Wankel v. A & B CONTRACTORS

• Decision Date: 01 July 1999
• Docket Number: No. 986,986
• Citation: 732 A.2d 333,127 Md. App. 128
• Parties: Mary J. WANKEL, et al. v. A&B CONTRACTORS, INC., et al.
• Court: Court of Special Appeals of Maryland

732 A.2d 333

127 Md. App. 128

Mary J. WANKEL, et al. v. A&B CONTRACTORS, INC., et al.

No. 986, Sept. Term, 1998.

Court of Special Appeals of Maryland.

July 1, 1999.

Gerald I. Holtz (William C. Davis, III, Ashley J. Gardner and Shulman, Rogers, Gandal, Pordy & Ecker, P.A., on the brief), Rockville, for appellee, D.R. Horton.

Joseph F. Zauner III (Mason, Ketterman & Morgan, on the brief), Baltimore, for appellee, Genstar.

David D. Hudgins, Alexandria, VA, for appellee, Seneca.

Paul H. Ethridge, Amy Leete Leone and McCarthy, Wilson & Etheridge, on the brief, Rockville, for appellee, Wright.

Patrick G. Cullen and Rollins, Smalkin, Richards & Mackie, LLC, on the brief, Baltimore, for appellee, A & B Contractors, Inc.

Argued before WENNER, HOLLANDER, and PAUL E. ALPERT, (Retired, Specially Assigned) JJ. HOLLANDER, Judge.

This complex tort case arises from a gas explosion that destroyed one home and damaged another in a Gaithersburg subdivision known as "the Kentlands." The explosion spawned litigation involving multiple parties and a host of claims, cross-claims, and third party claims.

Early on the morning of January 21, 1994, Mary J. Wankel, appellant, and her fiancé, Daniel I. Wilcox, appellant, were sleeping in the upstairs bedroom of Wankel's home, located at 110 Beckwith Street, when they were awakened by an explosion. Wilcox ran to the landing on the second floor and discovered that the first floor of the house was engulfed in flames. The couple soon realized that the only means of escape was through the bedroom window. Wankel and Wilcox were injured when they jumped from the second story to the frozen ground below. As they watched from a neighbor's porch, their house burned to the ground. The explosion also damaged the home of Wankel's neighbors, Karen and George Gouzoulis. Ms. Gouzoulis, appellant, was injured by the fire.

As a result of the explosion, Wankel's insurer, State Farm Fire and Casualty Co. ("State Farm"), appellant, paid Wankel $253,264.08 under Wankel's homeowner policy for the damage to her residence. In addition, State Farm paid $163,950.00 to Wankel for personal property losses, and $25,943.71 in "additional living expenses." Nationwide Mutual Fire Insurance Co. ("Nationwide"), appellant, the Gouzoulis's insurer, paid $11,699.65 for repairs to the Gouzoulis's dwelling, located at 102 Kent Oaks Way.

On January 16, 1997, Wankel, Wilcox, Ms. Gouzoulis, State Farm, and Nationwide filed a five-count complaint¹ in the Circuit Court for Montgomery County against various defendants who were involved in the construction of the Wankel home. Specifically, appellants sued the following entities: D.R. Horton, Inc. ("Horton"), appellee and cross-appellant, the general contractor of the Wankel home; Great Seneca Development Corporation ("Great Seneca"), cross-appellee, the developer of the Kentlands Community; Wright Excavating, Inc. ("Wright"), cross-appellee, a subcontractor that performed excavation and grading work on the property for Horton; A & B Contractors, Inc. ("A & B"), appellee and cross-appellee, a subcontractor that repaired the silt fence² around the property for Horton; Redland Genstar, Inc. ("Genstar"), cross-appellee, a subcontractor that paved an alleyway near the Wankel home for Great Seneca and paved a driveway for Horton; and Triangle Landscapers, Inc. ("Triangle"). In their suit, appellants claimed that a wooden stake used for the silt fence was driven into the ground during the construction process, puncturing a natural gas pipeline. According to appellants, gas then leaked from the pipeline, made its way into the house, and exploded when it came in contact with an unknown heat source.

In March and April of 1997, the defendants lodged a flurry of cross-claims.³ Of particular importance to this appeal, Horton filed cross-claims against Wright, A & B, Great Seneca, Genstar, and Triangle, seeking recovery on theories of indemnity and contribution. Thereafter, Horton impleaded Keith Dodson,⁴ individually and doing business as Ravenwood Associates ("Ravenwood"), in connection with the installation of the silt fence on the Wankel property. Dodson answered Horton's third party complaint on October 10, 1997. Appellants explain that by the time they realized Dodson was the original installer of the silt fence, they could not amend their complaint to add him as a defendant, because the statute of limitations had expired as to Dodson. Nevertheless, they contend that Horton is responsible for Dodson's alleged negligence.

By July 1997, Triangle was dismissed from the case, after it filed a motion for summary judgment that was not opposed. Triangle had claimed that its work on the Wankel property was limited to planting shrubs and mulching a flower bed in the front yard.

The court limited the first phase of discovery to the issue of liability, with a completion date of January 30, 1998. In a Second Amended Scheduling Order entered on January 5, 1998, the court also ordered that "Liability Motions, except for Defendant, Ravenwood, shall be filed by Jan. 30, 1998." Thereafter, on January 28, 1998, appellants moved to voluntarily dismiss Great Seneca, Wright, and Genstar, which Horton opposed. Defendants Great Seneca, Wright, Genstar, Horton, and A & B subsequently filed motions for summary judgment.

In an order dated March 25, 1998, the circuit court granted appellants' motion to dismiss. The court also granted summary judgment in favor of Horton and A & B, concluding that appellants failed to prove that either party proximately caused the explosion. It also granted summary judgment in favor of Great Seneca, Wright, and Genstar with regard to the cross-claims of Horton and A & B.

On appeal, appellants present a single issue:

Did the plaintiffs present sufficient evidence to create a question of fact as to whether Horton and/or A & B's conduct was a proximate cause of their injuries and damages?

Horton noted a cross-appeal, challenging the court's denial of its motion for summary judgment, because appellants failed to present expert testimony as to the standard of care of a contractor. Horton also complains about the dismissal of its cross-claims, and seeks to "preserve a right to revive the cross-claims if necessary after resolution of this appeal." It presents the following question:

Did the lower court correctly rule that Plaintiffs presented legally sufficient evidence (including expert testimony) to permit a jury to conclude that Defendant Horton breached a duty of care owed to Plaintiffs?

In reply to Horton's cross-appeal, Wright, Great Seneca, Genstar, and appellants (as cross-appellees) filed separate briefs raising various issues of their own. We have set forth below the issues raised by each cross-appellee:

Cross-Appellee Wright:

I. Since there was no evidence from which a trier of fact could reasonably infer that Wright excavating was responsible for driving "the stake" down into the ground, was the trial court's decision to grant Wright Excavating's motion for summary judgment on D.R. Horton's cross-claims legally correct?

II. Was the trial court's decision to grant Wright Excavating's motion for summary judgment on D.R. Horton's cross-claim for indemnification legally correct?

III. Was the trial court's decision to grant Wright Excavating's motion for summary judgment on D.R. Horton's cross-claim for contribution legally correct?

Cross-Appellee Great Seneca:

I. Whether the appeal of the court's ruling on Horton's cross-claim against Great Seneca is properly before this court.

II. Whether the court ruled that Horton's cross-claim against Great Seneca is moot as a result of its granting summary judgment to Horton on plaintiff's claims.

Cross-Appellee Genstar:

Did the lower court properly enter summary judgment in favor of Redland Genstar, Inc.?

Cross-Appellees Wankel, Wilcox, Gouzoulis, State Farm, and Nationwide:

I. Did the trial court correctly conclude that the Plaintiffs had produced evidence concerning Horton's duty and its breach of that duty?

II. Did the trial court correctly conclude that the Plaintiffs' standard of care expert was qualified to express the opinions elicited from him?

In addition, Great Seneca, Genstar, and Wright have moved to dismiss Horton's cross-appeal. Great Seneca and Genstar contend that the court granted summary judgment as to Horton's cross-claims on substantive grounds, not merely because Horton's cross-claims became "moot" when the court granted judgment in Horton's favor with regard to appellants' claims. Citing Md. Rule 8-602(a)(7), which permits dismissal of an appeal when a party fails to submit a timely brief, they urge dismissal of Horton's cross-appeal, for failure to address the substantive grounds on which the court resolved the cross-claims. For its part, Wright seeks dismissal of Horton's cross-appeal, pursuant to Rule 8-504(a)(5), because Horton failed to address the substance of the court's ruling on summary judgment as to Wright. On January 22, 1999, less than two weeks before oral argument, Horton filed a Motion for Leave to Supplement Brief. Great Seneca, Wright, and Genstar all oppose Horton's motion to supplement. That motion is pending.

For the reasons that follow, we shall affirm. To be sure, the occurrence was extremely unfortunate. But, a plaintiff cannot recover based on sympathy. We agree with the trial court that appellants failed to show that any of the defendants proximately caused appellants' injuries. It follows that we need not consider the issues relating to Horton's cross-appeal or Horton's motion to supplement its original brief.⁵

Factual Background

Our factual recitation derives from the pleadings and the evidence produced in connection with the motions filed by appellees and cross-appellees. To the extent there is any factual dispute, we have cast the facts in the light most favorable to appellants.

In March 1992, Wankel entered into a contract with Horton to purchase a "...