111 SCHERR LANE, LLC, ET AL.
TRIANGLE GENERAL CONTRACTING, INC., ET AL.
Circuit Court for Queen Anne's County Case No.
Deborah S., Beachley, Shaw Geter, JJ.
Deborah S., J.
2013, a commercial property at 111 Scherr Lane in Grasonville
("the Property") was sold at foreclosure to 111
Scherr Lane, LLC ("the LLC"), the owner of the
Property, and Edward Gills, the sole member of the LLC, the
appellants. Thereafter, in the District Court of Maryland for
Queen Anne's County, two actions for replevin were filed
against the LLC and Gills to recover personal property stored
at the Property. One action was filed by appellee TECO, Inc.
("TECO"), an electrical contracting company owned
by the prior owners of the Property and their family members;
and the other was filed by appellee Triangle General
Contractors, Inc. ("Triangle"), a lessee of the
prior owners.The cases were
consolidated for trial and the District Court granted writs
of replevin in favor of TECO and Triangle. After the writs
were executed, resulting in the recovery of some, but not
all, of the appellees' property, the cases were converted
to actions for detinue and transferred to the Circuit Court
for Queen Anne's County.
circuit court bifurcated the claims, which were separately
tried to the court. In TECO's case, the court entered a
final judgment of possession in its favor for property
recovered under the writ and for certain property that had
not been recovered; and entered judgment in TECO's favor
for $9,856.40 for the value of other property that was not
recovered. The judgment was entered against the LLC and
Gills, jointly and severally. In Triangle's case, the
court issued a judgment of possession in favor of Triangle
for property recovered under the writ and entered a judgment
against the LLC for $59,119 for items not recovered.
and the LLC noted this appeal, presenting five questions for
review, which we have rephrased and reordered:
I. Did the circuit court err or abuse its discretion by
determining that the personal property had not been
II. Did the circuit court err or abuse its discretion by
entering judgments for possession and money judgments in
detinue for personal property that was not in the possession
of Gills and the LLC when the replevin action was commenced?
III. Did the circuit court err or abuse its discretion by
awarding damages in favor of Triangle based upon the
replacement value, instead of the market value, of the
IV. Did the circuit court err or abuse its discretion by
entering judgments for possession and for damages against
Gills and the LLC for property that was listed as recovered
on the schedule of replevied items?
V. Did the circuit court abuse its discretion by entering
judgment against Gills personally for actions he took on
behalf of the LLC?
following reasons, we answer these questions in the negative
and shall affirm the judgments of the circuit court.
Property consists of a fenced, commercial lot improved with a
modular home. In 2004, Josiah Tice ("J. Tice") and
Joan Tice, his wife, purchased the Property. They did not
live on the Property, but used it to store equipment for
TECO, a family-owned electrical contracting business. Dennis
Jay Tice ("D. Tice"), their son, is an owner and
the general manager of TECO. TECO's equipment was stored
in seven trailers parked on the Property.
2006 or early 2007, J. Tice entered into a verbal lease
agreement with Jack Leone on behalf of his company, Triangle.
Pursuant to that agreement, Triangle began storing its
contracting supplies in two trailers parked on the Property
and paying $50 per month in rent to J. Tice.
16, 2013, substitute trustees on an indemnity deed of trust
securing the elder Tice's mortgage on the Property filed
an order to docket foreclosure in the circuit court. Two
months later, on September 17, 2013, the Property was sold at
a foreclosure sale to Gills, for $94,000. J. Tice and D. Tice
were present at the foreclosure sale, having hoped to
purchase it on behalf of TECO.
planned to use the Property in connection with his seafood
business. After the foreclosure sale, he contacted members of
the Tice family several times and asked them to remove their
belongings from the Property. At that time, Gills was unaware
that any of the trailers belonged to Triangle.
foreclosure sale was ratified on December 13, 2013. On
February 5, 2014, Gills went to settlement, having assigned
the contract of sale to his wholly-owned LLC. A substitute
trustee's deed was executed that day conveying the
Property to the LLC. Thereafter, Gills padlocked the gates to
the Property and posted "No Trespassing" signs.
Five days later, on February 10, 2014, Gills wrote to J. Tice
I am writing this letter to inform you that you have 10 days
to remove your stuff from [the Property]. The [P]roperty is
now legally owned by my LLC. The courts [sic] ratification
took place weeks ago. I have talked to you by phone on
several occasions to no avail. I need to move on with my
plans for the [P]roperty. I will dispose of the stuff if you
have not removed it within 10 days of the writing of this
letter. To access the [P]roperty you must call [me] at [phone
number] anytime. I am close and can be there in a moment.
Ed Gills, for [the LLC]
days that followed, D. Tice, along with TECO employees, went
to the Property several times to remove the TECO equipment
stored there. He brought with him a trailer and a skid
steer. According to D. Tice, two
snowstorms and a rain storm made it impossible for him to
remove all of TECO's personal property within the ten-day
period imposed by Gills. On Friday, February 20, 2014, Gills
told D. Tice that he could enter the Property a final time
the following day to remove the trailer and the skid steer,
but that "everything else was his [i.e.,
Gills's] and [D. Tice] couldn't have it." On
Saturday, February 21, 2014, D. Tice went to the Property.
Gills was present, along with the Sheriff, and permitted D.
Tice to take the two items, but nothing else. At that time,
the seven TECO-owned trailers remained on the Property, as
did some of their contents.
Leone was still unaware that the Property had been foreclosed
upon. He continued to pay $50 per month in rent. On March 12,
2014, J. Tice contacted Leone, who was in Florida, and told
him that the Property had changed ownership. Leone
immediately called Gills to inquire about retrieving
Triangle's personal property. Gills told Leone that
Triangle's trailers and the equipment inside them now
belonged to him (Gills).
District Court Proceedings on Replevin Actions
than two months later, on June 2, 2014, Triangle filed an
action for replevin against Gills, the LLC, and the
substitute trustee in the District Court seeking return of
its personal property and damages of $25,000. It alleged that
two trailers-a 1986 Williams Office trailer ("Williams
Trailer") and a 1988 Strick trailer ("T-44
Trailer")-belonging to Triangle were stored on the
Property and that "approximately ninety (90) items or
pieces of construction equipment" were stored in the
trailers. Triangle attached to its complaint a four-page
handwritten inventory of the contents of the T-44 Trailer.
26, 2014, TECO filed an action for replevin against Gills and
the LLC in the District Court seeking return of its personal
property and damages of $29,500. It alleged that TECO owned
"approximately 200 items of personal property . . .
stored in trailers" on the Property. TECO attached as an exhibit to its
complaint a list of assets stored on the Property, including
"7 . . . Box Trailers and their contents."
cases were consolidated for trial on September 26, 2014. In
TECO's case, J. Tice testified consistent with the above
stated facts. D. Tice testified that the seven TECO trailers
had been on the Property since 2006/2007. The trailers
contained various electrical supplies and tools, many of
which had been acquired in 1998 when TECO purchased the
assets of Simpson Electrical Co., Inc. A copy of the Bill of
Sale reflecting that acquisition was introduced into
evidence. D. Tice had marked with asterisks the items on the
list that he knew were on the Property as of February 20,
2014. Those items included the seven trailers, a forklift,
and various tools. He also testified that a "sea
container" was on the Property.
explained that when the foreclosure proceedings were
commenced, he and his father still hoped that the family
and/or TECO would be able to maintain title. They attended
the foreclosure sale, but were outbid by Gills. Thereafter,
they did not remove TECO's trailers from the Property
because they understood that the sale was not yet finalized.
They also believed they might be able to enter into an
agreement with Gills to continue storing the trailers on the
receiving the February 10, 2014 letter from Gills, however,
D. Tice took steps to remove TECO's property from the
Property. He brought machinery onto the Property to remove
some of the items. During the 10-day period, there were two
snowstorms and a rainstorm, however, and as a result, he was
unable to move very many items. He was "scheduled"
to go to the Property on Friday, February 20, 2014, to
"get some more stuff," but Gills prohibited him
from doing so. The following day, Gills permitted D. Tice to
enter the Property to remove a "two axle trailer, skid
steer, [and] a van that we had loaded, and the truck that we
had towed it in there with." He was not permitted to
load any additional items.
Triangle's case, Leone testified that Triangle had stored
two trailers on the Property since 2007: the Williams
Trailer, which was 8 feet by 32 feet, and the T-44, which was
a 40-foot box trailer. The T-44 Trailer was filled with
"heavy construction tools and equipment, power tools, .
. . building records." Leone identified an inventory of
items in the trailers that he had prepared when he loaded
them in 2007. He had not removed any items since then. He had
added a few items to the trailers over the years and had
updated the inventory list to reflect that. The inventory was
admitted into evidence ("T-44 Inventory").
had not been to the Property for at least a year, possibly
two or more years. He had not received any notice that a
foreclosure proceeding was commenced. He had continued to pay
rent to the Tices every month since 2007 until he learned of
the change in ownership.
March 12, 2014, Leone received a phone call from J. Tice
advising that the Property had "changed hands."
Leone immediately called Gills, told him that two trailers on
the Property belonged to Triangle, and asked about getting
them back. Gills responded that the trailers and their
contents had been "abandoned per the sheriff" and
that he (Gills) had "disposed of it." Leone
informed Gills that he had asked his employee to drive by the
Property that morning and that his employee had observed
Triangle's trailers on the Property and also had observed
someone "taking stuff out of the large trailer."
Gills asked Leone what was in the trailers. Leone described
the items that were contained in the trailers, which included
"rough-sawn black walnut." Gills replied, "oh,
is that what that wood was?" Leone explained that black
walnut is very expensive and that he wanted it back. Gills
reiterated that the trailers and their contents were
"abandoned property" that "belong[ed] to [him]
flew back to Maryland from Florida and, on March 22, 2014,
went to the Property. He was able to enter the Property and
he observed both of his trailers, as well as some of the
trailers owned by TECO. He took photographs and a video of the
trailers, some of which were introduced into evidence. The
trailers were open and their contents had been disturbed.
Leone noticed that some of the tools that had been stored
inside the T-44 Trailer were now inside the TECO trailers.
recently, Leone had driven by the Property and seen that
Gills had modified the Williams Trailer, "incorporat[ing
it] into some kind of structure on the [P]roperty as part of
the seafood market." A sign for Gills's business was
attached to the Williams trailer.
testified that when he purchased the Property, it looked like
a "junk yard." There were "[l]ogs, piles of
debris, brush, tires" all over. He began cleaning it up,
but did not remove any items "that [weren't]
[his]." Beginning a few weeks after the foreclosure
sale, he called J. Tice "at least six or seven
times" to try to make arrangements for the TECO trailers
and other property to be removed. J. Tice said he would
"talk with his son and . . . get back to [Gills],"
but never followed through. J. Tice's girlfriend arranged
to have a truck body that belonged to her towed from the
the LLC took possession of the Property, Gills wrote the
February 10, 2014 letter. He left the Property unlocked
during the 10-day period. He had several "amiable"
conversations with D. Tice during that period and saw him on
the Property multiple times loading items into a van and
otherwise removing TECO's property. At the expiration of
the 10-day period, Gills let D. Tice remove a loaded van and
the skid steer, but otherwise excluded him from the Property.
Gills believed that the TECO property was considered
abandoned as of that date.
Gills began "remov[ing] everything that wasn't
nailed down[,] . . . pil[ing] it all up into dumpsters and
[having] the scrap people come and take it away." He had
contracted with Schultz & Son, a local scrap metal
company, for that purpose. He scrapped at least four trailers
and a lot of other "junk" that was inside the
to Gills, when he was served in the two replevin actions in
June 2014, the only items belonging to Triangle or TECO left
on the Property were the Williams Trailer, which Gills had
converted to use for his business; the T-44 trailer; a sea
container; a 28-foot trailer; wooden poles; and some other
items that had been stored inside the trailers. Gills spent
more than $1,100 improving the Williams Trailer by adding a
floor, a ceiling, and walls; wiring it for electricity;
installing a light fixture; and painting it. He raised the
trailer up on cinder blocks next to the loading dock on the
cross-examination, Gills testified that he could not recall
how much he had been paid by the scrapyard for the items he
removed from the Property, but it was more than $1,000. He
was paid by weight, after certain deductions for
transportation costs and disposal of items that could not be
conclusion of the hearing, the court held the matter sub
curia and directed the parties to return on October 17,
2014, for it to issue its ruling. A week before that
happened, however, TECO and Triangle filed a motion to admit
additional evidence, attaching an affidavit by D. Tice. He
averred that following the September 26, 2014 trial, he drove
to 101 Drummer Drive in Grasonville, a property owned by
Gills, and saw a Case Model 580 forklift parked there. He
checked the serial number on the identification plate and
determined that it was the forklift owned by TECO that was
included in the inventory list entered into evidence at
trial. In his testimony, Gills had not identified the
forklift as an item of property remaining in his possession.
District Court granted the motion to reopen and, on October
17, 2014, held an evidentiary hearing. D. Tice testified
consistent with his affidavit. He stated that the forklift
had been present at the Property between February 10, 2014,
and February 20, 2014. When asked why he did not remove the
forklift during that 10-day period, he responded that its
battery was dead.
testified that he had had the forklift towed from the
Property to a repair shop sometime after February 20, 2014.
He replaced the transmission, engine, tires, hydraulic
system, carburetor, fuel tank, fuel valves, condenser wires,
and spark plugs. He had not mentioned the fork lift in his
prior testimony because "it's not a trailer."
He maintained that his testimony about the items that were
present on his Property when the replevin actions were filed
otherwise was accurate.
cross-examination, Gills was asked about the items presently
stored in the trailers that remained on the Property. Gills
recalled seeing "screws and washers and bolts and
junk," some "hand tools and shovels," a
"lot of hoses," two ladders, and "some
cords." He also had seen the "wood" Leone had
testified about, apparently referring to the black walnut.
Everything else had been scrapped or taken to the dump.
and Triangle also introduced into evidence a Schultz &
Son record showing four payouts for scrap to Gills totaling
$14,368. The first payout was made on March 25, 2014, in the
amount of $5,351.60 for 54,820 pounds of metal. That ticket
reflected deductions for disposal of ten truck tires and
other trash. The second payout was made on April 29, 2014, in
the amount of $6,916.40 for 59,880 pounds of metal. That
ticket reflected deductions for disposal of more than 50
truck tires and 2 passenger tires, as well as trash disposal.
The last two payouts were made on June 9 and 10, 2014,
totaling $2,100 for 9,600 pounds of metal.
conclusion of the hearing, the parties submitted post-trial
memoranda. The appellants argued that Triangle and TECO
abandoned their property when they left it on the Property
and did not return to reclaim it in the months following the
foreclosure sale and thereafter. They argued, moreover, that
an action for replevin only may be brought against a party in
possession of the personal property and that the evidence
showed that at the time the suit was initiated, the only
personal property in the possession of Gills and the LLC were
three trailers and some items inside them. On this basis,
Gills and the LLC asked the court to grant judgment in their
favor as to the remaining personal property claimed by TECO
and Triangle. Gills and the LLC ...