Leiter v. Liberty Mobile Home Park

NANCY M. LEITER v. LIBERTY MOBILE HOME PARK, ET AL.

No. 1310

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

October 7, 2020

Circuit Court for Baltimore County

Case No. 03-C-08-0098058

UNREPORTED

Berger, Friedman, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Berger, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This case arises from an Order of the Circuit Court of Baltimore County requiring Nancy M. Leiter, Appellant/Cross-Appellee, to pay rents received in the net amount of $159,797.60 to Russell Mirabile, Appellee/Cross-Appellant. Leiter and Mirabile, brother and sister, were partners in Liberty Mobile Home Park Partnership, but sought to dissolve their partnership in 2008. In 2010, both parties signed a Settlement Agreement, which was later incorporated into a Consent Order by the circuit court. Mirabile repeatedly refused to follow the terms of the Settlement Agreement and continuously challenged the Agreement by filing many nonmeritorious motions from 2010 through 2019. In 2019, the circuit court awarded Leiter various fees pursuant to Maryland Rule 1-341. On June 17, 2019, Mirabile filed a "Motion Regarding Rents" wherein he asked the circuit court to order that the balance of a rent escrow account be released to him, and that Leiter be ordered to pay him any amount of rent she collected from any of the parties' other properties located in Baltimore City. The circuit court granted Mirabile's Motion and ordered that the balance of the rent escrow account ($58,000.00) be paid to Mirabile and that Leiter pay to Mirabile $101,797.66, the amount of rent Leiter received from the other properties since 2015.

Leiter presents two issues for our review:

1. Whether the trial court abused its discretion when it declined to invoke the doctrine of unclean hands and awarded the rents be paid to Mirabile.

2. Whether the trial court erred as a matter of law in declining to apply the doctrine of election of remedies to Mirabile's request for post-2015 rents.

Mirabile filed a cross-appeal and presents four issues for our review:

1. Whether the order entered by the trial court on August 21, 2019 constituted a final judgment eligible for appeal and review by this Court.

2. Will this Court exercise its discretion under Maryland Rule 8-131 to consider an issue that was not preserved in the trial court.

3. Whether Leiter's counsel violated Maryland Rule 19-303.3 requiring candor to the tribunal, and, if so, did such a violation affect the judgment of the trial court.

4. Whether the trial court erred in finding Mirabile in contempt of court due to his repeated refusals to perform actions necessary to carry out the terms of the settlement agreement.

For the reasons stated herein, we affirm the judgment of the Circuit Court of Baltimore County.

FACTS AND PROCEDURAL HISTORY

In 1993, Mirabile and Leiter's mother passed away, leaving them with the joint title to Liberty Home Mobile Park ("Liberty"). Leiter and Mirabile became partners in Liberty Home Mobile Park Partnership, which owned Liberty as well as another property in Baltimore County and several other properties in Baltimore City (the "Ancillary Properties"). Eventually, due to disagreements between the two siblings, Leiter and Mirabile both wished to dissolve the partnership. The parties were unable to come to an agreement on dissolution terms themselves, which prompted Leiter to file a Complaint and move for a temporary restraining order and preliminary injunction against Mirabile in 2008. In November of 2010, a four-day trial was held. The circuit court found Leiter to be a "very credible witness" and further found that Mirabile was not "believable in hardlyany respect." Additionally, the trial court found not only that Mirable was not credible, but also that "he was evasive in answering questions."

On November 19, 2010, the trial court determined that Leiter was entitled to $147,000.00 for Mirabile's failure to account to the partnership for certain rents associated with partnership property. The court also awarded Leiter $168,004.12 in income for one partnership property, and $4,800.00 associated with another property. Due to the contested nature of the dispute between the parties, the court appointed a trustee for the purpose of winding up the affairs of the partnership and ordered Mirabile to attend anger management classes.

On November 22, 2010, both parties signed a Settlement Agreement which outlined that Leiter would buy Mirabile's interest in the partnership and the partnership would be dissolved. The Agreement further provided that Leiter would purchase Mirabile's interest in the partnership for $1,500,000.00, which included the properties associated with Liberty, certain Ancillary Properties, and another property owned solely by Mirabile. Leiter was required to pay Mirabile $60,000.00 within ten business days of the signing of the Agreement and $1,440,000.00 at the time of closing.¹

Pursuant to the terms of the Agreement, closing was to occur on or before March 24, 2011. The date of closing would only be extended for acts of force majeure or acts by Mirabile to delay closing or financing. If Leiter failed to close within the time period set forth in the Agreement, the decision of the circuit court was to take effect. OnNovember 23, 2010, Mirabile executed an Irrevocable Power of Attorney to Kevin Keene, Esquire, as his agent for all real property transactions associated with the Settlement Agreement and to convey certain personal and business interests defined in the Settlement Agreement.

The circuit court entered the Settlement Agreement as a Consent Order on December 1, 2010. Leiter applied to 49 financial institutions but was unsuccessful in obtaining financing prior to the closing date of March 24, 2011 as specified in the Settlement Agreement. On April 14, 2011, several weeks after the closing date, Harford Bank approved Leiter's request for a loan in the amount of $1,100,000.00 and a line of credit for $400,000.00. Despite this approval, Mirabile refused to extend the closing date.

From 2011 through 2019, Mirabile refused to abide by the terms of the Settlement Agreement and challenged the Agreement repeatedly through various motions and appeals.² On April 29, 2011, Mirabile filed a "Motion for Appropriate Relief,"³ seeking appointment of a trustee for the sale of the real property associated with the partnership. On May 17, 2011, Leiter filed an opposition to Mirabile's motion and a "Motion to Enforce Settlement Agreement." Mirabile's motion was denied and Leiter's motion was granted. Mirabile filed a "Motion to Reopen this Case to Revise Judgment" on June 6, 2011, whichwas also denied. On August 15, 2011, Mirabile filed a "Motion to Alter/Amend Judgment," which was, again, denied. On August 17, 2011, Mirabile filed a "Notice Disputing Attorneys Lien and Request for Adjudication of Rights," which was denied in August of 2012.

On September 14, 2011, Mirabile filed a "Notice of In Banc Review." On September 29, 2011, Mirabile filed a "Motion for a Protective Order," which was later denied on February 8, 2012. In March of 2012, Mirabile filed a motion to transfer the case to Harford County, which was later denied. On August 14, 2012, the In Banc panel affirmed the circuit court's decision granting Leiter's motion to enforce the Settlement Agreement. The In Banc panel found that Leiter had exercised due diligence in attempting to obtain financing to close on March 24, 2011 and had not substantially breached any obligations under the Settlement Agreement. Mirabile filed a "Notice of Appeal with this Court" from the denial of his "Notice Disputing Attorneys Lien and Request for Adjudication of Rights" on September 13, 2012. This Court dismissed Mirabile's appeal on November 30, 2012 due to his failure to file a Civil Appeal Information Report pursuant to Maryland Rule 8-205. On October 9, 2012, Mirabile filed a "Motion for Appointment of a Special Auditor." In this Motion, Mirabile alleged that Leiter was guilty of various crimes including misappropriation, embezzlement, and financial crimes against vulnerable adults related to actions Leiter took in 2005 regarding unrelated Deeds of Trust. That motion was denied on January 24, 2013. Mirabile also revoked the Irrevocable Power of Attorney that he executed in connection with the Settlement Agreement.

On December 21, 2012, Leiter filed a "Petition for Contempt and Other Relief" against Mirabile. After holding two days of testimony, the Circuit Court for Baltimore County found that Mirabile did not abide by the terms of the Settlement Agreement. To purge himself, the circuit court ordered Mirabile to sign deeds to several properties as required by the Settlement Agreement. On February 13, 2013, Mirabile filed a "Motion to Rescind the Agreement," which was denied one week later. On February 15, 2013, Mirabile filed an appeal of the ruling on contempt with this Court. Mirabile filed another appeal with this Court regarding the denial of his motion to rescind on March 28, 2013. This Court consolidated both appeals and ultimately dismissed them both when Mirabile failed to file his brief, despite being given multiple extensions.⁴

Out of court, Mirabile's attempts to evade the Settlement Agreement continued. In 2014, Mirabile solicited the services of Jay Miller, Esquire ("Miller") to negotiate with Leiter on his behalf. Miller informed Leiter's attorney, Christine Nielson, Esquire, that Mirabile would settle "everything" for $2,500,000.00, an amount $1,000,000.00 higher than was agreed-upon in the terms of the Settlement Agreement. Leiter declined this offer. Mirabile then requested $1,500,000.00 in addition to ownership of all Ancillary Properties, contrary to the terms of the...