Vallario v. State Roads Commission

Moore, J., delivered the opinion of the Court. On October 2, 1979, a final judgment was entered by the Circuit Court for Prince George’s County (Melbourne, J.) on a jury’s inquisition condemning appellants’ properties and awarding them $95,000.00 for each of two parcels. Two condemnation proceedings, initiated by the State Roads Commission, had been consolidated prior to trial. In Law No. 73447 appellants here and a third owner of one parcel appealed to the circuit court in banc, pursuant to Maryland Constitution, art.

IV, § 22. The in banc panel affirmed the inquisition in an oral opinion by Judge Bowen. The instant appeal was taken from the judgment entered in Law No. 73446 involving a parcel owned jointly by Joseph F. and Mary T. Vallario. The property owners contend that the condemnation proceedings were invalid' because: 1) The State Roads Commission did not "sit in judgment” of the condemnation as required under Maryland Constitution, art.

Ill, § 40B; 2) The State Roads Commission did not adhere to the Administrative Procedure Act, Md. Ann. Code, art. 41, §§ 244-256 (1978); and 3) Appellants successfully rebutted the presumption of necessity for the taking, and the decision of the State Roads Commission to condemn appellants’ property was unreasonable, arbitrary, and capricious. Although not brought to our attention by the appellee, State Roads Commission, we note that appellants petitioned the circuit court for the release of the funds paid into court by the Commission. On October 5, 1979 the circuit court ordered that $96,187.94, representing the jury’s inquisition ¹¹³ of $95,000.00 plus interest, be released to the appellants. That same day the appellants acknowledged receipt of the funds in Law No. 73446.

The docket entries reveal that a check, dated October 9, 1979 and payable to Joseph F. Vallario, Jr., and Mary T. Vallario, was personally delivered to Mr. Vallario on October 11, 1979. The face of the check reveals that it was in payment "Per Law #73446.” It is clear from the record that appellants requested and accepted the funds paid into court pursuant to the jury’s inquisition. Twenty-four days after the order for payment was signed by the trial judge, appellants noted an appeal to this Court. We shall, sua sponte, dismiss the appeal.

The "general rule” 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. Maryland-National Capital Park and Planning Commission, 235 Md. 420, 424 , 201 A.2d 804, 805 (1963). Moreover, "the general rule usually has been applied in condemnation appeals. . ..” Id. at 425 , 201 A.2d at 805 . See Acting Director, Department of Forests and Parks v. Walker, 271 Md. 711, 716-17 , 319 A.2d 806, 809-810 (1974) (reaffirming the Shapiro rule and applying it to dismiss an appeal by the condemnor). This defect in the appeal may be recognized by the Court on its own motion.

Suburban Development Corp. v. Perryman, 281 Md. 168 , 377 A.2d 1164 (1977). In Perryman , the Court of Appeals, upon its own review of the record, ordered this Court to dismiss the appeal because "Perryman has, by his own action in accepting payment of the $586.25 under the circuit court decree, effectively forfeited his right to appellate review.” Id. at 171 , 377 A.2d at 1165 . The Court pointed out that the rule is "well-established.” Id. ' The Maryland rule on the waiver of the right to appellate review by the acceptance of payment on a final judgment and its applicability to condemnation proceedings has been recognized by the commentators. Nichols states: "It is undoubtedly the law that an owner of land taken by virtue of eminent domain proceedings who ¹¹⁴ has accepted and been paid the award of damages cannot afterwards contest the validity of the taking, either directly or collaterally,