Kasdon v. Westbury, Inc.
Kasdon v. Westbury, Inc.
Opinion of the Court
delivered the opinion of the Court.
Appellant (Kasdon) is upset, justifiably so we think, because the trial judge, Pugh, J., ignored his request for a hearing. The facts seem not to be in dispute.
In June 1968 Kasdon attended a Montgomery County tax sale. He bought 12 parcels of land belonging to West-bury, Inc., for each of which he received a separate Certificate of Tax Sale. In July 1969, none of the properties having been redeemed, Kasdon filed 12 separate bills of complaint to foreclose the rights of redemption. This appeal concerns directly only one of those actions. Indirectly it concerns all of them. In September 1969 West-bury filed a petition (in which, two weeks later, Belts-ville Investment Corporation joined) to redeem, to consolidate the 12 actions, and to fix the amount necessary for redemption. On 21 November, after a hearing, Judge Pugh denied the motion to consolidate but he did nothing about fixing the amount necessary for redemption. Kasdon, in a motion for reconsideration filed four days later, alleged that the court “did not allow [his] counsel to complete his argument or to be heard in any other way with regard to the amount necessary for redemption,” despite the fact that his title examiner was present and ready to testify. Kasdon concluded his motion with a request for a hearing at which testimony might be produced and argument permitted in respect of “the amounts to be paid in redemption.” The motion was denied on 9 December.
On 29 December Kasdon answered Westbury’s petition of 10 October to consolidate and to “fix costs necessary for redemption.” Kasdon set forth, in that answer, the amounts he contended should be paid and he appended two requests for a hearing. He claimed he was entitled to be reimbursed for the following:
*224 “Taxes, interest and costs paid by Plaintiff $ 57.00
Plus 6% interest thereon from 6/10/68 to the date of payment [5.39]
46.00 Court costs paid by Plaintiff
170.72 Advertising costs
25.00 Title Search
100.00” Attorney’s fees
$404.11
Without notice to any of the parties Judge Pugh, on 7 January 1970, passed and filed the following order:
“ORDERED, that the amount necessary for redemption of Lot 14, Block A, ‘Muncaster Mill View’, be and the same is hereby fixed as follows :
1967 Taxes $ 57.00
Interest 5.39 $ 62.39
Montgomery County Sentinel 170.72
Clerks costs 6.50
Additional clerks fees 16.50
Plaintiffs appearance fee 5.00
Seven services of process 7.00
Title search 10.00
Attorneys fee 25.00 240.72
303.11
“IT IS FURTHER ORDERED that the Plaintiff pay the added costs of these proceedings.
s/ James H. Pugh
Judge”
It is at once apparent, assuming only minor differences in the other 11 cases, that the cost of redemption, applying Kasdon’s figures, will be about $5,000. If Judge Pugh’s accounting is used it will be about $3,600. If all 12 •certificates had been joined in one proceeding the cost of redemption might have been even less but how much less can only be surmised.
In passing perhaps we ought to confess that we are not touched by the plight of the appellees. It seems that, in common with many other real estate operators they found it expedient to defer the payment of real estate taxes instead of borrowing to pay them on the due date. The interest rate (six per cent) established by § 93 is obviously more attractive than the eight or nine or ten per cent a lender would demand. But this ploy becomes risky if extended beyond a year and a day from the day of sale because thereafter the holder of the certificate
There can be no doubt that Kasdon is entitled to be reimbursed for necessary title searches “for each property,” except that upon “proof that the search was unusually difficult * * * [the court] may allow an amount not exceeding $25 for each search.” § 110. He is entitled, also, among other things, to be reimbursed for the “actual attorney’s fee, not to exceed the sum of $100.” § 111. It hardly needs saying that the trial judge ought to hear what the certificate holder has to offer in this regard before fixing the amount.
Within the past year, in Madaio v. Madaio, 256 Md. 80, 83-84 (1969), we said:
“The right to receive notice and to be afforded an opportunity to be heard in any proceeding to which finality is to be accorded is established beyond question in this country. According to the Supreme Court of the United States, ‘[t]he fundamental requisite of due process of law is the opportunity to be heard.’ Grannis v. Ordean, 234 U. S. 385, 394 (1914). In Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950), Mr. Justice Jackson, for the Court, pointed out that:
‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. * * * The notice must be of such nature as reasonably to convey the required information, * * * and it must afford a reasonable time for those interested to make their appearance * * Id. at 314.”
We made the further observation “that denying * * * [the appellant] an opportunity to be heard was contrary
“c. Disposition
1. With or Without Hearing — When The court may decide motions (except motions for new trial or judgment n.o.v.), demurrers and other preliminary matters requiring action by the court, without a hearing unless:
(i) The moving party files a request for a. hearing when the demurrer or motion is filed.
(ii) The opposing party files such a request with his reply.”
Appellees moved to dismiss the appeal because Kasdon did not comply with Rule 828 a in that the type size of the Record Extract is smaller than the required “11 point type or small pica.” Kasdon, in his reply to the motion, blames the printer for this inadvertence. He insists, however, that the “copy is clear, legible and easily readable, and certainly as readable as the small print found on page four of Appellees’ brief.” We are obliged to agree with him but it must be understood that we take a dim view of this sort of disregard of the Rules whether intentional or unintentional. However in these circumstances we are not inclined to apply so drastic a sanction. Kennedy v. Kennedy, 250 Md. 462, 467 (1968). We shall exercise the discretion we have vested in ourselves by virtue of Rule. 828 i 1 and deny the motion to dismiss.
Order of 7 January 1970 reversed.
Case remanded for further-proceedings conformable-with the vievjs expressed in this opinion.
Costs to be paid by the appellees.
Reference
- Full Case Name
- KASDON v. WESTBURY, INC.
- Cited By
- 1 case
- Status
- Published