FIRST AMENDED COMPLAINT

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Donald Oliver
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1 PROPERTY OWNERS ASSOCIATION * IN THE OF ARUNDEL-ON-THE-BAY, INC. P. O. Box 4665 * CIRCUIT COURT Annapolis, Maryland * FOR And * ANNE ARUNDEL COUNTY FRANK A. FLORENTINE, President Property Owners Association * Case No.: C RP Of Arundel on the Bay, Inc. * 3403 Saratoga Ave. Annapolis, Maryland * And * MILTON HARROD * 3535 Saratoga Ave. Annapolis, Maryland * * Plaintiffs * v. * JOYCE Q MCMANUS * 3430 Rockway Avenue Annapolis, Maryland * Defendant * FIRST AMENDED COMPLAINT Plaintiffs, Property Owners Association of Arundel-on-the Bay, Inc. ( the Association ), Frank A. Florentine and Milton Harrod by their attorneys, Council, Baradel, Kosmerl & Nolan, P.A. Wayne T. Kosmerl and Susan T. Ford hereby assert the following First Amended Complaint against Defendant Joyce Q McManus in order to add individual Plaintiffs who have been denied the right of use and enjoyment of Saratoga Avenue by virtue of Defendant s erection of the fence at issue and to *

2 clarify that the Association is claiming both ownership and the non-exclusive right of use and possession of Saratoga Avenue on behalf of all residents of Arundel on the Bay by virtue of public dedication, scheme of development and/or implied and/or prescriptive easement, including on behalf of the individual Plaintiffs. The Complaint filed in the above-captioned matter, including the exhibits attached thereto, is expressly adopted herein as if set forth in full. Plaintiffs hereby state: 1. The Association is the record owner of certain property consisting of, among other things, certain streets and alleys located within the subdivision known as Arundel-on-the- Bay by virtue of a deed dated September 11, 1951 and recorded among the Land Records of Anne Arundel County in Liber 825 at folio 32 (Exhibit A) from Willa Gallagher, George E. Terrell and Clarence W. Gosnell as trustees of said streets and alleys upon the dissolution of the Town of Arundel-on-the-Bay (Exhibit B). The streets and alleys are more particularly shown on a subdivision plat for Arundel-on-the-Bay entitled Revised Plat prepared by Revell Carr in 1927 ( the Subdivision Plat ), a detail of which is attached hereto and made a part hereof (Exhibit C) as well as on an 1890 plat of Arundel-on-the-Bay recorded among the Plat Records of Anne Arundel County in Liber SH 37, folio 509 (Exhibit D). Among the streets and alleys owned by the Association is the right of way known as Saratoga Avenue. 2. Plaintiff Frank A. Florentine is the President of the Property Owners Association of Arundel on the Bay, Inc. and an individual residing and owning property within Arundel on the Bay at 3403 Saratoga Ave., Annapolis, Maryland Plaintiff Milton Harrod is an individual residing and owning real property within Arundel on the Bay at 3535 Saratoga Avenue, Annapolis, Maryland

3 4. Defendant is the record owner of certain property consisting of the north half of Lot K and Lot I in Block 58 as shown on the Subdivision Plat. Defendant took title to her property by virtue of a deed dated September 13, 1973 and recorded among the Land Records of Anne Arundel County in Liber 2623 at folio 435, which is attached as Exhibit E ( Defendant s Property ). 5. Since the date that the Association took title to Saratoga Avenue and the other streets and alleys in Arundel-onthe-Bay, it has held such streets and avenues, including Saratoga Avenue... for the proper use, benefit and behoove of the recorded property owners of Arundel-on-the-Bay... and has allowed and permitted each property owner, including Defendant, to use such streets and avenues, including Saratoga Avenue, on a non-exclusive in-common basis with other property owners of Arundel-on-the-Bay. The Association and its predecessor in title, Arundel-on-the-Bay, a municipality created by a legislative act of the General Assembly of Maryland in 1898, have exerted actual, open, continuous ownership and possession of that portion of Saratoga Avenue which is wrongfully occupied by Defendant as hereinafter alleged. All streets within the municipality were public streets dedicated to the public use by the residents of Arundel-on-the-Bay. The legislative Act of the General Assembly of 1898, at paragraph 32, Exhibit H hereto, expressly subjected all streets, alleys, lanes, parks and public grounds in the town of Arundel on the Bay to the control of the Commissioners of Arundel on the Bay with the authority to establish, maintain, alter and repair such improvements thereon. Said dedication and purpose have remained the same since the inception of the municipality and devolved to the Association and its members upon the dissolution of the Arundel-on-the-Bay municipality in 1949, when all rights in and 3

4 to such streets vested in the Association. At no time was there an abandonment of the public purpose and nature of the community streets, including Saratoga Avenue. 6. Saratoga Avenue is an avenue which is improved in certain portions providing egress, ingress and access for the property owners of the Association. In other parts, Saratoga Avenue is unimproved but, nonetheless, has been utilized by the lot owners and the members of the Association for walking, hiking, and for general recreational purposes as well as access to the waters of Fishing Creek. 7. Approximately in the summer of 1999, Defendant erected, unbeknownst to the Association, and without its consent, a wire fence across Saratoga Avenue in such a manner so as to generally prevent pedestrian access or movement along Saratoga Avenue ( Fence Encroachment ). The Fence Encroachment blocks and prevents the Association and its members from free and unfettered movement along Saratoga Avenue from that point where said avenue abuts Defendant s Property. 8. Although the Association has notified Defendant by letter dated August 28, 2004 (attached hereto as Exhibit F), Defendant has refused to remove the Fence Encroachment and has asserted legal ownership, through her counsel, of that portion of Saratoga Avenue which abuts Defendant s property (see Exhibit G). 9. Venue is proper in this Court because Saratoga Avenue, which is the subject of this suit, is located in Anne Arundel County and the Defendant is a resident of said county. Count I Declaratory Judgment and Injunctive Relief 4

5 10. The Association and individual Plaintiffs incorporate and re-allege as if fully set forth herein each allegation of paragraphs 1 through 9 above. 11. Failure of Defendant to remove the Fence Encroachment and the allegations by Defendant of claiming title to Saratoga Avenue calls into question the Association s lawful title and right to possess Saratoga Avenue. Defendant s unauthorized and unlawful encroachment creates a cloud upon the Association s title to Saratoga Avenue. 12. The line of division between Saratoga Avenue and Defendant s property is the western outline of Defendant s property. Defendant s deed grants unto her no exclusive right of title or possession to Saratoga Avenue. In fact, Defendant s deed clearly recognizes that Saratoga Avenue forms the boundary of Defendant s property, and that portion which lies to the east of Saratoga Avenue and one portion which lies to the west. 13. The Association, as well as its members, the property owners of Arundel-on-the-Bay, including the individual Plaintiffs, purchased their respective properties with the expectation that Saratoga Avenue, together with other streets located in the community, would permit them to gain access to the Chesapeake Bay and/or Fishing Creek for leisure and recreational purposes, which expectations are supported by the general scheme of development of the community, as evidenced by the actions of the Association and its predecessor. The actions of Defendant deny the Association, its members, the individual Plaintiffs and other property owners of Arundel-on-the-Bay the right, both expressed and implied, to use and enjoy the right of way known as Saratoga Avenue. 14. Defendant has been asked to remove the Fence Encroachment which is now constructed on the Association s property, and despite such demands, Defendant has refused to 5

6 remove the Fence Encroachment and instead, has asserted that she owns the land to which the Fence Encroachment is attached and that portion of Saratoga Avenue which lies to the west of Defendant s property. 15. The Association seeks to remove any cloud from its title resulting from the claims of ownership by Defendant. 16. To its information and belief, there is no action at law or proceeding in equity that is pending to enforce or test the validity of the Association s title to the property claimed herein. 17. A declaratory decree by this Court is proper and necessary to terminate and resolve the controversy and uncertainty precipitated by the acts of Defendant as alleged hereinabove. WHEREFORE, the Association and individual Plaintiffs respectfully request that the Court enter an order: A. Declaring the line of division between Saratoga Avenue and Defendant s property is as shown on the plats of Arundel-onthe-Bay as attached hereto as Exhibit C; B. Declaring the Association is the holder of legal and/or equitable title under color of title, to that portion of Saratoga Avenue which is immediately adjacent to Defendant s property; C. Declaring that Defendant is not the legal or equitable owner of any portion of Saratoga Avenue now being claimed; D. Mandating that Defendant remove from Saratoga Avenue all of her property, including but not limited to, the Fence Encroachment which trespasses and interferes with the Association s property; E. Declaring that all property owners of Arundel-on-the- Bay, including Defendant and individual Plaintiffs have a nonexclusive right to pass over and through Saratoga Avenue, 6

7 including that area adjacent to Defendant s property for any and all lawful purposes; F. Enjoining Defendant from constructing any improvement upon, maintaining or otherwise interfering with the Association s property or interfering with the use and enjoyment of Saratoga Avenue, the Association, its members or other property owners in Arundel-on-the-Bay; G. Declaring that the Fence Encroachment would be an infringement and obstruction as well as a trespass upon the Association s property; H. Declaring that all property owners of Arundel on the Bay, including Defendant and the individual Plaintiffs have an implied and/or prescriptive easement to pass over and upon Saratoga Avenue to reach adjacent public ways and/or the waters of Fishing Creek; I. Declaring that Saratoga Avenue was offered for dedication to the public use by the filing of the Arundel on the Bay record plat and the offer of dedication was accepted by Acts of the General Assembly dated 1898 which expressly gave control of all the streets, alleys, roads and paths to the Town Commissioners as well as by other actions of the Town Commissioners and their successors. Count II Ejectment 18. The Association incorporates and re-alleges as if fully set forth herein each allegation of paragraphs 1 through 15 above. 19. Notwithstanding that the Association is the owner of Saratoga Avenue, Defendant has constructed a fence which blocks all access to a portion of Saratoga Avenue extending from the fence south prohibiting the Association, its members and lot 7

8 owners from traversing that portion of Saratoga Avenue which is adjacent and abuts Defendant s property. 20. As a result of Defendant s conduct, the Association has suffered damages and loss of use. WHEREFORE, the Association respectfully requests the relief sought in Count I and, in addition, recovery of that portion of Saratoga Avenue from Defendant as described above together with compensatory damages in the amount of $25,000 with interests and costs. Count III Action for Possession 21. The Association incorporates and re-alleges as if fully set forth herein each allegation of paragraphs 1 through 20 above. 22. As a result of the erection of the unlawful Fence Encroachment by Defendant, the Association s possession and use of that portion of Saratoga Avenue has been unlawfully and wrongfully denied to the Association, its members, and other lot owners within the community. WHEREFORE, the Association respectfully requests the relief sought in Count I, and, in addition, recovery of that portion of Saratoga Avenue from Defendant as described above, and compensatory damages in the amount of $25,000 with interest and costs. Count IV Trespass 23. The Association incorporates and re-alleges as if fully set forth herein each allegation of paragraphs 1 through 22 above. 8

9 24. Defendant has physically entered upon the premises of the Association s property to gain access to that area upon which the Fence Encroachment was constructed and is now attempting to exercise exclusive possession of that portion of Saratoga Avenue which lies south of Defendant s property. Defendant s entry upon Saratoga Avenue was unlawful and without the consent of the Association or its predecessors in interest and has interfered with and continues to interfere with, the peaceable use, possession and enjoyment of the Association s property by the Association, its members, and other lot owners within the community including individual Plaintiffs. 25. The Association has put Defendant on notice of its claim, demanded Defendant remove the Fence Encroachment, and requested that Defendant refrain from blocking community access to the Association s property, but Defendant has failed and refused to comply. 26. As a result of Defendant s trespasses upon the Association s property, Defendant has caused damage to the Association s property, as well as causing the Association to incur attorneys fees, surveying fees, title examination fees, and other charges in order to protect its property from the unlawful claims and incursions by Defendant. 27. Unless Defendant is restrained from trespassing upon and blocking access to the property which the Association rightfully possesses, the Association will suffer further substantial irreparable injury. WHEREFORE, the Association respectfully requests that this Court: A. Grant the relief prayed for in Count I; B. Enter judgment in favor of the Association and against Defendant for compensatory damages in the amount of $25,000 plus interest and costs; 9

10 C. Enter an order directing Defendant to remove the Fence Encroachment; D. Enter an injunction restraining Defendant from otherwise blocking or restricting access by the Association, its members, or lot owners of the community to Saratoga Avenue or any other portion of the Association s property. Count V Action to Quiet Title 28. The Association incorporates and re-alleges as if fully set forth herein each allegation of paragraphs 1 through 27 above. 29. The Association and its predecessors in title have been in constructive and peaceful possession and ownership of Saratoga Avenue for more than one hundred years. The acts and claims of Defendant have resulted in a cloud being placed upon the Association s title to that portion of Saratoga Avenue abutting Defendant s property. WHEREFORE, the Association respectfully requests: A. The relief sought in Count I; B. Recovery of that portion of Saratoga Avenue which is now being claimed by Defendant; C. Entering a decree that the Association is the absolute fee simple owner of Saratoga Avenue; D. Entry of an injunction against Defendant preventing her from asserting any claim of exclusive ownership or possession to any part or portion of Saratoga Avenue; E. Grant such other and further relief as the nature of the Association s cause may require. COUNCIL, BARADEL KOSMERL & NOLAN, P.A. 10

11 By: Susan T. Ford Wayne T. Kosmerl 125 West Street, 4 th Floor Post Office Box 2289 Annapolis, Maryland Telephone: (410) Attorneys for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this day of September, 2005, a copy of the foregoing First Amended Complaint was mailed, first class postage prepaid, to Merle F. Maffei, P.A., 113 Cathedral Street, Annapolis, Maryland Wayne T. Kosmerl 11

2. Defendant is the record owner of certain property consisting of the north half of Lot K and Lot I in Block 58 as shown on the Subdivision Plat.

2. Defendant is the record owner of certain property consisting of the north half of Lot K and Lot I in Block 58 as shown on the Subdivision Plat. PROPERTY OWNERS ASSOCIATION * IN THE OF ARUNDEL-ON-THE-BAY, INC. P. O. Box 4665 * CIRCUIT COURT Annapolis, Maryland 21403-4556 * FOR Plaintiff * ANNE ARUNDEL COUNTY v. * JOYCE Q MCMANUS 3430 Rockway Avenue