Makowski v. Mayor and City of Baltimore

Makowski v. Mayor and City Council of Baltimore, No. 81, Sept. Term 2013, Opinion by
Battaglia, J.
PROPERTY – CONDEMNATION – “QUICK-TAKE” CONDEMNATION –
IMMEDIATE NECESSITY – “HOLD-OUT”
Pursuant to Section 21-16 of the Code of Public Local Laws of Baltimore City, the City
may condemn property via “quick-take” proceedings to address a “hold-out” situation,
wherein the City seeks to acquire multiple properties for a single project and one or more
property owners are unyielding, wanting to be the last owner of a parcel or among the last,
in order to be able to demand higher prices for their property because they are holding up a
large project.
EVIDENCE – AUTHENTICATION – AUTHENTICATION BY WITNESS
TESTIMONY
Trial court did not err in excluding map purporting to show areas of Baltimore City
designated as historic when the only attempt to authenticate the document was through a
witness who testified he was not familiar with the document.
CIVIL PROCEDURE – APPEALS – SCOPE OF APPELLATE REVIEW – ISSUES
RAISED AFTER NOTICE OF APPEAL IS FILED
Ordinarily, an appellate court will not consider issues decided by the trial court after a
notice of appeal is filed.
CIVIL PROCEDURE – APPEALS – SCOPE OF APPELLATE REVIEW -
PRESERVATION OF ISSUES – ADEQUACY OF DISCOVERY RESPONSES
A party who fails to file a motion to compel discovery pursuant to Rule 2-432 may not
challenge, on appeal, the adequacy of the responses it received to its discovery requests.
Circuit Court for Baltimore City
Civil No. 24-C-12-002245
Argued: April 29, 2014 IN THE COURT OF APPEALS OF
MARYLAND
No. 81
September Term, 2013
EDWARD J. MAKOWSKI
v.
MAYOR AND CITY COUNCIL OF
BALTIMORE
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
McAuliffe, John F.
(Retired, Specially
Assigned),
JJ.
Opinion by Battaglia, J.
Filed: June 24, 2014
This case involves a “quick-take” condemnation 1 of a property located at 900-902
1
In Mayor and City Council of Baltimore City v. Valsamaki, 397 Md. 222, 226 n.1, 916
A.2d 324, 326 n.1 (2007), we described a “quick-take” condemnation:
A quick-take condemnation involves “[t]he immediate taking of
possession of private property for public use, whereby the estimated
compensation is deposited in court or paid to the condemnee until the actual
amount of compensation can be established.” Black’s Law Dictionary 310
(8th ed.2004). See Bern-Shaw Ltd. P’ship v. Mayor and City Council of
Baltimore, 377 Md. 277, 281 n. 1, 833 A.2d 502, 504 n. 1 (2003); King v.
State Roads Comm'n, 298 Md. 80, 85-86, 467 A.2d 1032, 1035 (1983)
(Quick-take condemnation occurs where “the condemning authority takes
possession of the property prior to trial upon payment into court of its
estimate of the value of the property taken.”).
(alterations in original). Pursuant to Section 21-16 of the Code of Public Local Laws of
Baltimore City (2012), the parties involved in a quick-take proceeding have a direct right
of appeal to this Court. Section 21-16 provides in relevant part:
In cases where the City files a Petition for Immediate Taking of title and
possession to the said property in fee simple absolute or such lesser estate or
interest as is specified in the Petition, title thereto shall irrevocably vest in the
Mayor and City Council of Baltimore ten days after personal service of the
Petition upon each and every Defendant or, if the Defendants or any of them
shall file an answer to the Petition within the said ten day period alleging that
the City does not have the right or power to condemn title to the property,
then on the date of the trial court’s decision or on the date of decision in any
appeal from the trial court.
In the event the Defendants or any of them should file an answer, the court
shall schedule a hearing within fifteen days of the date of the filing of an
answer, which hearing shall be only for the purpose of contesting the right or
power of the City to condemn title to the property. The trial court shall render
its decision within fifteen days from the final day of said hearing. The City or
the Defendants or any of them shall have an immediate right of appeal to the
Court of Appeals of Maryland from the decision of the trial court.
N. Chester Street, comprised of a building that had formerly housed a church and contained
various offices. The Appellant, Edward Makowski, raises ten issues for our review, 2
(emphasis added); see also Maryland Rule 8–301(a) (“Appellate review by the Court of
Appeals may be obtained only: (1) by direct appeal or application for leave to appeal,
where allowed by law . . . .”).
2
Mr. Makowski presents the following questions for our review:
1. Would it be useful to provide some guidance to the courts below as to
what constitutes a “hold out”?
2. Should the trial court have considered or allowed consideration of
whether development in accordance with the urban renewal ordinance
could have occurred without acquiring the subject property?
3. What burden of proof should be required of the Petitioner when taking
property via quick take? Preponderance of the Evidence?, Clear and
Convincing Evidence?, Undisputed Evidence?, or readily apparent and
irrefutable evidence?
4. Did Appellee prove an immediate need for the property, when the
testimony was contradicted by the only witness, who stated his
information was based solely on what he reads in the newspaper and who
conceded that the time frame he asserted in his affidavit may not be
correct?
5. Whether the appellee acted in good faith in the valuing of the property,
when it was aware that smaller commercial properties in the immediate
vicinity were sold for more than double the amount the appellee was
offering for the subject property?
6. Can a Defendant be labeled a hold out for the purpose of a quick take
when the Condemning authority has not negotiated in good faith or made
good faith offers of Fair Market Value and when there is no clear
immediate need to obtain the property because other property in the same
acquisition area had not been acquired on the date of filing for Quick
Take?
7. Were the eleventh hour cursory, superficial evasive and incomplete
discovery responses provided by the Appellee sufficient to provide
defendant with information that could be used in defending the
condemnation case or in preparation to defend the quick take action?
8. Can an assertion, without supporting authority, that discovery has been
provided form a sufficient basis for Plaintiff/Appellee to disregard
subpoenas or to instruct City employees to disregard subpoenas?
2
some of which are not properly before us, and the rest of which can be addressed as a single
question:
Did the Circuit Court for Baltimore City err in granting the City’s
“Petition for Immediate Possession and Title” to 900-902 N. Chester Street?
We shall answer no, affirm, and explain.
We derive the following facts from the memorandum opinion issued by Judge
Audrey J.S. Carrion of the Circuit Court for Baltimore City: beginning in the 1950s,
Baltimore City, and particularly, the East Baltimore neighborhood, began losing
manufacturing jobs. The City continued to hemorrhage jobs through the 1990s, causing
significant urban decay marked by high crime, high unemployment, population loss, and a
general deterioration in the Middle East neighborhood. 3 Consequently, property values
9. Did the court below continue to have jurisdiction under Md. Rule 2-404
with regard to subpoenaed information after the appeal was filed. ?
10. Was the opinion of the court below, which was based on belief that the
facts of this case were identical to facts in “Segall” contrary to the
evidence?
The City, in its Brief, has consolidated Mr. Makowski’s ten questions into a single issue,
phrased as follows:
Should the Circuit Court of Baltimore City’s Order of Possession and Title to
900-902 N. Chester Street be sustained?
3
According to Baltimore City Ordinance Number 11-453, which authorized the
revitalization efforts leading to the condemnation in this case, the “Middle East”
neighborhood of Baltimore City targeted for redevelopment is identified specifically, by:
Beginning for the same at the intersection of the north side of Gay Street with
the north side of Biddle Street; thence binding on the north side of Biddle
Street easterly to intersect the east side of Patterson Park Avenue; thence
binding on the east side of Patterson Park Avenue southerly to intersect the
3
were in steep decline and the neighborhood became a proverbial ghost town. In an early
attempt to combat these problems, the City attempted “piecemeal” revitalization efforts,
involving the rehabilitation of individual buildings one by one. The piecemeal efforts,
division line between Lots 48 and 49, Ward 7, Section 2, Block 1623; thence
binding on the division line between said Lots 48 and 49 easterly to intersect
the west side of the first 10-foot alley; thence binding on said alley notherly
to intersect the division line between Lots 42 and 43, Ward 7, Section 2,
Block 1623; thence binding on the division line between said Lots 42 and 43
easterly to intersect the north side of the second 10-foot alley; thence binding
on the north side of said alley easterly to intersect the east side of N. Bradford
Street; thence binding on the east side of N. Bradford Street southerly to
intersect the north side of the third 10-foot alley; thence binding on the north
side of said alley easterly to intersect the west side of Milton Avenue; thence
binding on the west side of Milton Avenue southerly to intersect the south
side of a 6’-9” alley south of East Monument Street; thence binding on the
south side of said alley westerly to intersect the west side of a 4’-4” alley;
thence binding on the west side of said alley northerly to intersect the south
side of a 10-foot alley; thence binding on the south side of said alley westerly
to intersect the west side of N. Port Street; thence binding on the west side of
N. Port Street northerly to intersect the south side of a 3-foot alley; thence
binding on the south side of said alley westerly to intersect the east side of N.
Montford Ave; thence binding on the east side of N. Montford Avenue
southerly to intersect the south side of Fayette Street; thence binding on the
south side of Fayette Street westerly to intersect the west side of Collington
Avenue; thence binding on the west side of Collington Avenue northerly to
intersect the north side of Orleans Street; thence binding on the north side of
Orleans Street westerly to intersect the east side of Wolfe Street; thence
binding on the east side of Wolfe Street northerly to intersect the north side
of Jefferson Street; thence binding on the north side of Jefferson Street
easterly to intersect the west side of Washington Street; thence binding on
the west side of Washington Street northerly to intersect the north side of
Monument Street; thence binding on the north side of Monument Street
easterly to intersect the west side of Castle Street; thence binding on the west
side of Castle Street northerly to intersect the south side of Madison Street;
thence binding on the south side of Madison Street westerly to intersect the
east side of Broadway; thence binding on the East side of Broadway
northerly to the point of beginning.
4
however, had proven to be futile, 4 and the continued struggle with urban decay was readily
apparent; Judge Carrion described the neighborhood as depicted in various photographs
that had been admitted into evidence as a “scene more akin to the deserted, urban setting of
a post-disaster film than a thriving, livable community.”
The City, then, turned to more comprehensive redevelopment and revitalization
efforts, including a “non-profit partnership between government, philanthropists,
institutions, and the community” 5 to undertake a massive revitalization of property in the
East Baltimore community, called the Eastern Baltimore Development Initiative
(“EBDI”). EBDI was intended to “address, for the first time, on a comprehensive basis
the blight and disinvestment in the neighborhood” through the redevelopment of an area
4
Judge Carrion described an example of the failed piecemeal revitalization efforts:
For example, the Historic East Baltimore Community Action
Coalition (HEBCAC) program previously made efforts to “arrest the decay
[in East Baltimore] through heterogeneous, and ultimately desultory,
rehabilitation of existing structures.” . . . Sadly, once one building was
rehabilitated and transformed into a functioning, presentable property,
nearby properties frequently became vacant, encouraging further decline.
With dim prospects for financial success, private investors had little to no
incentive to put money into businesses, residences, institutions, or other
amenities in Middle East, or much of East Baltimore in general.
5
According to the Eastern Baltimore Development Initiative’s website, EBDI is
“supported by public and private partners, including the U.S. Government, the State of
Maryland, the City of Baltimore, the Annie E. Casey Foundation, Johns Hopkins
Institutions, The Harry and Jeanette Weinberg Foundation, the Atlantic Philanthropies and
others.” East Baltimore Development Inc., Financial Information,
http://www.ebdi.org/financial_information (last visited June 23, 2014).
5
encompassing 88 acres in proximity to the Johns Hopkins University Medical Campus 6;
specifically, it would involve the construction of “biotechnology, research, and life
sciences buildings, a new community school . . . senior housing . . . , mixed income
residential homes and rental units, commercial and retail property, green/open spaces, a
new park, and fresh food stores.” To acquire the properties necessary for the EBDI
project, the City was authorized, pursuant to the Baltimore City Ordinance No. 11-453
entitled the “Middle East Urban Renewal Plan”, to acquire, via voluntary conveyance or
condemnation, properties in the project area. 7
Mr. Makowski’s property, 900-902 N. Chester Street (“the Property”), located on
Block 1587 8 at the intersection of Chester Street and Ashland Avenue, lies within the heart
of EBDI’s planned development. 9 The Property is located within the footprint of a
planned biotechnology and life sciences facility in the EBDI project, which will “‘house
laboratories and offices, . . . employ hundreds of scientists and support personnel, and . . .
6
The area, specifically, stretches “from N. Patterson Park Avenue in the east, to S.
Broadway in the west, to E. Madison Street in the south, and is bounded on the north by the
Penn Central (AMTRAK/MARC) Railroad line, which curves diagonally in a
southeasterly direction.”
7
The Middle East Urban Renewal Plan was originally enacted in 1979 under Baltimore
City Ordinance No. 79-1202. The ordinance was most recently amended by Ordinance
No. 11-453 in 2011 to, inter alia, reauthorize the City to acquire properties within the
project area, including Mr. Makowski’s property, until December 31, 2014.
8
The Block number refers to the designation provided by the Maryland Department of
Assessments and Taxation.
9
The Property, specifically, is located in Ward 07, Section 03, Block 1587, Lot 081.
6
provide a range of public health services” and will be developed by the Forest City Science
and Technology Group. 10 Due east of the Property, or directly across the street, is a site
where EBDI is currently constructing a new school. 11
The City attempted initially to acquire the Property in April of 2011, when it sent
Mr. Makowski a “Notice of Interest to Acquire.” Approximately nine months later, the
City provided Mr. Makowski with an “Offer of Just Compensation.” After receiving the
City’s offer, Mr. Makowski’s then-tenant, The Answer Inc., moved out of the building; to
compensate Mr. Makowski for any loss he suffered as a result of the lost rent, EBDI and
the City offered to give Mr. Makowski $2,000 monthly, in exchange for which Mr.
Makowski would provide the City a “Right-of-Entry”, permitting the City’s agents to enter
10
According to EBDI’s website:
For over 20 years, Forest City Science + Technology Group has successfully
delivered real estate solutions for science.
Forest City Science + Technology Group is recognized as one of the
country’s leading developers & owners of life science campuses working
with the nation’s leading universities, corporations and research institutions.
Forest City’s research parks bring the worlds of technology & real estate
together serving as a catalyst through which scientific commercialization can
grow & thrive.
East Baltimore Development Inc., Forest City, http://www.ebdi.org/ about_forest_city
(last visited June 23, 2014).
11
Because the new school was under construction at the time the Petition for
Condemnation was filed, the record is unclear as to what had existed on the property
before.
7
the property for purposes of boarding up the building in preparation for demolition. 12 Mr.
Makowski accepted the offer and executed a rental agreement and a Right-of-Entry
agreement, both of which contemplated that the City would ultimately acquire the Property
in terms such as that contained in the rental agreement that stated:
EBDI offers to fairly compensate you for the loss of rental income that you
will experience for 900-902 N. Chester Street. This will be accomplished
by paying The Answer Inc.’s rent obligation of $2,000.00 per month to you
beginning April 1, 2012 and continue until the City’s Condemnation Action
with you is resolved.
(emphasis in original). The Right-of-Entry agreement, likewise, stated:
WHEREAS, It is the City’s Intention to acquire title to the Property at the
earliest possible time as part of the Urban Renewal Plan provided for under
Ordinance No. 1202.
At the time the Circuit Court issued its decision, Mr. Makowski continued to be
compensated at a rate of $2,000 per month.
While the rental agreement was in force and after the City was “unable to negotiate
with and/or agree with” Mr. Makowski “upon a price to be paid for” the Property, the City,
in April of 2012, filed a Petition for Condemnation in the Circuit Court pursuant to
Baltimore City Ordinance Nos. 1202 and 11-453, which stated in pertinent part:
2. It is necessary for the Petitioner to acquire the Fee Simple interest
in and to the property known as 900-902 N. CHESTER STREET in
Baltimore City, State of Maryland (hereinafter called the “property”), Ward
07, Section 03, Block 1587, Lot 081, and more particularly described and
attached hereto in Schedule A, together with improvements thereupon, and
12
The agreement also required Mr. Makowski to release his tenant, The Answer Inc.,
from any existing obligation under the lease agreement.
8
all the rights, ways, waters, easements, privileges, advantages and
appurtenances thereto belonging or in anywise appertaining. The two
properties 900 N. Chester Street and 902 N. Chester Street, having been
consolidated on the tax sale records are now known on the City tax rolls as
the single unit, 900-902 N. Chester Street.
3.This property will be used for redevelopment purposes; namely it is
one of the properties in the East Baltimore Development Initiative, Phase II.
Mr. Makowski challenged the City’s authority to condemn the property, in his response to
the Petition, contending, inter alia, that the City had failed to demonstrate why the
acquisition of the Property was necessary, because, he asserted, the City failed to allege
what it intended to do with the Property. Mr. Makowski also later filed a Motion to
Dismiss Petition for Condemnation, stating in its entirety:
The Petition as filed by Mayor and City Council fails to allege facts
sufficient to support the Petition.
The Petition fails to state sufficient specific facts to support it.
That as filed the Petition does not satisfy the requirements of the U.S.
Constitution and Amendments thereto. [sic] to justify the taking of private
property.
After holding a hearing on the motion, the Circuit Court denied the Motion to Dismiss
Petition for Condemnation; the condemnation case was then scheduled for trial.
Prior to trial, Mr. Makowski became the sole owner on Block 1587 who had not yet
conveyed or agreed to convey his property on Block 1587 to the City. The City filed a
“Petition for Immediate Possession and Title”, pursuant to Section 21-16 of the Code of
Public Local Laws of Baltimore City (2012) 13 (“the quick-take action”), which alleged
13
Section 21-16 of the Code of Public Local Laws of Baltimore City (2012) provides, in
relevant part:
9
that immediate possession of the subject property was necessary::14
1. That previously hereto your Petitioner filed a Petition for
Condemnation as against the fee simple interests in that lot of ground and
premises known as 900-902 N. Chester Street in Baltimore, Maryland.
2. That it is necessary for Petitioner to acquire immediate possession and
title to the said property interest as appears from the affidavit of William N.
Burgee, Director of the Office of Property Acquisition and Relocation,
Department of Housing and Community Development, attached hereto and
prayed to be taken as a part hereof.
(a) Petition for Immediate Taking.
Whenever any proceedings are instituted under Title 12 of the Real
Property Article of Public General Laws of the State of Maryland by
the Mayor and City Council of Baltimore for the acquisition of any
property for any public purpose whatsoever, the Mayor and City
Council of Baltimore, simultaneously with the filing of said
proceedings or at any time thereafter, may file a Petition under oath
stating that it is necessary for the City to have immediate possession
of, or immediate title to and possession of, said property, and the
reasons therefore.
The City shall also set forth in said Petition for Immediate Taking of
possession or immediate taking of title the amount it estimates to be
the fair value of the said property and/or title to be acquired, and of the
respective interest of each of the owners thereof if more than one,
which shall be substantiated by the affidavits of two qualified
appraisers, attached to said Petition. The City shall deposit into Court
simultaneously with the filing of said Petition the amount of said
estimate of the fair value of the property to be acquired.
14
Pursuant to Section 21-16 of the Code of Public Local Laws of Baltimore City (2012),
“[t]he City shall also set forth in said Petition for Immediate Taking of possession or
immediate taking of title the amount it estimates to be the fair value of the said property
and/or title to be acquired” and “deposit into Court simultaneously with the filing of said
Petition the amount of said estimate of the fair value of the property to be acquired.” The
City estimated the fair market value of the property to be $92,000 and deposited that
amount into the Court.
10
3. That the necessity for the taking of such immediate possession of and
title to said property is not due to any substantial fault or neglect on the part
of the Petitioner.
Mr. William Burgee, Director of the Office of Property Acquisition and Relocation, did
file an affidavit in which he asserted that immediate possession of the Property was
necessary because the City had effectively acquired title to all other properties on Block
1587. He also stated that there was a school scheduled to open in August of 2013 to the
east of the Property, prior to which all demolition on Block 1587, including that of the
Property, needed to be completed to “safeguard” the health and safety of the children,
guests, and staff of the school:
4. There is an immediate necessity for the Mayor and City Council to
acquire title to the subject property because it is the lone hold-out among
nearly 150 individual properties in Block 1587, which is bounded on the
north by Eager Street, on the east by Chester Street, on the south by Ashland
Avenue and on the west by Washington Street. The City plans to close
Castle Street in this block and all interior alleys in furtherance of the
development plan. The City has effectively acquired title to all other
properties in the block, and demolition must proceed as soon as possible.
To the east of the subject property, on Block 1588, lies the footprint of a new
school, currently under construction, and to be opened to students in August,
2013. All demolition in Block 1587 must be completed before the school
opens, in order to safeguard the health and safety of the children, faculty and
staff of the new school. All structures in Block 1587 are currently vacant.
The vast majority of them are abandoned, dilapidated boarded structures.
The existence of such structures opposite a new community school for
children as young as five is untenable. These buildings, with their attendant
risk of vagrancy, vermin, disease and criminal activity, cannot be allowed to
menace the school children’s health and well-being. Such buildings are also
fire hazards and structural time-bombs, and as such represent a serious and
growing menace to the public health, safety and welfare.
Likewise, the demolition cannot occur after the school has opened
because of the noise, odor, rat displacement and toxic dust that such
demolition will generate.
11
Mr. Makowski filed a “Response to Petition for Immediate Possession and Title”,
contesting the City’s right to obtain immediate possession of the Property, asserting, once
again, that the City had failed to demonstrate why acquisition of the Property was
necessary. Mr. Makowski also challenged the City’s contention that there was an
immediate need to condemn the property, attaching his own affidavit in which he asserted,
inter alia, that the Property was not the only property that the City had not acquired on
Block 1587:
A check of the location on corner of Chester St and Ashland Ave.
immediately across the street from 900-902 N. Chester St., revealed a
massive incomplete construction site.
The internet information about the school states that the main
entrance is on Chase St., and the school has a Wolfe St. address.
Paragraph 4 of William N. Burgee’s Affidavit incorrectly states that
900-902 is the sole “hold out” in block 1587 and that the City has
“effectively” acquired title to all other properties in the block. It further
mistakenly states that all structures are currently vacant.
On Sunday, June 9, 2013, I went to the area check progress of the
construction site and noted that 2030 Ashland Ave., which is within block
1587 was occupied and still functioning as a church. Services were being
held at the time I was there.
I was informed by one of the Pastors of the Church that they had not
yet found a new location and they seemed to be unaware of any pending
demolition of the block.
The Burgee Affidavit also states that the existence of abandoned,
dilapidated boarded structures cannot continue opposite a new community
school. However properties on Ashland Ave. across the school and streets
intersecting Ashland Ave across from school also fit that description and no
efforts to demolish any of those [] buildings is apparent as of this time.
Likewise the odd side of the 2000 blk of Ashland Ave., and the even side of
the 800 Blk of N. Chester St which are all in view and close proximity to the
school [] do not appear to be in any stage of demolition or preparation for
demolition.
12
Mr. Makowski later filed a “Defendant’s Points and Authorities in Opposition to
Plaintiff’s Petition for Immediate Possession”, in which he also asserted, because the City
intended to convey title to his property to Forest City Enterprises, a private entity, as part of
the EBDI development, that the City was taking private property “to be transferred to
another party”, which, he alleged did not serve a public purpose, thereby violating the
strictures of the Fifth Amendment to the United States Constitution. 15 He also argued,
pursuant to our decision in Mayor and City Council of Baltimore City v. Valsamaki, 397
Md. 222, 916 A.2d 324 (2007), that the City had failed to meet its burden of proving an
immediate need for the Property.
Judge Carrion held a hearing on the City’s right to take the Property. Mr. Burgee
was the City’s only witness, testifying, consistent with his affidavit, that the City had an
immediate need for the Property, because the structures on Block 1587 had to be
demolished prior to the opening of the school in August “to mitigate the possible effects of
dust and other elements that would result from having to do the demolition if the school
15
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the militia, when in actual service in
time of War or public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
U.S. Const. Amend. V (emphasis added).
13
were, in fact, in session.” He also testified that there were only two properties that had not
yet been acquired on Block 1587 within two weeks of the hearing—the Property and a
church located at 2028-2030 Ashland Avenue, which the City had acquired in the
intervening period of time between filing of the quick-take petition and the hearing date:
[MR. BURGEE]: Acquisition-wise specifically until two weeks ago there
were two properties that are not owned, one of which is improved and is
necessary to have been acquired and was, in fact, acquired two weeks ago.
. . . That was the church. That’s in addition, of course, to the subject
property.
***
[COUNSEL FOR THE CITY]: Okay, but in the City’s, as it were, quiver of
properties to be assembled for this project are there anymore, save the
subject we’re here for today, to be acquired?
***
[MR. BURGEE]: No.
Mr. Burgee then explained on cross-examination that, at the time the City filed its
quick-take petition, the owners of the church at 2028-2030 Ashland Avenue had agreed to
convey their property to the City, but title insurance issues delayed its formal conveyance:
[MR. MAKOWSKI]: And at the time when you filed your affidavit saying
you had acquired all the other parties in block 1587, that was not correct, was
it?
[MR. BURGEE]: The affidavit was in support of the acquisition of this
property in which we had under contract and established equitable interest.
***
[MR. MAKOWSKI]: Within [Block 1587], is the property 2028-2030.
Ashland Avenue located?
[MR. BURGEE]: Yes.
[MR. MAKOWSKI]: Is it still occupied to this date?
[MR. BURGEE]: Yes.
[MR. MAKOWSKI]: So when you say that you had acquired all - - that I was
the lone holdout; that was not correct?
[MR. BURGEE]: We had acquired it.
14
[MR. MAKOWSKI]: But you didn’t have it at the time you filed the - -
[MR. BURGEE]: We had an auction contract, which the title insurance
company said was insufficient to go forward. . . . A defect in the title at the
level of underwriting the title to go to settlement emerged and the title
insurance company requested to have the vestry of the church or the
appropriate body that governs the business decisions of the church to meet
and to perform what they needed to do to satisfy a title insurance company.
They did that and it went to settlement.
After Mr. Burgee concluded his testimony, Mr. Makowski testified on his own
behalf and offered into evidence photographs of the school construction site, purporting to
show that construction would not be completed by the August 2013 date. Mr. Makowski,
additionally, sought to offer into evidence a map that he proffered would show that the
Property was located within a historical district 16 and that the planned development plan
would, therefore, be in contravention of the Urban Renewal Ordinance (“Ordinance”),
which he testified, “speaks of the historic character of the properties and maintaining the
historic character of the properties.” 17 Counsel for the City objected, however, asserting
that the map was not admissible because it had not been authenticated; Judge Carrion
16
A Baltimore City Historic District is “an area in Baltimore City wherein, there are
located buildings and structures which have demonstrated special architectural, historical,
cultural, economic, social, or community significance. This program is overseen by the
Commission for Historical and Architectural Preservation.” City of Baltimore, Historical
and Architectural Preservation, http://www.baltimorecity.gov/Government/Boardsand
Commissions/HistoricalArchitecturalPreservation/HistoricDistricts.aspx (last visited June
23, 2014).
17
The Ordinance makes a number of references to preserving the historic character of the
East Baltimore neighborhood. For example, the Ordinance provides, with respect to
rehabilitation, that “[c]leaning of masonry facades by means of sandblasting shall not be
permitted, except where sandblasting is determined by the Commissioner of the
Department of Housing and Community Development . . . not [to] cause damage to historic
building materials.”
15
sustained the objection.
Judge Carrion, thereafter, issued a memorandum opinion and order, in which she
ordered that the City “be vested with possession of and title in the fee simple interest in that
property known as 900-902 N. Chester Street, Baltimore, Maryland . . . together with the
buildings thereupon, and the rights, alleys, ways, waters, privileges, appurtenances, and
advantages thereupon . . . .” She found, with respect to the City’s authority to take the
property, that:
[A] long-standing Urban Renew Plan for the Middle East
neighborhood expressly permits the acquisition of properties within the
project area, “by purchase or by condemnation either for clearance and
redevelopment, for rehabilitation, or for public facilities.” . . . Appendix D of
the Urban Renewal Plan for the Middle East neighborhood lists the subject
property as one of the properties “being acquired and disposed of for
rehabilitation or redevelopment.” . . . The purpose of the massive EBDI
project at issue is the redevelopment and renewal, through a master plan
years in the making and a colossal influx of investment, of an East Baltimore
neighborhood that has suffered from urban decay for decades. By
endeavoring to improve Middle East and dramatically reduce blight through
a massive redevelopment and revitalization project of an 88-acre sector,
Baltimore City is condemning the subject property for a public purpose.
She opined, then, that, “[t]he Court of Appeals has long held that municipalities possess
power under the Maryland Constitution to condemn property for redevelopment
purposes”, and concluded, therefore, that “there is no question that Plaintiff has the lawful
power to condemn the subject property.”
With respect to the “quick-take”, Judge Carrion credited the City’s evidence that
Mr. Makowski was the lone “hold-out”, thereby inhibiting further development of the
EBDI project:
16
Currently, the subject property is the only hold-out – in other words, the only
property out of nearly 150 individual properties found in Block 1587 to
which Baltimore City had not acquired title. . . . Demolition and the
corresponding redevelopment/renewal for the EBDI project’s Phase II on
Block 1587 and the surrounding area cannot proceed until the City
consolidates title to all properties located there, including the subject
property.
Applying our decisions in Valsamaki, 397 Md. 222, 916 A.2d 324 and Sapero v. Mayor
and City Council of Baltimore, 398 Md. 317, 920 A.2d 1061 (2007), she concluded that the
City had met the “high threshold for situations to qualify as ‘necessary’ for Baltimore City
to have ‘immediate’ possession and/or title to real property”, because Mr. Makowski was a
“hold-out”:
A hold out occurs where, “[d]uring property assemblages, whether private or
public, one or more property owners resist selling, wanting to be the last
owner of a parcel or among the last, in order to be able to demand higher
prices for their property because they are holding up a larger project.”
Valsamaki, 397 Md. at 257 n.18. To counter such action, the Court of
Appeals explained, “[i]n public acquisitions, the condemnation process –
even quick-take actions – are available.”
***
In the case at bar, this Court is presented with facts identical to those
in Segall. The hold-out occurring here, to be sure, is a perfect example of
the circumstances Valsamaki and Sapero highlighted as potentially offering
sufficient immediacy and necessity to validate the use of quick-take
condemnation.
Because Judge Carrion concluded that Mr. Makowski being a “hold-out” was sufficient to
justify a quick-take condemnation, she expressly declined to address the City’s contention
that “safety concerns over the future demolition of Block 1587 occurring directly across
from the new school provide[d] the necessity, immediacy, or exigency needed for a
quick-take condemnation of the subject property.”
17
Mr. Makowski, thereafter, filed a “Motion for Reconsideration Order Granting
City’s Petition for Immediate Possession and Title to Vacate, Alter or Amend Order Dated
June 28, 2013”, in which he challenged the Circuit Court’s finding that he was the “sole
hold-out”:
The hold out assertion was simply not true at the time the City filed Petition
for Quick Take. The property located at 2028-2030 Ashland Ave. did not
belong to the City at the time it filed for Quick Take of Defendant’s property.
The City at that time had not reached any agreement with owners of 2028
Ashland Ave. and that property was still actively being used after City served
Defendant with Quick Take Petition.
He also asserted that the condemnation violated Constitutional principles, because the City
failed to demonstrate why acquiring the Property was necessary for the development. His
motion was denied.
Mr. Makowski then noted an appeal to the Court of Special Appeals from “the
Circuit Court’s determinations in a QUICK TAKE PROCEEDING”; because quick-take
proceedings proceed directly to this Court, his appeal was transferred to this Court. We
confront, then, essentially the same issue faced by Judge Carrion—whether the facts as
found justify a “quick-take” condemnation action.
The State’s power of eminent domain or “[t]he inherent power of a governmental
entity to take privately owned property, esp[ecially] land, and convert it to public use,
subject to reasonable compensation”, Valsamaki, 397 Md. at 241, 916 A.2d at 335,
quoting Black’s Law Dictionary 562 (8th ed. 2004), is a power inherent in sovereign
authority. Riden v. Phila., Balt. &Wash. R.R. Co., 182 Md. 336, 339, 35 A.2d 99, 100
18
(1943). It is also a power limited by the Federal and Maryland Constitutions, 18 both of
which require that private property only be taken for “public use” and that the property
owner receive “just compensation” for any taking. See Kelo v. City of New London,
Connecticut, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005); Prince George’s
County v. Collington Crossroads, Inc., 275 Md. 171, 188, 339 A.2d 278, 287 (1975). The
Maryland Constitution specifically authorizes condemnation actions by Baltimore City for
the purposes of “comprehensive renovation or rehabilitation” and declares such use to be a
“public use”:
The General Assembly of Maryland, by public local law, may authorize and
empower the Mayor and City Council of Baltimore:
(a) To acquire, within the boundary lines of Baltimore City, land and
property of every kind, and any right, interest, franchise, easement or
privilege therein, by purchase, lease, gift, condemnation or any other legal
means, for development or redevelopment, including, but not limited to, the
comprehensive renovation or rehabilitation Thereof and;
***
All land or property needed, or taken by the exercise of the power of eminent
domain, by the Mayor and City Council of Baltimore for any of the
aforementioned purposes or in connection with the exercise of any of the
powers which may be granted to the Mayor and City Council of Baltimore
pursuant to this Article is hereby declared to be needed or taken for a public
use.
18
Specifically, the Fifth Amendment to the United States Constitution, made applicable to
the states through the Fourteenth Amendment, provides, “No person shall . . . be deprived
of life, liberty, or property, without due process of law; nor shall private property be taken
for public use, without just compensation.” U.S. Const. Amend. V. Likewise, Article
III, Section 40 of the Maryland Constitution provides, “The General Assembly shall enact
no Law authorizing private property, to be taken for public use, without just compensation,
as agreed upon by the parties, or awarded by a Jury, being first paid or tendered to the party
entitled to such compensation.”
19
Maryland Constitution Article XI-B, Section 1. The Maryland Constitution also
authorizes certain local and state entities, including Baltimore City, to engage in
“immediate” takings, under which “the General Assembly may provide that . . . property
may be taken immediately upon payment therefor to the owner or owners thereof by the
State or by the Mayor and City Council of Baltimore, or into court, such amount as the
State or the Mayor and City Council of Baltimore, as the case may be, shall estimate to be
the fair value of said property.” Maryland Constitution Article III, Section 40A. When
the sovereign engages in “immediate” takings or “quick-takes”, “the condemning authority
takes possession of the property prior to trial upon payment into court of its estimate of the
value of the property taken.” King v. State Roads Comm’n of the State Highway
Admin., 298 Md. 80, 85-86, 467 A.2d 1032, 1035 (1983). The parties litigate the issue of
compensation only after the sovereign has acquired title and possession of the property. 19
Baltimore City’s quick-take authority is governed by Section 21-16 of the Code of
Public Local Laws, which provides in relevant part:
(a) Petition for Immediate Taking.
Whenever any proceedings are instituted under Title 12 of the Real Property
Article[20] of Public General Laws of the State of Maryland by the Mayor and
City Council of Baltimore for the acquisition of any property for any public
purpose whatsoever, the Mayor and City Council of Baltimore,
simultaneously with the filing of said proceedings or at any time thereafter,
19
Quick-take actions are distinct from traditional condemnation proceedings, in which the
sovereign does not take possession of the property until after the issue of just compensation
is fully litigated. See Rule 12-210.
20
Title 12 of the Real Property Article applies to “Eminent Domain.”
20
may file a Petition under oath stating that it is necessary for the City to have
immediate possession of, or immediate title to and possession of, said
property, and the reasons therefore.
The City shall also set forth in said Petition for Immediate Taking of
possession or immediate taking of title the amount it estimates to be the fair
value of the said property and/or title to be acquired, and of the respective
interest of each of the owners thereof if more than one, which shall be
substantiated by the affidavits of two qualified appraisers, attached to said
Petition. The City shall deposit into Court simultaneously with the filing of
said Petition the amount of said estimate of the fair value of the property to
be acquired.
In Valsamaki, 397 Md. 222, 916 A.2d 324, we had occasion to interpret Section 21-16.
The City had filed a “quick-take” petition, seeking to condemn Valsamaki’s property,
asserting, only, that immediate possession was necessary to “assist in business expansion.”
The Circuit Court, after a hearing, denied the City’s petition and we affirmed. In so doing,
we reasoned that, in enacting Section 21-16, the City Council had required “the City to
establish under oath the immediacy of the need for quick-take condemnation”, and
therefore, imposed a “burden of proof on the City to establish that immediate need.” Id. at
246, 916 A.2d at 338. We concluded, then, that to prevail in a quick-take condemnation,
the City must prove that the property is being condemned for a public use and that it has an
immediate need to acquire the property, which it had not done. 21
21
In Valsamaki, we distinguished between the City’s burden in a quick-take
condemnation, as opposed to a traditional condemnation:
In the case of regular condemnation, once the City establishes at least
a minimal level of public use or purpose, judicial review may be thereafter
limited to determining that the agency’s decision is not so oppressive,
arbitrary or unreasonable as to suggest bad faith; that, however, is not the
case in assessing immediacy in a quick-take condemnation action in
21
Less than two months after issuing our decision in Valsamaki, we decided Sapero,
398 Md. 317, 920 A.2d 1061, in which we reversed the Circuit Court’s decision to grant
Baltimore City’s quick-take petition after the City had, again, asserted only that acquisition
of the subject property was necessary at “the earliest possible time in order to assist in
business expansion.” Id. at 327, 920 A.2d at 1066-67 (quotations omitted). We
concluded that the City had failed to meet its burden of proving an immediate need for the
property, emphasizing that the City must provide specific evidence of an immediate need,
not merely a bald assertion that one exists. We did acknowledge, however, in both
Valsamaki and Sapero, that there were cases in which the immediacy requirement had been
satisfied under Section 21-16—when the subject property posed a health risk to the public,
Free State Realty Co., Inc. v. Mayor and City Council of Baltimore, 279 Md. 550, 369 A.2d
1030 (1977), and in “hold out situations”. Segall v. Mayor and City Council of Baltimore,
273 Md. 647, 331 A.2d 298 (1975).
A “hold-out” occurs in projects involving property assemblages, i.e., when multiple
properties are assembled for a single project, where “one or more property owners resist
selling, wanting to be the last owner of a parcel or among the last, in order to be able to
Baltimore City under § 21–16. Rather, the court must also determine
whether there is a necessity to justify an immediate taking and, in that
determination, must be able to assess the reasons for the immediacy. Section
21–16 expressly requires the City to state reasons relating to immediacy,
thus the City has the burden not only to present a prima facie case of public
use, but, additionally, in a quick-take action, the burden to establish the
necessity for an immediate taking.
Id. at 254, 916 A.2d at 343.
22
demand higher prices for their property because they are holding up a large project.”
Valsamaki, 397 Md. at 257 n.18, 916 A.2d at 344-45 n.18. Segall was our seminal
hold-out case, in which, in a per curiam opinion, we concluded that an affidavit by the City
alleging “‘[t]hat all other property interests in the ten disposition lot areas aforesaid ha[d]
been acquired, and demolition and sale of the entire site areas [could] not be completed
until possession and title of the subject property interests [were] granted to the City” was
adequate to justify a quick-take under Section 21-16. Segall, 273 Md. at 648, 331 A.2d at
298-99 (alterations in original). In both Valsamaki and Sapero we iterated that the facts of
Segall presented a “hold-out” situation under which a “quick-take” is warranted. See
Valsamaki, 397 Md. at 256, 916 A.2d at 344 (noting that “[t]he City needs a more concrete,
immediate necessity for an exercise of such power” and citing Segall as such an example);
Sapero, 398 Md. at 347, 920 A.2d at 1079 (“These quick-take condemnations deal with the
fundamental right to property, and any resulting deprivation of process—that which is
normally provided under regular condemnation proceedings—should not occur unless
warranted by extreme circumstances. Such extreme circumstances can arise . . . possibly in
extreme cases of ‘hold-outs,’ Segall, 273 Md. at 648, 331 A.2d at 298-99.”).
Hold-outs pose a significant problem in public projects; when the government seeks
to address a problem such as community blight on a comprehensive basis, it, necessarily,
needs to acquire multiple properties. Because of the democratic process and “the nature
of public scrutiny”, the need to acquire properties within a given area becomes public
knowledge. Daniel B. Kelly, The “Public Use” Requirement in Eminent Domain Law: A
23
Rationale Based on Secret Purchases and Private Influence, 92 Cornell L. Rev. 1, 5
(2006). Because the public, and particularly, the owners of the properties the government
seeks to acquire, have knowledge of the government’s plans, the sovereign is placed at a
“severe disadvantage” when it attempts to negotiate for the property’s acquisition. Steve
P. Calandrillo, Eminent Domain Economics: Should “Just Compensation” Be Abolished,
and Would “Takings Insurance” Work Instead?, 64 Ohio St. L. J. 451, 468-69 (2003).
The problem is exacerbated when the government acquires a significant portion of the
needed properties and the remaining owners are unwilling to sell. These owners, or
“hold-outs”, become “monopoly suppliers of the assembled land”, and thus, obtain a
significant bargaining advantage, as they may seek to sell the property to the government
for an inflated price, because they know about the government’s need. Michael Heller &
Rick Hills, Land Assembly Districts, 121 Harv. L. Rev. 1465, 1472-75 (2008).
Accordingly, “quick-take actions . . . are available to address the situation.” Valsamaki,
397 Md. at 257 n.18, 916 A.2d at 345 n.18; cf. also Cottonwood Christian Ctr. v. Cypress
Redevelopment Agency, 218 F. Supp. 2d 1203, 1231 (C.D. Cal. 2002) (“Eminent domain
can even be an effective tool against free-riders who hold-out for exorbitant prices when
private developers are attempting to assemble parcels for public places . . . .”). 22
22
Private developers often avoid the “hold-out” problem by utilizing “buying agents” to
conceal the fact that they are seeking to acquire multiple properties to avoid paying a
higher price. As one commentator has explained:
Private companies frequently deal with the potential holdout problem by
creating various facades behind which they can hide. Rather than disclose
24
In Segall, Baltimore City had filed a Petition for Immediate Possession and Title,
pursuant to Section 21-16, and sought to condemn Segall’s property for “urban renewal
purposes” as part of an urban renewal plan entitled the “Upton Project”. In support of its
Petition, the City had attached an affidavit of Mr. Jerome M. Katz, the City’s Land
Acquisition Officer of the Department of Housing and Community Development, alleging
that it was necessary to acquire title and possession to ten separate lots as part of the urban
renewal plan and that Segall’s property was the only property to which it had not yet
acquired, thereby preventing demolition:
1. That it is necessary for the Mayor and City Council of Baltimore to acquire
title to and possession of the following listed property interests which form
portions of ten separate disposition lots in accordance with the master plan
for the Upton Redevelopment area.
2. That owner-occupants or tenants of the affected leasehold and fee simple
areas will have the right to 90 days of continued occupancy under federal
regulations dating from the time that possession of the subject property
interests is granted to the Mayor and City Council of Baltimore.
3. That all other property interests in the ten disposition lot areas
aforesaid have been acquired, and demolition and sale of the entire site
areas cannot be completed until possession and title of the subject
property interests are granted to the City.
(emphasis added). Segall answered, alleging that the City did not have an immediate need
their large commercial construction plans and negotiate with all the
landowners openly, they hire many different individuals or property
management companies to approach each landowner separately. The
property owners never become suspicious that a large scale project is in the
works, and therefore, do not attempt to exact an artificially inflated price
from the buyers.
Steve P. Calandrillo, Eminent Domain Economics: Should “Just Compensation” Be
Abolished, and Would “Takings Insurance” Work Instead?, 64 Ohio St. L. J. 451, 469 n.78
(2003).
25
to acquire the property. The Circuit Court granted the Petition for Immediate Possession
and Segall moved to set aside the order, which was denied; we affirmed.
As in Segall, the City’s inability in the present case to acquire the Property
prevented it from engaging in demolition in furtherance of an urban renewal plan. Indeed,
Mr. Makowski’s property, one of almost 150 other properties in totality, inhibited further
development to a greater degree than did any one of the Segall properties, because his was
the only property on Block 1587 that was left. Mr. Makowksi, thus, retained leverage to
hold a hammer over the City in order to gain financial advantage, and accordingly, was a
“hold-out” within the meaning of Segall.
Mr. Makowski’s attempt to distinguish Segall is unavailing. He asserts that, unlike
Segall, the City, in the present case, had not acquired all of the properties on Block 1587,
based, primarily, on Mr. Burgee’s testimony that, at the time of filing the Petition, the City
had not acquired the church property. 23 Judge Carrion, however, concluded otherwise,
finding that, “the subject property is the only hold-out—in other words, the only property
out of nearly 150 individual properties found in Block 1587 to which Baltimore City has
23
Mr. Makowski also challenges the propriety of the quick-take on the basis that the City
failed to act in good faith in valuing the property, referring us to his motion for
reconsideration in which he attached deeds indicating that two nearby properties had been
conveyed to the City for a higher price than was offered for Mr. Makowski’s property. He
asserts, first, that he could not be considered a “hold-out” because the City never extended
a good-faith offer for the property, and second, that the offer of compensation failed to
comply with the Constitutional requirement that he be awarded “just compensation.” The
right-to-take hearing, however, is “only for the purpose of contesting the right or power of
the City to condemn title to the property.” Section 21-16(c). Issues with regard to
compensation, therefore, are not before us.
26
not acquired title” and the evidence adduced at trial clearly supports Judge Carrion’s
finding. Mr. Burgee testified that, despite formal conveyance having not been completed
due to title insurance issues, the owners of the church were under contract to convey
2028-2030 Ashland Avenue to the City and had indeed done so two weeks prior to the
hearing. He, likewise, testified that demolition of the Property and the “whole square
block” needed to occur, and that the City could not do so until acquiring the Property. Mr.
Makowski relies solely on the fact that formal conveyance of the church had not been
effectuated at the time the quick-take petition was filed. A “hold-out” occurs, however,
when the remaining property-owners are unwilling to sell; because the owners of the
church were willing to sell, as indicated by the auction contract Mr. Burgee testified the
church owners had executed, Judge Carrion correctly recognized that Mr. Makowski was
the sole “hold-out” on Block 1587. 24 We conclude, therefore, that the quick-take action
was warranted. 25
24
Mr. Makowski also argues that Judge Carrion’s finding was erroneous because of a
vague reference by Mr. Burgee to an “outlier” property:
[MR. BURGEE]: And then the other outlier, if you will, property is not as
compelling to acquire because it’s already been demolished and its vacant
land so there is no demolition activity associated with a vacant property.
Aside from this one reference there was no evidence adduced with respect to an alleged
“outlier” that inhibited development.
25
In his Brief, Mr. Makowski raises the issue of, “[w]hat burden of proof should be
required of the Petitioner when taking property via quick take proceeding?” Although
Mr. Makowski does not contend that Judge Carrion applied the wrong burden, he asserts
that “the burden of proof should be that the necessity for immediate taking be shown by at
27
We address, now, a number of other issues raised by Mr. Makowski. The first
issue is an alleged evidentiary error pertaining to Judge Carrion’s decision to exclude
evidence regarding whether the demolition of the Property was consistent with the Urban
Renewal Ordinance’s references to preserving the historic character of East Baltimore.
Specifically, Mr. Makowski sought to question Mr. Burgee on the stand regarding a map
the very least: Clear and Convincing evidence,” which, he argues was not met, relying on
language from Sapero in which we stated:
Concerning the immediate necessity for quick-take condemnation,
Mr. Sapero asserts that § 21–16 “specifically require[s] that some justifiable,
readily apparent and irrefutable evidence [must] exist that a taking is
necessary, not just a bald assertion that a necessary reason exists.” And
furthermore, that “[t]he quick-take law’s plain language initially places the
burden of proof upon the Petitioner requesting immediate possession, that is,
[the City], to provide reasons for the necessity for immediate possession, not
just some general assertions that a reason exists.” We agree with the gist
of Mr. Sapero’s contentions. They are in accord with our decision
in Valsamaki, 397 Md. 222, 916 A.2d 324.
Sapero v. Mayor and City Council of Baltimore, 398 Md. 317, 335-36, 920 A.2d 1061,
1072 (2007). The language quoted above from Sapero merely iterates that the City must
offer evidence of an immediate need, rather than a bald assertion that one exists. In the
instant case, as we have explained, the City provided undisputed testimony that Mr.
Makowski was the only property owner on Block 1587 who had not yet agreed to convey
his property to the City, thereby satisfying the dictates of Sapero.
Nothing from Valsamaki or Sapero, however, requires that the City bear a burden
higher than what is traditionally required in civil cases—a preponderance of the evidence.
See generally Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 134, 797 A.2d
770, 786 (2002) (“The most widely applied measure of the ultimate burden of persuasion
in civil cases is by a preponderance of the evidence . . . .”). As one oft-quoted
commentator on the Maryland Rules of Evidence has observed, the clear and convincing
standard “is applied when a particular claim or defense is disfavored for policy reasons, or
the act alleged is one of moral turpitude or that would otherwise have stigmatic impact.”
Lynn McLain, Maryland Evidence State and Federal § 300:4 (Vol. 5, 2013 Supp.), neither
of which is applicable to quick-take condemnations.
28
that he proffered would have shown that the Property was in an area of Baltimore
designated as “historic.” The City objected on the grounds that Mr. Burgee testified that
he did not recognize the map, and asserted, therefore, that Mr. Makowski had failed to
properly authenticate it:
[COUNSEL FOR THE CITY]: Well, Mr. Burgee first testified that he
doesn’t know, that he’s not familiar with the document. He doesn’t know
what it is. Mr. Makowski has instructed him that there are certain
nomenclature at the bottom of the document - - document seeming to
indicate what it is but there’s nothing to verify what it is. It’s a one-page
printed document. I’m not sure how it’s pertinent or relevant or - - and
certainly not authenticated.
Mr. Makowski responded that he had received the map from the City:
[MR. MAKOWSKI]: Your Honor, I got that from the City of Baltimore in
the same building that [the Assistant City Solicitor] works in on the eighth
floor. I sent copies of it to [the Assistant City Solicitor]. I attached it to my
response in a colored copy I attached to the response I filed to their motion
for quick take.
So it’s not that it’s coming here also for the first time. It’s a
document that has the City of Baltimore’s logo at the bottom where it was
issued from.
Judge Carrion sustained the objection.
Authentication of a document is governed by Rule 5-901, which states, “[t]he
requirement of authentication or identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” The Rule further elucidates a myriad of ways to authenticate
evidence; the most pertinent to the instant matter is Rule 5-901(b)(1), which provides that
evidence may be authenticated through “[t]estimony of a witness with knowledge that the
29
offered evidence is what it is claimed to be.” Mr. Burgee, however, testified that he had
never seen the document before nor recognized it. Accordingly, Mr. Makowski failed to
authenticate the document.
Mr. Makowski argues, next, that the Circuit Court erred in denying his “Motion for
Leave to Perpetuate Evidence and Motion for Order to Compel Plaintiff to Produce
Documents that were Subpoenaed” pursuant to Rule 2-404, 26 as well as in granting the
City’s “Motion to Quash Subpoenas.” These orders were issued after Mr. Makowski
noted his appeal in this case and are not appropriate for our review. See, e.g., Lazenby v.
Asher, Jr. & Sons, Inc., 266 Md. 679, 688, 296 A.2d 699, 704 (1972); Silverberg v.
26
Rule 2-404 provides, in relevant part:
(b) Pending Appeal. After an appeal has been taken or before an appeal is
taken if the appeal period has not expired, the circuit court in which the
judgment or appealable order was entered may allow perpetuation of
evidence for use in the event of further proceedings in that court. A motion
for leave to perpetuate evidence shall be filed and served as if the action were
pending in the circuit court. The motion shall identify (1) the reasons for
perpetuating evidence, (2) the persons to be examined and the substance of
the testimony expected from each, and (3) the documents or things to be
inspected and preserved, if any. If the court finds that perpetuation of the
evidence is proper to avoid a failure or delay of justice, it may enter an order
allowing depositions to be taken, permitting documents and tangible things
to be inspected or copied as provided by Rule 2-422, or requiring submission
to a mental or physical examination as provided by Rule 2-423. The court's
order may include any provision which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense. Testimony perpetuated in accordance with this section may be used
to the extent permitted by Rule 2-419. Use of evidence perpetuated in
accordance with this section shall be subject to the court's order permitting it
to be perpetuated.
30
Silverberg, 148 Md. 682, 687-89,130 A. 325, 327 (1925), disapproved of on other grounds
by Lewis v. Lewis, 219 Md. 313, 149 A.2d 403 (1959); Baltimore Skate Mfg. Co. v.
Randall, 112 Md. 411, 414, 76 A. 491, 493 (1910). 27
Mr. Makowski, finally, argues that the City provided him with “eleventh hour
cursory, superficial evasive and incomplete discovery responses”, contending, generally,
that “[d]ocuments requested were not produced”, the City did not “provide any specific
response as to each of the document requests”, and that “the [i]nterrogatory [a]nswers were
deficient, evasive and non responsive”. Mr. Makowski did not file a motion to compel
discovery pursuant to Rule 2-432(b), which permits “[a] discovering party, upon
reasonable notice to other parties and all persons affected” to “move for an order
compelling discovery if”, inter alia, “a party fails to answer an interrogatory submitted
under Rule 2-421” or “a party fails to comply with a request for production or inspection
under Rule 2-422,” Rule 2-432(b), 28 so that the trial court did not decide the discovery
27
Even were Mr. Makowski’s arguments with respect to his Motion For Leave to
Perpetuate properly before us, they would be unavailing, because the motion itself was
insufficient. Although we have not yet had occasion to interpret Rule 2-404, Judge Glenn
Harrell, then-writing for the Court of Special Appeals, has explained, “the very function of
a rule permitting perpetuation of evidence is to preserve evidence that would otherwise be
in danger of later becoming unavailable”, and therefore, a motion to perpetuate the
evidence should not be granted without a showing that “a person seeking to perpetuate
testimony or other evidence pursuant to Rule 2-404 [has] set forth sufficient facts to
demonstrate that the immediate taking of testimony is made necessary because there exists
some actual risk that the evidence sought might be lost by delay.” Allen v. Allen, 105 Md.
App. 359, 373, 659 A.2d 411, 417 (1995) (footnoted omitted).
28
Rule 2-432(b), provides, in its entirety, that:
31
issue. The issue, therefore, is not properly before us, pursuant to Rule 8-131(a), providing
that, “[o]rdinarily, the appellate court will not decide any other issue unless it plainly
appears by the record to have been raised in or decided by the trial court”. Rule 8-131(a).
We have explained that the purpose of Rule 8-131 is to allow “trial courts to
explicate, to some degree, just what they are deciding or finding so that we may perform
our tasks.” Wilkerson v. State, 420 Md. 573, 597, 24 A.3d 703, 717 (2011). Rule 8-131,
likewise, serves the “interests of fairness . . . by ‘requir[ing] counsel to bring the position of
(b) For Order Compelling Discovery.
(1) When Available. A discovering party, upon reasonable notice to other
parties and all persons affected, may move for an order compelling discovery
if
(A) there is a failure of discovery as described in section (a) of this Rule,
(B) a deponent fails to answer a question asked in an oral or written
deposition,
(C) a corporation or other entity fails to make a designation under Rule 2-412
(d),
(D) a party fails to answer an interrogatory submitted under Rule 2-421,
(E) a party fails to comply with a request for production or inspection
under Rule 2-422,
(F) a party fails to supplement a response under Rule 2-401 (e), or
(G) a nonparty deponent fails to produce tangible evidence without having
filed written objection under Rule 2-510 (f).
(2) Contents of Motion. A motion for an order compelling discovery shall set
forth: the question, interrogatory, or request; and the answer or objection;
and the reasons why discovery should be compelled. Instead of setting forth
the questions and the answers or objections from a deposition, the relevant
part of the transcript may be attached to the motion. The motion need not set
forth the set of interrogatories or requests when no response has been served.
If the court denies the motion in whole or in part, it may enter any protective
order it could have entered on a motion pursuant to Rule 2-403. For purposes
of this section, an evasive or incomplete answer is to be treated as a failure to
answer.
32
their client to the attention of the lower court at the trial so that the trial court can pass upon,
and possibly correct any errors in the proceedings.’” Conyers v. State, 354 Md. 132, 149,
729 A.2d 910, 918-19 (1999) (alterations in original). In this case, the trial court never
had an opportunity to address the alleged omissions; we do not, therefore, address the
adequacy of the City’s discovery responses.
For all of the foregoing reasons, we affirm the decision of the Circuit Court.
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY
AFFIRMED. COSTS TO BE PAID
BY APPELLANT.
33