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— Unreported Opinion —The Section 3 plat was recorded again in 1930.7 Pursuant to Article 17 § 308, one ofthe legal effects of the 1930 recordation was that all of the streets shown on the plat werededicated to, and accepted by, Prince George’s County.In 1957, Paul and Lenora Gottfried purchased lots in the Section 3 subdivision,including lot no. 3 of block no. 49. Part of this lot is now owned by the Skillmans.The 1960 road closure caseIn 1960, the Gottfrieds and other lot owners brought an action pursuant to Article 74§ 308 to vacate some of the lot boundaries and to close portions of some of the streetsdepicted on the 1930 plat. The action was docketed as Equity No. B-6080 in the CircuitCourt for Prince George’s County. The court granted the relief sought.8 The judgmentclosed the southerly part of Frederick Avenue, including the Dogleg, Wicomico Avenue,and the southerly of the two intersecting unnamed streets. The court’s judgment providedthat the portions of the closed streets were “reconverted into separate parcels according tothe respective ownership of the petitioners[.]” We take this to mean that the title to the bedsof the closed streets to the centerline of the street were to merge with the titles to theabutting lots. (This is the default rule in Maryland. See South Easton Neighborhood Ass’n,7Why the plat was recorded a second time is unclear.8The presiding judge in the 1960 case was the Honorable Charles C. Marbury. Aboutsix weeks after he signed the final decree, he became an associate judge of the Court ofAppeals for what was then the Fourth Appellate Judicial Circuit.-8-

— Unreported Opinion —387 Md. at 494 n.17 (citing, among other authorities, Md. Code Real Prop. § 2-114); seealso, Anderson v. Great Bay Solar I, LLC, 243 Md. App. 557, 592 (2019)).We will refer to the portion of Frederick Avenue that was closed by the court’sjudgment as the “closed part of Frederick Avenue.” There is nothing in the court’sjudgment that suggests that the closed part of Frederick Avenue was subject to a right ofaccess by any person. Among the lots vacated in the 1960 judgment was lot no. 3 of Blockno. 49, part of which was eventually acquired by the Skillmans. Lot no. 3 did not front onthe closed part of Frederick Avenue. Thus, even after the 1960 judgment, what eventuallybecame the Skillman property had public road access via the unclosed part of FrederickAvenue to Cross Street No. 2 which at the time and least on paper connected to Marylandand Somerset Avenues.The 1997 road closureIn 1997, Joseph Nazario, the owner of property on parts of both sides of a portion ofFrederick Avenue located to the north of the Skillman parcels, filed an application to vacatethe northernmost portion of Frederick Avenue as well as Cross Street No. 2, whichconstituted the sole remaining points of connection between Frederick Avenue andMaryland and Somerset Avenues. The application was approved by Prince George’sCounty. After the 1997 road closing, there remained a part of Frederick Avenue which was,and still is, a public road. We will refer to this part of the street as “the public part ofFrederick Avenue.” The Skillmans’ property fronts on that street. However, the 1960 and1997 street closures left the public part of Frederick Avenue isolated and without a-9-

— Unreported Opinion —connection to any other public street. (On the following page is an annotated version of theSection 3 plat depicting the 1960 and 1997 road closures and their relationship to the partof Frederick Avenue that is still a public street.)- 10 -

— Unreported Opinion —- 11 -

— Unreported Opinion —The Skillmans’ propertyIn 1966, the Gottfrieds conveyed what is now the Skillman property to Kenneth andBlanche Breisch. (We will discuss the relevant particulars of these deeds and the otherdeeds in the Skillmans’ chain of title in part 3 of our analysis.) At the time of theconveyance, the property had frontage on the public part of Frederick Avenue andFrederick Avenue which, at least on paper, connected with Maryland Avenue and SomersetAvenue by the unnamed street at its northerly end.The lots currently have addresses of 11407 and 11409 Frederick Avenue. One of theSkillmans’ parcels is improved with a warehouse structure and the other is generally usedas a parking lot and for storage. Up until the events that we are about to relate, the Skillmansused the properties as a warehouse, and occasionally an office, for their roofing business.At some point, some or of all the Gottfried lots in Section 3 were conveyed to Paulen,which is owned by their children. These lots include the closed part of Frederick Avenue.This brings us to the controversary between the parties.Round 1: Prince George’s County v. SkillmanIn 2012, the Skillmans leased their property to Joseph Campofelice for use as an adultentertainment venue. In 2014, Joseph Skillman filed an application for a use and occupancypermit for an adult entertainment venue on the Skillman property. The County permitreview agency denied the application. The denial triggered an administrative appeal, apetition for judicial review and an appeal to this Court. We will describe the administrativeproceeding and the judicial review action in more detail in part 1 of our analysis. At this- 12 -

— Unreported Opinion —point, what is important is that, during the course of this controversy, Paulen, through itspresident, Phillip Gottfried, sent a letter to the County stating that it would not permit theSkillmans to have access across Paulen’s property for adult entertainment purposes. In hiscapacity as Paulen’s president, Gottfried also participated in the proceedings before theadministrative agency.Round 2: The Present ActionOn September 24, 2015, Skillman filed the current action against Paulen.9 In theiroperative complaint, and in addition to other relief, the Skillmans sought a judgmentdeclaring that the 1960 abandonment proceeding was ineffective or, alternatively, that theyhave the right to use the closed part of Frederick Avenue for access to its property withoutrestriction, by means of either an implied or a prescriptive easement.The case came before the circuit court in a two-day bench trial. The Skillmans andGottfried testified and each party presented expert testimony as to land surveying and realestate title matters. After the trial was concluded, the court issued a thorough and wellreasoned memorandum opinion addressing the parties’ contentions.9The complaint also asserted claims against Phillip Gottfried, who was the presidentof Paulen, Mary Lehman, and Bridget Warren. At the time the complaint was filed, Lehmanwas a member of the Prince George’s County Council. Warren was Lehman’s chief ofstaff. {E. 26} By consent of the parties, Skillman dismissed his claims, with prejudice,against Gottfried, Lehman, and Warren prior to trial.- 13 -

— Unreported Opinion —First, the court concluded that the 1960 abandonment action was valid. It found thatthere was no ambiguity in the judgment in the 1960 road closing case and, as a result ofthat judgment, the bed of the closed portion of Frederick Avenue became property of theGottfrieds because they owned the lots abutting on both sides of the abandoned part of thestreet.10 Additionally, the court found that the stretch of Frederick Avenue directly in frontof the Skillman property, was and remains a public street.Second, the court rejected the Skillman’s contention that they had an implied easementof access over the closed part of Frederick Avenue.Third, the court concluded that a prescriptive easement exists over the closed part ofFrederick Avenue for the benefit of the Skillman property. The court found that theSkillmans and their predecessors-in-title had been using the closed part of FrederickAvenue for access since at least the late 1980s or early 1990s, and that their use otherwisesatisfied the requirements for a prescriptive easement.The trial court then addressed the scope of the Skillmans’ easement and, specifically,whether the Skillmans’ adult entertainment business unduly burdened the servient estate.It concluded that the Skillmans’ proposed use would do so.The court’s opinion indicates that another entity, Frederick, LLC now owns part ofwhat had been Paulen’s property fronting on the closed part of Frederick Avenue. Althoughthe issue is not before us, it appears that Frederick LLC consented to be bound by thecourt’s judgment.10- 14 -

— Unreported Opinion —In sum, the court entered judgment in favor of the Skillmans as to the prescriptiveeasement, over the closed part of Frederick Avenue, but limited its scope to “motor vehicleand pedestrian traffic consistent with the past operation of [the Skillmans’] roofingbusiness.” {E. 619}The Skillmans have appealed.The Standard of ReviewBecause this case was tried without a jury, the standard of review that we will apply isfound in Maryland Rule 8-131(c):When an action has been tried without a jury, the appellate court will reviewthe case on both the law and the evidence. It will not set aside the judgmentof the trial court on the evidence unless clearly erroneous, and will give dueregard to the opportunity of the trial court to judge the credibility of thewitnesses.We review the evidence in a light most favorable to the prevailing party. Della Rattav. Dyas, 414 Md. 556, 565 (2010) (citing Ryan v. Thurston, 276 Md. 390, 392 (1975)).Where “there is any competent and material evidence to support the factual findings of thetrial court, those findings cannot be held to be clearly erroneous.” L.W. Wolfe Enterprises,Inc. v. Maryland National Golf, L.P., 165 Md. App. 339 343 (2005). We review the trialcourt’s legal conclusions de novo. Della Ratta, 414 Md. at 565.- 15 -

— Unreported Opinion —Analysis1. Issue PreclusionThe Skillmans’ primary argument on appeal is that the judgment entered by the circuitcourt in the judicial review proceeding has issue preclusive effects in this litigation. We donot agree. The first step in explaining why requires us to provide additional informationabout the prior litigation.A.On November 7, 2014, Joseph Skillman filed a request for a use and occupancy permitto change the use of his property from a roofing business to adult entertainment venuepursuant to the relevant provisions of the Prince George’s County Code (“PGCC”).The County’s Department of Permitting, Inspection and Enforcement denied theapplication. From the department’s perspective, the critical issue was whether theSkillmans’ property complied with PGCC § 27-466.01 which, in pertinent part, requiresthat “[e]ach lot shall have frontage on, and direct vehicular access to, a public street, exceptlots for which private streets or other access rights-of-way have been authorized pursuantto . . . this Code.” The department denied the permit request because it concluded that: (1)the Skillmans’ property had direct access to the public part of Frederick Avenue, (2) thestreet lacked access to any other public street, and (3) there was no access agreementbetween the Skillmans and Paulen. {E. 89} The Skillmans appealed the permit denial tothe Prince George’s County Board of Appeals.- 16 -

— Unreported Opinion —In the proceeding before the board, Paulen’s lawyer stated that “there is no easementexisting on the Paulen property for ingress-egress for the benefit of the Skillman property.”Counsel went on to assert that, if the Skillmans were granted the permit, “Paulen will erecta barrier on Frederick Avenue that will prevent Mr. Skillman and any potential patronsfrom access the subject site from Frederick Avenue.”However, during the administrative hearing, the lawyer for the Skillmans stated that itwas his position that the merits of the right-of-way dispute were not relevant “to thedetermination of whether [the permit denial] was an error . . . . because the error that weallege . . . doesn’t relate to a private right-of-way.” {E 1591} Counsel further informed theboard that the Skillmans had filed a separate action against Paulen and others in the circuitcourt regarding their right to access the property and that the court was the appropriateforum resolve the matter. (The “separate action” is the case before us in this appeal.) {E1592}After an evidentiary hearing, the board affirmed the denial of the Skillmans’application. {E. 88-91} The board did not address who owned the closed part of FrederickAvenue or whether the Skillmans had an easement over any portion of Paulen’s property.Instead, the board concluded that, although the portion of Frederick Avenue abutting theSkillmans’ property was a public road, it was “an island unto itself” unconnected to anyother public road. The board gave “substantial weight to the testimony of Mr. Gottfriedthat Petitioner does not have vehicular access to cross his property (at the south end ofFrederick Avenue) by expressed right-of-way” and that there was no evidence of an express- 17 -

— Unreported Opinion —or written right-of-way agreement” and concluded that “to give meaningful application toSection [27-466.01] in this matter . . . connectivity must exist for the island street ofFrederick Avenue to some public street.”The Skillmans filed a petition for judicial review of the board’s decision to the CircuitCourt for Prince George’s County.The circuit court reversed the board on two grounds. The first was that (emphasisadded):Land records, of which the court takes judicial notice, show that the Gottfriedfamily purchased 19 lots in this subdivision all abutting Frederick Avenue.See, e.g., Deed dated July 3, 1957 to Paul M. Gottfried and Lenora N.Gottfried and recorded at book 2132, page 414. They did not purchase theroadway of Frederick Avenue itself. So while Gottfried may have maintainedthat portion of Frederick Avenue, he does not own it and cannot controlaccess to it.* * *Since Mr. Gottfried does not own the southern portion of Frederick Avenueand is unable to dispute its dedication to public use by the recordedsubdivision plat, the Board was arbitrary and capricious in finding that theSkillmans had no direct vehicular access to their lot.The second basis of the court’s decision was that the board erred in its application ofPGCC § 27-466.01 to the facts before it. The court observed that, § 27-466.01 requires lotsto have access to public streets and that it was undisputed that the Skillmans’ property“fronts on and is accessible to Frederick Avenue.” By that standard, according to the court,the question became “whether Frederick Avenue is a public street.” {E. 80} The courtanswered that inquiry in the affirmative and held that “the plain language” of § 27-466.01“does not contain a ‘connectivity’ requirement and none is implied.” {E. 84}- 18 -

— Unreported Opinion —The County appealed to this Court. In an unreported decision, a panel of this Courtaffirmed. Prince George’s County v. Skillman, et al., 2017 WL 2981871 (Skillman I).First, the panel declined to consider the parties’ contentions regarding the circuitcourt’s holding that the Gottfrieds never acquired title to the closed part of FrederickAvenue because “our review in this appeal is of the Board of Appeals’ determination, notof the circuit court’s determination. As such, we frame the issues on appeal . . . focusingon the specific legal arguments raised by the County rather than on specific alleged errorsby the circuit court.” Id. at *4.Second, the panel declined to consider whether Frederick Avenue in its entirety was apublic road; rather, it held that the Skillmans’ property:has “frontage on and direct vehicular access to” Frederick Avenue and,therefore, satisfies the requirements of County Code § 27–466.01, regardlessof whether the relevant portion of Frederick Avenue connects to other publicstreets.Id. at *8.To summarize:(1) The Board of Appeals concluded that the public part of Frederick Avenue was apublic road for the purposes of the relevant County Code provisions but that there was adispute as to whether the Skillmans had the right to use the closed part of Frederick Avenue.The existence of the dispute cast doubt on whether there was actual connectivity betweenthe public part of Frederick Avenue and, without actual connectivity, the legislativepurpose of § 27-466.01 was frustrated.- 19 -

— Unreported Opinion —(2) Even though the Board did not address the legal status of the closed part ofFrederick Avenue or the parties’ claims to the ownership of, or right of access over, theclosed part of Frederick Avenue, the circuit court conducted its own investigation in theland records and concluded that (i) Paulen’s predecessor-in-title never had an ownershipinterest in the bed of the closed part of Frederick Avenue, and (ii) Frederick Avenue haddedicated as a public road and no part of it had been closed or abandoned.11 As analternative basis of its decision, the circuit court interpreted the relevant county statute asnot requiring connectivity.(3) The Skillman I panel expressly declined to address the first or the second groundsof the circuit court’s judgment. Instead it affirmed the decision of the administrative agencysolely on ground that, even though the part of Frederick Avenue abutting the Skillmans’property was an “island” unconnected to other public roads, it was nonetheless a publicroad and the county statute did not require connectivity.B.The question of the preclusive effective of the judgment in the judicial reviewproceeding arose at the trial. The Skillmans asserted that Paulen was bound by theconclusions by the circuit court that Frederick Avenue was a public street and thatAlthough it doesn’t matter for our issue preclusion analysis, it seems clear that thecircuit court in the judicial review proceeding was unaware of the 1960 road closurelitigation and the judgment entered in that action.11- 20 -

— Unreported Opinion —Gottfried, i.e., Paulen, had neither an ownership interest in the street nor the right to controlaccess to it. More by implication than by direct statement, the trial court ruled that thejudgment in the judicial review action did not have preclusive effect upon the issues raisedby the parties in the present case.C.With this as a backdrop, the Skillmans present several arguments to us as to why thejudgment by the circuit court in the judicial review proceeding should preclude Paulenfrom asserting that any portion of Frederick Avenue was abandoned or that Paulen has anyownership interest in the part of the closed part of Frederick Avenue that abuts theirproperties. We do not have to address any of them in detail because the principle of issuepreclusion simply does not apply to the current case in the way that the Skillmans thinkthat it does.The doctrine of issue preclusion, or collateral estoppel:precludes a party from re-litigating a factual issue that was essential to a validand final judgment against the same party in a prior action. Maryland hasadopted a four-pronged test that must be satisfied in order to apply collateralestoppel:1. Was the issue decided in the prior adjudi

depicted thereon to Prince George's County and an acceptance by the County of those 2 Earlier cases and treatises used the term "user" to describe the use of a public or private right-of-way. See, e.g., United Finance Corp. v. Royal Realty Corp., 172 Md. 138, 145 (1937); City of Baltimore v. Canton Co. of Baltimore, 124 Md. 620, 632 (1915).