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A&E North, LLC v. Mayor & City Council of Baltimore

April 23, 2013

A&E NORTH, LLC
v.
MAYOR & CITY COUNCIL OF BALTIMORE



The opinion of the court was delivered by: Adkins, J.

:

A&E North, LLC v. Mayor & City of Baltimore,

No. 40, September Term, 2012,

Opinion by Adkins, J.

CONDEMNATION--RELOCATION ASSISTANCE--TIMING OF REQUEST FOR ADVANCE PAYMENT--Under Section 12-210(c) of the Real Property Article of the Maryland Code, a displaced person experiencing a hardship may be entitled to a relocation payment in advance of the move, but not necessarily in advance of trial.

CONDEMNATION--RELOCATION ASSISTANCE--DISPLACEMENT--To qualify for a relocation payment in advance of the move under Section 12-210(c) of the Real Property Article, it is not enough that there is a hardship; first and foremost, the person requesting an advance payment must be a "displaced person," as defined in Section 12-201(e).

CONDEMNATION--RELOCATION ASSISTANCE--DISPLACEMENT--A person contesting the condemning agency's right to condemn is not a "displaced person" because, until the issue of the right to condemn is resolved, whether the person would ever become displaced is uncertain.

Argued: January 3, 2013

Case No.: 24-C-08-006430

Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald, JJ.

Opinion by Adkins, J.

This case involves a neglected gem of Baltimore City--the Parkway Theater. Built in 1915 as a vaudeville venue, the once-popular theater has long been forgotten. For the last quarter of a century or so its sole purpose in life has been to store automobile parts and other assorted junk. In 2008 the City of Baltimore initiated a condemnation action to acquire the theater. That action was contested by the theater's owner, A&E North, LLC ("A&E"), which argued that the City had no right to condemn the property.

Six weeks before the condemnation trial, A&E filed an emergency motion, demanding a postponement and an order requiring the City to pay to move all the junk out of the theater prior to trial so that the jury would not view the property in its extant condition. A&E claimed it was entitled to this advance relocation payment under federal and Maryland relocation statutes because it was indigent. It hoped the theater would show better without the junk, culminating in a higher "just compensation" award. The trial court denied A&E's motion, and the theater was shown to the jury as is, with "used auto parts and general rummage" piled up from the floor to the balconies. A&E now complains the court abused its discretion in denying the motion, resulting in a prejudicial view of the property. It asks for a new trial, but we refuse to grant that wish. Because A&E was not entitled to a relocation payment in advance of trial, it suffered no prejudice, beyond what it brought upon itself.

STATEMENT OF FACTS AND LEGAL PROCEEDINGS

The subject property is located at 3 W. North Avenue in Baltimore, Maryland. Owned by A&E North, LLC, it is improved by the former "Parkway Theater" building. It has been a long time, however, since the building functioned as a theater. At all times relevant to this proceeding, it has been used to store a vast amount of personal property, consisting of "shelfupon-shelf of used auto parts and general rummage," such as "boxes, carpets, furniture, appliances, used auto parts, and the like."

On October 9, 2008, the Mayor and City Council of Baltimore filed a Petition for Condemnation in the Circuit Court for Baltimore City, seeking to condemn the theater "for the public purpose of urban renewal, pursuant to the Charles/North Revitalization Area Urban Renewal Plan." A&E was served a copy of the petition on November 4, 2008.

A&E timely answered the City's petition and demanded a jury trial. It also filed a counterclaim, challenging the City's right to condemn the property. In late December of 2008, the Circuit Court issued a scheduling order, setting the trial for August 1, 2009.

On July 6, 2009, A&E filed its first continuance request, alleging a "need for completion of expert report." The Circuit Court granted the request, rescheduling the trial to November 4, 2009. On October 23, 2009, the parties filed a joint motion for continuance, arguing that the "parties agree to partial resolution; defendant has new counsel, and parties need time for additional discovery." The Circuit Court granted the second motion as well, and this time rescheduled the trial for February 24, 2010.

On January 15, 2010, six weeks before trial, A&E filed an Emergency Motion to Compel the Immediate Payment by the City of Relocation Expenses and a third continuance request. In that motion, A&E "request[ed] that the Court enter an Order compelling the City to immediately pay [its] relocation expenses, which would allow [A&E] to move its personal property from the Parkway Theater prior to trial." Additionally, A&E requested that the Court postpone the trial "for a period of ten weeks after [its] receipt of . . . relocation expenses from the City."

In an accompanying memorandum, it argued that "Maryland and federal law expressly provide for the advance of payment of relocation expenses in instances of 'hardship.'" A&E emphasized that it is solely owned by Charles Dodson, who is "virtually penniless." Although he "wishes to relocate the Personal Property," he "does not have the funds to do so." A&E explained the amount of personal property stored at the Property is "so extensive that the City's own expert has estimated that it will cost approximately $290,000 to relocate it." In A&E's view, "the presence of the Personal Property obstructs the views of the magnificent interior and will cause the jury to discount its value, thereby severely prejudicing [its] case in the eyes of the jury." Thus, A&E argued the City should be ordered to pay for relocation prior to trial. On February 17, 2010, unpersuaded by these arguments, the Circuit Court denied both A&E's motion for payment and its request for postponement of trial.

One day before the scheduled trial date, on February 23, 2010, A&E withdrew its challenge to the City's right to acquire the Property. At the beginning of the trial, A&E asked for a continuance again, citing its lack of appraisals, Mr. Dodson's health, and the continued presence of junk in the theater, but the court was not moved by these arguments and denied the motion. Believing that, without a continuance, the trial would proceed "with a prejudicial jury view of the property and without any of [its] three experts," A&E decided not to "participate in this trial other than to object at necessary times."

For that reason, A&E did not make an opening statement, did not cross-examine the City's witness, did not present its own evidence, or make a closing argument. As a result, the evidence before the jury consisted of the testimony of the City's appraiser, several documents and photographs prepared by him, and the jury's view of the property. At the end of the second day of trial, the jury returned a verdict in the amount of $340,000, the amount the City argued was the property's fair market value. Based on that judgment, the Circuit Court entered an inquisition.*fn1

After denial of its Motion for a New Trial, A&E timely appealed to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals held that the Circuit Court did not abuse its discretion in denying A&E's request for an advance relocation payment prior to trial or a continuance. We granted both A&E's petition for a writ of certiorari and the City's cross-petition. See A&E North, LLC v. Mayor of ...


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