Jesmer v. Town of Denton

• Decision Date: 24 January 2019
• Docket Number: No. 27,27
• Citation: Jesmer v. Town of Denton, No. 27 (Md. App. Jan 24, 2019)
• Parties: BILLY JESMER, JR. v. TOWN OF DENTON, et al.
• Court: Court of Special Appeals of Maryland

BILLY JESMER, JR. v. TOWN OF DENTON, et al.

No. 27

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

January 24, 2019

Circuit Court for Caroline County

Case No. 05-C-14-017458

UNREPORTED

Wright, Arthur, Kenney, James A., III (Senior Judge, Specially Assigned), JJ.

Opinion by Kenney, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This case exemplifies the adage that one person's rubbish is another person's treasure. It began when the Town of Denton ("Town") filed a complaint against Donald Alley ("Alley") and his stepson, appellant, Billy Jesmer, Jr. ("Jesmer"), for keeping construction equipment and various other items and materials on the exterior of Alley's property, in violation of the Town's Property Maintenance Code. The Circuit Court for Caroline County declared that the items and materials met the definition of "rubbish" under that Code and ordered Jesmer to remove them by a certain date; and, if he did not, the Town could effect their removal and storage at his cost. When Jesmer failed to remove all the materials, the Town hired contractors to remove them. Some items were disposed of, others were sold for scrap value, and what was deemed to have some value was stored at Jesmer's expense. Jesmer filed claims against the Town and other parties (collectively "appellees") for the destruction of the property. The circuit court approved the Town's actions and dismissed all the claims.

On appeal, Jesmer presented four questions¹, which we have rephrased and condensed into three:

1. Did the trial judge err by not recusing himself on the basis of his statements at the hearing on November 16, 2016?

2. Did the trial court err by refusing on the basis of res judicata to declare the Property Maintenance Code unconstitutional on its face and/or as applied as it relates to rubbish?

3. Did the circuit court err when it granted the Town's motion to dismiss Jesmer's Counterclaim and Third-Party Complaint without a jury trial based on findings of facts and immunity?

For the reasons that follow, we affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

Alley² owned a residential property at 700 Gay Street in the historical district of Denton, Maryland. The dwelling was "severely deteriorated" with multiple problems that included a leaking roof and failing structural supports. In 2011, Jesmer, who had operated a construction business in Baltimore, moved to Denton and began assisting his stepfather in the renovation of 700 Gay Street.³ He brought construction equipment andmaterials to the site that were kept on the exterior of the residence. Although 700 Gay Street is the primary property concerned in this case, Jesmer kept some items on two adjoining properties, 12 North 7th Street⁴ and 708 Gay Street.⁵ Jesmer asserts that he assisted Alley in the renovation project in exchange for an "invested interest" in the property.⁶

According to the Town, its inspectors had found building code violations at 700 Gay Street as early as August 2010. The Town issued Alley a building permit on August 4, 2011 for roof work on the house. After that, Town officials met with Alley and Jesmer to discuss resolution of the continuing violations regarding "rubbish," "work without a permit," and "work without a historic commission approval." Jesmer and Alley signed amemorandum of that meeting on September 13, 2011, in which they agreed to "[c]onsolidate equipment and localize to sideyard . . . and driveway by 9/21/2011" and to "[m]aintain a reasonably clean site."

On March 3, 2012, the Town cited Alley for "allowing excessive rubbish to accumulate" and assessed a $100 fine. And, on April 2, 2012, the building permit for 700 Gay Street was suspended for property maintenance violations, one of which "had to do with rubbish." When this violation was not corrected, the Town sought "abatement" and "the removal of the rubbish" in the District Court for Caroline County. On October 17, 2012, Alley was found "guilty of [a] municipal infraction" for "excessive rubbish" in violation of the Town's Property Maintenance ("PM") Code, and paid a $200 fine.

According to the Town, during the 2011-2012 period, "construction materials, trailers, old appliances and other 'rubbish'" continued to be stored at 700 Gay Street and 12 North 7th Street, despite its efforts to convince Alley and Jesmer to come into compliance with the Town Code. The Town, on November 4, 2012, extended the building permit to June 1, 2013.

On October 10, 2013, the Town adopted Town Ordinance No. 656, codified in Chapter 94 of the Town Code.⁷ Under Chapter 94, § PM 202, which we will refer to as "§ PM 202" or the "Rubbish Ordinance," "rubbish" is defined as:

Combustible and noncombustible waste materials, except garbage, including construction waste, and materials pursuant to Section PM 106.5.1 and Section PM 304.19; the term shall include the residue from the burning of wood, coal, coke and other combustible materials, vehicle tires, paper, rags, cartons, boxes, wood, excelsior, rubber, leather, tree branches, yard trimmings, metal cans, metals, mineral matter, glass, crockery and dust, and other similar materials, any household furnishings and appliances not intended for exposure to the elements by the manufacturer, vehicle or machinery parts, and any construction materials stored or remaining on the property longer than 30 calendar days.

On July 25, 2014, the Town filed a Complaint to Abate Violations of Title 94 of the Denton Town Code (the "Complaint") against Alley and Jesmer in the Circuit Court for Caroline County. The Complaint alleged that "[f]or a number of years, [Alley and Jesmer] have accumulated refuse and rubbish on their property including . . . scrap material, vehicles and equipment parts, rubbish from building construction activities, unused pallets, broken or unused scaffolding, and the like." And, that the Town had requested its removal after receiving "numerous complaints" from "neighbors who are concerned about their health, safety and welfare and diminution in [property] values." Because Alley and Jesmer have failed to do so or allow the Town to do so, and given their refusal to abate the violations and the ineffectiveness of imposing fines, the Town requested that the court enter an order (1) "declaring the Defendants to be in violation of [Chapter] 94 of the Denton Town Code," and (2) "authorizing the Town Code Official to enter upon the Defendants' property for the purpose of removing all junk, refuse, andrubbish found thereon and to restore the property to compliance with [the Town Code]." Jesmer answered the Complaint on September 5, 2014.

On January 26, 2015, the Town issued a stop work order because the previous permit extension had expired on June 1, 2013 and the foundation of the house appeared unsound, but four days later, after Town Administrator Donald L. Mulrine met with Jesmer, the permit was extended to July 31, 2015. That extension expired, and, because Jesmer did not come back to the Town officials and did not provide a construction log as requested, no further extensions were granted.

A merits hearing, at which Jesmer was self-represented, took place on the Complaint on December 2, 2015 before Judge Sidney S. Campen. The Town called Jesmer, Town Administrator Donald L. Mulrine, Senior Code Official and Director of the Planning and Codes Department Thomas Batchelor to testify. Jesmer called three neighbors, Leil Garner, Kelly Byrd, and Elinor Taylor, and two of the Town's Property Maintenance Inspectors, Robert Szabo and Gary Carpenter, to testify. At the close of the hearing, after considering testimony and other evidence, Judge Campen concluded:

I find that . . . all of the items, because there's no building permit, come within the parameters of [§ PM 202] definition of rubbish.

* * *

The Town is asking for an injunction, as it is properly permitted to do when someone is violating the Code and they're asking me to prohibit the accumulation of this rubbish . . . that I see on this property at 700 Gay Street. I'm going to issue the injunction . . . as follows: Mr. Jesmer and/or the Estate of Mr. Alley will be required to remove all items. And when I say all, all items that are not attached to the building, that are not impertinent [sic] to the building itself. And when I say all items, I meaneverything, because there's no permit to permit any of these materials on the property. They're to be removed to a site to be determined by Mr. Jesmer within forty-five (45) days of today's date. That means, Mr. Jesmer, you have until January 18, 2016, to . . . get all this material off this property, all of it.

* * *

If the property is not removed by January 18, I'm authorizing the Town to hire a contractor to remove the property at Mr. Jesmer's expense and at the expense of the Estate of Mr. Alley, to remove it to a site that will be rented by the Town and that rent and the cost of removing those materials will be charged to Mr. Jesmer and the Estate of Mr. Alley and will also be attached or be permitted to be attached as a lien on the property, for the value of the removal and the storage charges.

The Final Injunction, issued on December 10, 2015, stated that "[a]ll materials, equipment, metal objects, trailers, storage containers, vehicles, machinery, parts, construction materials and all items not permanently attached to the residence, now stored on the unoccupied property at 700 Gay Street, Denton, Maryland, as well as such items stored on the adjacent occupied property at 12 North 7th Street . . . are 'rubbish,' and in violation of [§ PM 202] of the Town of Denton Property Maintenance Code." The Final Injunction further required Jesmer and the estate of Alley to "abate the violation by prompt removal" of all such "rubbish" from both...