40 A.3d 435 (Md.App. 2012), 2339-2010, Bacon v. Arey

Docket Nº:2339-2010.
Citation:40 A.3d 435, 203 Md.App. 606
Opinion Judge:WATTS, J.
Party Name:Gregg Daniel BACON v. Paul AREY, et al.
Attorney:Raj S. Singh, Rockville, MD, for appellant. James F. Lee, Washington, D.C. & Jared M. McCarthy, Riverdale, MD (George R.H. Johnson, Riverdale, MD, Reema Malhotra, Lee & McShane, PC, Washington, D.C., James L. Parsons, Jr., Lynott, Lynott & Parson, PA, Rockville, MD), all on briefs, for appellee.
Judge Panel:Panel: EYLER, DEBORAH S., GRAEFF, and WATTS, JJ.
Case Date:March 29, 2012
Court:Court of Special Appeals of Maryland

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40 A.3d 435 (Md.App. 2012)

203 Md.App. 606

Gregg Daniel BACON


Paul AREY, et al.

No. 2339-2010.

Court of Special Appeals of Maryland.

March 29, 2012

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Raj S. Singh, Rockville, MD, for appellant.

James F. Lee, Washington, D.C. & Jared M. McCarthy, Riverdale, MD (George R.H. Johnson, Riverdale, MD, Reema Malhotra, Lee & McShane, PC, Washington, D.C., James L. Parsons, Jr., Lynott, Lynott & Parson, PA, Rockville, MD), all on briefs, for appellee.



[203 Md.App. 616] Appellant, Gregg Daniel Bacon,1 a property owner, appeals a decision of the Circuit Court for Montgomery County granting a motion to strike his fourth amended complaint and entering Declaratory Judgment and a Nunc Pro Tunc Order, dismissing his tort and constitutional claims as well as his claim of an ingress/egress easement to his property, against appellees, Macris, Hendricks & Glascock, P.A. (" MHG" ) and Douglas H. Riggs, III (" Riggs" ) (collectively the " MHG Group" ); 2 the Maryland-National Capital

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Park and Planning Commission (the " Commission" ), Royce Hanson, Debra Y. Daniel, Faroll Hamer, R. Bruce Crawford, Gwen Marcus Wright, Rose Krasnow, and Adrian R. Gardner (collectively the " Commission Group" ); 3 Audrey D. Hill; Christine Hill; 4 [203 Md.App. 617] Paul Arey and Sara Arey (the " Areys" ); Sandy Spring Bancorp, Inc.; Gaither & Associates LLC; Milton Johnson; Charles Mess and Marilyn E. Mess (the " Messes" ); William P. Rounds; McCants and Associates LLC; and Warren Lee Brown.5

Appellant noted an appeal raising four issues,6 which we have rephrased as follows:

I. Whether the circuit court erred in entering declaratory judgment in favor of appellees as to appellant's claims for an easement?

II. Whether the circuit court erred in entering a Nunc Pro Tunc Order dismissing appellant's tort and constitutional [203 Md.App. 618] claims in favor of appellees on the ground of the statute of limitations?

III. Whether the circuit court abused its discretion in striking appellant's second and fourth amended complaints?

IV. Whether the circuit court abused its discretion in dismissing appellant's claims without ruling on appellant's motions to compel discovery?

For the reasons set forth below, we answer each question in the negative and shall, therefore, affirm.


This case concerns appellant's claim of entitlement to an easement to access property he owns in Sandy Spring, Montgomery County, Maryland. The property is a two acre lot which appellant purchased on September 27, 2002, for $40,000. On October 1, 2002, appellant recorded a quitclaim

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deed for the property. Gold Mine Road lies to the north of appellant's property, and Brooke Road lies to the south. Appellant alleges entitlement to an easement identified as Farm Road, running in a northerly direction from Brooke Road across his property and continuing northward through a Commission conservation easement,7 until its termination at Gold Mine Road.

Appellant claims that Farm Road, his means of ingress and egress to the property ( i.e. how he reached Gold Mine Road and Brooke Road), was blocked, thereby depriving him of access to his property and landlocking the property. According to appellant, Farm Road is a " historic right-of-way" or an easement.

Before the circuit court, in the third amended complaint, appellant alleged that Brown and his attorney, Alper, hired [203 Md.App. 619] the MHG Group to conduct a survey and prepare subdivision plans and record plats for the Dellabrooke subdivisions that were allegedly prepared inaccurately and failed to include Farm Road. Appellant alleged that Farm Road's access to Gold Mine Road " was permanently cut" in 1994, with the initial approval of Brown's subdivisions, and that northward access of Farm Road to Gold Mine Road was prohibited, in 2001, with approval of the Dellabrooke subdivisions and the " recordation of Plat 21707." 8 MHG prepared Plat 21707 and according to appellant, " did not include or recognize the Farm Road and related rights-of-way."

The Complaint

On June 9, 2006, appellant filed a Complaint for Equitable Relief and Declaratory Judgment Granting an Easement and Action to Quiet Title Based on Adverse Possession.9 In the complaint, appellant alleged that the Commission and its predecessor, the Montgomery County Department of Planning, " acted impermissibly, by in effect abandoning the Historic Chandlee Mill Road [also identified as Farm Road] and rendering [appellant] landlocked, without recording any appurtenant easements for properties affected."

The Amended Complaint

On November 8, 2006, appellant filed an amended complaint, alleging that he had employed a professional land surveyor who concluded that a " historic right-of-way does indeed exist as the ‘ Old Chandlee Mill Road’ that has been described as the ‘ Farm Road’ in various deeds." 10 Appellant alleged entitlement to an " easement by prescription" or an [203 Md.App. 620] " easement by necessity under the common law." On December 7, 2006, the Commission filed an answer to the amended complaint, raising several affirmative defenses, including laches, estoppel, waiver, and the statute of limitations.

The Second Amended Complaint

On September 21, 2007, appellant filed a second amended complaint, adding Brown, the Commission Group, and the MHG

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Group, among others, as defendants 11 and causes of action " based upon recently obtained evidence." 12 In a section labeled " Overview," appellant alleged that he " recently learned the events that led to [ ] lost ingress/egress access and other property rights were caused by a series of fraudulent acts perpetrated in a concert of action among the Defendants."

On September 27, 2007, Christine Hill filed a motion to strike the second amended complaint, urging the circuit court to strike the complaint for failure to comply with Maryland Rule 2-303.13 Defendants, including the Commission, the [203 Md.App. 621] Areys, Alper, Hanson, Daniel, Hamer, Crawford, the MHG Group, Wright, Johnson, Krasnow, the Messes, and Gardner joined in and filed motions to strike the second amended complaint. Other defendants filed motions to dismiss the second amended complaint, including the Maryland Department of the Environment, arguing that appellant failed to comply with the notice requirements of the Local Government Tort Claims Act (LGTCA), and Brown, arguing that appellant's claims were barred by the statute of limitations. Appellant filed oppositions to many of the motions to strike and dismiss.

On January 30, 2008, McCants & Associates filed an answer to the second amended complaint, a cross-claim against the defendants, and a motion to file the answer and cross-claim out of time. The Commission Group, Johnson, and Alper each moved to strike the cross-claim.

On March 13, 2008, the circuit court held a hearing on the motions to strike and dismiss the second amended complaint. During the hearing, the circuit court stated:

The aspect of this case that stands out, from my perspective, at this point is the current posture of the pleadings and that primarily is the second amended complaint ..., which is 58 pages and names a number of individuals, causes of action against individuals. And in reviewing the motions to strike, it's clear to me that the 58-page second amended complaint does violate Rule 2-303 in that it includes argument, unnecessary

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recitals of law, immaterial, impertinent, or scandalous matter.

I don't like striking complaints because I just think in essence it prolongs the inevitable, but in this instance, given the contents of the paragraph contained within the second amended complaint that there is an overriding interest to have the complaint conform with the pleadings' requirements— and [203 Md.App. 622] I certainly will give [appellant] an opportunity to amend[.]

After hearing argument from counsel, the circuit court granted the motions to strike the second amended complaint, ruling orally from the bench as follows:

Since [appellant] is being required to file a third amended complaint in the requirement will be that that third amended complaint is to comply with the rules that govern pleading, that it is to be simple, concise, and direct, contain only such statements of fact as may be necessary to show the pleaders' entitlement to relief. And that the third amended complaint will supersede all previous complaints that have been filed and will operate as the complaint in this case.

So, I'm going to grant the motions to strike the second amended complaint. I'm going to defer on the motion to dismiss with respect to the statute of limitations pending the filing of the third amended complaint. I'm going to establish a new set of dates within which events must take place and, essentially, this operates as a new scheduling order.

The third amended complaint is to be filed by March 28th.

On March 13, 2008, consistent with its oral ruling, the circuit court issued a Nunc Pro Tunc Order providing, in pertinent part, as follows:

1. The Motion to Dismiss [Appellant's] Second Amended Complaint filed by the Defendant, State of Maryland Department of Environment ... is GRANTED; and [Appellant's] Second Amended Complaint is DISMISSED.

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4. Defendants' Motions to Strike [Appellant's] Second Amended Complaint filed by Defendant Christine Hill [ ], Maryland Capital Park and Planning Commission [ ], Paul and Sara Arey...

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