Lumsden v. Design Tech Builders, Inc.

• Decision Date: 14 April 2000
• Docket Number: No. 112,112
• Citation: 358 Md. 435,749 A.2d 796
• Parties: Faye LUMSDEN et al. v. DESIGN TECH BUILDERS, INC.
• Court: Maryland Court of Appeals

749 A.2d 796

358 Md. 435

Faye LUMSDEN et al. v. DESIGN TECH BUILDERS, INC.

No. 112, Sept. Term, 1999.

Court of Appeals of Maryland.

April 14, 2000.

Richard W. Lawlor (Richard W. Lawlor, P.A., on brief), Rockfield, for petitioners.

Peter I.J. Davis (Davis & Associates, on brief), Rockville, for respondent.

Argued before BELL, C.J. and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and THEODORE G. BLOOM (retired, specially assigned), JJ.

CATHELL, Judge.

Petitioners, Faye Lumsden, Ellen Hollander, Walter Leavell, Stephen Myers, Allan Zaic, and Colonel Ole P. Flaa, appeal from an order of the Circuit Court for Montgomery County granting summary judgment to respondent, Design Tech Builders, Inc. The appeal before this Court originated in the District Court of Maryland, which ruled that petitioners' claims based on the implied warranties codified in Maryland Code (1974, 1996 Repl.Vol., 1999 Cum.Supp.), section 10-203 of the Real Property Article were time-barred. The circuit court, in granting the motion for summary judgment below, agreed. Petitioners appealed to this Court for a writ of certiorari, which we granted. We shall affirm.

I. Facts & Background

Between August of 1992 and March of 1994, petitioners and other homeowners in the Leighton Woods Development in Silver Spring, Maryland, individually entered into contracts with respondent to purchase residential dwellings, which included the installation of driveways.¹ The Washington metropolitan area was hit by a severe ice storm during the winter of 1994. In response to this storm, the twelve homeowners, through their homeowner's association, hired Cherry Valley Landscaping to conduct snow and ice removal services. On January 20, 1994, Cherry Valley Landscaping applied de-icing chemicals to the driveway surfaces to melt and remove the ice. In March of 1994, all twelve homeowners individually noticed that the surface of their driveways suffered from peeling and scaling.

The homeowners complained to respondent. There was an initial indication that the damage to the driveways had been caused by the application of de-icing chemicals by Cherry Valley Landscaping. However, in August of 1994, the homeowners discovered that the damage actually may have been caused by problems with the poured concrete used to construct the driveways. A seventeen-page report drafted by Professional Service Industries, Inc. indicated that the water-to-cement ratio of the core samples from three of the damaged driveways was very high, making the upper layer of the concrete soft and porous and susceptible to peeling and scaling. On August 11, 1994, Ms. Hollander sent a copy of this report to Mr. David Weiss, President of Design Tech Builders, Inc. The homeowners, through Ms. Hollander, then began to further investigate the cause of the defective concrete to determine whether the mixture of the concrete was improper or whether the pour of the concrete had been done incorrectly. In a letter to Ms. Hollander dated October 10, 1995, Mr. Jim Mack, Director of Engineering & Rehabilitation of the American Concrete Pavement Association stated that the soft porous cement part of the one-half inch of the driveway surface indicates that the surface was over-finished or overworked, which caused more water and less cement to the surface prior to the cement curing. In an additional letter to Ms. Hollander, dated October 25, 1995, Mr. Scott F. Wolter, President of American Petrographic Services, Inc., stated that the use of de-icing chemicals did not cause the scaling of the driveways and that the damage was the result of the high water-cement ratio of the concrete during curing. Colonel and Mrs. Flaa had a separate, independent report sent to them on March 28, 1995 stating that the problem with the driveway was caused by an improper pour and cure of the concrete. On April 21, 1995, the twelve homeowners sent a correspondence to respondent as a follow-up to their meeting in November of 1994, requesting that respondent correct the defect by replacement, repair, or otherwise.

On April 8, 1996, the twelve homeowners filed small claims actions in the District Court of Maryland sitting in Montgomery County, alleging that respondent, Design Tech Builders, Inc., had breached its implied statutory warranty against defects because the homeowners' driveway surfaces had become pitted and scaled. Respondent filed third-party complaints against two concrete subcontractors, the concrete supplier, the relevant homeowner association, and the snow removal service contracted with by the homeowner association. Respondent alleged that chemical de-icers, which the snow removal service had applied to the homeowners' concrete driveways, was the cause of the damage to the driveway surfaces.

The twelve consolidated actions were tried in the District Court on October 20, 1998. On November 2, 1998, the trial court ruled that the consolidated claims were time-barred by Maryland Code (1974, 1996 Repl. Vol.), section 10-204(d) of the Real Property Article. On December 31, 1998, after the denial of a Motion for Reconsideration, eleven of the twelve homeowners appealed to the Circuit Court for Montgomery County for a trial de novo. On June 22, 1999, respondent filed an Entry of Appearance, an Answer, a Motion for Summary Judgment, and a Motion to Consolidate the eleven cases. The circuit court set September 2, 1999 as the hearing date for the Motion for Summary Judgment. After the scheduled hearing, the circuit court granted respondent's Motion for Summary Judgment and filed a Supplement to Oral Opinion on September 8, 1999. The circuit court agreed that petitioners' claims were time-barred.

Before this Court is a consolidated appeal by six of the homeowners, petitioners, from the order of the trial court granting summary judgment to respondent. We granted a writ of certiorari to address one issue:

Whether the two (2) year statute of limitations, pursuant to the Real Property Article [section] 10-204(d), commenced to run in March of 1994 following the winter thaw [when] the homeowners discovered scaling to their driveways or commenced in August of 1994 when the homeowners discovered that the driveway scaling was caused by a bad pour of concrete by the builder and not by ice melt applied during an ice storm in February [1994][.]²

Pursuant to our evaluation of the "discovery rule," we hold that the running of the statute of limitations in the case sub judice commenced in March of 1994 when petitioners first discovered that their respective driveways had been damaged and not in August of 1994 when they discovered the purported cause of the damage. Accordingly, we affirm.

II. Argument

The issue before this Court is quite simple: we must ascertain when the statute of limitations in respect to petitioners' breach of warranty causes of action began to run in order to determine whether petitioners' claims were filed in a timely manner. The controlling statutes are sections 10-203 and 10-204 of the Real Property Article.³ Section 10-203 states in relevant part:

§ 10-203. Implied warranties.

(a) Warranties which are implied.— Except as provided in subsection (b) or unless excluded or modified pursuant to subsection (d), in every sale, warranties are implied that, at the time of the delivery of the deed to a completed improvement or at the time of completion of an improvement not completed when the deed is delivered, the improvement is:

(1) Free from faulty materials;

(2) Constructed according to sound engineering standards;

(3) Constructed in a workmanlike manner; and

(4) Fit for habitation.

(b) Exception.—The warranties of subsection (a) do not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed.

Section 10-204 provides in relevant part:

(b) Expiration of warranty.—Unless an express warranty specifies a longer period of time, the warranties provided for in this subtitle expire:

(1) In the case of a dwelling completed at the time of the delivery of the deed to the original purchaser, one year after the delivery or after the taking of possession by the original purchaser, whichever occurs first;

(2) In the case of a dwelling not completed at the time of delivery of the deed to the original purchaser, one year after the date of the completion or taking of possession by the original purchaser, whichever occurs first; and

(3) In the case of structural defects, 2 years after the date of completion, delivery, or taking possession, whichever occurs first.

....

(d) Limitations of actions.—Any action arising under this subtitle shall be commenced within two years after the defect was discovered or should have been discovered or within two years after the expiration of the warranty, whichever occurs first. [Emphasis added.]

This Court has held that these two sections apply to driveways and thus are controlling in the case at bar. See Andrulis v. Levin Constr. Corp., 331 Md. 354, 363-64, 628 A.2d 197, 201 (1993)

. Section 10-204(d) mandates that the period of limitations for a cause of action under this subtitle commences when the cause of action was discovered or should have been discovered. Therefore, we start our analysis by looking at the development of the "discovery rule" in relation to statutes of limitation in Maryland. As we said in Pennwalt Corp. v. Nasios, 314 Md. 433, 550 A.2d 1155 (1988):

Statutes of limitations have existed in Maryland and in other common law jurisdictions for hundreds of years. See Ferguson, The Statutes of Limitation Saving Statutes, 12-14 (1978). The statutes were enacted in an effort to balance the competing interests of potential plaintiffs, potential defendants, and the public. The statutory period provided by a statute of limitations represents a compromise of these interests and "reflects a policy decision regarding what constitutes an adequate period of time for a person of ordinary diligence to pursue his...