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Bengies owner appeals dismissal of jury verdict

The owner of Middle River's Bengies Drive-In Theatre is appealing a judge's decision to set aside a jury award of $838,000 in a case involving lights from a nearby Royal Farms store.

An attorney for Bengies owner D. Edward Vogel said the appeal of Baltimore Circuit Judge Robert Cahill's ruling was filed this week. In his Sept. 13 order, Cahill dismissed a jury's finding that light from the Royal Farms store interfered with operation of the 56-year-old Bengies. In his opinion, Cahill said Vogel and his attorneys did not provide enough evidence to back up such a claim.

"Mr. Vogel enjoys no right to dictate to his neighbors how they illuminate their business," the judge wrote, "unless their lights encroach on his property or intrude onto it."

An attorney for the drive-in said the jury verdict should be allowed to stand. "We believe that the plaintiff did present sufficient evidence to support the jury's verdict," said attorney Erin Murphy, who will represent Bengies in the appeal. "We look forward to appellate review."

Attorney Alan A. Abramowitz, who represented Royal Farms during the jury trial, applauded Cahill's ruling.

"There was no evidence in the trial where the jury could find that a reasonable person" would find the lights a nuisance, Abramowitz said. "Protecting the Bengies is an admirable goal, but you cannot allow [the Bengies' owner] to veto other uses based on its particular need for darkness."

Vogel, whose fight with the Royal Farms over its lights goes back nearly a decade, said doubt over the jury verdict has delayed plans to add digital projection, which is fast becoming the industry standard, and to install a second screen on the property, the Baltimore area's only drive-in. During the jury trial, he argued that light from the Royal Farms signs prevents a clear view of the movie screen for some of his customers and is costing him business.

The continuing fight, he said, is taking a toll on him "financially, emotionally and physically.

"I haven't given up on the second screen," Vogel said, "but right now, I'm fighting for the first one."

Cahill, who presided over the four-day June trial that resulted in the jury's $838,000 finding in favor of Bengies, said the evidence presented at trial "does not support the jury's finding that the Royal Farms' lighting constitutes a nuisance under prevailing Maryland law."

He also wrote that the drive-in should be afforded no legal protection beyond that given any business.

"No special protections can be accorded the business as a consequence of the fact that it is light-sensitive," he wrote.

The jury had based its award on the cost of building an 850-foot long, 25-foot high stone wall on the Bengies property along Eastern Boulevard, to block the light.

Cahill added a caveat at the end of his order. Should his decision be overturned on appeal, he wrote, he said the jury award, while "generous in the extreme," was "not excessive under Maryland law."

chris.kaltenbach@baltsun.com

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