E.G. Rock, Inc. v. Danly, 203

Citation98 Md.App. 411,633 A.2d 485
Decision Date01 September 1993
Docket NumberNo. 203,203
PartiesE.G. ROCK, INC., et al., v. Laura DANLY. ,
CourtCourt of Special Appeals of Maryland

George L. Huber, Jr., argued (Christopher M. Erwin and Huber & Lutche, on the brief), Baltimore, for appellant, E.G. Rock.

Dean P. Gunby, argued (Jo Anna Schmidt and the Law Offices of Harold A. MacLaughlin, on the brief), Baltimore, for appellant, Baltimore Historic Properties, etc.

Kenneth L. Thompson, argued (Kaye L. Pestaina and Piper & Marbury, on the brief), Baltimore, for appellee.

Argued before GARRITY, ALPERT and CATHELL, JJ.

ALPERT, Judge.

Laura Danly ("Appellee") was a tenant in the premises located at 115 West Monument Street, Baltimore City, Maryland ("premises"). On December 12, 1987, she was assaulted by an unidentified man. Action was brought in the Circuit Court for Baltimore City against Baltimore Historic Properties Limited Partnership ("BHP") and E.G. Rock, Inc. ("Rock"), among others, 1 alleging negligence on part of BHP and Rock. From a jury verdict for appellee, (David Ross, J., presiding), BHP and Rock appeal and ask us the following:

I. Did the trial court commit reversible error in its instructions to the jury on the legal duty owed by the Defendants to the Plaintiff?

II. Did the trial court commit reversible error with respect to E.G. Rock's claim for indemnity against Baltimore Historic Properties? 2

We hold that, on both issues, the trial court did not commit reversible error, and, therefore, affirm the judgment.

Facts

Laura Danly wanted to live in the Mount Vernon section of Baltimore City. Around the first week of November 1987, she was walking in the Mount Vernon area when she realized she was passing E.G. Rock's office. Having previously noticed that Rock managed a lot of properties, she decided to walk in and get some information. She was introduced to Bill Fink 3 ("Fink") who subsequently took her to see the premises at issue; she immediately fell in love with it. About a week later, she returned to Rock's office and, by appointment, met with Fink and Ms. Ethel S. Braun (a.k.a. Ethel Carter) ("Carter"), Rock's owner. Appellee, along with Fink, revisited the premises the same day. Even though the building was substantially complete, she had some reservations about entering into a lease. She wanted to make sure that the apartment would be "finished and ready to be moved in" and "that there would be no more workmen in [her] apartment after [she] moved in." Appellee consented, upon verbal assurances by Fink, to an oral agreement and deposited earnest money for the apartment by a check payable to Rock.

On November 24, 1987, appellee returned to Rock's office and did an "on-site inspection" of the premises. Since "substantial work had been done, and a lot of the apartment had been finished", she made out a check payable to E.G. Rock for "the first month's rent and the security deposit minus the $100.00 earnest money" and signed the lease. This is where, for the first time, she met John McCarthy 4 ("McCarthy") and discussed with him and Fink the security system for the building. She moved into the apartment on or about the first Monday in December 1987.

Appellee was aware of the fact that the building was not totally finished when she moved in. She observed, however, that

I took the top floor apartment. That was the third floor, and the third floor and second floor apartments were all completed and ready to be moved in and, in fact, there was another tenant who had already moved into the second floor. The first floor there was painting going on, and things like that, but all the walls were up and it looked fairly complete, and I know they were working on the basement, working on, trying to look at the laundry room and stuff like that. But from all of the residence floors, which were the third and the second floors, that was all completed.

There were, however, other problems with her apartment which she listed and reported to Fink because, she stated, "He told me to. He told me if there were any problems with the apartment to talk to him, and when I did call to complain, he responded to my complaint, and he also acted on them. I mean, I got some things done." For his part, Fink stated that once he received a complaint, he would forward it to McCarthy or Bill Warren 5 since Rock had no authority to solve the problem. In fact, Carter noted that her home phone number was given to all tenants with respect to property either leased or managed by Rock as an emergency number. There seems to be considerable debate as to the relationship between the appellants, as evidenced by the cross appeal from the lower court's judgment (i.e., Issue II). BHP maintains that there was no management contract between the two parties and that Rock is liable for its own independent acts of negligence. In support, BHP refers to the testimony of the two principals (i.e. Carter for Rock and James Clare for BHP) wherein both parties testified that there was no management agreement between Rock and BHP. BHP also asserts that allowing Rock to amend its complaint after all the evidence had been presented would be prejudicial. They claim that had BHP known about Rock's indemnity claim, it would have modified its approach to the whole case. BHP, therefore, argues that the jury instructions given were appropriate as Rock had not pleaded the existence of a contract which would have required the judge to give instructions on the indemnity issue.

Rock maintains that there was a management contract between it and BHP. Specifically, Rock asserts that McCarthy acknowledged the existence of a contract when he stated that the contract for 809 Cathedral Street was extended to 115 West Monument Street. Rock, therefore, argues that since the 809 Cathedral Street management contract contained an indemnity clause, the same indemnity clause is applicable to the "contract" for 115 West Monument Street. Rock also contends that the trial court should have given instructions as to the law of principal and agent.

In any event, appellee started noticing that workmen had gained access to her apartment without her permission. Specifically, she testified that

On one of the first few days that I was there, I came home at night and saw where there had been a, a ceiling panel taken out of the ceiling, and they had obviously done something up there. I don't know. It wasn't one of the things I needed, and there was a pile of mess on the floor where they had taken it out and hadn't cleaned it up, and so I was upset as I knew that someone had come in and I hadn't been notified.

Additionally, the day before the assault, appellee was awakened by "two men standing on the fire escape looking in [her] bedroom window." She immediately called Mr. Fink and reported that "having people on the fire escape looking into [her] bedroom window was very upsetting to [her], and was there to be any work having to do with my apartment or access or around my apartment, that [she] needed to be notified." All of this brings us to the events at issue.

On December 12, 1987, appellee was sleeping in her apartment when she was awakened by the sound of someone entering through the front door. She was quite startled and proceeded to jump out of her bed and go out into the foyer. There, she discovered a young man (who still remains unidentified) dressed in work clothes. She questioned him as to why he was in her apartment, and he explained that he was on the premises to do clean up work. Appellee, who had never seen the intruder before, told him "this is my apartment. I live here. This is not for you to be cleaning up, you know, I'll clean up myself." The intruder apologized and left the apartment, whereupon she immediately called Rock in order to lodge a complaint with Fink. The phone was answered by Carter, whom appellee informed that

[she] was very upset and [Carter] said, well, is there something I can help you with. So, I told her what had happened, and I told her, because I didn't know whether she knew about the day before, you know, the incident with the fire escape and so forth, and I, I was very upset. And I told her, I was very explicit--I said I wanted two things from her. One was that she find out if this guy is who he says he is and secondly, that this was the last time I was going through this and if it happened again, I would consider the lease terminated and I would move out.

Carter was sympathetic towards appellee's concern and "volunteered that we would see what it was all about."

About the same time, McCarthy arrived at Rock's offices and was apprised of what had transpired. Together with Carter, he returned to the premises. Upon arriving at the apartment building, they realized that neither of them had keys to the building. They noticed an individual in the building with a broom in his hand, who subsequently let them in. Carter and McCarthy introduced themselves and McCarthy asked this individual who he was and what he was doing there. The individual stated that he was working for the contractor and that he was cleaning up. Both, Carter and McCarthy, failed to ask this individual for identification demonstrating his employment by the construction company. Thereafter, Carter, McCarthy and this individual went up to see appellee. There, according to the testimony of appellee and Carter, McCarthy introduced the individual (whom the appellee recognized as being the earlier intruder) as being a construction worker. McCarthy chastised the intruder for entering appellee's apartment, and both he and Carter apologized to appellee. McCarthy also stated that he would verify who the intruder was and further warned the intruder that he better be the person he was claiming to be. Carter, while not actively participating in the oral dialogue, agreed with McCarthy's statements. Appellee was satisfied by the representations put forth by Carter and McCarthy because, she testified,

They...

To continue reading

Request your trial
37 cases
  • Prudential Securities Inc. v. E-Net, Inc.
    • United States
    • Court of Special Appeals of Maryland
    • September 5, 2001
    ...order to prevent the substantial justice of a cause from being defeated by formal slips or slight variances." E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 428, 633 A.2d 485 (1993). They should be allowed "`so long as the operative factual pattern remains essentially the same, and no new cause ......
  • Hartlove v. Maryland School for the Blind
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1995
    ...each of those three criteria. Holman v. Kelly Catering, Inc., 334 Md. 480, 495-96, 639 A.2d 701 (1994); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 420-21, 633 A.2d 485 (1993). When reviewing the propriety of the giving of a particular instruction, we must determine whether the instruction "f......
  • Anchor Packing Co. v. Grimshaw
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1996
    ...is some evidence in the case to support it. Sergeant Co. v. Pickett, 285 Md. 186, 194, 401 A.2d 651 (1979); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 420, 633 A.2d 485 (1993); Edmonds v. Murphy, 83 Md.App. 133, 178 n. 28, 573 A.2d 853 (1990),aff'd 325 Md. 342, 601 A.2d 102 (1992). Therefore......
  • Poteet v. Sauter
    • United States
    • Court of Special Appeals of Maryland
    • February 1, 2001
    ...(citations omitted); see Burdette v. Rockville Crane Rental, Inc., 130 Md.App. 193, 212, 745 A.2d 457 (2000); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 420, 633 A.2d 485 (1993). The court has a duty to instruct the jury on a party's theory of the case. Benik, 358 Md. at 519, 750 A.2d 10; Ma......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT