Mikolasko v. Schovee

• Decision Date: 02 December 1998
• Docket Number: No. 221,221
• Citation: 720 A.2d 1214,124 Md. App. 66
• Parties: Eric J. MIKOLASKO, et al. v. Thomas Randolph SCHOVEE, et al.
• Court: Court of Special Appeals of Maryland

720 A.2d 1214

124 Md. App. 66

Eric J. MIKOLASKO, et al. v. Thomas Randolph SCHOVEE, et al.

No. 221, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 2, 1998.

Jerrold A. Thrope (Charles R. Bacharach and Gordon, Feinblatt, Rothman, Hoffberger

& Hollander, L.L.C., on the brief), Baltimore, for Appellants.

Kurt J. Fisher (John P. Machen, Brett Ingerman and Piper & Marbury, L.L.P., on the brief), Baltimore, for Appellees.

Argued before THIEME and KENNEY, JJ., and THEODORE G. BLOOM, Judge (retired), Specially Assigned.

THIEME, Judge.

This appeal by Eric J. Mikolasko and J.J.M., Inc., is from a judgment of the Circuit Court for Howard County that granted declaratory and injunctive relief requested by the appellees, Thomas Randolph Schovee, et al., property owners in the Chapel Woods II subdivision. The effect of the judgment was to thwart the appellants' plans to resubdivide certain lots within the subdivision.

Statement of Facts

Chapel Woods II is a residential subdivision in Clarksville, Howard County, Maryland. The developer, J.J.M. Partnership, was given approval for the subdivision by Howard County in November 1989. J.J.M., Inc., is the general partner of J.J.M. Partnership, and Eric J. Mikolasko is the vice president of J.J.M., Inc. The developer recorded a revision plat for the subdivision in the Howard County land records on April 20, 1990. The developer also recorded the "Chapel Woods II Declaration of Covenants, Easements, Conditions and Restrictions" (the Declaration) in the same land records on November 20, 1989. The Declaration contained a statement that it was to be deemed part of a general scheme of development; a description of the land use restrictions and covenants to be applied to the subdivision; and, in an attached exhibit, a description of the property to be covered by the Declaration. The property described included Lots 1-5 and Lots 8-25 on the subdivision plat. These lots were between three and six acres in size. Lot 6 was not owned by the developer and is not at issue in this case. Lot 7, a land parcel of some 50 acres, was retained by the developer. Lot 8 was owned by the appellant Eric Mikolasko, individually.

The appellees are a group of seven couples who purchased lots in Chapel Woods II from the developer between September 1989 and June 1991. Apparently, each agreement of sale between the developer and the purchasers included a copy of the Declaration, and each deed incorporated the Declaration by reference. Nevertheless, each appellee-purchaser who provided evidence claimed to have been led to believe, by a variety of factors, that Lot 7 was part of the common development scheme of Chapel Woods II.

In 1995, appellant Mikolasko submitted to the Howard County Subdivision Review Committee a proposal for a new subdivision called Chapel Woods III. The plan depended on the merger of Lots 7 and 8 and their resubdivision into nine one-acre lots on which residential dwellings would be built, with large parts of the remaining property being placed into an irrevocable conservation easement.

Statement of the Case

On December 21, 1995, the appellees filed a six-count complaint in the Circuit Court for Howard County. The six counts were as follows:

I. Request for declaratory judgment declaring that Lot 7 is subject to the covenants and restrictions contained in the Declaration by means of an implied negative reciprocal easement;

II. Request for declaratory judgment declaring that Lot 8 is subject to the covenants and restrictions contained in the Declaration;

III. Request for declaratory judgment declaring that section 4.1.1.(b) of the Declaration prohibits the subdivision of any lot presently part of Chapel Woods II;

IV. Request for declaratory judgment declaring that the proposed merger and resubdivision of Lots 7 and 8 violate the Declaration;

V. Request for ex parte and interlocutory injunctions prohibiting the proposed merger and resubdivision of Lots 7 and 8 VI. Request for a permanent injunction prohibiting the proposed merger and resubdivision of Lots 7 and 8.

On the same day, the appellees filed a motion for partial summary judgment on counts II-IV of the complaint. On January 3, 1996, the appellees abandoned count V. On February 5, 1996, the appellants filed an opposition to appellees' motion, a cross-motion for summary judgment, and a request for a hearing.

A hearing on the motions was held on March 29, 1996, when the appellants also filed a motion to dismiss with prejudice, based on the fact that Howard County had given approval to the Chapel Woods III project and a plat had been recorded. By a memorandum and order of May 30, 1996, the court denied the appellants' motions for summary judgment and dismissal, and granted the appellees' motion for summary judgment on count II and on counts III and IV with regard to Lot 8 only, i.e., the court ruled that "the Declaration prohibits construction of more than one residential dwelling on any one Lot, including Lot 8 (as it existed at the time the Declaration was recorded)."

On April 30, 1997, a bench trial began. By a memorandum opinion and order dated November 25, 1997, and in part reiterating its order of May 30, 1996, the court found in favor of the appellees and granted their requests with regard to counts I-IV and VI.

This appeal was timely noted on December 22, 1997.

Questions Presented

The appellants ask the following questions:

I. Did the trial court err, as a matter of law, in imposing a reciprocal negative easement on Lot 7 where the blanket declaration of restrictions and covenants for the Chapel Woods II community specifically burdens only Lots 1-5 and 8-25?

II. Did the trial court err in finding that the property owners had shown the grantor's intent to burden Lot 7 with the restrictions applicable to Lots 1-5 and 8-25 by clear and convincing evidence?

III. Does Chapel Woods III comply with a general scheme of development for single family homes where new lots are the same price and subject to virtually the same restrictions on use as the restrictions on the lots in Chapel Woods II?

IV. Did the trial court err in finding that additional building lots were prohibited by the Chapel Woods II Declaration?

V. Did the trial court err in enjoining the merger and subdivision of Lots 7 and 8 into Chapel Woods III after Howard County had already approved the merger and subdivision?

To questions I and II, we answer, yes. To question IV, we answer no. To question V, we answer no with regard to Lot 8. We decline to answer question III.

Standard of Review

When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.

Md. Rule 8-131. In this particular type of case, we have held that,

since "the intention to establish a uniform scheme or plan of development is a question of fact ..." the chancellor's findings will not be set aside " `on the evidence unless clearly erroneous' after giving due regard to the opportunity of the chancellor `to judge the credibility of the witnesses.' `" Furthermore, the appellate Court will not "reverse the chancellor's conclusions from the facts found by him if within the provisions of the applicable law unless they are clearly in error."

Bernui v. Tantallon Control Committee, 62 Md.App. 9, 14, 488 A.2d 186 (1985) (quoting Steuart Transportation Co. v. Ashe, 269 Md. 74, 89, 304 A.2d 788 (1973)) (citation omitted).

Doctrine of Implied Reciprocal Negative Easements

In McKenrick v. Savings Bank of Baltimore, 174 Md. 118, 197 A. 580 (1938), the Court of Appeals listed the following principles of the doctrine of the implication of reciprocal negative easements based on a finding of a uniform or common or general plan or scheme of development:

That one owning a tract of land, in granting a part thereof, may validly impose upon the part granted restrictions upon the use thereof, for the benefit of the part retained, and upon the part retained for the benefit of the part granted, or upon both for the benefit of both; that, where the covenants in the conveyance are not expressly for or on behalf of the grantor his heirs and assigns, they are personal and will not run with the land, but that, if in such a case it appears that it was the intention of the grantors that the restrictions were part of a uniform general scheme or plan of development and use which should affect the land granted and the land retained alike, they may be enforced in equity; that covenants creating restrictions are to be construed strictly in favor of the freedom of the land, and against the person in whose favor they are made; and that the burden is upon one seeking to enforce such restrictions where they are not specifically expressed in a deed to show by clear and satisfactory proof that the common grantor intended that they should affect the land retained as a part of a uniform general scheme of development.

Id. at 128, 197 A. 580.

The leading Maryland case applying these principles is Turner v. Brocato, 206 Md. 336, 111 A.2d 855 (1955), in which several subdivision lot owners sought to enforce a noncommercial use restriction against a lot not expressly bound by the restriction. The Court of Appeals found that the whole subdivision was subject to a general development scheme, basing that conclusion on the following evidence: restrictions imposed in the majority of the deeds; testimony of lot owners concerning their belief that the whole community was restricted; a sign, placed on the lot in question at the entrance to the community, identifying it as a restricted community; and the mention of the community restrictions in the contracts of sale and representations of salesmen. Id. at 349-50, 111 A.2d 855. From the finding of a general...