Muffoletto v. Towers
| Decision Date | 31 January 2020 |
| Docket Number | No. 1850, Sept. Term, 2017,1850, Sept. Term, 2017 |
| Citation | 244 Md.App. 510,223 A.3d 1169 |
| Parties | Daniel S. MUFFOLETTO v. Donna S. TOWERS and the Council of Unit Owners of Cambridge Landing Townhouse Condominium |
| Court | Court of Special Appeals of Maryland |
Argued by: J. Dirk Schwenk (Baylaw, LLC, on the brief), Annapolis, MD, for Appellant.
Argued by: Michael J. Jacobs (Jacobs & Barney, LLC, on the brief), Easton, MD, for Appellee.
Panel: Berger, Arthur, James A. Kenney, III (Senior Judge, Specially Assigned), JJ.*
This is the tale of two adjacent boat slips that began over thirty years ago when John Tieder bought a boat. The boat slips were developed as part of a waterfront condominium project developed by Chas E. Brohawn & Bros. Inc. ("Brohawn Company") and are now owned by the Council of Unit Owners of Cambridge Landing Townehouse Condominium ("Council"). The slips are separated by mooring piles. What was once Mr. Tieder's boat slip is nineteen-feet wide; the adjacent slip is thirteen-feet wide.1 The widths of the two slip spaces went uncontested through multiple condominium unit sales and beyond the deaths of Mr. Tieder and Lee Brohawn, who was a friend of Mr. Tieder and a principal in the Brohawn Company.
Daniel Muffoletto, appellant, the successor-in-interest to Michael and Susan Dickinson ("the Dickinsons"), who first licensed the slip adjacent to Mr. Tieder's slip, contests the widths of the two slips.2 Mr. Muffoletto contends that both of the two boat slips were intended to be sixteen feet in width and that the mooring piles separating the two slips were moved to accommodate Mr. Tieder's boat.
On appeal, Mr. Muffoletto presents four questions,3 which we have rephrased and consolidated into two:
We answer both questions in the negative and affirm the judgment of the circuit court.
The related condominium units are, like the two boat slips, adjacent to one another. One is unit number 311-A; its licensed slip is number 32. Unit 311-A was purchased by Mr. Tieder in 1983, and sold to Donna S. Towers in 2000. The other is Unit 312-B; its licensed slip is number 33. Unit 312-B was purchased by Michael and Susan Dickinson in 1983. The Dickinsons sold it to Lloyd Godfrey who sold it to Mr. Muffoletto in 2004.
The Site Plan for Cambridge Landing, dated April 13, 1982, indicates that slips 32 ("Towers slip") and 33 ("Muffoletto slip") would be fourteen-feet-and-seven-inches wide with mooring piles separating the two slips. The Brohawn Company was responsible for the development and construction on the property. The marine-related construction, including the finger piers and mooring piles, was outsourced to Apple Marine Construction Company, a company owned by George Apple. According to Mr. Apple's affidavit, installation was completed in 1982.
The actual location of the mooring piles between 1982 and 1984 is uncertain, and there are differences between the Site Plan and the installation. The combined width of the two slips shown on the Site Plan is approximately three feet less than the combined width of the two slips as presently configured and that difference is not reflected in the construction documents presented to the circuit court. The aerial photo taken in June of 1984 by the U.S. Army Corps of Engineers shows the Towers slip and the Muffoletto slip as being nineteen and thirteen-feet wide, respectively, for a consolidated width of thirty-two feet.
With regard to the widths of the two slips, three people, in four affidavits filed in this case, attested to different facts.
Terry Robbins, daughter of Lee Brohawn and an employee of the Brohawn Company in 1983, avers that the pilings were originally placed as they are now—that they were never moved and that the Towers slip and Muffoletto slip, respectively, have always been nineteen-feet and thirteen-feet wide. George Apple, owner of Apple Marine Construction Company, avers that the pilings were installed according to "drawings supplied with the permit" from the Army Corps of Engineers.4
John W. Tieder, III, the son of Mr. Tieder, submitted two affidavits. In the first, he states that his father and Lee Brohawn were "close friends," but that he did not know what the initial plans for the slips may have been or about any conversations between his father and Lee Brohawn regarding them. In a second affidavit, and without reference to when it happened, he remembered going with his father to mark "where he wanted the pilings moved in order to accommodate his boat, increasing the size of the slip for Unit 311A and decreasing the size for Unit 312B."
On April 7, 1983, the Dickinsons paid for the license to slip 33; Mr. Tieder paid for the license to slip 32 on April 13, 1983. Cambridge Landing records reflect receipts for both slip licenses. The Dickinsons' Exclusive License for Boat Slip is in those records; the Tieder license is not. The actual widths of the slips are not reflected in the licenses or the unit purchase documents.
In 1996, the Brohawn Company granted all riparian rights, which it had previously reserved, to the Council, subject to prior licenses to boat slips issued by the Brohawn Company.5
Three years later, the Council adopted a policy requiring a unit owner who had made any changes to any mooring piles to return the piles to their "original" location when the unit is sold.6 Shortly after this policy was adopted, Mr. Tieder sold his unit to Mrs. Towers who was issued a Cambridge Landing Townehouse Condominium Deed of Easement for Boat Slip for slip 32, dated August 11, 2000. That document included a reference to a Site Plan for delineation of the slip and stated that the use of the slip was "as now constructed."
Mr. Muffoletto points out that Mrs. Towers's husband, who was then-President of the Council, executed that easement on behalf of the Council, and contends that Mr. Towers was an interested party and therefore prohibited from granting the easement without the written consent of the Council. No one on the Council or any other unit owner has raised an issue in regard to Mrs. Towers' easement for slip 32 in the sixteen years between the granting of the easement and the filing of this case. And, its terms are consistent with other licenses or easement agreements issued.
On June 18, 2004, twenty years and three days after the aerial photo showing the present location of the piles was taken, Mr. Muffoletto bought Mr. Godfrey's condominium unit and licensed slip 33. Shortly after he "settled on the unit and attempted to get [his] boat in the slip," he discovered the "difference in the [two] slips." He later met with Mrs. Towers to inquire about the difference in the slip width.
Mr. Muffoletto became a member of the Council in February of 2010. As previously noted, he claims that he gained "actual knowledge" of the 1999 policy at a Council meeting in September of 2010. In his Opposition to [the Council's] Motion for Summary Judgment, he asserts that in July of 2014 he discovered the possibility that the original placement of the mooring piles was different from what it is now and that the two slips were intended to be of equal width.
On November 15, 2016, Mr. Muffoletto filed a complaint in the Circuit Court for Dorchester County against Mrs. Towers and the Council, alleging:
Upon information and belief, after the Council took title to the Boat Slips , and before Mrs. Towers' and Mr. Muffoletto's ownership of their respective condominium units and corresponding boat slips, predecessors in title to Mrs. Towers and Mr. Muffoletto moved the pilings demarking the Towers Slip and the Muffoletto Slip to enlarge the Towers' Slip from sixteen feet (16') to nineteen feet (19') and reducing the Muffoletto Slip from sixteen feet (16') to thirteen feet (13').
(Emphasis added). He sought a declaratory judgment that slips 32 and 33 were intended and initially constructed to be equal widths of sixteen feet each.7 He further requested, by way of specific performance relief, that the piles be moved to "deliver to him a slip measuring sixteen feet in width." And he sought permanent injunctive relief that the piles be moved.8
In response to Mr. Muffoletto's Complaint, Mrs. Towers and the Council moved for a dismissal or, in the alternative, summary judgment. On May 17, 2017, the circuit court ultimately denied the motion to dismiss, reasoning that it was "unable to resolve—at this juncture—a factual dispute as to the duration of time that the pilings have been located in their current position." It also denied the defendants' alternative motion for summary judgment because of the unresolved material dispute as to whether the piles between slips 32 and 33 had been moved:
[Mr. Muffoletto] pointed the Court's attention to a potential dispute as the fact of when, precisely, the pilings were moved by [Mr. Muffoletto]'s and [Mrs.] Towers' predecessors in title. This point would certainly be relevant and material to the Court's determination as to whether [Mrs.] Towers has a quasi-prescriptive easement or an analogous right relating to Boat Slip 32.
The parties proceeded to discovery. Both Mrs. Towers and the Council served Mr. Muffoletto with interrogatories related to whether the piles had been moved. Having received what it considered non-responsive answers, Mrs. Towers filed a Motion for Order to Compel Proper Discovery Responses on July 27, 2017.9
In July of 2017, the circuit court ordered Mr. Muffoletto to submit proper discovery responses to each of the defendants in this case, but, due to a clerical error, that order was not sent. The Council filed a request for additional supplemental answers, which Mr. Muffoletto received on August 1, 2017. On September 8, an amended Order to Compel Proper Discovery Responses was sent to Mr. Muffoletto, giving him ten days to comply. He submitted his answers on the tenth day, but...
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