine dispute of material fact exists.

If we are satisfied that there was no genuine issue of material fact, then we must determine if the trial court reached the correct legal result. We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Id. at 634-35 , 985 A.2d 156 (internal citations and quotations omitted). Analysis In its brief, the County refers frequently to the lack of a genuine dispute of material fact, which allowed the trial court to grant a motion for summary judgment.

Specifically, the County asserts that summary judgment was appropriate in the instant case, because as a result of the imposition of discovery sanctions, the Soleimanzadehs “failed to raise a genuine issue of material fact in dispute with specificity regarding the only evidence that was before the Court (the County’s appraisal).” Summary judgment, however, is only appropriate “where there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Warsham, 189 Md.App. at 634 , 985 A.2d 156 (emphasis added) (internal quotations omitted). Our review of the record indicates that the trial court did not err in ruling that there was no genuine dispute as to a material fact raised by the Soleimanzadehs regarding the valuation of the property subject to condemnation. Thus, the instant case turns on whether the County is entitled to judgment as a matter of law. ¹¹⁸ I. Maryland Condemnation Law We begin our inquiry with a brief history of condemnation law in Maryland, with a particular emphasis on the right to a jury trial. In Bouton v. Potomac Edison Co., 288 Md. 305 , 418 A.2d 1168 (1980), the Court of Appeals discussed the history of condemnation law and the development of the right to a jury trial: Condemnation proceedings were not ordinary suits at law.

Rather, they were special proceedings, lacking the characteristics of ordinary trials, brought pursuant to the power of eminent domain, a power derived from the sovereignty of the state. It was often the practice to refer questions of damages to a commission of viewers or appraisers, usually three or five in number. Even where it was the customary practice to submit the issue to the jury, that jury was not the common law jury of twelve presided over by a judge, but was a jury of varying number depending on the jurisdiction, and was presided over by the sheriff. Maryland apparently was among those states which, early in its history, provided for a sheriffs jury to fix damages for the taking of land for certain purposes.

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 constitutional or statutory provisions mandating a jury trial, the issues in a condemnation case should be tried by the Court. Id. at 309 , 418 A.2d 1168 (emphasis added) (citations omitted). 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: 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 ¹¹⁹ awarded by a Jury, being first paid or tendered to the party entitled to such compensation.[ 5 ] (Emphasis added).

The above provision “appeared for the first time in the Constitution of 1851 (Article 3, section 46), and was thereafter inserted in the succeeding Constitutions of 1864 (Article 3, section 39) and 1867.” Patterson v. Mayor & City Council of Baltimore, 127 Md. 233, 239 , 96 A. 458 (1915). In Baltimore Belt R.R. Co. v. Baltzell, 75 Md. 94, 98 , 23 A. 74 (1891), a landowner challenged a condemnation proceeding brought by a railroad company pursuant to section 167 of Article 23 of the Maryland Code. By section 167, the Legislature accorded the railroad company the power to condemn any land that may be needed for the proper construction of its road. Id.

Section 167 provided that compensation to be paid to the owner of the property condemned shall be assessed by a special jury summoned on a sheriffs warrant. Id. Specifically, application may be made by the company to a justice of the peace, who shall thereupon issue his warrant to the sheriff of the county, requiring him to summon a jury of twenty, qualified to act as jurors under the laws of the State, to meet on the premises on a day named in said warrant, and from the panel thus selected, the company and the owner, may each strike off four persons, and the remaining twelve shall act as “the jury of the inquest of damages.” Id. One of the issues raised by the landowner in Baltzell was whether, under Article III, § 40 of the Constitution, the Legislature had the power “to provide that the compensation ¹²⁰ to be paid to the owner [] be assessed by a special jury summoned upon warrant,” as opposed to a common law jury in a regular trial in court.

Id. at 106, 23 A. 74 . The Court analyzed the issue as follows: Ordinarily, it is true, the term “jury” used in a Constitution or a statute will be understood as meaning a common law jury.... But it is conceded from the earliest colonial history, and from the formation of the State Government down to the adoption of the Constitution, the Legislature had provided for the taking of private property for public use, upon making compensation to the owner, as assessed by a special jury summoned on warrant .... [W]hen the Constitution says where property is taken for public use the owner shall be entitled to compensation awarded by a jury, why shall it be held to mean compensation awarded exclusively by a common law jury in a regular court trial? The only question before a jury in such cases is the question of compensation, and a jury summoned by warrant to meet on the premises in view and with the opportunity of seeing the property, ought to be quite as competent to decide that question, to say the least, as a common law jury sitting in a common law court.

And, besides, in two-thirds of the counties of this State, there are but two jury terms a year, each about 6 months apart, and we can hardly suppose the framers of the Constitution meant to delay and embarrass the construction of railroads and other public improvements, by requiring compensation to be awarded in court by a common law jury. At least, if such had been the intention, if they intended to deny to the Legislature the exercise of a power in this respect,—a power which had been exercised from the beginning of the Government,—it is but fair to presume this intention would have been declared in plain and explicit terms. What they did mean, was to provide in the first place that the owner should have the right or privilege of a jury of twelve men in determining what compensation was to be paid, and in the next, that he should not be deprived of his property till such compensation had been paid. And such has been the uniform ¹²¹ construction of this clause of the Constitution from the time of its adoption till the present.

Id. at 107-08 , 23 A. 74 (bold emphasis added). The Court of Appeals concluded that, “[w]hile the Constitution declares that the compensation shall be assessed by a jury, it at the same time leaves to the Legislature to provide whether such assessment shall be made by a common law jury or by a jury summoned by warrant, as may be most expedient and proper.” Id. at 108 , 23 A. 74 . In 1912, the General Assembly added Article 33A, “Eminent Domain—Regulating the Procedure for the Acquisition of Property for Public Use by Condemnation,” and provided in the introductory purpose section that “the proceedings therefor shall be before a jury in court instead of before a sheriffs jury.” 1912 Md. Laws, Chap. 118, at 236. This act, along with the purpose section, was repealed and re-enacted with amendments in 1914. 1914 Md. Laws, Chap. 463.

The 1914 act set forth the specific procedures governing a trial of condemnation action, which “shall be heard before a jury.” Id. at 751. Specifically, on the date fixed by the court for the trial, a jury is selected and sworn “to justly and impartially value the damages which the defendant owner or owners will sustain by the taking, use and occupation of the property.” Id. at 752. Under the act, the court then directs the sheriff to take the jury on the subject property “to view the same in the usual way in condemnation cases.” Id. After the view and the jury has returned to the court, the trial of the issues of law and fact in the case, relative to the right to condemn said land, and the damages which will be occasioned to the defendant owner or owners thereof by the taking, use and occupation thereof by the petitioner, and the amount of just compensation therefor to each defendant, and of all other issues which may properly arise in said case, shall be proceeded with before said Court and jury in the same manner and under the same rules of law and practice, pertaining to the admissibility of evidence, the instructions of the Court, and all other matters arising under said ¹²² proceedings, as in other civil cases, except as herein otherwise provided.

Id. In addition, if the jury’s verdict was excepted to in a timely manner and the court set aside the jury’s verdict, the court was directed to “proceed with the selection of a jury as aforesaid, and a new trial of the case, in all respects as hereinbefore provided, and so on until a final verdict in said case is obtained.” Id. at 753. Finally, the procedure for appeal from any final judgment of the lower court referred to the defendant “appealing[ ] the amount of the compensation, damages and costs so awarded by said jury.” Id. at 755 (emphasis added). Between 1914 and 1963, several minor revisions were made to Article 33A, but the Code remained “basically unchanged.” George W. Baker, Jr. & Philip Z. Altfeld, Maryland’s New Condemnation Code, 23 Md. L.Rev. 309, 310 (1963).

On September 15, 1961, the Court of Appeals substantially completed the codification in rule form of all Maryland procedural law by adopting the Twentieth Report of the Standing Committee on Rules (“Rules Committee”). Md. R. Comm. Rep. No. 20, at 5 (1961). 6 In that report, the Rules Committee recommended, among other things, the incorporation of the Special Proceedings rules, located in Chapters 1100, 1200, and 1300 of the Maryland Rules, into one chapter, Chapter 1100, and assigned a separate subtitle to each special proceeding.

See id. at 4. In particular, Subtitle U set forth the rules pertaining to eminent domain and was “intended to provide a uniform procedure for the condemnation of property and to that extent supersedes all such procedures provided for in statutes,” expressly including Article 33A. Id. at 130. The Rules Committee recognized the need for “drafting an Act or a series of Acts for presentation to the General Assembly in order to repeal the sections of the Code which are superseded by the rules now submitted.” Id. at 5. ¹²³ Although Subtitle U did not contain a separate rule for a trial by jury, the rules under that subtitle clearly presumed the existence of a jury trial.

For example, Rule U7 entitled “Trial” set forth the procedures for the selection of the jury and the oath taken by jurors to “value justly and impartially the damages” sustained as a result of the taking of the property and to the remainder thereof, if any, and Rule U8 described the procedure for the view of the subject property by the jury. On November 14, 1962, the Committee to Revise the Condemnation Laws of Maryland, appointed by the Legislative Council of the General Assembly (“the Legislative Council Committee”), issued a report recommending a complete revision of the substantive law of condemnation under Article 33A, as well as the procedural law contained in Subtitle U of the Maryland Rules. Report of the