Blue Ink, Ltd. v. Two Farms, Inc.

• Decision Date: 30 July 2014
• Docket Number: No. 01487,Sept. Term, 2012.,01487
• Citation: 96 A.3d 810,218 Md.App. 77
• Parties: BLUE INK, LTD. v. TWO FARMS, INC. d/b/a Royal Farms, Inc.
• Court: Court of Special Appeals of Maryland

218 Md.App. 77

96 A.3d 810

BLUE INK, LTD.

v.TWO FARMS, INC. d/b/a Royal Farms, Inc.

No. 01487, Sept. Term, 2012.

Court of Special Appeals of Maryland.

July 30, 2014.

Erin Murphy (Silverman, Thompson, Slutkin & White, LLC, on the brief), Baltimore, MD, for Appellant.

Alan A. Abromowitz (Carrie M. Freeman, Bouland & Brush, LLC, on the brief), Baltimore, MD, for Appellee.

Panel: ZARNOCH, KEHOE, LEAHY, JJ.

LEAHY, J.

Drive-in movie theaters, like soda fountains, juke boxes, and The Platters, are instances of 1950s post-war Americana that trigger instant feelings of nostalgia. Maryland once boasted as many as 47 drive-ins; ¹ today, however, only Bengies Drive–In Movie Theatre (“Bengies”) remains. This case involves a jury's verdict in favor of Bengies against Royal Farms for private nuisance. The jury awarded Bengies $838,000.00 in damages to construct a fence to block light that emanates at night from the Royal Farms. The Circuit Court for Baltimore County considered Royal Farms' Motion for Judgment Notwithstanding the Verdict (“JNOV”) and, after concluding there was insufficient evidence for a jury to find a private nuisance, set the jury's verdict aside and entered judgment in favor of Royal Farms.

On appeal, Bengies, through its operator Blue Ink, Ltd., presents one question for our review,² which we have rephrased as follows:

Was the evidence presented at trial, when viewed in the light most favorable to Bengies Drive–In, legally sufficient for the jury to find the existence of a private nuisance by a preponderance of the evidence?

Two Farms, Inc. (doing business as “Royal Farms”) filed a Cross–Appeal raising an additional issue, which we have rephrased as follows: ³

In the event this Court concludes that the trial court erred in granting the Motion for JNOV, did Blue Ink Limited meet its burden to prove damages using the proper measure of damages?

Maryland requires that in order to recover for private nuisance, a plaintiff must demonstrate that the defendant's interference with plaintiff's property rights is both unreasonable and substantial, and that the harm or inconvenience created by such interference is “objectively reasonable” to the ordinary person. Accordingly, we find the evidence presented at trial was not legally sufficient to support a jury verdict in favor of Bengies against Royal Farms for a private nuisance. In light of this holding, we do not address the Cross–Appeal. We affirm the judgment of the Circuit Court for Baltimore County.

BACKGROUND

A. The Bengies Drive–In

In the late 1950s, Jack K. Vogel and his three brothers constructed Bengies Drive–In, which has remained a family business since its establishment. Eventually, D. Edward Vogel (“Mr. Vogel”) began operating the drive-in and in 2000, negotiated a buy-lease agreement to purchase Bengies from his parents, Jack and Aileen Vogel. In order to facilitate a commercial loan in connection with the transfer,⁴ Mr. Vogel needed to ensure that the property was accurately zoned. During the re-zoning process, Mr. Vogel entered into a Restrictive Covenant Agreement, dated August 25, 2004, with a community group called Bowleys Quarters Improvement Association. The Association agreed to forego opposition to the zoning reclassification in exchange for Bengies' agreement limiting future expansions on the property to an indoor theatre, a second outdoor drive-in screen, miniature golf, batting cages, a restaurant, a dairy bar, cell communications, and a souvenir shop. Drawings exhibiting two possible locations for a second screen accompanied the Agreement. Mr. Vogel officially acquired the property in December 2007, but apart from a cell communications tower, none of the other improvements were constructed.⁵

Today, Bengies is located at 3417 Eastern Boulevard in an area that has been commercially developed for many years. Other businesses surrounding Bengies and pre-dating the Royal Farms include a Wal–Mart, McDonald's, Home Depot, Rite–Aid, and a restaurant called “By the Docks.”

B. The Royal Farms

Peppermint Woods, Ltd. owns the property at 3300 Eastern Boulevard located on the opposite side of Eastern Boulevard across from Bengies.⁶ In 2003, Peppermint Woods, Ltd. filed a petition for special exception with the Zoning Commissioner of Baltimore County for the construction of a service station and accompanying carryout restaurant and rollover car wash. Mr. Vogel attended the public hearing on special exception to represent Bengies' interests. The Zoning Commissioner granted the petition, subjectto submission of “a landscape and lighting plan for review and approval by the Office of Planning and Avery Harden, Landscape Architect for Baltimore County” that “provide[s] sufficient screening so that security lights, permanent lighting and vehicle headlines do not inappropriately spill onto adjacent properties, particularly the Bengies Drive–In Movie Theater.”

Avery Harden and the Office of Planning thereafter approved the plans for the construction of a convenience store, gas pumps, and a car wash. In an e-mail dated October 8, 2008, Avery Harden stated, “All together [Royal Farms' use of new LED technology] sounds like a precedent setting lighting design for convenience stores in Baltimore County. I can now point to this for others to follow. The drive-in should be fine.”

The Royal Farms opened its doors for business in December 2008. The general layout of the subject Royal Farms may be described as follows: ⁷

[T]he gas station aspect of the facility consists of a number of gasoline pumps located below a canopy of the type designed to protect those pumping gas from inclement weather. The canopy runs parallel to Eastern Boulevard; the pumps are located below it. The pumps are illuminated by Crossover Ambient Canopy Lights and Crossover Focus Canopy Lights, which are aimed downward from the canopy to allow those pumping gas at night to see. Behind the canopy sits the Royal Farms convenience store, 3936 square feet in size.... Behind the convenience store sits a car wash.... There are parking spaces about the convenience store, illuminated by lighting mounted on the poles pointed downwards toward the parking spaces.... There are several lighted signs—white, green and blue in color on and about the convenience store property ... which can be seen from the drive-in....

Mr. Vogel filed an official complaint about the Royal Farms lights with Baltimore County Department of Code Enforcement (the “Department”). In 2010, when the Department declined to issue a citation for the lights, Mr. Vogel sought a Writ of Mandamus from the Circuit Court for Baltimore County, requesting that the court compel the Department to issue a citation. The circuit court dismissed the complaint.

C. The Litigation

On June 28, 2010, Bengies, by and through Blue Ink, Ltd. and The Last Picture Show, LLC (the landowner), filed a lawsuit against Peppermint Woods, Ltd. and Two Farms, Inc. in the Circuit Court for Baltimore County, alleging claims of negligence, trespass, and private nuisance relating to the lights emanating from the Royal Farms premises onto Bengies' property. ⁸ On May 22, 2012, the case proceededto trial on the negligence and private nuisance claims.⁹

At trial, Mr. Vogel testified that the lights emitted from the Royal Farms prevent him from executing his plan to build the second screen. He admitted that no artificial light from Royal Farms is aimed or directed at the currently existing screen, but claimed that some of the lights are aimed “inadvertently” at the spot reserved for the second screen by “bouncing off of the poles” located in the back of the theatre. At the time of trial, Mr. Vogel had not initiated the steps necessary to build the second screen, such as applying for a permit. During cross-examination, Mr. Vogel admitted that the potential location for the second screen, as represented in the Covenant Agreement, would have been farther away from the Royal Farms store.

Mr. Vogel described himself as a diligent owner when monitoring activities affecting the drive-in's lighting and provided numerous examples of how he has resolved lighting concerns with other local business owners in the area. To provide examples, Mr. Vogel stated that he attended the hearing when the Wal–Mart opened, but ultimately concluded that the lights were not problematic. The Rite–Aid also assisted Mr. Vogel in correcting its light, and the “By the Docks” restaurant owner replaced his outdoor lights with smaller bulbs to reduce the brightness per Mr. Vogel's request.

Mr. Vogel framed the problem in this case as “[t]he light interfer[ing] with the business that thrives on darkness.” When asked during direct examination if there is “any special sensitivity to light in the operation of a drive-in movie theatre,” Mr. Vogel responded that with any theatre, “you have to watch light, of course, indoor or drive-in.” During cross-examination, Mr. Vogel responded “yes” when asked whether drive-in theatres are unique in their need for darkness. He also conceded that if he owned a tire store or a doctor's office, the lights probably would not bother him and that he could not “think of any other occupation that would require that unique night sky.” When asked whether he was sensitive to light, Mr. Vogel admitted that he was, explaining, “I've been trained to, in the art of projection and I am, I know how to keep that picture correct.”

According to Mr. Vogel, attendance and profits at Bengies have increased annually. Further, Mr. Vogel did not receive customer complaints about the Royal Farms lights, even though he has a method in place for receiving complaints and had received complaints about other matters.

Both parties called several witnesses to testify about whether the Royal Farms lights created a nuisance to Bengies. On behalf of Bengies, Dr. Brett Levinson, qualified as an expert in ophthalmology, provided testimony about the anatomy and mechanics of the human eye. To a reasonable...