STEVEN J. OCHSE, ET UX.
WILLIAM O. HENRY, ET UX
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Appeal from the Circuit Court for Dorchester County. Brett W. Wilson, Judge.
Argued by: Michael J. Jacobs (Melanie J. Barney, Jacobs & Barney on the brief) all of Easton, MD for Appellant.
Argued by: Anne C. Ogletree of Denton, MD (John G. Billmyre on the brief of Oxford, MD) for Appellee.
Panel: Matricciani, Graeff, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.[*]
[216 Md.App. 447] Moylan, J.
This appeal is the latest chapter in a long running battle between the appellants, Steven J. Ochse and Shari Ochse (" the Ochses" ), and their neighbors, the appellees, William O. Henry and Jessie Henry (" the Henrys" ), over title to residential real [216 Md.App. 448] property the Ochses purchased from the Henrys on December 14, 2001. The dispute concerned a 30-foot wide strip of land traversing the property that, unbeknownst to the parties at the time of the Ochses' purchase, had been conveyed to Dorchester County by a previous owner in 1919 for a county road that was never built. The Ochses filed a four-count complaint against the Henrys in the Circuit Court for Dorchester County on December 11, 2007, later adding Dorchester County as a defendant, seeking reformation of the deed, declaratory relief, injunctive relief, and damages for breach of contract, breach of special warranties, and fraud in the inducement. The Henrys filed a counterclaim seeking an award of attorney's fees pursuant to a provision of the contract of sale that specifically survived merger with the deed.
On August 4, 2008, the circuit court ruled on cross-motions for summary judgment, declaring that Dorchester County owned the 30-foot wide strip of land in fee simple. After a bench trial, the court also found that the contract of sale merged into
the deed and that there was no breach of special warranties of title. Pursuant to the fee-shifting provision that survived merger with the deed, the court entered an award in favor of the Henrys and against the Ochses in the amount of $100,020.00. The court denied all other relief.
The Ochses appealed to this Court. As a result of Court-ordered mediation, Dorchester County executed a quitclaim deed granting its interest in the 30-foot wide strip of land to the Ochses and was dismissed from the case. On December 21, 2011, this Court issued a reported opinion, Ochse v. Henry, 202 Md.App. 521, 33 A.3d 480 (2011), cert. denied, 425 Md. 396, 41 A.3d 571 (2012), reversing the circuit court's grant of summary judgment and vacating the award of attorney's fees in favor of the Henrys. We remanded for the circuit court to reconsider its award of attorney's fees because, as a result of our holding that the Henrys had breached their contractual duty to convey marketable title to the Ochses, the Ochses became the prevailing party entitled to a fee award.
[216 Md.App. 449] On remand, without a hearing, the circuit court awarded $215,710.60 in fees against the Henrys and in favor of the Ochses. This was substantially less than the $333,354.00 the Ochses had initially requested and the $355,731.78 the Ochses requested in a supplemental motion. The Ochses have now appealed from the court's fee award in their favor. We find no abuse of discretion in the court's approach, but we shall vacate the award and remand for reconsideration in light of the Ochses' April 27, 2012 supplemental motion for fees, which the circuit court appears to have overlooked.
Facts and Proceedings
Before we address the circuit court's decision on remand, we must first examine our reported opinion that ordered the remand. The Ochses did not achieve a landslide victory. On the contrary, we affirmed the circuit court on all but one legal issue. We held that the Henrys did not breach a special covenant against encumbrances, 202 Md.App. at 532, 33 A.3d at 487, and that the Henrys did not breach a covenant of special warranty of title, id. at 535, 33 A.3d at 489. In order to sue on the contract of sale, which would ordinarily merge with the deed, the Ochses had to show either fraud or mistake. Although the Ochses claimed that evidence of the Henrys' material misrepresentations was " overwhelming and consistent," we affirmed as not clearly erroneous the circuit court's factual finding
that the Henrys did not fraudulently induce the Ochses to purchase the property because, though Mr. Henry knew that the area had been used as a road, he honestly believed that it was merely an old dirt road and had no reason to suspect that Dorchester County owned a segment of the property.
Id. at 541, 33 A.3d at 492. We also rejected the Ochses' claim that the Henrys had been willfully blind to the possibility of a county road over the property. Id. at 542, 33 A.3d at 492.
[216 Md.App. 450] We reversed only on the issue of mutual mistake of fact, an issue that had been so peripheral at trial that we felt it necessary to first address whether it had been preserved for our review. Id. at 542, 33 A.3d at 492-93. Although we decided this issue in favor of the Ochses, we also explained
that it was, for purposes of resolving title to the property, moot.
The factual scenario in this case could not have occurred in the absence of fraud or mutual mistake. If the Henrys knew that there was a road across the property and did not disclose this to the Ochses, there was fraud. If neither party was aware of the road across the property, there was mutual mistake of material fact. Because the circuit court found the absence of fraud, there must have been mutual mistake. Accordingly, the contract of sale did not merge into the deed, and the Ochses should have been able to sue on the contract. Nevertheless, as a result of the mediation this Court ordered, the Ochses received Dorchester County's interest in the 30-foot wide strip across the Ochses' parcel. The issue of title is thus resolved because the Ochses now own the entirety of the 4.791 acre parcel in fee simple absolute.
Id. at 543, 33 A.3d at 493 (emphasis supplied).
For all practical purposes, the Ochses had been made whole and no longer had any claim of injury as of the time Dorchester County conveyed to them its interest in the driveway. From that point on, the Ochses possessed un-clouded fee simple title to the entire property. Success on the breach of contract claim against the Henrys -- indeed, success on any aspect of the post-mediation appeal -- was purely academic in all respects but one: it meant that the Ochses would qualify as the " prevailing party" and be entitled to an award of attorney's fees pursuant to the fee-shifting provision in the contract of sale.
As the circuit court had determined that the Henrys were the prevailing party and entered a fee award in their favor, we [216 Md.App. 451] vacated that award and remanded for reconsideration. We explained:
In light of our holdings above, we conclude that the circuit court was acting within the terms of the contract and deed by awarding attorney's fees. Regardless of whether the contract merged with the deed, the attorney's fees provision of the contract survived. The apportionment of attorney's fees, however, was in error. While the Henrys did not breach the special covenants because the defect in title was created by their predecessors in title, the Henrys had a duty to convey marketable title to the 4.791 acres in the contract, which survives merger with the deed on the basis of mutual mistake. The Ochses now own the 4.791 acre parcel in fee simple, but at the time of the conveyance, the Henrys did not convey marketable title to the Ochses, breaching the contract. As such, we shall vacate the circuit court's determination of attorney's fees and remand for that court to reconsider its award of attorney's fees in light of this opinion.
Id. at 544, 33 A.3d at 494. In response to a motion for reconsideration, we further explained:
[O]ur previously filed opinion in this matter has been clarified to indicate that the Ochses are able to sue on the underlying contract based on mutual mistake or misrepresentation, avoiding merger of the contract with the deed. Because the contract contained an attorney's fees provision, the Ochses are entitled to attorney's fees. While title issues have been resolved, the circuit court must view the case as it appeared when initiated.
Id. at 526 n.2, 33 A.3d at 483 n.2.
On remand, the Ochses filed a motion requesting a fee award on January 24, 2012. They sought a total of $333,354.00 and provided itemized billing ...