Dawson v. Prince George's County, 12

• Decision Date: 01 September 1991
• Docket Number: No. 12,12
• Citation: 324 Md. 481,597 A.2d 952
• Parties: David Townes DAWSON, Personal Representative of the Estate of Dr. Townes L. Dawson, et al. v. PRINCE GEORGE'S COUNTY, Maryland. ,
• Court: Maryland Court of Appeals

Page 481

324 Md. 481

597 A.2d 952

David Townes DAWSON, Personal Representative of the Estate of Dr. Townes L. Dawson, et al. v. PRINCE GEORGE'S COUNTY, Maryland.

No. 12, Sept. Term, 1991.

Court of Appeals of Maryland.

Oct. 31, 1991.

David Townes Dawson, Temple Hills, for petitioners.

J. Michael Dougherty, Jr., Associate County Atty. and Albert J. Lochte, Deputy County Atty. (Michael P. Whalen, County Atty., on brief), Upper Marlboro, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

RODOWSKY, Judge.

This case involves tax sale procedure. Specifically, we shall hold that the circuit court erred in entering an order foreclosing the right of redemption without having ruled on the property owner's pending application for the court to resolve a dispute over part of the amount to be paid to redeem.

The petitioner in this Court is David Townes Dawson (Dawson), the owner, individually or as personal representative of his father's estate, of seven parcels of land (the Property) in Prince George's County that were sold at tax sale on May 8, 1989. The respondent is Prince George's County (the County), the tax sale purchaser. On December 1, 1989, the County filed its "Complaint to Foreclose Rights of Redemption" in the Property. Both an order of publication and writs of summons were issued fixing January 29, 1990, as the date after which a final decree of foreclosure would be entered. The order of publication, prepared by counsel for the County, warned all interested persons "to be and appear" in the Circuit Court for Prince George's County by that date "and redeem the aforesaid property and answer the Complaint...." The writ of summons, generated by the court's computer, warned that "[f]ailure to file either a written answer or petition to redeem" on or before the specified date would result in a final order of foreclosure.

On the morning of January 29, 1990, Dawson filed, and the clerk date and time stamped, a paper headed, "Answer and Petition to Redeem." By this filing Dawson sought to have the court determine the amount of fee for counsel for the County that Dawson was required to pay in order to effect redemption of the Property. By order signed January 31, 1990, and filed and docketed February 2, 1990, the court foreclosed the right of redemption in the Property. The final order makes no reference to the paper filed by Dawson. ¹

Dawson appealed to the Court of Special Appeals which affirmed in an unreported opinion. That court reasoned that the circuit court need not have decided the amount of fee payable by Dawson because Dawson failed to request a hearing in a manner complying with Maryland Rule 2-311. ² We granted Dawson's petition for certiorari.

Tax sale proceedings are, under the Maryland Rules, one of the Chapter 1100 special proceedings. Subtitle BS, dealing with tax sales, contains only one rule, Rule BS40. It simply incorporates the procedural provisions of the Maryland Code dealing with tax sales. Title 2 of the Maryland Rules "applies to civil matters in the circuit courts ... except as otherwise specifically provided or necessarily implied." Rule 1-101. The result is that the procedure in tax sale cases is primarily governed by statutes which are supplemented by the rules only to the extent that those rules are consistent with the statutory provisions. For example, we held that former Rule 530, providing for dismissal of actions in a circuit court for want of prosecution, applied to proceedings to foreclose the equity of redemption following a tax sale, Prince George's Homes, Inc. v. Cahn, 283 Md. 76, 389 A.2d 853 (1978), but we also held that the decree pro confesso, of former equity practice, did not apply to tax sale foreclosures, Simms v. Scheve, 298 Md. 1, 467 A.2d 499 (1983).

The principal statutes governing tax sales are Maryland Code (1986, 1991 Cum.Supp.), §§ 14-808 through 14-854 of the Tax-Property Article. ³ In general outline, the tax collector for a county sells property on which real estate taxes are in arrears. § 14-808. The purchaser receives a certificate of sale. § 14-820. The purchaser must file a complaint to foreclose the owner's right of redemption during a period beginning six months after the sale and ending two years after the sale. § 14-833. Until a final order of foreclosure, the owner retains the right to redeem. § 14-827.

The amount to be paid to the collector on redemption is provided by § 14-828, while the amount to be reimbursed to the purchaser is governed by § 14-843. Here, the County is both collector and purchaser. Section 14-828(a) provides:

"(a) Payments to collector.--If the property is redeemed, the person redeeming shall pay the collector:

(1) the total price at the tax sale for the property together with interest;

(2) any taxes, interest, and penalties paid by any holder of the certificate of sale;

(3) any taxes, interest, and penalties accruing after the date of the tax sale; and

(4) unless the party redeeming furnishes the collector a release or acknowledgement executed by the plaintiff or holder of the certificate of sale that all actual expenses or fees under § 14-843 of this subtitle have been paid to the plaintiff or holder of the certificate of sale, any expenses or fees for which the plaintiff or the holder of a certificate of sale is entitled to reimbursement under § 14-843 of this subtitle."

Section 14-843 provides:

"On redemption, the plaintiff or the holder of a certificate of sale is entitled to be reimbursed for expenses incurred in any action ... to foreclose the right of redemption. In addition, the plaintiff or holder of a certificate of sale, on redemption, is entitled to be reimbursed for fees paid for recording the certificate of sale, for attorney's fees that do not exceed the sum of $250 for each certificate of sale, for expenses incurred in the publication and service of process by publication, for reasonable fees for a necessary title search, and for taxes, together with interest and penalties on the taxes, arising after the date of sale that have been paid by the plaintiff. The plaintiff or holder of a certificate of sale is not entitled to be reimbursed for any other expenses."

Section 14-835 requires that the complaint in an action to foreclose include "a description of the amount necessary for redemption." § 14-835(g). In this action the County filed a single complaint to foreclose, on a consolidated basis, the right of redemption in all seven properties described in the complaint. The complaint avers, however, only that the amount necessary for redemption includes attorney's fees, without specifying the amount. Dawson contends, and the County does not dispute, that the amount which Dawson would have been required to pay was $250 per tax account parcel, the maximum allowable under § 14-843. ⁴ The $250 maximum "for each certificate of sale" under § 14-843 is in addition to the cost of "a necessary title search." Dawson sought to have the circuit court determine the amount of counsel fee to be included in the total amount to be paid to redeem the Property.

Section 14-829 addresses disputes over the amount to be paid to redeem. It reads:

"(a) Application to court to fix amount due.--If the property is redeemed after an action to foreclose the right of redemption is instituted and there is any dispute regarding redemption, the person redeeming may apply to the court before which the action is pending to fix the amount necessary for redemption in accordance with the provisions of this subtitle.

(b) Accepting money without court order.--Except as provided in subsection (c) of this section, the collector may accept money for redemption without an order of court.

(c) Court order required where amount disputed.--If there is any dispute regarding redemption, the collector shall accept no money for redemption unless and until a certified copy of the order of court fixing the amount necessary for redemption is filed with the collector."

Dawson's "Answer and Petition to Redeem" admits ownership of the Property and asks the court to fix costs of redemption in specified amounts for various items, other than counsel fee. These other amounts are those which the County requested, so that the only dispute relates to the amount of counsel fee. Dawson's filing then reads in relevant part:

"WHEREFORE, Defendant prays:

"1. That the Court fix the Costs of the said property for redemption of same by the said Defendants.

"2. That the Court allow a hearing to determine the appropriate Legal fees due to the County."

Beneath Dawson's signature to the body of the pleading there appear, centered, underlined, and in uppercase letters, the words, "REQUEST FOR HEARING." Immediately below those words are approximately three blank lines followed by the centered words, "CERTIFICATE OF...