Washington Suburban Sanitary Commission v. Ross

KARWACKI, Judge. This appeal arises out of a condemnation action undertaken by the Washington Suburban Sanitary Commission (hereinafter “WSSC”) against Daniel M. Ross, and his wife, Elizabeth A. Ross, the appellees and cross-appellants (hereinafter “appellees”). In December of 1982, the WSSC filed a petition for condemnation to acquire a fee simple interest in 4.5 acres of the appellees’ real property in Montgomery County for the site of an elevated water storage facility (i.e. a water tower). An affidavit filed by the WSSC explained that there was an emergency need for the water tower due to insufficient water pressure to support firefighting activities in the area.

The appellees disputed this claim arguing that if there was any emergency it had already existed for ⁴²⁰ seven years prior to the filing of the petition. In any case, the appellees vigorously opposed the condemnation proceedings. They successfully opposed the WSSC’s motion for an early trial date; they managed to have the court postpone the trial date for more than one year after the filing of the petition; and they filed exceptions to the WSSC’s answers to interrogatories, all of which were summarily overruled. When the WSSC realized the vigor with which the appellees would oppose the condemnation proceedings, it decided to condemn a different piece of property owned by a third party for the water tower location.

Thereafter, it filed a “Voluntary Dismissal” of the condemnation action. Several months later the appellees filed a motion for expenses and attorney’s fees pursuant to § 12-109(e) of the Real Property Article of the Maryland Code (1974, 1981 Repl.Vol.) which provides: On abandonment of a condemnation proceeding, the defendant is entitled to recover from the plaintiff the reasonable legal, appraisal, and engineering fees actually incurred by the defendant because of the condemnation proceeding. If the parties agree on the proper amount to be recovered by the defendant on account of these fees, they shall file with the clerk of the court a writing evidencing their agreement. If the parties cannot agree on the proper amount to be recovered by the defendant on account of the fees, the court, on motion of either party, shall determine the proper amount.

The clerk shall enter the amount agreed on or determined by the court as part of the costs. (Emphasis added). The trial court awarded legal, appraisal and engineering fees in the total amount of $15,595.13 incurred by the appellees in defending the condemnation proceeding. The court denied the appellees attorney’s fees they incurred in bringing the claim for fees after the voluntary dismissal had been filed.

In his memorandum opinion the trial judge stated that the amount of the fees awarded was determined by allowing $2,500 for appraisal ⁴²¹ services, $7,237.78 for engineering services, and $5,857.35 for legal services. The order accompanying the trial judge’s memorandum merely stated: “ORDERED that plaintiff shall pay to the defendants herein in accordance with Section 12-109(e) of the Real Property Article of the Code the sum of $15,595.13 for their expenses incurred in these proceedings.” The WSSC contends on appeal that this judgment for costs was not statutorily authorized while the appellees in their cross appeal contend that it was insufficient in amount. The issues raised in challenging the award are: 1. Was the trial court’s award of fees authorized by § 12-109? 2.

Did the trial court err in not awarding the additional attorney’s fees incurred by the appellees in pressing their claim for fees reimbursement? 3. Did the trial court err in denying the WSSC’s motion pursuant to Maryland Rule U14 for an early trial date? We will not decide any of the above issues because we find it necessary to raise, nostra sponte, the question of our jurisdiction to hear this appeal and cross-appeal. Southern Maryland Electric v. Albrittain, 256 Md. 39 , 259 A.2d 311 (1969) (hereinafter So.

Md. Electric). In that condemnation case the condemnor was “stunned” by the size of a jury award in favor of the condemnee. Consequently, the condemnor abandoned its efforts to obtain a right-of-way across the condemnee’s property. Thereafter, the parties were unable to agree “as to the proper amount of reasonable legal and appraisal fees incurred by” the landowner, condemnee.

So. Md. Electric, 256 Md. at 40 , 259 A.2d 311 . Pursuant to the authority conferred upon it by the condemnation statute, Maryland Code (1957, 1967 Repl.Vol.), Art. 33A, § 13(d), the trial court held a hearing, determined that the condemnee’s reasonable attorney’s fees were $4,000, and entered that amount as part of the costs. The condemnor appealed from the ensuing judgment for ⁴²² costs, but the Court of Appeals dismissed the appeal as not within its statutory jurisdiction.

At the time of the opinion in So. Md. Electric, supra, the jurisdiction of the Court of Appeals to hear appeals in condemnation cases was governed by Maryland Code, supra, Art. 33A, § 8(a), which stated: “Right to Appeal —Any party to a condemnation case may appeal from a final judgment or determination to the Court of Appeals in the manner prescribed by the Maryland Rules.” Presently, this Court’s jurisdiction in condemnation cases is governed by the same language quoted above, now recodified as Maryland Code (1981), § 12-107(a) of the Real Property Article. This language is repeated in substantially identical form in Maryland Rule U25, applicable both at the time of So. Md. Electric as well as at the time of this appeal.

As in So. Md. Electric , the appellant in the instant case has appealed from the trial court’s award of attorney’s fees and other related fees which, under the statute are assessable as “costs.” The Court in So. Md. Electric, 256 Md. at 43 , 259 A.2d 311 , necessarily held that former Art. 33A § 8(a) did not authorize appeals from judgments as to costs in condemnation cases stating: Ordinarily a judgment or decree awarding costs, but making no other adjudication, is