King v. Mayor and Council of Rockville, 315

• Decision Date: 07 March 1968
• Docket Number: No. 315,315
• Citation: 238 A.2d 898,249 Md. 243
• Parties: Pearl E. KING v. MAYOR AND COUNCIL OF ROCKVILLE.
• Court: Maryland Court of Appeals

Page 243

249 Md. 243

238 A.2d 898

Pearl E. KING v. MAYOR AND COUNCIL OF ROCKVILLE.

No. 315.

Court of Appeals of Maryland.

March 7, 1968.

J. Hodge Smith and R. Edwin Brown, Rockville (Ginsberg & Ginsberg and Hyman Ginsberg, Baltimore, on the brief), for appellant.

Roger W. Titus, Asst. City Atty., Rockville, for appellee.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS and FINAN, JJ.

HAMMOND, Chief Judge.

The Mayor and Council of Rockville (Rockville), acting under Code (1966 Repl.Vol.), Art. 23A, § 2(24) and Art. XII A of its Charter, added by Ch. 826 of the Laws of 1961, undertook an urban renewal project to rehabilitate a blighted area of the City of Rockville and in the process condemned the combination commercial and apartment property of the appellant, Mrs. King. Mrs. King took a dim view of being required to substitute cash for real estate and, displaying the courage and fighting spirit Sir Winston Churchill said the English people would display in repelling a German invasion of Britain by fighting on the beaches and in the streets, attempted at every stage to hinder and delay the condemnation proceeding, hoping in the process to thwart it entirely. Eventually a jury awarded her less than she conceives her property to be worth and she now seeks relief from this Court.

Mrs. King makes three contentions. She says the trial court erred (a) in refusing a continuance of the trial; (b) in not ruling that the condemnation proceeding was invalid because of failure to make provision for the relocation of tenants to adequate quarters as Ch. 826 of the Laws of 1961 requires; and (c) in refusing to permit testimony as to the value of her interest, as an abutting landowner, in the bed of the street in front of her property.

The petition for condemnation was filed on February 3, 1966. The case came on for trial on May 25 following but Mrs. King refused to allow the jury to view the apartments on the second floor of her building and a mistrial was declared. The court then ordered that a jury view of the apartments be allowed. Mrs King noted an appeal to this Court. We granted Rockville's motion to dismiss on July 25, 1966. On July 29 Rockville moved that the case be set for trial. Mrs. King filed a 'cross-claim' and the case came off the trial calendar. Rockville filed a motion to dismiss the 'cross-claim,' which was granted. On August 29 Rockville moved to set the case for trial and it was set for October 18. On the basis of an unsworn letter from her doctor, stating that she had suffered periodic serious heart attacks during the past year and would not be able to appear for at least two weeks, Mrs. King moved for and was granted a continuance. The case was rescheduled for trial on November 9. Mrs. King again sought a continuance, attaching to her motion an unsworn letter from her doctor which stated she was presently 'totally incapacitated' and that she would be 'totally disabled for an indefinite period of time.' Trial was reset for January 25, 1967. On January 19 Mrs. King again ran true to form. Her doctor's unsworn handwritten letter recited to the court that the day before she had had 'an acute episode of atrial fibrillation and aggravation of her Heart Failure' and that she could not appear in court 'until further convalescence.' Judge Shook denied this third motion for continuance in a written order, which said: 'It appears to the Court that the elderly defendant may never be well enough to attend Court.' At the threshold of the trial Judge Pugh followed Judge Shook's order and denied an oral motion for a continuance.

We find no error and no prejudice in requiring Mrs. King to go to trial. Under Maryland Rule 527 and the decisions of this Court the granting or refusing of a continuance is in the sound discretion of the trial court and an important factor in the exercise of that discretion is whether the witness who is unavailable will be able to be present within a reasonable time. Thanos v. Mitchell, 220 Md. 389, 392-393, 152 A.2d 833. Passing the fact that Mrs. King did not present the affidavits specified by Rule 527(c), we think it clear that Judge Shook's determination that Mrs. King might well never be able to appear in court or, at least in may be inferred, might never choose to appear was fully justified by consideration of the history of the case set out above. If there were error in compelling trial, there was no prejudice since Mrs. King's expert witnesses based their testimony on all the facts and data that Mrs. King had given them as to rents, expenses, and vacancies, and were permitted to give estimates of value reflecting her theories that they might not have been permitted to give had she been present.

Assuming the proposition that Mrs. King, not having been authorized by her tenants to do so, had standing to raise the point that Rockville could not condemn her property by reason of its failure to have provided new quarters for each of her tenants, we think the point is without substance or merit. Chapter 826 of the Laws of 1961 provides in Section 5, the part here immediately pertinent, that after a plan for urban renewal of a slum or blighted area has been presented to and approved by Rockville and a public hearing has been thereon advertised and held, the project may proceed if Rockville finds (1) that the area involved is a slum or blighted area; (2) 'a feasible method exists for the location of any families who will be displaced from the urban renewal area in decent, safe and sanitary dwelling accommodations within their means and without undue hardship to such families'; (3) the urban renewal plan conforms to the city's master plan; and (4) the plan will afford a maximum opportunity for the rehabilitation of the renewal area by private enterprise.

Early in the trial Rockville offered in evidence a duly certified copy of a resolution duly adopted by its Mayor and Council which showed determinations by it gratifying the four requirements of Ch. 826 spelled out above. In regard to the relocation of persons to be disputed by the carrying out of the project the resolution said:

'WHEREAS there has been prepared and submitted a program for the relocation of families that may be displaced as a result of carrying out the Project in accordance with said Urban Renewal Plan; and

'WHEREAS there have also been presented to the Governing Body (the Mayor and Council of Rockville) information and data respecting the relocation program which has been prepared as a result of studies, surveys, and inspections in the Project area and the assembling and analysis of the data and information obtained from such studies, surveys, and inspections; and

'WHEREAS the members of the Governing Body have general knowledge of the conditions prevailing in the Project of the conditions prevailing in the Project housing in the Locality for the relocation of families that may be displaced from the Project area and, in the light of such knowledge of local housing condition, have carefully considered and reviewed such proposals for relocation; and

'WHEREAS it is necessary that the Governing Body take appropriate official action respecting the relocation program and said Urban Renewal Plan for the Project, in conformity...