Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates Ltd. Partnership, No. 619

CourtCourt of Special Appeals of Maryland
Writing for the CourtHOLLANDER
Citation109 Md.App. 217,674 A.2d 106
Docket NumberNo. 619
Decision Date01 September 1995
PartiesHARTFORD ACCIDENT AND INDEMNITY COMPANY v. SCARLETT HARBOR ASSOCIATES LIMITED PARTNERSHIP, et al. SCARLETT PLACE RESIDENTIAL CONDOMINIUM, INC. v. SCARLETT HARBOR ASSOCIATES LIMITED PARTNERSHIP, et al. ,

Page 217

109 Md.App. 217
674 A.2d 106
HARTFORD ACCIDENT AND INDEMNITY COMPANY
v.
SCARLETT HARBOR ASSOCIATES LIMITED PARTNERSHIP, et al.
SCARLETT PLACE RESIDENTIAL CONDOMINIUM, INC.
v.
SCARLETT HARBOR ASSOCIATES LIMITED PARTNERSHIP, et al.
No. 619, Sept. Term, 1995.
Court of Special Appeals of Maryland.
April 3, 1996.

Page 228

[674 A.2d 111] Gregory L. Vangeison, Baltimore (T. Michael Preston and Anderson, Coe & King, on the brief, for appellant, Hartford).

Melvin J. Sykes, Baltimore (David P. Sutton and Andrew L. Hartman, on the brief, for appellant, Scarlett Place Residential Condominium, Inc.).

Kenneth F. Spence, III, Towson (Kevin J. Pascale, Susan H. Snively and Miles & Stockbridge, on the brief, for appellees, Scarlett Harbor and The Merritt Operations).

(H. Patrick Donohue and Armstrong, Donohue & Ceppos, Rockville, Chartered, on the brief, for appellee, Security Masonry, Inc.).

(Michael P. May and Gallagher, May & Burgyone, Baltimore, on the brief, for appellees, Leo D'Aleo and William Meyers).

Page 229

Argued before WENNER, FISCHER and HOLLANDER, JJ.

HOLLANDER, Judge.

This legal morass began with a complaint alleging defective design and construction of a high-rise condominium in downtown Baltimore[674 A.2d 112] known as Scarlett Place Residential Condominium ("Scarlett Place" or "Condominium"). Scarlett Place Residential Condominium, Inc., appellant and cross-appellee, is the council of unit owners of the Condominium ("the Council"), established pursuant to Md.Code (1974, 1996 Repl.Vol.), § 11-109 of the Real Property Article ("R.P.") and the Condominium's Declaration and By-Laws. Charged with governing the affairs of the Condominium, the Council filed suit in the Circuit Court for Baltimore County, seeking damages for defects in the common areas of Scarlett Place. The Council sued the developer, Scarlett Harbor Associates Limited Partnership ("SHALP"), its general partners, Leroy Merritt and Merritt Operations Corporation ("MOC"), and its former general partners, William Meyers, II and Leo J. D'Aleo, who are all appellees, asserting breach of the statutory implied warranty, breach of express warranty, breach of contract, and violation of the Maryland Consumer Protection Act. Thereafter, SHALP, Merritt, and MOC (hereinafter, the "Defendants") impleaded several other entities, including the masonry subcontractor, Security Masonry, Inc. ("Security"), Leonard A. Kraus, Inc. ("Kraus"), another subcontractor, and Hartford Accident and Indemnity Co. ("Hartford"), which had issued a performance bond for Kraus. 1 Hartford is an appellant, both Hartford and Security are cross-appellees, and the Defendants are also cross-appellants.

Page 230

Aggrieved by the circuit court's various rulings, the Council appeals and presents a plethora of issues for our consideration:

I. Did the court below err in holding that Count IV of the Complaint failed to state a claim under the Maryland Consumer Protection Act?

II. Did the court below err in holding Plaintiff's Breach of Contract claim barred by limitations?

III. Did the court below err in holding that Count II of the Complaint insufficiently alleged breach of express warranty and in refusing to allow a clarifying amendment?

IV. Did the court below err in granting summary judgment for SHALP as to the defective flashing on the ground of limitations?

V. Did the court below err in its rulings with regard to expert testimony and granting summary judgment for SHALP on a claim which was not contested by SHALP's motion?

A. Did the court improperly preclude testimony of Plaintiff's expert engineer, Gerald A. Dalrymple?

B. Did the court err in holding that expert testimony was required to establish liability for obvious construction defects, including elevator shaft heating, flooding of the surrounding area of the lobby entry, and excessive noise and vibration on the 14th floor?

C. Did the court below err in granting summary judgment for SHALP on Plaintiff's claim for failure to install telephones and cables pursuant to contract and for associated consulting fees, when SHALP had not moved for summary judgment as to this claim?

VI. Did the court below err in ruling that Plaintiff lacked a sufficient ownership interest to complain of defects in the Plaza Deck?

VII. Did the court below err in dismissing the Complaint against SHALP's general partners as premature?

Page 231

The Defendants noted a cross-appeal and present two issues for our consideration:

I. Whether the trial court erred in failing to dismiss the Complaint as being time barred by the applicable statute of limitations?

674 A.2d 113] II. Whether the trial court erred in certain of its rulings on motions for summary judgment filed by Hartford and Security Masonry

Finally, Hartford appeals the circuit court's denial of its motion to compel submission to arbitration of the third-party claim against it. 2

FACTUAL SUMMARY

The Scarlett Place complex consists of three separate condominium regimes: the Residential Condominium (the Condominium), the Commercial Condominium, and the Parking Condominium. The Condominium is a fourteen story residential building with almost 150 units. SHALP, as developer of the Condominium, sold the first Condominium unit in December 1987. In connection with SHALP's sales, buyers signed a "Purchase Agreement," executed under seal. In its "Explanatory Statement," the agreement stated that SHALP "has or proposes to construct ... a multistory multiple family residential housing project in substantial conformity to the Plans and Specifications prepared by Meyers & D'Aleo, Inc., Architects and Engineers." The "General Provisions" of the Purchase Agreement further provided: "The Residential Condominium, the Garage Condominium and Unit Purchased have been or shall be constructed by Seller in a good and workmanlike manner in substantial conformity with the Residential and Garage Plans and Specifications...."

Sales of Condominium units were slow; by March 1989, only forty units had been sold. Consequently, on March 12, 1989,

Page 232

ninety-five units were sold at auction. Similar to the pre-auction agreements, the Explanatory Statement in the post-auction purchase agreements contained a statement that SHALP "has constructed ... a multistory multiple family residential housing project in substantial conformity to the Plans and Specifications prepared by Meyers & D'Aleo, Inc., Architects and Planners." For all but two of the units sold at or subsequent to the auction, the post-auction purchase agreements also provided, in pertinent part: "SELLER HEREBY SELLS AND WILL CONVEY SUCH CONDOMINIUM UNIT(S) IN THEIR PRESENT CONDITION, EXCEPT AS SPECIFICALLY MANDATED UNDER MARYLAND LAW." (Capitalization in original).

The post-auction purchase agreements also stated in Paragraph 20.1.1: "Seller will correct any defects in materials or workmanship in the construction of walls, ceilings, floors, and heating and air conditioning systems in the Unit." Further, Paragraph 20.2 provided: "In addition to the warranties set forth in [R.P.] § 10-203 ... Seller warrants the roof, foundation, external and supporting walls, mechanical, electrical and plumbing systems and other structural elements of the common elements." Moreover, Paragraph 20.2.1 stated: "With regard to the implied warranty on common elements [provided by R.P. § 11-131(c) ], Seller shall be responsible for correcting any defect in materials or workmanship, and ... the specified common elements are within acceptable industry standards in effect when the building was constructed."

The Council contends that, after Scarlett Place opened, it discovered various alleged defects, including the following:

(1) The flashing, a waterproofing component, was not installed in accordance with plans and specifications or in a workmanlike manner, resulting in improper diversion of water. Instead of extending beyond the exterior of the brick facade of the building, the flashing was "cut short," causing leaks around the windows in common areas and the corrosion of structural supports such as steel shelf angles. The Council originally believed, however, that the problem of water and

Page 233

moisture in the vicinity of exterior Condominium windows resulted from "window leaks." Shortly before it filed suit, the Council discovered that the problem actually involved defective flashing.

(2) The frames for the doors to the "trash rooms" were either damaged or improperly [674 A.2d 114] installed. As a result, the doors would not close completely, thus causing a fire hazard.

(3) The heating system in an elevator shaft was ineffective, causing the elevator to bring cold air into the area occupied by the residential units.

(4) Improper design of a "Plaza Deck" area resulted in drainage problems and the ponding of water on the deck. In addition, the freezing and thawing of water on the deck caused cracks and threatened the deck's structural integrity.

(5) Defective design of the swimming pool deck caused water to pond on the deck, resulting in the buckling, cracking, and lifting of tiles.

(6) A telephone console system was defective and, furthermore, some units were never supplied with telephones.

(7) A card key entry system for the building was non-functional, and the Council had to expend funds to replace it.

(8) The Council had to spend approximately $19,000 to repair damage to the interior brass work and flooring of four elevators, caused by SHALP's contractors.

(9) A "stairway pressurization" system intended to remove smoke from stairwells during a fire did not meet building code requirements.

(10) The HVAC (heating, ventilation, and air conditioning) system had been improperly designed and installed, causing excessive noise and vibration.

(11) Improper sloping of an area outside the front lobby entrance caused water to pond and sometimes caused flooding

Page 234

in the Condominium lobby. 3

After the Council notified SHALP of the defects, the...

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  • Neal v. Pentagon Fed. Credit Union, Civil Action No. ELH-18-451
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • November 5, 2018
    ...our search is limited to the four corners of the agreement."); Hartford Acc. & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) ("[T]he court must, as its first step, determine from the language of the agreement what a reasonable person in th......
  • Faddis Concrete, Inc. v. Brawner Builders, Inc., Civil Action No. ELH-15-3975
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 15, 2017
    ...our search is limited to the four corners of the agreement."); Hartford Acc. & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) ("[T]he courtPage 11 must, as its first step, determine from the language of the agreement what a reasonable perso......
  • Goldstein v. Fed. Deposit Ins. Corp., Civil Action No. ELH-11-1604
    • United States
    • U.S. District Court — District of Maryland
    • May 16, 2012
    ...v. Smith, 193 Md. 659, 669, 69 A.2d 478, 481 (1949)); see also Hartford Acc. & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P'ship, 109 Md. App. 217, 277, 674 A.2d 106, 135 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997). Its name derives from the Latin maxim, "in pari delicto potior est cond......
  • Griaznov v. J-K Techs., LLC, Civil Action No. ELH-16-2522
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 11, 2018
    ...our search is limited to the four corners of the agreement."); Hartford Acc. & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) ("[T]he court must, as its first step, determine from the language of the agreement what a reasonable person in th......
  • Request a trial to view additional results
240 cases
  • Neal v. Pentagon Fed. Credit Union, Civil Action No. ELH-18-451
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • November 5, 2018
    ...our search is limited to the four corners of the agreement."); Hartford Acc. & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) ("[T]he court must, as its first step, determine from the language of the agreement what a reasonable person in th......
  • Faddis Concrete, Inc. v. Brawner Builders, Inc., Civil Action No. ELH-15-3975
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 15, 2017
    ...our search is limited to the four corners of the agreement."); Hartford Acc. & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) ("[T]he courtPage 11 must, as its first step, determine from the language of the agreement what a reasonable perso......
  • Goldstein v. Fed. Deposit Ins. Corp., Civil Action No. ELH-11-1604
    • United States
    • U.S. District Court — District of Maryland
    • May 16, 2012
    ...v. Smith, 193 Md. 659, 669, 69 A.2d 478, 481 (1949)); see also Hartford Acc. & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P'ship, 109 Md. App. 217, 277, 674 A.2d 106, 135 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997). Its name derives from the Latin maxim, "in pari delicto potior est cond......
  • Griaznov v. J-K Techs., LLC, Civil Action No. ELH-16-2522
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • September 11, 2018
    ...our search is limited to the four corners of the agreement."); Hartford Acc. & Indem. Co. v. Scarlett Harbor Assoc. Ltd. P'ship, 109 Md. App. 217, 291, 674 A.2d 106, 142 (1996) ("[T]he court must, as its first step, determine from the language of the agreement what a reasonable person in th......
  • Request a trial to view additional results

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