Court of Special Appeals Rules for Adverse Possessor in Dispute About a Property on the Ocean City Boardwalk

By Jonathan Biran

On December 21, 2018, in Nathans Associates v. The Mayor and City Council of Ocean City, the Court of Special Appeals handed the descendants of Nathan Rapoport a big victory, preventing Ocean City from kicking Nathans Associates out of a property the Rapoport family has continuously occupied and controlled since 1912 (the “Nathans Property”).  In so doing, the Court reversed a trial verdict for Ocean City issued by retired Maryland Court of Appeals Judge Dale R. Cathell.  This case is a cautionary tale for anyone who has the burden of proof to show that a modern-day building is located at a particular point on an old plat in a town’s records. The case is also interesting because of a motion to recuse that Nathans Associates made during the trial, after Ocean City introduced a letter that Judge Cathell wrote to Mr. Rapoport in 1972 when Judge Cathell was the City Solicitor of Ocean City.  The Court of Special Appeals found no abuse of discretion in Judge Cathell’s denial of Nathans Associates’ recusal motion.

Background

The Nathans Property is located at 601 South Atlantic Avenue on the Ocean City Boardwalk.  Rapoport built his first building at this location in 1912.  The opinion does not say how or why Rapoport believed he had the authority to construct a building on property he didn’t own.  In any event, it appears that Rapoport’s presence at that location was recognized and accepted for many years.  For example, in 1954, Ocean City requested that Rapoport move his building east on the property to allow for the widening of the Boardwalk.  Rapoport did so, seeking and obtaining a permit to construct a full basement under the building as part of that project.

In 1966, Rapoport wished to add living quarters to his building by constructing a second floor, a project for which a permit was required. Although the opinion does not say so explicitly, reading between the lines, it appears that someone in Ocean City then decided to address Rapoport’s status as a squatter. At that time, Rapoport and Ocean City entered into an agreement to permit the construction of the second floor. The agreement further required Rapoport to pay property taxes – 54 years after Rapoport began operating a business at that location.  The 1966 agreement further provided that the agreement would continue for a term of 25 years and could be renewed for an additional period of 25 years if, in the opinion of the then Mayor and City Council and their agent, the building was being properly maintained. The agreement further provided that it would “be completely void fifty (50) years from the date hereof.”  In 1991, at the conclusion of the first 25 years, the 1966 Agreement was renewed for another 25 years (although not willingly on the part of Ocean City; the City tried to kick the Nathans heirs out of the property in 1991, but the Circuit Court blocked that effort. That case did not involve any claim as to who owned the property, but instead just concerned the renewal of the 1966 Agreement). Since the signing of the 1966 Agreement, Rapoport and his successors have paid city, county, and state real property taxes for the property.

Rapoport died in 1973.  Since 1971, Rapoport and his successors (now through Nathans Associates (“Nathans”) have leased the building on the Nathans Property to Dumser’s Dairyland. I’m told you can get good ice cream there.

In 2016, with the 50-year term of the 1966 agreement expiring, Ocean City demanded that Nathans vacate the property. In response, Nathans filed a complaint in the Circuit Court for Worcester County.  Nathans’ complaint contained two counts. The first count sought to quiet title to the property based upon a claim for adverse possession. The second count sought a declaratory judgment that Ocean City had no rights or interest in the property.  Ocean City answered and counter-claimed, seeking declaratory relief, injunctive relief, an accounting, and disgorgement of profits.  The case was eventually assigned to Judge Cathell.

The Trial

The case was tried before Judge Cathell on April 18, 2017. Ocean City conceded that Nathans and its predecessors had been in actual, open, notorious, exclusive, and continuous possession of the property since 1912. Ocean City contested Nathans’ adverse possession claim on the sole basis that the property was located within a dedicated and accepted public easement prior to Rapoport’s acquisition of title via adverse possession in 1932. The resolution of that claim turned on whether the Nathans Property is contained within the 50-acre parcel of land that Stephen Tabor conveyed to trustees on July 28, 1876, by way of a handwritten deed, for the establishment of a “sea-side summer resort.” Based on the plat that was attached to Tabor’s deed in 1876 and an aerial photograph of that portion of present-day Atlantic Avenue, it appears that the Nathans Property is located very close to the original southern boundary of the Town of Ocean City when Ocean City was incorporated in 1880.  If the Nathans Property is located north of the original southern boundary, title cannot be obtained via adverse possession because the property would be located within the Atlantic Avenue public easement. On the other hand, if the Nathans Property is located south of the original southern boundary of the Town of Ocean City, then title can be obtained via adverse possession, and Nathans would win its action to quiet title and for declaratory judgment. The burden was on Ocean City to show that the Nathans Property is located within a dedicated and accepted public easement. That meant that Ocean City had to show by a preponderance of the evidence that the Nathans Property is located within the parcel conveyed by Tabor’s 1876 Deed.

At the trial, the 1876 Deed and accompanying Plat is the only evidence that was introduced to show the location of the dedication of Atlantic Avenue. Here is a reproduction of the Plat that Judge Cathell reviewed in the trial:

An aerial photograph of the present-day Nathans Property and surrounding area was also introduced at trial (by Nathans):

The Nathans Property is circled in the photograph, and the Court of Special Appeals added the arrow to further direct the reader’s eye to the property. According to the COSA, the photograph “represents a portion of the area depicted in the Plat…. The parking lot on the right side of this photo is surrounded by the beach on its north and east sides and by the Ocean City Inlet to its south. The Atlantic Ocean is located to the east of the beach….  The Property is located adjacent to the parking lot at the end of a diagonal street…. The southernmost street appearing on the Plat is labeled ‘Division Street.’  The diagonal street in the aerial photograph is today known as ‘South Division Street.’“  Slip Op. at 13 n.12; id. at 14.

During the trial, while the attorney for Ocean City was questioning a title abstractor, the City attempted to introduce into evidence an October 5, 1972 letter from then-City Solicitor Cathell to Rapoport. Prior to viewing the substance of the letter, Judge Cathell realized that the letter could raise an issue about his involvement with the case:

THE COURT: Wait a minute. What was that date?

THE WITNESS: October 5, 1972.

THE COURT: Gentlemen, approach the bench. You say that letter is from the City Solicitor?

THE WITNESS: Yes.

Whereupon, Counsel approached the bench and the following occurred:

THE COURT: Gentlemen, in 1972, I was the city solicitor for Ocean City.

[COUNSEL FOR OCEAN CITY]: I’m aware of that.

THE COURT: I presume that letter is from me?

[COUNSEL FOR OCEAN CITY]: Yes.

* * *

THE COURT: . . . I’m trying to figure out whether I can stay in the case or not. If I’m writing a letter on behalf of the City of Ocean City threatening Mr. Rapoport in 1972, I shouldn’t be hearing the case.

Slip Op. at 24-25.  Judge Cathell then took a brief recess to review the letter, which said:

[O]n behalf of the Mayor & City Council, please be advised that they have approved an awning for your business as follows:

A five foot maximum extension from the existing building on the north and south sides only is allowed. This awning is allowed only at the pleasure of the Mayor and Council and the Mayor and Council reserve the right to remove it at any time. The granting of this awning approv[al] is not to operate in anyway as an extension of the area covered in the 1966 agreement with the Town.

Id. at 25.  After reviewing the letter, Judge Cathell said that he had reviewed the documentation associated with this case prior to trial and that he “saw this letter nowhere.” Judge Cathell elaborated:

When [then-administrative] Judge Groton asked me if I would take this case, he checked to made [sic] sure that I wasn’t involved in the 1966 agreement, and he said I wasn’t. I said I wasn’t. And I have no recollection of that letter, and I just saw it. It’s an innocuous letter. It merely approves the extension of an awning and says that the 1966 agreement is not to be affected by that letter, whatever it is.

Id. at 26.  Counsel for Nathans subsequently moved for Judge Cathell’s recusal. Judge Cathell denied the motion, explaining: “If the letter directly related to what I perceive to be any of the important issues in this case, that would be one thing, but it was merely me conveying a decision of the Mayor and City Council.”  Judge Cathell also considered the stage of the litigation, noting that the case “may not get back on the docket for another year or two” if he were to recuse himself.  Id.

Based on his comparison of the 1876 Plat and the present-day aerial photograph, Judge Cathell concluded that the Nathans Property fell within the original boundaries of Ocean City:

The plat attached to the Tabor deed at issue here clearly shows Atlantic Avenue extending to the Atlantic Ocean. It also clearly shows South Division Street extended to the Atlantic Ocean and indicates, clearly, that the middle of South Division Street is the southern boundary of the property contained within the deed’s description. Therefore, the practical location of the easement is established by the plat — from the westerly line of Atlantic Avenue as shown on the plat to the easterly line of Atlantic Avenue (the Atlantic Ocean) and on the south by the middle of South [Division] Street.

Plaintiff’s Exhibit 2 [the aerial photo] indicates the Rapoport property … as being within that boundary of Atlantic Avenue as it then existed and now exists . . . Thus the location of Nathans’ structure is established within Atlantic Avenue by the Plaintiff/Counter-Defendant’s own exhibit No. 2.

Id. at 14.  Thus, Judge Cathell ruled for Ocean City, and ordered Nathans Associates to vacate the property.  Judge Cathell stayed his order pending appeal.

Don’t Assume a Trier of Fact Can Locate a Spot on an Old Plat without Expert Assistance.

The Court of Special Appeals agreed with Judge Cathell that the aerial photograph establishes the Nathans Property is located north of the center of South Division Street as the street is located today. However, the Court concluded that the evidence introduced at trial was insufficient to establish that the Nathans Property is located north of Division Street as indicated on the 1876 Plat: “Simply put, this case is not about the location of Atlantic Avenue and South Division Street as they exist today….  [T]here is no evidentiary support in the record for the key analytical step: connecting the plat depicting streets in 1876 and the on-the-ground location of streets in the City of Ocean City today.” Slip Op. at 15.

The only basis for Judge Cathell’s conclusion as to the location of the Nathans Property in relation to the 1876 Deed was the 1876 Plat. As the COSA explained, “it very well may be that the ‘Division Street’ marked on the Plat is in an identical location to the ‘South Division Street’ in Ocean City today. In that event, the Property would, at least in part, be located within the dedicated and accepted public easement. The question for our consideration, however, is not whether it appears likely from a common sense perspective that modern day South Division Street is identical to 1876 Division Street. Our question is whether sufficient evidence was produced by Ocean City to establish this fact.”  Id. at 15.  The Court answered this question in the negative. The City had planned to elicit from its City Engineer that the Nathans Property is located within the original boundaries of Ocean City.  However, Judge Cathell precluded the City Engineer from so testifying, concluding that he lacked the necessary expertise. Ocean City did not call a licensed surveyor or any other expert witness who could have testified as to the original boundaries of Ocean City as established by the 1876 Deed or interpreted the Plat in relationship to the Nathans Property’s actual location on the ground and the streets in existence today.  In the absence of any other evidence establishing that location, Judge Cathell’s lay comparison of the 1876 Plat and the aerial photograph was not sufficient.  In short, the City failed to give Judge Cathell enough to go on. The Court cited Porter v. Schaffer, 126 Md. App. 237 (1999), for the proposition that “testimony of a surveyor as to the location of . . . boundaries on the ground is necessary because [a]s to the identity of the land . . . a deed seldom, if ever, proves itself.” Slip Op. at 20 n.17 (quoting Porter, 126 Md. App. at 266 (internal quotation marks and citations omitted)).

Although the Court was careful to note that there may be cases where expert testimony is not required to establish the location of a property at a particular spot on a plat, this was not one of them, given the  “unusual challenges inherent in the interpretation of a nearly 150-year old deed and plat,” along with “the specific circumstances of the documents at issue in this case, as well as the amount of time that has passed and subsequent development that has occurred in the intervening 142 years since the Deed was prepared.” Slip Op. at 21 & n.19. “Notably, the circuit court was presented with no evidence to assist in the interpretation of the plat vis-à-vis the actual location of various streets and buildings in modern-day Ocean City. Further, we cannot determine where the original southern boundary of the Town of Ocean City was located in relation to modern-day Division Street. This is the critical analytical step for which expert testimony was required….  [B]ased upon the unique facts and circumstances of this particular case, … additional evidence was required to close this analytical gap.”  Id. at 21.

Perhaps if the Nathans Property were located on Atlantic Avenue a few blocks north of its actual location, the Court would have upheld Judge Cathell’s finding.  But, given that it is located so close to South Division Street, the City needed to give Judge Cathell more upon which to base his ruling.  As the City failed to do that, the COSA overturned the judgment. Nathans will be permitted to stay at 601 South Atlantic Avenue.

It’s interesting to note that Nathans called a land surveyor as an expert witness at trial to testify as to the boundary of the Nathans Property.  However, Nathans’ surveyor did not opine as to the location of the dedication set forth in the 1876 deed or as to the location of the Nathans Property in relation to that dedication.  One wonders if Nathans tried and failed to find a licensed surveyor who could opine that the Nathans Property is located entirely south of the original Town boundary.  Nathans may be very lucky that Ocean City apparently failed to ask a licensed surveyor to opine on this question.  Had the City done so, perhaps a surveyor would have provided the expert support necessary to confirm Judge Cathell’s conclusion based on his lay person’s comparison of the 1876 deed and the current aerial photograph. Ocean City and other sophisticated parties presumably will not make that mistake again.

Judge Cathell’s 1972 Letter to Nathan Rapoport and the Motion to Recuse

Although the COSA ruled for Nathans on the dispositive issue in the case, because the case needed to be remanded to the Circuit Court for the limited purpose of entering an order implementing the victory for Nathans, the COSA considered and affirmed Judge Cathell’s denial of Nathans’ motion to recuse him.[1]

The Court agreed with Judge Cathell’s characterization of his 1972 letter as “innocuous,” and held that Judge Cathell’s “prior involvement with respect to the 1972 letter in no way affected his ability to fairly consider the issues in the case, nor did it cause an appearance of impropriety.”  Slip Op. at 26.  In addition, the Court held that Judge Cathell’s involvement with that letter did not render him subject to disqualification under Md. Rule 18-102.11(a) (ABA Rule 2.11), which provides that a “judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” In this regard, the Court cited Sharp v. Howard County, 327 Md. 17, 30 (1992), which explained that “[w]hen a judge has appeared as counsel in an earlier stage of the same adversarial proceeding, there is no question that the judge has advocated the client’s cause, and recusal is automatic because of the danger of an appearance of partiality,” but “[w]hen a judge has given legal advice, or performed legal work in a nonadversarial setting, recusal is required only if the underlying purpose of the advice or work was to achieve the goal that is at issue in the later proceeding before the judge.”  The Court also favorably noted Judge Cathell’s consideration of the late stage of litigation at which the motion to recuse arose, and his reliance on the possibility that the case might not get back on the docket for “another year or two” if he were to recuse himself.

So, if Judge Cathell chooses to handle the limited-purpose remand, he’ll put the finishing touches on what Nathan Rapoport started in 1912.  If anyone wants to go to this Dumser’s Dairyland location this coming June during the MSBA Annual Meeting to enjoy some ice cream at this now legally significant location, I’ll be glad to meet you there.

[1]   On appeal, Nathans pointed to other reasons in addition to the 1972 letter why Judge Cathell should have granted the recusal motion, including his references throughout the trial and in his memorandum opinion to his own personal knowledge of Ocean City’s history and geography; his informing the parties before opening statements that he “went down there and looked at [the Property] yesterday”; and his personal involvement while City Solicitor in the 1970s in an unrelated case in which Ocean City unsuccessfully attempted to take property located on the Boardwalk (see Mayor and City Council of Ocean City v. Taber, 279 Md. 115 (1977)).  However, the only ground Nathans offered at trial in support of the recusal motion was Judge Cathell’s authorship of the 1972 letter to Rapoport.  The COSA considered only the 1972 letter in deciding the recusal issue on appeal, implicitly finding that Nathans had waived any other potential arguments for recusal by not raising them at trial. See Slip Op. at 24 n.21 (explaining that a motion for recusal must be timely filed, and citing Surratt v. Prince George’s Cnty., 320 Md. 439, 468-69 (1990), for the proposition that “[t]o avoid disruption of a trial, or the possible withholding of a recusal motion as a weapon to use only the event of some unfavorable ruling, the motion generally should be filed as soon as the basis for it becomes known and relevant”).