Town of New Market v. Milrey, Inc.-FDI Partnership

602 A.2d 201, 90 Md. App. 528, 1992 Md. App. LEXIS 49
CourtCourt of Special Appeals of Maryland
DecidedFebruary 28, 1992
DocketNo. 744
StatusPublished
Cited by6 cases

This text of 602 A.2d 201 (Town of New Market v. Milrey, Inc.-FDI Partnership) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Town of New Market v. Milrey, Inc.-FDI Partnership, 602 A.2d 201, 90 Md. App. 528, 1992 Md. App. LEXIS 49 (Md. Ct. App. 1992).

Opinion

BISHOP, Judge.

Appellant, Town of New Market (the “Town”), appeals from an order of the Circuit Court for Frederick County (Stepler, J.) that granted summary judgment in favor of [531]*531appellee, Milrey, Inc.-FDI Partnership (“MFP”). MFP was formerly known as NVR-FDI Associates. A Notice of Substitution of a Party was filed pursuant to Md. Rule 2-241 substituting Milrey, Inc.-FDI Partnership for NVR-FDI Associates. Throughout our opinion, we refer to appellee as “MFP.”

ISSUES PRESENTED

The Town presents the following issues:

I. Did the trial court err in granting MFP’s motion for summary judgment by failing to give legal effect to the Town’s curative actions to correct allegedly defective wording in its October 11, 1989 Annexation Resolution?

II. Did the trial court err in granting MFP’s motion for summary judgment by construing Md. Ann.Code art. 23A, § 19 to require precise mathematical certainty in the courses and distances description in municipal annexation resolutions?

We hold that the trial court did not err in either respect.

FACTS AND PRIOR PROCEEDINGS

This case returns to this Court after remand to the circuit court in an unreported opinion, Town of New Market v. NVR-FDI Associates, No. 2003, September Term, 1989, filed October 17, 1990. The facts of that case are pertinent to our current discussion.

On July 12, 1989, certain residents of Frederick County presented a petition for annexation to the Town. On October 11, 1989, the Town Council adopted a resolution of annexation (the “Annexation Resolution”). As described by the Town in a document entitled Outline for the Extension of Services, the area to be annexed was 139.308 acres: 96.71 owned by MFP; 26.37 owned by the Board of Education; and the remainder owned by private individuals.

The only description in the Annexation Resolution of the property to be annexed was a courses and distances description.

[532]*532On October 17, 1989, MFP filed a Complaint for Declaratory, Injunctive and Other Relief in the Circuit Court for Frederick County containing three counts. These counts are not the subject of this appeal. Thereafter, the Complaint was amended to contain a fourth count that alleged that the courses and distances description in the Annexation Resolution failed to close, leaving a gap of over 500 feet, and, thus, the resolution failed to comply with Md.Ann.Code art. 23A, § 19. MFP subsequently filed a Motion for Summary Judgment on Count IV of the Amended Complaint pursuant to Md. Rule 2-501.

In November 1989, after a hearing, the circuit court granted MFP’s request for an interlocutory injunction. The order stayed the 45 day time period in which to petition for a referendum on the Annexation Resolution.

A hearing on the motion for summary judgment on Count IV was held on January 11, 1990. At the hearing, the Town produced for the consideration of the court “A Resolution Amending A Resolution To Correct Defects In Wording” (the “Amending Resolution”). The Amending Resolution was purportedly adopted by the Town Council at a regularly scheduled meeting held the evening before, January 10, 1990, and intended to correct defects in the previous description. It stated that: “[t]he courses and distances description of the area proposed to be included in the change of the corporate boundaries contained an error in wording,” and “[i]t was the intention of the Mayor and Town Council of the Town of New Market to accurately describe the area to be annexed[.]” The Amending Resolution contained several pages of a courses and distances description intended to replace the inaccurate description in the Annexation Resolution. It is uncontested that the Amending Resolution was adopted without first publishing it. According to an affidavit supplied by MFP, two lots were sold during the time period between the adoption of the Annexation Resolution and the Amending Resolution.

The Town also produced for the trial court’s consideration the affidavit of a registered land surveyor who stated that [533]*533the Annexation Resolution and the Amending Resolution together described the exact area proposed to be included in the annexation.

Counsel for the Town suggested that the Amending Resolution “rendered moot th[e] fourth count in [MFP’s] Complaint, as well as the summary judgment motion.” The court, however, responded that the Amending Resolution and the affidavit were not before it and granted MFP’s motion for summary judgment on Count IV. The Order of the court granting MFP’s motion for summary judgment as to Count IV of the Amended Complaint stated:

the description of the property to be annexed in the Resolution of annexation adopted by the Town of New Market fails to comply with the requirement of Article 23A, § 19(b) that the resolution describe by a survey of the courses and distances ‘the exact area proposed to be included in the change.’ It is undisputed that the description in the Resolution fails to close by over 526 feet. Accordingly, this Court finds and declares that the annexation Resolution adopted by the Town of New Market on October 11, 1989 is void and not effective to annex the property[.]

This decision rendered the other three counts moot and was a final appealable judgment.

The Town appealed from the Order contending that the trial court committed reversible error in failing to consider the Amending Resolution and the affidavit of the registered land surveyor. This Court vacated the judgment of the trial court and remanded the case for further proceedings. On remand we directed the trial court to rule on the admissibility of the affidavit and the Amending Resolution. We stated that if the court determined that the documents were admissible, it should determine the effect, if any, of the documents. If the documents raised a genuine dispute as to a material fact, the court should not grant summary judgment. If, however, the documents did not affect the validity of the original resolution then, we stated, the court might grant MFP’s motion for summary judgment.

[534]*534After remand, the trial court entered an injunction staying the remainder of the 45 day period in which to petition for referendum, and later extended the injunction. A hearing on the merits as to the remand was held on March 19, 1991. The court first ruled that the affidavit of the registered land surveyor was not admissible because it was not based on personal knowledge. It then stated:

But the real question here is[: I]s the Town of New Market allowed to pass an amendment to a resolution of this type without going through the due process requirements that [are] set out under Article 23A, § 19[.]

The court then explained that Article 23A, § 19 sets out very specifically what should be a part of your resolution, what you have to describe, what you have to have, percentages, what notice you have to give, publication, how you have to advise people of the hearing that’s to be held, how you may initiate it either by the town or the county or a group of registered voters.

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602 A.2d 201, 90 Md. App. 528, 1992 Md. App. LEXIS 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-new-market-v-milrey-inc-fdi-partnership-mdctspecapp-1992.