Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates Ltd. Partnership
| Decision Date | 01 September 1995 |
| Docket Number | No. 619,619 |
| Citation | 109 Md.App. 217,674 A.2d 106 |
| Parties | 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. , |
| Court | Court of Special Appeals of Maryland |
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.).
( .
Argued before WENNER, FISCHER and HOLLANDER, JJ.
This legal morass began with a complaint alleging defective design and construction of a high-rise condominium in downtown Baltimore 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.
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?
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?
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
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,
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
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 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
in the Condominium lobby. 3
After the Council notified SHALP of the defects, the parties began to negotiate in an effort to resolve the issues. To give...
To continue reading
Request your trial
-
Kantsevoy v. Lumenr LLC
...meaning of a contract 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 ......
-
McGraw v. Loyola Ford
...real property, and services and the extension of credit." C.L. § 13-102(a). See Hartford Acc. and Indem. Co. v. Scarlett Harbor Associates, Ltd., 109 Md.App. 217, 241, 674 A.2d 106 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997). The General Assembly recognized that "existing laws [protecti......
-
Holzman v. Fiola Blum, Inc.
...Board of County Com'rs of Allegany County, 120 Md. App. 47, 63, 706 A.2d 124 (1998); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md.App. 217, 290-91, 674 A.2d 106 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997); Shapiro v. Massengill, 105 Md.App. 743, 754......
-
Tall v. Board of School Com'rs of Baltimore City
...(2d ed.1992); see Moura v. Randall, 119 Md.App. 632, 641-42, 705 A.2d 334 (1998); see also Hartford Accident and Indem. Co. v. Scarlett Harbor Assocs. Ltd., 109 Md.App. 217, 264, 674 A.2d 106 (1996) (stating that "a document, otherwise admissible, may be used to show the existence of a fact......
-
A. [§ 12.2] Consumer Protection Act—Generally
...that it does not have, including conformity to plans and specifications. Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs., 109 Md. App. 217, 674 A.2d 106 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997). Moreover, as the Act prohibits misrepresent at ions and omissions of material f......
-
Filing Suit (Payment Bonds)
...27, 149 A.3d 778 (2016), aff'd, 454 Md. 698, 165 A.3d 485 (2017); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P'ship, 109 Md. App. 217, 296, 674 A.2d 106, 144 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997).[95] Schneider Elec. Bldgs. Critical Sys., 454 Md. At 712, 165 A.......
-
Introduction
...Co. v. Ins. Comm'r, 293 Md. 409, 420, 445 A.2d 14, 19 (1982); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs. Ltd. P'ship, 109 Md. App. 217, 290, 674 A.2d 106, 142 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997).[5] See Bausch & Lomb, Inc. v. Utica Mut. Ins. Co., 330 Md. 758, 782,......
-
B. [§ 1.38] Pleading Joint and Several Liability
...& City Council of Baltimore v. Thompson, 171 Md. 460, 189 A. 822 (1937); Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs., 109 Md. App. 217, 674 A.2d 106 (1996), aff'd, 346 Md. 122, 695 A.2d 153 (1997). The plaintiff, however, can obtain only a single recovery, and each of the defe......