Urban Site Venture II Ltd. Partnership v. Levering Associates Ltd. Partnership

• Decision Date: 01 September 1995
• Docket Number: No. 43,43
• Citation: 340 Md. 223,665 A.2d 1062
• Parties: URBAN SITE VENTURE II LIMITED PARTNERSHIP et al. v. LEVERING ASSOCIATES LIMITED PARTNERSHIP. ,
• Court: Maryland Court of Appeals

Page 223

340 Md. 223

665 A.2d 1062

URBAN SITE VENTURE II LIMITED PARTNERSHIP et al. v. LEVERING ASSOCIATES LIMITED PARTNERSHIP.

No. 43, Sept. Term, 1995.

Court of Appeals of Maryland.

Oct. 13, 1995.

Lee H. Ogburn (Perry F. Sekus, Kramon & Graham, P.A., on brief), Baltimore, for Petitioner.

David S. Cordish (Paul J. Burt, Cordish & Cordish, on brief), Baltimore, for Respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

MURPHY, Chief Judge.

The issue in this case is whether the Court of Special Appeals erred in requiring that, in a building encroachment case, "compelling evidence" is necessary to establish innocent mistake under the doctrine of comparative hardship. We hold that a defendant in an encroachment case who seeks to avoid injunctive relief through the doctrine of comparative hardship must prove innocent mistake by a preponderance of the evidence.

I

Levering Associates Limited Partnership ("Levering"), owns an office building and concrete driveway located at 6-14 South Gay Street in Baltimore City. Urban Site Venture II Limited Partnership and LaSalle Partners Development II Limited Partnership (collectively "Urban Site"), planned to build a high-rise parking garage on the parcel immediately south of Levering's and hired Triangle Surveys, Inc. ("Triangle") to survey the site and locate the building on the lot. Urban Site and Triangle had access to a 1987 survey of the site by S.J. Martenet & Company ("Martenet"), but Triangle decided not to rely on the 1987 Martenet survey because it contained errors. Triangle surveyed the site and staked out the building and Urban Site began construction in May of 1990.

On June 15, 1990, when the garage was already three stories tall on the side adjacent to Levering's property, Levering filed suit in the Circuit Court for Baltimore City alleging a permanent encroachment and seeking an injunction and damages. Levering then hired Greenhorne & O'Mara, Inc. ("Greenhorne") to survey the site and determine whether the garage encroached on its property. The Greenhorne survey determined that the garage encroached in a triangular area, from zero to 1.5 inches over nine feet.

After receiving the Greenhorne survey, Levering advised Urban Site's contractor, Omni Construction, Inc. ("Omni") that it believed the north wall of the garage encroached on its property. The construction supervisor immediately halted construction. Urban Site had Triangle double-check its survey. Then Omni verified the placement of the building on the lot and checked the Triangle survey's accuracy with the Baltimore City surveyor's office. Based on this investigation, Urban Site determined that the garage did not encroach on Levering's property and resumed construction.

After a three-day trial, Judge John N. Prevas held that the garage encroached a total of 1.3 square feet on Levering's property. He determined that the market value of the sliver of land encroached upon was $200 and the cost of removing the encroachment would be approximately $500,000. He also found that the encroachment did not impede Levering's use of its property or future development rights. Accordingly, Judge Prevas denied Levering's request for a permanent injunction under the doctrine of comparative hardship and awarded it $14,801 in damages.

Levering appealed to the Court of Special Appeals and Urban Site cross-appealed. The Court of Special Appeals, in an unreported opinion, upheld the circuit court's finding that there was an encroachment, but vacated the judgment and remanded, holding, "[t]he trial court erred in balancing the equities of the situation without a prior determination of whether the Builders had encroached upon Levering's property by innocent mistake."

On remand, Judge Prevas found that the encroachment resulted from an innocent mistake and again refused to issue a permanent injunction. He also reduced the damages award to $302, consistent with a directive from the Court of Special Appeals.

Levering again appealed to the Court of Special Appeals which, in an unreported opinion, reversed the circuit court's ruling, granted injunctive relief, and stated:

We hold that, when an encroacher's own survey information (regardless of whether he professes knowledge of his own information) initially indicates that his structure will encroach, and when an adjoining landowner notifies the encroacher of the encroachment, supporting that notification with a survey that is consistent with the encroacher's original correct survey, the encroacher cannot thereafter claim innocence by procuring a third survey of that property to show no encroachment.

We granted Urban Site's petition for certiorari to ascertain whether, as it claimed, the Court of Special Appeals erred in holding Urban Site to a "compelling evidence" burden in proving their innocence.

II

Levering maintains that the Court of Special Appeals did not establish a "compelling evidence" burden of proof. The language at issue in the Court of Special Appeals' opinion is as follows:

The concept of the sanctity of private property ownership demands no less than severe and extensive scrutiny of the innocence of the mistake, when encroachments occur; the ownership of one's property should not be divested except upon the most compelling evidence of innocence. Compelling evidence of innocence is non-extant in this case.

(emphasis in original). We agree with Urban Site that the Court of Special Appeals established a "compelling evidence" burden of proof and that it erred in so doing.

Maryland courts recognize only three standards of proof: "[t]he lowest standard requires proof by a 'preponderance' of the evidence; the highest standard demands proof 'beyond a reasonable doubt;' an intermediate standard calls for proof that is 'clear and convincing.' " Wills v. State, 329 Md. 370, 373-74, 620 A.2d 295 (1993). In most civil actions, the party having the burden of proof on an issue must prove his or her contention by a fair preponderance of the evidence. See, e.g., Lazenby v. F.P. Asher, Jr. & Sons, 266 Md. 679, 683, 296 A.2d 699 (1972); Carter v. Carter, 139 Md. 265, 267-68, 114 A. 902 (1921); Ocean Plaza Joint Ven. v. Crouse Constr., 62 Md.App. 435, 447, 490 A.2d 252 (1985). In an encroachment case, the party seeking to avoid the issuance of a permanent injunction bears the burden of proving its innocence. Griffin v. Red Run Lodge, 610 F.2d 1198 (4th Cir.1979); see also Operations Research Inc. v. Davidson & Talbird, Inc., 241 Md. 550, 217 A.2d 375 (1966); Noffsinger v. Noffsinger, 95 Md.App. 265, 620 A.2d 415, 422 (1993); Daniels v. Sup't, Clifton T. Perkins State Hos., 34 Md.App. 173, 366 A.2d 1064, 1069 (1976); cf. Ewachiw v. Director of Finance of Baltimore, 70 Md.App. 58, 519 A.2d 1327 (1987); Keeney v. Prince George's Cty. Dept. of Soc. Serv., 43 Md.App. 688, 406 A.2d 955 (1979); Plummer v. Waskey, 34 Md.App. 470, 368 A.2d 478 (1977); Maryland State Bar Association, Maryland Civil Pattern Jury Instructions § 1:7a (3d ed.1993 & Supp.1995).

A heightened burden of proof is imposed in certain circumstances. E.g., Mack v. Mack, 329 Md. 188, 208, 618 A.2d 744 (1993) (termination of life support); Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992) (punitive damages); Board of Trustees v. City of Baltimore, 317 Md. 72, 116, 562 A.2d 720 (1989) (federal preemption); Attorney Griev. Comm'n v. Sparrow, 314 Md. 421, 426, 550 A.2d 1150 (1988) (attorney grievance proceedings); Everett v. Baltimore Gas & Elec. Co., 307 Md. 286, 300, 513 A.2d 882 (1986) (fraud); Lazenby, supra, 266 Md. at 683, 296 A.2d 699 (reformation of deed). We have never imposed a heightened burden of proof, however, on the defendant in an encroachment case to prove innocent mistake. See, e.g., Amabile v. Winkles, 276 Md. 234, 347 A.2d 212 (1975); Chevy Chase Village v. Jaggers, 261 Md. 309, 275 A.2d 167 (1971); Dundalk Holding Company v. Easter, 215 Md. 549, 137 A.2d 667 (1958), cert. denied, 358 U.S. 821, 79 S.Ct. 34, 3 L.Ed.2d 62 (1958), reh'g denied, 358 U.S. 901, 79 S.Ct. 219, 3 L.Ed.2d 151 (1958); Lichtenberg v. Sachs, 213 Md. 147, 131 A.2d 264 (1957). The Court of Special Appeals based its imposition of a heightened burden of proof on "the sanctity of private property." This Court, however, has consistently applied the preponderance of the evidence standard in cases involving private property ownership. See, e.g., Dreisonstok v. Dworman Building Corp., 264 Md. 50, 58, 284 A.2d 400 (1971) (ejectment); Stottlemyer v. Kline, 255 Md. 635, 638, 259 A.2d 52 (1969) (trespass); Miceli v. Foley, 83 Md.App. 541, 552, 575 A.2d 1249 (1990) (adverse possession); Ocean Plaza, supra, 62 Md.App. 435, 490 A.2d 252; cf. Stuart v. Johnson, 181 Md. 145, 147, 28 A.2d 837 (1942) (trespass and adverse possession). We see no reason to impose a heightened burden of proof on Urban Site to prove the innocence of its mistake in this case. Accordingly, we hold that the Court of Special Appeals was wrong in imposing a "compelling evidence" burden of proof and that the trial judge did not err in finding that Urban Site proved innocent mistake by a preponderance of the evidence.

III

Both this Court and the Court of Special Appeals, when reviewing a case tried without a jury, must "review the case on both the law and the evidence." Maryland Rule 8-131(c) (1995 Repl.Vol.). The Court must "not set aside the judgment of the trial court on the evidence unless clearly erroneous," and must "give due regard to the opportunity of the trial court to judge the credibility of the witnesses." Id. In addition, we must consider the evidence in the light most favorable to the prevailing party, e.g., Geo. Bert. Cropper, Inc. v. Wisterco, 284 Md. 601, 620, 399 A.2d 585 (1979), and decide not whether the trial judge's conclusions of fact were correct, but only whether they were supported by a preponderance of the evidence. E.g., State Insurance Comm'r v. Nat'l Bureau, 248...