Suitland Development Corp. v. Merchants Mortg. Co., 268

• Court: Court of Appeals of Maryland
• Citation: 254 Md. 43,254 A.2d 359
• Docket Number: No. 268,268
• Parties: SUITLAND DEVELOPMENT CORPORATION et al. v. MERCHANTS MORTGAGE COMPANY et al.
• Decision Date: 03 June 1969

Page 43

254 Md. 43

254 A.2d 359

SUITLAND DEVELOPMENT CORPORATION et al. v. MERCHANTS MORTGAGE COMPANY et al.

No. 268.

Court of Appeals of Maryland.

June 3, 1969.

John F. Costello, Washington, D. C. (James S. Gardiner, Bethesda, on the brief), for appellants.

Melvin J. Sykes, Baltimore (Jerrold V. Powers, Upper Marlboro, on the brief), for Merchants Mortgage Co. et al., part of appellees.

Edward C. Covahey, Jr., Towson, for Title Co. of Maryland, Inc. and J. Elmer Weisheit, Jr., part of appellees.

Leonard S. Jacobson, Baltimore, on brief for Eugene J. Silverman, appellee and by John J. Ghingher, Jr., and Weinberg & Green, Baltimore, on brief for Ralph Lubow.

Before HAMMOND, C. J., and MARBURY, BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

McWILLIAMS, Judge.

Unlike most of the litigation that works its way up to us, this case, as far as our consideration of it is concerned, begins with the final decree, which we have set forth in full.

'The defendants, Merchants Mortgage Company (Merchants), a body corporate, Charles C. Hoffberger, President and Director of Merchants Mortgage Company, Charles H. Hoffberger, Director of Merchants Mortgage Company, Leroy E. Hoffberger, Vice-President and Director of Merchants Mortgage Company, Jerold C. Hoffberger, Treasurer and Director of Merchants Mortgage Company, Morton J. Hollander, Director of Merchants Mortgage Company, Morton Silberman, Director of Merchants Mortgage Company, Harold V. Keyser, Secretary and Director of Merchants Mortgage Company, Ralph Lubow, Vice-President and Director of Merchants Mortgage Company, and Sol M. Bank, individually, having been named in the original Bill of Complaint filed herein; plaintiffs thereafter having obtained leave of Court of add as additional defendants J. Elmer Weisheit, Jr., Pacy Oletsky, and Eugene J. Silvermann, and to amend the Bill of Complaint as to defendants Ralph Lubow and Harold V. Keyser to include them individually as well as in their capacity as Officers and Directors of Merchants Mortgage Company; said additional parties defendant and Ralph Lubow and Harold V. Keyser having consented to appear and participate in the trial of this cause without formal pleading or discovery, upon the previously assigned trial date; the original defendants above named having filed formal written answers, and the parties added by amendment having answered orally in open Court at the commencement of trial adopting the written Answer filed by the original defendants other than Sol M. Bank, individually.

'The above entitled case came on for hearing on April 22, 1968 (all dates mentioned are in 1968) and was heard in open Court continuously from that date up to and including May 2, saving and excepting only May 1. Plaintiffs produced numerous witnesses and more than 100 exhibits. At the conclusion of the plaintiff's case, all defendants made oral motions to dismiss under Maryland Rule 535. The Court heard full argument on said motions from counsel for all parties and, after the determination of the said motions to dismiss heard additional argument on other motions for assessment of costs, fees, and expenses under Maryland Rule 604 b.

'The Court having heard the evidence and argument of counsel, and the proceedings having been submitted and fully considered, it is, thereupon, this 6th day of May, by the Circuit Court for Prince George's County, Maryland, in Equity, pursuant to and for the reasons set forth in its oral opinion rendered from the Bench at the conclusion of the proceedings, which said opinion is hereby incorporated by reference to the same extent as if fully set forth in this Decree,

'ORDERED, ADJUDGED and DECREED as follows:

'(1) The Court finds that the allegations of fraud, collusion, misrepresentation, nondisclosure, conspiracy, and wrongdoing alleged in the Bill of Complaint are unsupported by the evidence; that the said allegations were made without substantial justification and for purposes of delay; and that the evidence produced by the plaintiffs completely vindicates each and every defendant from all the charges, allegations, and reflections upon their character and reputation contained in the Bill of Complaint.

'(2) Accordingly, the Motion to Dismiss under Maryland Rule 535 is granted and the Bill of Complaint is dismissed as to all defendants. Specifically and without limitation of the scope of the foregoing dismissal but solely for the purpose of emphasis, the Court adjudicates and denies each and every of the prayers for relief as to each of the plaintiffs, namely:

'I. (a) As to Suitland Development Corporation (Suitland), the prayer that the mortgage between said plaintiff and Merchants Mortgage Company referred to in the evidence, and recorded in Liber 3195, page 382, in the Land Records of Prince George's County, Maryland, be set aside and cancelled.

'(b) The prayer that defendants be enjoined from foreclosing on said mortgage.

'(c) The prayers that plaintiffs have judgment for compensatory damages for interest, costs and expenses, and for exemplary damages, plus costs of this action.

'II. (a) As to R & S Development Corporation (R & S), the prayer that the mortgage between said plaintiff and Merchants Mortgage Company referred to in the evidence, and recorded in Liber 3212, page 206, in the Land Records of Prince Geoege's County, Maryland, be set aside and cancelled.

'(b) The prayer that defendants be enjoined from foreclosing on said mortgage.

'(c) The prayers that plaintiffs have judgment for compensatory damages for interest, costs and expenses, and for exemplary damages, plus costs of this action.

'III. (a) As to Warbling Meadows, Inc. (Warbling Meadows), the prayer that the mortgage between said plaintiff and Merchants Mortgage Company referred to in the evidence and recorded in Liber 3434, page 282, in the Land Records of Montgomery County, Maryland, be set aside and cancelled.

'(b) The prayer that defendants be enjoined from foreclosing on said mortgage.

'(c) The prayers that plaintiffs have judgment for compensatory damages for interest, costs and expenses, and for exemplary damages, plus costs of this action.

'IV. (a) As to Beltway-Penn Construction Company, Inc. (Beltway-Penn), the prayer that the mortgage between said plaintiff and Merchants Mortgage Company referred to in the evidence, and recorded in Liber 3276, page 438, in the Land Records of Prince George's County, Maryland, be set aside and cancelled.

'(b) The prayer that defendants be enjoined from foreclosing on said mortgage.

'(c) The prayers that plaintiffs have judgment for compensatory damages for interest, costs and expenses, and for exemplary damages, plus costs of this action.

'(3) The Court finds and specifically declares that each of the said mortgages above referred to is a valid and binding obligation on the part of the respective mortgagors and each of said mortgages, according to the uncontradicted evidence, is and has been in default. The Court having found as aforesaid that the instant proceedings were brought without substantial justification and for purposes of delay by the four corporate plaintiffs, by and through the individual plaintiffs, Reuben Schwartz and Beulah Schwartz, and that the said Reuben Schwartz and Beulah Schwartz are the real plaintiff parties in interest, the motions of the defendants to require all the said plaintiffs to pay to them the amount of the costs of this proceeding and the reasonable expenses incurred by the defendants in opposing this proceeding, including reasonable attorneys fees pursuant to Maryland Rule 604 b, is granted, as prayed in the respective answers heretofore filed by the defendants and renewed orally in open Court at the conclusion of the Court's ruling on the merits under Maryland Rule 535. Counsel for the defendants are granted leave within ten days from the date of this Decree to file a Petition to fix the amounts that the plaintiffs shall be required to pay to the respective defendants under Maryland Rule 604 b, setting forth in detail the costs and reasonable expenses incurred and the services of the respective counsel involved.

'(4) The corporate plaintiffs, Suitland Development Corporation, R & S Development Corporation, Warbling Meadows, Inc., Beltway-Penn Construction Company, Inc., and the individual plaintiffs, Reuben Schwartz and Beulah Schwartz, shall pay the costs of this proceeding.' (Emphasis added.)

On 13 May Suitland, R & S, Warbling Meadows and Beltway-Penn filed an appeal 'from the order entered * * * on May 6.' Apparently because the court signed and filed another order on 6 May they thought it prudent, on 6 June, to file an amended order for an appeal 'from the final decree entered in this action on May 6.' (Emphasis added.) In passing it might be noted that the 'amended order' was not filed within the 30 days from the date (and filing) of the 'final decree.' Maryland Rule 812 a. On 14 June, the chancellor, Bowie, J., passed an order requiring Suitland, R & S, Warbling Meadows, Beltway-Penn and Reuben and Beulah Schwartz to show cause, on or before 9 July, 'why judgments should not be entered against them, pursuant to ordering paragraph No. 3 of the Final Decree entered herein on May 6, for reasonable expenses' (emphasis added) in favor of the appellees, $35,000 of which represented counsel fees. On 28 June the Schwartzes moved to quash the order as to them on the ground that they were not nor had they been parties to the action. On 1 August, however, before the motion raising preliminary objection (filed 28 June) had been heard, Suitland, R & S, Warbling Meadows, Beltway-Penn 'as well as Reuben Schwartz and Beulah Schwartz (who appear pursuant to Maryland Rule 124 c)' (emphasis added) in answer to the order of 14 June stated that the final decree of 6 May 'is without statutory authority,' that 'said decree is contrary to the substantive law' of the state, that 'there was no evidentiary or factual basis' in respect of lack of...