FOR LINE. and April Moses (collectively, "Plaintiffs"), by their undersigned counsel, hereby submit

Transcription

1 " if '- SHERRY BELLAMY, et al. Plaintiffs, v. PROPERTY OWNERS ASSOCIA non OF ARUNDEL ON THE BAY, INC., et al. IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY Case No. 02-C-06- I Defendants. LINE Plaintiffs, Sherry Bellamy, George Bumbray, John and Laverne Dav, and John and April Moses (collectively, "Plaintiffs"), by their undersigned counsel, hereby submit for fiing with the Court, the attached redlined copy of the Amended Complaint. The Amended Complaint was fied with the Clerk of the Court on December 8, 2006 and the red lined copy of the Amended Complaint was inadvertently omitted. Respectfully submitted, 1 ooker R rt T. Johnson MCGUIRE WOODS LL 7 Saint Paul Street, Suite 1000 Baltimore, Maryland (410) Eileen E. Powers BLUMENTHAL DELAVAN & WILLIAMS, P.A. i 70 Jennifer Road Anapol, Marland (410) COUNSEL FOR PLAINTIFFS

2 CERTIFICATE OF SERVICE I HEREB Y CERTIFY that on th 21 st day of December, 2006, a copy of the foregoing Line was mailed first-class, postage prepaid, to: Susan T. Ford, Esquire Council Baradel Kosmerl & Nolan, P.A. i 25 West Street, 4th floor Annapol, MD \ i-

3 SHERRY BELLAMY-A. et al. IN THE - CEORCE BUMBR.-\ Y3402 Chesapeake Walk Annapol, Maryland lt Plaintiffs. ~ - JOHN l..d LAVERNE D.A- vvs 3406 Chesapeah:e \\'all, Annapol, Maryland lt JOHN AND APRIL MOSES 3140 Chesapeake ~'all, Annapol, Maryland v. Plaintiffs, mr EW CIRCUIT COURT ANNE ARUNDEL COUNTY, MARYLAND Case No. PROPERTY OWNERS ASSOCIATION - OF ARUNDEL ON THE BAY, INC.il P.O. Box 4665 Annapol, Maryland lt FRANK.A-. FLORENTINE _ 3403 Saratoga Avenue Annapol, Maryland lt MARYLAND BARRY DEMPSEY 3501 Newport Avenue Annapol, Maryland lt R. REBECCA MOR.iuS 3430 Newport Avenue Annapol, Maryland 21403

4 aø DA VID ZEMAN 1332 Walnut 1\\'nue - Annapol, Maryland lt MICHAEL MER.luCAN 3537 Newport.A-Yenue Annapol, Maryland ~ I. Case No. C-06- Defendants. AMENDED COMPLAINT Plaintiffs, Sherr Bellamy, George Bumbray, John and Laverne Dav, and John and April Moses, by their attorneys, A va E. Lias-Booker, Jessica E. Morron, Robert T. Johnson, McGuireWoods LLP, Eileen E. Powers and Blumenthal, Delavan & Williams, P.A., hereby bring th actionas and for their amended complaint against Defendants, Property Owners Association of Arundel on the Bay, Inc., Frank A. Florentine, Barr Dempsey, R. Rebecca Morr, David Zeman and Michael Merrigan, stating for cause~ as follows: PARTIES AND JURISDICTION 1. Plaintiffs Sherr Bellamy ("Bellamy") and George Bumbray ("Bumbray") own real propert located in Ane Arundel County, Maryland known as 3402 Chesapeake Walk, Annapol, Marland 21403, and identified as Lots D and E, Block 3, as shown on a plat entitled "Arundel on the Bay," which plat recorded among the Land Records of Anne Arundel County, 2

5 Maryland in Plat Book S.H. 34, folio 509, by virtue of a deed dated March I, 1999 and recorded among the Land Records in Liber 9027, folio Plaintiffs John and Laverne Dav (the "Dav Plaintiffs" or the "Dav Property Owners") own real property located in Anne Arundel County, Marland known as 3406 Chesapeake Walk, Annapol, Marland 21403, and identified as Lot B, Block 3, as shown on a plat entitled "Arundel on the Bay," which plat recorded among the Land Records of Anne Arundel County, Maryland in Plat Book S.H. 34, folio 509, by virtue of a deed dated December 15, 1994 and recorded among the Land Records in Liber 687 i, folio 73. J. The Dav Plaintiffs also own real property located in Anne Arundel County. Maryland known as 3408 Chesapeake Walk. Annapol. Maryland and identified as Lot A. Block 3. as shown on a plat entitled "Arundel on the Bay." which plat recorded among the Land Records of Anne Arundel County. Maryland in Plat Book S.H. 34. folio 509. hy virtue of a deed dated Septemher i and recorded among- the Land Records in Liher folio ;;Plaintiffs John and April Moses (the "Moses Plaintiffs" or the "Moses Propert. Owners") own real propert located in Anne Arundel County, Maryland known as 3440 Chesapeake Walk, Annapol, Marland 21403, and identified as Lots D, E, F and G, Block 6, as shown on a plat entitled "Arndel on the Bay," which plat recorded among the Land Records of Anne Arudel County, Maryland in Plat Book S.H. 34, folio 509, by virtue of a deed dated,may 21, 1971 and recorded among the Land Records in Liber 2407, folio LDefendant, Propert Owners Association of Arundel on the Bay, Inc., (heteinafter the "Association") a Marland corporation, maintains its principal place of business in Anne Arundel County, Marland, and organize and exts to provide for 3

6 maintenance, preservation and architectural control of the residential lots and Association property within all that certain propert known as Arundel on the Bay, as shown on a plat entitled "Arundel on the Bay," which plat recorded among the Land Records of Anne Arundel County, Maryland in Plat Book S.H. 34, folio 509 (hereinafter the "AOB Plat"). 6. -Defendants, Frank A. Florentine, Barr Dempsey, R. Rebecca Morr, David Zeman and Michael Merrigan (hereinafter, the "Individual Defendants"), are, or at all times relevant to the events giving re to th Complaint were, agents of the Association and residents of Anne Arndel County, Maryland. 2. é-personal jurdiction over the Association and the Individual Defendants exts pursuant to Md. Cts. & Jud. Proc. Code Ann , and venue lies in Anne Arundel County pursuant to 6-20 I (a) and 6-202(8). FACTS COMMON TO ALL COUNTS 8. +:AII of the Plaintiffs (hereinafter collectively referred to as "Propert Owners") own propert bounded by a road identified as Chesapeake Avenue on the AOB Plat and commonly known as Chesapeake Walk (hereinafter referred to as "Chesapeake Walk"). The Moses Plaintiffs' property also bounded on one side by a road identified as Redwood Avenue - on the AOB Plat. Additionally, the Dav Plaintiffs' propert at 3408 Chesapeake Walk bounded on one side by a road identified as Walnut Avenue on the AOB Plat. ~ &-Chesapeake Walk runs parallel to and abuts the shoreline of the Chesapeake Bay. It has never been used or developed as a right-of-way for vehicular traffic over the Property Owners' Properties, but has remained open and accessible for the reasonable use of residents of Arndel on the Bay and their guests. 4

7 Ul 9-Redwood Avenue and Walnut Avenue both ru perpendicular to Chesapeake Walk. Both Redwood Avenue and Walnut Avenue have been used as rights-of-way for vehicular traffc to properties adjoining them and each A venue dead-ends at Chesapeake Walk. COUNT I (Quiet Title-Plaintiffs Bellamy and Bumbray) 11. -WPlaintiffs Sherr Bellamy and George Bumbray repeat and incorporate the allegations contained in paragraphs 1 through 9lD as though fully stated herein, and bring th action to quiet title to their land pursuant to Md. Real Prop. Code Ann. 14- i 08. U. l- The predecessors in title to the properties owned by Property Owners Bellamy and Bumbray, as part of the owners of 212 lots in Arundel on the Bay, acquired title from the original developer and builder of Arundel on the Bay, The Chesapeake and Columbia Investment Company, between 1890 and 1928, and/or the Meredith Lumber Company, between 1926 and R-Upon each of the conveyances from the original developer and builder or Arundel on the Bay to bona fide purchasers between i 890 and 1933, there was no retention by the grantor of any interest in those streets, roads or highways upon which the conveyed parcels bound, which interest, in each conveyance, was owned by the grantor Upon each of the original conveyances out of the tract of land subdivided as Arundel on the Bay, the grantor's interest in the abutting streets, roads and highways was conveyed to the grantees, including Propert Owners Bellamy and Bumbray's predecessors in title, pursuat to the common law then in effect, which common law was subsequently codified and presently contained in Md. Real Prop. Code Ann

8 i5~ l4 Through a serres of mesne conveyances, Property Owners Bellamy and Bumbray have succeeded to the rights of their predecessors in title to those portions of Chesapeake Walk that immediately adjoin their respective parcels, subject to the use and enjoyment of the owners of lots within Arundel on the Bay. lda l~-;-the Association has no claim of right or title to Chesapeake Walk, including those portions of Chesapeake Walk that immediately adjoin the parcels owned by Propert Owners Bellamy and Bumbray. 11 +& The Association erroneously claims title to Chesapeake Walk, as well as other roads, streets and highways within Arndel on the Bay, and has expressed an intent to construct. improvements on Chesapeake Walk against the whes of Property Owners Bellamy and Bumbray, which improvements would amount to a continuing trespass on their properties and would affect their use and enjoyment of Chesapeake Walk, as well as the use and enjoyment of other owners of lots within Arundel on the Bay. 18 llpropert Owners Bellamy and Bumbray seek to remove any cloud from their title to their propert resulting from the Association's claim of superior title over those portions of Chesapeake Walk that immediately adjoin Propert Owners Bellamy and Bumbray's lots in Arundel on the Bay. WHEREFORE, Plaintiffs Sherr Bellamy and George Bumbray seek an Order of th Court declaring that they are the absolute owners of those portions of Chesapeake Walk that immediately adjoin their respective properties, and award them the costs of these proceedings, and provide such other and further relief as the nature of th cause may require. Count II (Quiet Title-The Dav and The Moses Plaintiffs) 6

9 ~ l8plaintiffs John and Laverne Dav and John and April Moses repeat and incorporate the allegations contained in paragraphs I through ++1R as though fully stated herein, '. and bring th action to quiet title pursuant to Md. Real Prop. Code Ann f ~ The predecessors in title to the properties owned by the Dav and Moses Property Owners, as par of the owners of 2 I 2 lots in Arundel on the Bay, acquired title from the original developer and builder of Arundel on the Bay, The Chesapeake and Columbia Investment Company, between 1890 and 1928, and/or the Meredith Lumber Company, between 1926 and ~Upon each of the conveyances from the original developer and builder or Arundel on the Bay to bona fide purchasers between 1890 and 1933, there was no retention by the grantor of any interest in those streets, roads or highways upon which the conveyed parcels bound, which interest, in each conveyance, was owned by the grantor. 22. i-upon each of the original conveyances out of the tract of land subdivided as Arundel on the Bay, the grantor's interest in the abutting streets, roads and highways was conveyed to the grantees, including the Dav and Moses Propert Owners' predecessors in title, pursuant to the \,ommon law then in effect, which common law was subsequently codified and presently contained in Md. Real Prop. Code An J ~ Through a senes of mesne conveyances, the Dav and Moses Propert Owners have succeeded to the rights of their predecessors in title to those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that immediately adjoin their respective parcels, subject to the use and enjoyment of the owners of lots within Arndel on the Bay. 24 ~The Association has no claim of right or title to Chesapeake Walk, Redwood Avenue, or Walnut Avenue, including those portions of Chesapeake Walk, Redwood Avenue 7

10 and Walnut AVènue that immediately adjoin the parcels owned by the Dav and Moses Propert Owners. 25 ~ The Association erroneously claims title to Chesapeake Walk, Redwood Avenue and Walnut Avenue, as well as other roads, streets and highways within Arundel on the Bay, and has expressed an intent to construct improvements on Chesapeake Walk against the whes of the Dav and Moses Propert Owners, which improvements would amount to a continuing trespass on their properties and would affect their use and enjoyment of Chesapeake Walk, as well as the use and enjoyment of other owners of lots within Arundel on the Bay. Y'A ~ The Dav and Moses Property Owners seek to remove any cloud from their title to their properties resulting from the Association's claim of superior title over those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that immediately adjoin the Dav and Moses Propert Owners' lots in Arundel on the Bay. WHEREFORE, the Dav and Moses Plaintiffs seek an Order of th Court declaring that they are the absolute owners of those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that immediately adjoin their respective properties, and award them the costs of these proceedings, and provide such other and further relief as the nature of th cause may requlre. COUNT III (Declaratory Judgment-Plaintiffs Bellamy and Bumbray) 21. ~Plaintiffs Sherr Bellamy and George Bumbray repeat and incorporate the allegations contained in paragraphs i through ~Z! as though fully stated herein and bring th action for declaratory judgment pursuant to Md. Cts. & Jud. Proc. Code Propert Owners Bellamy and Bumbray claim an interest in those portions of.chesapeake Walk that adjoin their respective properties in Arudel on the Bay under the deeds 8

11 described in th Complaint and the prior deeds in their respective chains of title from the original conveyances of lots in Arundel on the Bay to bona fide purchasers for value. ~ ~ The Association claims superior title to those same properties, and has threatened to constrct improvements thereon and to otherwe impede and interfere with Property Owners Bellamy and Bumbray's use and enjoyment of their properties without any notice to Property Owners Bellamy and Bumbray and without affording Property Owners Bellamy and Bumbray suffcient time to contest its right to do so. 30A ~ There exts a justifiable sue or controversy between the paries involving the rights and liabilities of the paries under the deeds described herein and the deeds pursuant to which the Association claims superior title, which controversy may be determined by a judgment of th Court. WHEREFORE, Plaintiffs Sherr Bellamy and George Bumbray demand that th Court determine and adjudicate the rights and liabilities of the paries with respect to their respective deeds to property within Arundel on the Bay, and that th Court find and declare that Propert Owners Bellamy and Bumbrey are the absolute fee simple owners to those portions of Chesapeake Walk that adjoin their respective properties. Plaintiffs Sherr Bellamy and George Bumbray fuher demand that the Court award them the costs of these proceedings, and provide such other and further relief as the nature of th cause may require. COUNT iv (Declaratory Judgment-The Dav and The Moses Plaintiffs) 3L ~Plaintiffs John and Laverne Dav and John and April Moses repeat and incorporate the allegations contained in paragraphs 1 through i9jj as though fully stated herein and bring th action for declaratory judgment pursuant to Md. Cts. & Jud. Proc. Code

12 32. lh The Dav and Moses Property Owners claim an interest in those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that adjoin their respective properties in Arundel on the Bay under the deeds described in th Complaint and the prior deeds in their respecti ve chains of title from the original conveyances of lots in Arundel on the Bay to bona fide purchasers for value..l ~ The Association claims supenor title to those same properties, and has threatened to construct improvements on Chesapeake Walk and to otherwe impede and interfere with the Dav and Moses Propert Owners' use and enjoyment of their properties without any notice to the Dav and Moses Propert Owners and without affording the Dav and Moses Property Owners suffcient time to contest its right to do so. J~ ~ There exts a justifiable sue or controversy between the parties involving the rights and liabilities of the paries under the deeds described herein and the deeds pursuant to which the Association claims superior title, which controversy may be determined by a judgment of th Court. WHEREFORE, the Dav and Moses Plaintiffs demand that th Court determine and adjudicate the rights and liabilities of the parties with respect to their respective deeds to propert within Arundel on the Bay, and that th Court find and declare that the Dav and Moses Propert Owners are the absolute fee simple owners to those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that adjoin their respective properties. The Dav and Moses Plaintiffs further demand that the Court award them the costs of these proceedings, and provide such other and further relief as the natue of th cause may require. COUNT V (Slander of Title-Plaintiffs Bellamy and Bumbray) 10

13 35 J4Plaintiffs Sherr Bellamy and George Bumbray repeat and incorporate the allegations contained in paragraphs 1 through llji as though fully stated herein and, with regard to the Individual Defendants, bring th action for slander of title pursuant to Md. Cts. & Jud. Proc. Code J- The Association and the Individual Defendants have publhed the falsehood that the Association-and not Propert Owners Bellamy and Bumbray--wn the entire rear portion of the parcels owned by Propert Owners Bellamy and Bumbray. 31 ~ Th falsehood publhed by- the Association and the Individual Defendants has and continues to dparage the quality, ownership and rights of Property Owners' Bellamy and Bumbray's property l1ln publhing th falsehood, the Association and the Individual Defendants acted with malice, gross negligence, or a reckless dregard for the truth. J9~ -J The falsehood publhed by the Association and the Individual Defendants played a material and substantial par in inducing others not to deal with Property Owners Bellamy and Bumbray and as a result, Propert Owners Bellamy and Bumbray have suffered special damage. Specifically, on information and belief, the Association and the Individual Defendants knowingly publhed to First Home Mortgage the false information that the entire rear portion of Propert Owners Bellamy and Bumbray's llparcels owned by the community and not by Property Owners Bellamy and Bumbray. First Home Mortgage relied on th information when appraing Propert Owners Bellamy and Bumbray's propert. See. Uniform Residential Appraal Report of 3402 Chesapeake Walk, attaehed hereto as Exhibit 1. On information and belief, the false information the Association and the Individual Defendants 1 i

14 publhed to First Home Mortgage reduced the value of the appraal of the property owned by Plaintiffs Bellamy and Bumbray thereby impairing the value of the propert. WHEREFORE, Plaintiffs Sherr Bellamy and George Bumbray demand compensatory damages in an amount to be establhed at trial but believed to be in excess of Two Hundred Fifty Thousand Dollars ($250,000) and punitive damages in the amount of Two Hundred Fift Thousand Dollars ($250,000), plus interest and costs. COUNT VI (Permanent Injunction) ~ The Plaintiffs repeat and incorporate the allegations contained in paragraphs I through ;;12 as though fully stated herein, and bring th action for permanent injunction pursuant to Maryland Rules through L 49 The Association, by words, deeds and acts, claims superior title to Chesapeake Walk, Redwood Avenue and Walnut Avenue and has planned and intends to proceed to construct improvements on Chesapeake Avenue for the use of all owners of lots within Arundel on the Bay The Property Owners have made repeated demands upon the Association to refrain from claiming title and acknowledge their superior title to those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that adjoin their respective properties, and to cease and dest plans to construct improvements on those properties bThe Association refuses to acknowledge the Property Owners' superior title and continues to assert title to those portions of Chesapeake Walk, Redwood Avenue and Walnut Avenue that adjoin the Propert Owners' respective properties, causing significant interference.with the Propert Owners' use and enjoyment of their properties. 12

15 The Association's conduct constitutes a continuing trespass on properties owned and possessed by the Property Owners. 45~ 44Unless the Association enjoined by th Court from trespassing upon the properties owned by the Propert Owners and constructing improvements thereon, the Property Owners will suffer pennanent and irreparable injury. 4.6 #: The benefits to the Propert Owners in obtaining an injunction are equal to or outweigh the potential hann which the Association would incur if the injunction granted. ß 44 The public interest best served by granting the injunction. WHEREFORE, the Plaintiffs demand that th Court sue an Order granting them a permanent injunction restraining and enjoining the Defendants from trespassing on their properties and/or constructing any improvements thereon. The Plaintiffs further demand that the Court award them the costs of these proceedings, and provide such other and further relief as the nature of th cause may require. 13

16 Respectfully submitted, Ava E. Lias-Booker Jessica E. Morron Robert T. Johnson MCGUIRE WOODS LLP 7 Saint Paul Street, Suite 1000 Baltimore, Maryland (410) Eileen E. Powers BLUMENTHAL, DELEVAN & WILLIAMS, P.A. 170 Jennifer Road, Suite 240 Annapol, Maryland 2 I 404 (4 I 0) ATIORNEYS FOR PLAINTIFFS SHERRY BELLAMY, GEORGE BUMBRAY, JOHN AND LAVERNE DAVIS, AND JOHN AND APRIL MOSES \

17 CERTIFICATE OF SERVICE Uniform Residential Appraal Report I HEREBY CERTIFY that on th 8th day of December a copy of the foregoing Amended Complaint was sent. via overnight mail. to: Susan T. Ford. Esquire Council Baradel Kosmerl & Nolan. P.A. 125 West Street. 4th Floor Annapol. Maryland Robert T..Johnson \ I 16