This is an appeal from the grant of the motion to dismiss of appellees John J. Reynolds, Inc., et al., by the Circuit Court for Anne Arundel County (Robert H. Heller, J.). Appellants Heritage Harbour, L.L.C., et al., present one question for our review, which we rephrase for clarity as follows:
Did the trial court err in dismissing appellants’ complaint for failure to state a claim upon which relief may be granted?
We answer the question presented in the negative and affirm the judgment of the trial court. We hold that the trial court properly dismissed appellants’ complaint for failure to state a claim upon which relief may be granted and that, in any event, appellants would not have survived the motion to dismiss because of the Economic Loss Doctrine and appellants’ failure to file the required certificate of a qualified expert.
On December 16, 1998, the Council of Unit Owners of South River Condominium (the Council) filed an eleven-count complaint (the Underlying Suit) against appellants Heritage Har-bour, L.L.C., Daniel Aguilar, Jo Ann Aguilar, Columbia Pacific Management, Inc., Securitization Pool, L.P., Richard K. Sont-gerath, Daniel R. Baty, and Stanley L. Baty, devеlopers of the South River Condominium Project (the Project). The suit, filed in the Circuit Court for Anne Arundel County, alleged the existence of numerous structural and non-structural defects in the buildings located at the South River Condominiums. Appellants then filed a Petition to Compel Arbitration. 1
On July 25, 2000, appellants filed a complaint against John J. Reynolds, Inc., Tiber Construction, Belfast Valley Contractors, Inc., South River Joint Venture, Atlas
Appellees 3 Adelburg, Hare & Associates, Atlas Air Conditioning Co., Belfast Valley Contractors, Inc., Building Analyt-ics, Cochran Plumbing, Inc., Dolco Aluminum, Inc., Plus One Masonry, Inc., RAL Designs, Inc., Reifman & Blum Associates, Inc., South River Joint Venture, Inc., Sun Preсast Co., Inc., and Vaneo Enterprises, Inc., filed motions to dismiss. Atlas Air Conditioning Co., Belfast Valley Contractors, Inc., Cochran Plumbing & Heating, Inc., Plus One Masonry, RAL Designs, Reifman & Blum Associates, South River Joint Venture, and Vaneo Enterprises, Inc., moved to dismiss for failure to state a claim pursuant to Md. Rule 2-322(b)(2). Adelberg, Hare & Associates, Inc., Building Analytics, South River Joint Venture, RAL Designs, and Reifman & Blum Associates moved to dismiss for failure to file the required certificate of a qualified expert pursuant to Md.Code (1998 Repl.Vol.), Cts. & Jud. Proc. (C.J.) § 3-2C-02. Hearings were held on December 6 and 20, 2000. The trial judge issued multiple orders dated December 26, 2000, February 7 and Fеbruary 23, 2001,
granting appellees’ motions to dismiss without prejudice. These orders dismissed appellants’ complaint
[f]or the reasons stated in court on December 6 and December 20, 2000, at the hearings on the various Motions to Dismiss and for the reasons enumerated in the various Memoranda filed on behalf of the various [appellees] in their respective Motions to Dismiss, and for the further reason that [appellants] did not state a claim upon which relief may be granted....
Appellants filed a Motion to Alter and Amend the Court’s Order with a Motion for Consolidаtion and Stay on January 8, 2001, seeking clarification of the trial court’s order to more clearly define their issues on appeal. Because the Statute of Repose could expire on appellants’ claims, denying them any right of recovery against appellees, appellants additionally asked the trial court to preserve the indemnity and contribution causes of action pending decision on the Petition to Arbitrate in the Underlying Suit. The trial court denied the motion without a hearing. Because some defendants in the case sub judice nеver responded to appellants’ complaint nor filed motions to dismiss, the court’s order did not constitute a final judgment as to all claims. As a result, appellants were unable to appeal. Upon appellants’ motion for final judgment, the circuit court entered a June 12, 2001 order, granting final judgment.
STANDARD OF REVIEW
We said in
Lubore v. RPM Associates, Inc.,
Under Maryland Rule 2-322(b)(2) (1996), a defendant may seek a dismissal on the ground that the complaint fails“to state a claim upon which relief can be granted.” When moving to dismiss, a defendant is asserting that, even if the allegations of the complaint are true, the plaintiff is not entitled to relief as a matter of law. Hrehorovich v. Harbor Hosp. Ctr., 93 Md.App. 772 , 784,614 A.2d 1021 (1992). Thus, in considering a motion to dismiss for failure to state a claim, the circuit court examines only the sufficiency of the pleading. Id. “The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action.” Id. at 785,614 A.2d 1021 . This Court, therefore, shall assume the truth of all well-pleaded relevant facts as alleged in appellant’s complaint and all reasonable inferences drawn therefrom. Morris v. Osmose Wood Preserving,340 Md. 519 , 531,667 A.2d 624 (1995). Accordingly, because they were directly taken from appellant’s complaint, we shall assume the truth of the facts set forth above.
When, as here, the trial court does not state its reasons for granting a motion to dismiss, an appellate court will affirm the judgment if the record discloses that the trial court was legally correct.
Briscoe v. City of Baltimore,
LEGAL ANALYSIS
Economic Loss Doctrine
Appellees contended at oral argument before this Court that the interplay between the pleadings requirements set forth in
Scott v. Jenkins,
Based on Whiting-Turner, the plaintiffs argue that we should permit their tort claims to proceed because the roofs present a risk of personal injury. The roofs, plaintiffs argue, cannot support weight and therefore create a risk of physical injury to anyone who goes on them (homeowners, repairmen, or firefighters) and to anyone who may bе under them if they collapse under the weight of a heavy snowfall or a strong wind gust. Defendants argue that the risk is not clear enough to bring the claim within the Whiting-Turner exception. Alternatively, they argue that we should abandon the exception or limit its application to cases involving claims against builders or architects. Whiting-Turner and U.S. Gypsum [v. Baltimore,336 Md. 145 ,647 A.2d 405 (1994) ], considered together, reveal a two-part approach to determine the degree of risk required to circumvent the economic loss rule. We examine both the nature of the damage threatened and the probability of dаmage occurring to determine whether the two, viewed together, exhibit a clear, serious, and unreasonable risk of death or personal injury. Thus, if the possible injury is extraordinarily severe, i.e., multiple deaths, we do not require the probability of the injury occurring to be as high as we would require if the injury threatened were less severe, i.e., a broken leg or damage to property. Likewise, if the probability of the injury occurring is extraordinarily high, we do not require the injury to be as severe as we would if the probability of injury were lower.
Morris,
In order to successfully claim thаt appellees are liable to them for contribution and/or indemnity, appellants must have alleged that appellees have original tort liability
In delineating the Economic Loss Doctrine, the Court of Appeals explained:
It is generally said that a contractor’s liability for economic loss is fixed by the terms of his [or her] contract. Tort liability is in general limited to situations where the conduct of the builder causes an accident out of which physical harm occurs to some person or tangible thing other thаn the building itself that is under construction.
Whiting-Turner,
[T]he determination of whether a duty will be imposed in this type of case should depend upon the risk generated by the negligent conduct, rather than upon the fortuitous circumstance of the nature of the resultant damage. Where the risk is of death or personal injury the action will lie for recovery of the reasonable cost of correcting the dangerous condition.
Id.
at 27,
Appellants posit that the Economic Loss Doctrine does not apply because their claims are not based in tort; rather, their claims are for contribution and indemnity. As we shall еxplain, infra, appellants’ claims for contribution and indemnity are not ripe. In support of their reliance on the exception, appellants remind us that their cause of action is statutory, arising by operation of the Uniform Contribution Among Tort Feasors Act, Md. Ann.Code (1957), art. 50, § 17(a). Their argument is without merit, however, as the plaintiffs in the Underlying Suit allege various torts, including negligence, intentional misrepresentation, negligent misrepresentation, fraudulent concealment, civil conspiracy, and breach of fiduciary duty. Because appellants contend that they are entitled to reimbursement from appellees, they must necessarily contend that appellees committed such torts; therefore, appellants’ initial response fails.
Alternatively, appellants contend that the plaintiffs in the Underlying Suit do, indeed, allege construction defects that give rise to a substantial risk of serious personal injury. In support of their position, appellants cite paragraph 31(f) of the complaint, which alleges structural concerns regarding balcony slabs, paragraph 31(i), which alleges inadequatе railing supports, paragraph 81(t), which alleges compromised fire rated walls and slabs, and paragraph 31(w), which alleges
improper installation and operation of a building fire protection system. The allegations contained in the complaint filed in the Underlying Suit, according to appellants’ theory of the case, can serve as the basis for their allegations against appellees, as this is an action for contribution and indemnity. Countering that these claims constitute mere possibilities or invitations to speculate, appellees posit that the allegations are insufficient.
’See, e.g., Morris,
In order to bypass the Economic Loss Doctrine, appellants must plead clear facts that would support a finding of extreme danger and an imminent risk of severe personal injury.
Id.
No allegations of imminent risk of personal injury or death can be associated with the alleged defects claimed by the plaintiffs in the Underlying Suit, as “[cjonditions that present a risk to general health, welfare, or comfort but fall
Certificate of an Expert
Pursuant to C.J. § 3 — 2C—02(a)(1), “a claim shall be dismissed, without prejudice, if the claimant fails to file a certificate of qualified expert with the court.” According to subsection (a)(2) of the section, this statement “shall contain a statement from a qualified expert attesting that the licensed professional against whom the claim is filed failed to meet an applicable standard of professional care,” and “be filed within [ninety] days after the claim is filed.” It is undisputed that appellants failed to file the required certificate within the prescribed ninety days; the effect of this failure, however, remains disputed by the parties.
Appellants insist that the requirement does not apply to them — or at the very least should be waived 4 — as their cause of action against appellees is not based in professional negligence; rather, they maintain that their suit sounds in contribution and indemnity. As more specifically discussed, infra, we are faced with thе ripeness issue. Appellees counter that appellants’ request for such remedies must be based on an alleged negligent act or omission. Because appellants do not allege any contractual duties owed to them by appellees, their claims are necessarily based on the allegations of negligence contained in the complaint. Appellants’ initial response, therefore, fails.
Appellants argue in the alternative that the requirement was satisfied by the filing of a certificate prepared for thе case at bar by Robert W. Davidson, AIA, plaintiffs’ expert in the Underlying Suit, and a certificate drafted by their own expert, Kenneth J. O’Connell, Ph.D., P.E. Not surprisingly, appellees counter that the affidavits filed were insufficient — they failed to allege any specific deficiencies in the performance of appel-lees’ duties — and untimely — they were not filed until December 15, 2000. Noting that appellants were required to file the certificates no later than October 25, 2000, or ninety days after the filing of the complaint, appellees argue that filing the certificates forty-five days late is in violation of the statute. As such, they maintain, the trial court properly dismissed the action. We concur with appellees’ contention and the decision to dismiss appellants’ complaint without prejudice for failure to comply with statutory authority.
Failure to State a Claim
Notwithstanding appellees’ reliance on the Economic Loss Doctrine and appellants’ alleged failure to file the required certificate of a qualified expert, the short answer to appellants’ assignment of error
As explained by the Court of Appeals in
Scott v. Jenkins, supra,
although Maryland long ago abolished the common law formalities of pleading, the underlying purposes therefor nevertheless remain. To that end, Md. Rule 2-303 requires that a pleading “сontain only such statements of fact as may be necessary to show the pleader’s entitlement to relief....” Pleadings must provide notice to the parties of the nature of claims, state the facts upon which the claims exist, establish the boundaries of the litigation, and afford the speedy resolution of frivolous claims.
Scott v. Jenkins,
In the case sub judice, appellants provided the following notice to the parties as to the nature of the claims and the facts upon which the claims existed:
In 1989 through 1991, [appellee], South River Joint Venture, developed a multi-story residential condominium building known as the South River Condominium situate in Annapolis, Maryland (the Condominium).
The Condominium was designed by various [appellees] including, without limitation, RAL Designs.
The Condominium was constructed by various contractors including, without limitation, Tiber Construction which, upon information and belief, retained other various [appel-lees] as subcontractors on the project.
... [Appellants] retained various other [appellees], including without limitation, Building Analytics and Criterium Hare Engineers [a.k.a. Adelburg, Harе & Associates], to evaluate the design, construction, maintenance, and condition of the Condominium.
[Appellees] are developers, architects and/or contractors who participated in the design, construction, evaluation and/or repair of the Condominium and/or the units therein.
(Emphasis added.)
Absent from appellants’ complaint is any mention of Atlas Air Conditioning Co., Belfast Contracting, Inc., Cochran Plumbing, l'nc., Dolco Aluminum, Inc., Plus One Masonry, Reifman & Blum Associates, Inc., Sun Precast Co., Inc., or Vaneo Enterprises, Inc. Appellants never set forth any acts or omissions committed by these appellees that would serve as a basis for an imposition of liability; rather, they “dump ... all [appellees] into the same pot.” No facts are alleged. No boundaries of litigation are defined. No mechanism is provided for the speedy resolution of frivolous claims. The only notice provided is to those “developers, architects and/or contractors who participated in the design,
Justiciability
Finally, appellants presented a non-justiciable claim with regard to all appellees, as it was not yet ripe. A
controversy is ripe when “ ‘there are interested parties asserting adverse
claims
upon a state of facts
which must have accmed
wherein a legal decision is sought or demanded.’ ”
Boyds Civic Ass’n v. Montgomery County Council,
Here, appellants seek the following remedies:
In the event that [appellants], individually or jointly, are held or found to be liable to any party to the Underlying Litigation, then the [appellees], together and individually, are liable to [appellants] for contribution.
In the event that [appellants], individually or jointly, are held or found to be liable to any party to the Underlying Litigation, then the [appellees], together and individually, are liable to [appellants] for contractual indemnification.
As clearly stated above, appellants’ claims are predicated upon future events which may never occur- — a finding in favor of plaintiffs in the Underlying Suit. Payment, therefore, is a condition precedent to the accrual of appellants’ right of action. Appellants freely admit that they had yet to make any payment to the plaintiffs in the Underlying Suit. Indeed, the Underlying Suit was still pending at the time of the hearing on appellees’ motions to dismiss. “[A]ll [Maryland] courts who have had occasion to consider the matter have agreed that the rights both to indemnification and to contribution, whether
based on contract or tort, accrue at the time of payment and not before.”
Southern Maryland Oil Co. v. Texas Co.,
That appellants’ right of action had yet to accrue is further supported by statute. Pursuant to C.J. § 3-1402(b), “[a] joint tort-feasor is not entitled to a money judgment for contribution until the joint tort-feasor has by payment discharged the common liability or has paid more than a
pro rata
share of the common liability.” As stated above, that appellants have yet to make payment to the plaintiffs in the Underlying Suit is not in dispute. Appellants’
Nevertheless, appellants maintain that they have expended a considerable amount of money in the defense of the Underlying Suit. Such an argument clearly fails in light of the American Rule
5
concerning attorney’s fees, which prohibits the recovery of attorney’s fees as consequential or compensatory damagеs, absent a statute, rule, or contract to the contrary.
Bausch & Lomb, Inc. v. Utica Mut. Ins. Co.,
It is noteworthy that appellants declined to join appellees as third parties to the Underlying Suit. Curiously, аppellants’ counsel insists that a third-party claim in the Underlying Suit was not filed “for tactical and legal reasons,” citing the applicable Statute of Repose; however, in light of the disposition of the case, such an approach hardly seems logical. Although we are sympathetic to the position in which appellants currently find themselves, there is little that can be done to rectify it. The Maryland Rules explicitly permit indemnification and contribution claims to co-exist with their underlying suits in a third-party action before damages accrue. Had appellants impleaded aрpellees as third parties, appellants’ contingent claim against appellees would have been sustained:
A defendant, as a third-party plaintiff, may cause a summons and complaint ... to be served upon a person not previously a party to the action who is or may be liable to the defendant for all or part of a plaintiffs claim against the defendant.
Rule 2-332(a).
A third-party complaint is, by its very nature, a contingent claim, as it alleges that, in the event the defendant is found
As stated above, the record disclosed that appellants failed to state a claim upon which relief may have been granted. Moreover, appellants’ alleged failure to file an engineer’s certificate and the applicability of the Economic Loss Doctrine would have defeated appellants’ claims in any event.
JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANTS.
Notes
. The petition was still pending as of the date of the initial heаring on the motions to dismiss in the case sab judice.
. We do not denominate all defendants in the instant case as appellees, as not all defendants join in the present appeal.
. As the grounds for the instant appeal arise from the trial court’s dismissal of the suit, only those parties that filed motions to dismiss are labeled appellees for the purposes ol this opinion.
. At oral argument, whether appellants’ motion for waiver was filed in a timely manner was raised by the panel. Although an interesting issue of first impression, it is not dispositive of appellants’ cаse. Waiver would be inapplicable here, as the claims clearly allege professional negligence, contrary to counsel’s contentions.
Notwithstanding, it is noteworthy that the General Assembly has amended a similar statute which requires the filing of such certificates in medical malpractice claims. In the amendment, the legislature provided that an extension may be granted when the limitations period has expired and the failure to file the certificate was not willful or the result of gross negligence.
See
C..I. § 3-2A-04(b). The amendment was analyzed in
Roth v. Dimensions Health Corp.,
. "The American rule stands as a barrier to the recovery, as consequential damages, of foreseeable counsel fees incurred in enforcing remedies lor the breach.”
Collier v. MD-Individual Practice Ass'n,
During the late colonial period, legislation provided for fee recovery as an aspect of comprehensive attorney fee regulation. But this regulatory scheme did not long survive the Revolution. During the first half of the nineteenth century, lawyers freed themselves from fee regulation and gained the right to charge clients what the market would bear. As a result, the right to recover attorney fees from an opposing party became an unimportant vestige. This triumph of fee contracts between lawyer and client as the financial basis of litigation prepared the way for legislators and judges to proclaim the principle that one party should not be liable for an opponent's legal expenses.
Id.
at 19-20,
. Interestingly, appellants rely on Hartford Accident, pointing out that ''[t]he only difference between the developer's claims in Scarlett and [appellants’] claims here is tha1 the Scarlett claims were third-party claims rather than claims filed in a separate suit.” It is this difference, however, that renders their claim unavailing.
. At oral argument before us, appellants' counsel stated that, ideally, the Hobson’s choice ol electing between a third-party action and the course actually pursued cotdd have been avoided had the trial judge granted appellants’ request to consolidate the case at hand with the Underlying Suit. The court, however, was not obliged to do so. See Md. Rule 2-503.