Hickman v. Carven

• Decision Date: 05 November 2001
• Docket Number: No. 12,12
• Citation: 784 A.2d 31,366 Md. 362
• Parties: Vivian Mae HICKMAN, Personal Representative of the Estate of Louis J. HICKMAN, et al. v. Thomas J. CARVEN, et ux.
• Court: Maryland Court of Appeals

784 A.2d 31

366 Md. 362

Vivian Mae HICKMAN, Personal Representative of the Estate of Louis J. HICKMAN, et al. v. Thomas J. CARVEN, et ux.

No. 12, Sept. Term, 2001.

Court of Appeals of Maryland.

November 5, 2001.

James W. Almand (Christopher A. Palmer of Ayres, Jenkins, Gordy & Almand, P.A., on brief), Ocean City, for petitioners/cross-respondents.

Harold Douglas Norton (Brown, Brown & Brown, P.A., on brief), Bel Air, for respondents/cross-petitioners.

Argued Before BELL, C.J., and ELDRIDGE, RAKER, WILNER, HARRELL, BATTAGLIA, and ROBERT L. KARWACKI (retired, specially assigned), JJ.

WILNER, Judge.

Maryland Code, § 5-108(a) of the Courts and Judicial Proceedings Article provides, in relevant part, that no cause of action for damages accrues when "personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use." We have regarded that statute as one of repose and not one of limitations. See Rose v. Fox Pool, 335 Md. 351, 643 A.2d 906 (1994).

The general issue before us in this case is whether the statute applies to an action by the owners of a residential subdivision lot against the developers of the subdivision for alleged personal and economic injury accruing from the developers' concealment of a burial ground on the plaintiffs' lot. That issue hinges on whether the injuries alleged by the plaintiffs result from the "defective and unsafe condition of an improvement" to the property. The Circuit Court for Worcester County answered that question in the affirmative, concluded as a result that the statute applied, and, upon a finding that the action was not brought within the 20-year period allowed by the statute, entered summary judgment for the defendant-developers. The Court of Special Appeals, holding that the plaintiffs' claims did not involve injuries resulting from a defective and unsafe condition of an improvement to real property, reversed. Carven v. Hickman, 135 Md.App. 645, 662-63, 763 A.2d 1207, 1217 (2000). We shall affirm the judgment of the Court of Special Appeals.

BACKGROUND

The underlying facts relevant to this appeal are not in dispute and, indeed, have been presented to us through an agreed statement.

In February, 1944, Louis Hickman acquired a 200 acre farm in Bishopville, on which he created a 150-lot residential subdivision known as Holiday Harbor. The property was subdivided through the recording of a number of plats, the first of which was recorded in February, 1960. The plat which concerns us is the second one, placed on record in June, 1964. One of the lots on that plat is Lot 96. In furtherance of the Holiday Harbor development, Hickman built roads and canals, installed underground electric service, and granted rights of way for other utilities and roads. In June, 1960, Hickman imposed a set of restrictive covenants on the lots, included in which was a covenant prohibiting any "graveyard" from being maintained or operated on any portion of the subdivision. Hickman retained the right, along with other lot owners, to enforce the covenants, and he retained the right to approve plans for any construction on the lots.

In 1975, Hickman conveyed Lot 96 to the Tubbs. In 1984, the Tubbs conveyed the lot to the Bryants, and in April, 1986, the Bryants conveyed it to the Carvens, the present owners. After acquiring the lot, the Carvens met with Hickman, who approved their plans for the construction of a residence. Hickman said nothing about there being a graveyard on the lot; nor was the existence of a graveyard indicated on the recorded plat. With their plans approved, the Carvens built a home on the lot in 1986. Hickman died in September, 1997.

In December, 1997, the Carvens filed suit against Hickman's widow, Vivian Hickman, whom they alleged was a co-owner and co-developer of Holiday Harbor with her husband. The complaint alleged deceit, breach of the covenant of special warranties, and negligence, all based on the assertions that (1) the Hickmans were general partners in the development and sale of the lots; (2) they knew or should have known of the existence of a graveyard located on the farm and on Lot 96 in particular; (3) during the development, memorial markers and all other indicia of the existence of the graveyard were removed by the Hickmans or their agents; (4) the graveyard constitutes a dangerous and hazardous condition and is a latent defect, a defect in title, and a defect in fact; (5) although the Hickmans knew or should have known of the existence of the graveyard, they failed to disclose its existence to persons entitled to knowledge; (6) the Carvens discovered the existence of the graveyard on Lot 96 in January, 1995; and (7) the Carvens purchased Lot 96, built their home on it, relocated from their previous residence, and mortgaged the property as security for loans in justifiable reliance on the fact that the property was free of hazards and defects, and they would not have done so had the existence of the graveyard been disclosed to them.

With respect to their claim for deceit, the Carvens asserted that the omission by the Hickmans to disclose on the recorded plat the existence of the graveyard constituted a knowingly false representation of a material fact, that the Hickmans intended that grantees would rely on the plat, which failed to disclose the graveyard, and that the Carvens justifiably relied on that plat. The breach of warranty claim was founded on the restrictive covenant prohibiting the maintenance of a graveyard which, the Carvens asserted, was specially warranted in the deed to Lot 96. The action for negligence was based on averments that the Hickmans held themselves out to the public as professionals engaged in the development of the farm and Lot 96, and that they breached their duty to use reasonable care in developing the property by failing to remove the graveyard or disclose its existence. They contended that, as a result of the graveyard, (1) their property is "worthless," (2) the loan secured by the property is subject to acceleration by reason of the failure of security, (3) they will be required to incur substantial costs in having the bodies interred on their property relocated, restoring the surrounding yard, and obtaining other living arrangements during the restoration, and (4) they have suffered mental anguish and emotional distress.

Ms. Hickman moved for summary judgment on a number of substantive and procedural grounds, including a claim that the Carvens' action was barred by § 5-108. It is agreed in this appeal that, based on the evidence submitted by the Carvens in opposition to the motion, a jury could find that (1) there is a graveyard on the Carvens' lot; (2) it may contain the graves of members of the Beauchamp and Hickman families;¹ (3) Louis Hickman knew of the existence and location of the graveyard; (4) by reason of his prior experience as a Worcester County Commissioner and the discovery of graves during the development of the Ocean Pines Community, Hickman had reason to know the expense associated with the disinterment and relocation of graveyards; (5) Hickman removed the tombstones, markers, and other surface evidence of the graveyard with the use of a bulldozer, while leaving the graves underground; (6) none of the documents submitted to the county by the Hickmans show any indication of the existence of a graveyard; and (7) the county health department, which approved Plat No. 2, would not have done so if it had known that any portion of Lot 96 contained a graveyard. The Carvens acted as their own general contractor in building their home and performed much of the labor associated with the construction. They or persons acting for them installed a continuous footer for the home, a septic system, and underground utility lines, they planted trees and shrubs, and they installed other landscaping materials. None of that digging in 1986 revealed evidence of the graveyard. Sometime after October 15, 1994, Ms. Carven was told by some of her business customers that her house was built on a graveyard which Mr. Hickman confirmed. At some later point, she dug a hole in her yard where a yucca plant had been and, about 12 inches below the surface, discovered some bones and a piece of metal that she believed to be a casket handle. Two county sheriff's deputies thereafter discovered additional bones in the same hole.²

On this evidence, the Circuit Court initially denied the motion, but, on reconsideration, concluded that § 5-108 applied and that it barred the action. The court concluded that, by creating a subdivision, preparing lots and creating streets and utilities, Hickman enhanced the value of the property and adapted it for new and further purposes, and, as a result, created an "improvement" within the meaning of § 5-108. In light of the fact that the subdivision plat was recorded in June, 1964, and suit was not filed until December, 1997, the court concluded that suit had not been filed within the 20 years specified in the statute. Finally, the court found that the alleged fraudulent concealment on the part of the Hickmans would not preclude application of the statute.

As indicated, the Court of Special Appeals reversed. Although acknowledging that the digging of canals and the building of roads and installation of utilities may qualify as improvements, the court noted that the Carvens were not contending that they suffered any injury from the defective and unsafe condition of those improvements. The change at issue here was the removal of headstones from a graveyard to conceal its existence, and that, the court held, was not an improvement. It did not alter the status of the property but merely concealed that status. Even if that activity were regarded as an improvement, the court concluded that the improvement was not a "defective...