Poffenberger v. Risser

POFFENBERGER, HOWARD W. JR. v. DONALD E.

RISSER et al. Term, September [No. 1980.] Decided October The cause argued was before Lowe Moore, Wilner, JJ.

K. S. Mackley and Macks, Russell with whom was Darrow Glaser on brief, for appellant.

Conrad W. Varner appellees. Lowe, J., delivered the opinion J., Court. Moore, filed a dissenting opinion at page 607 infra. successfully is invoked a limitations statute

Whenever remedy for he who has without likely to survive Maryland that for the known in generally harmed. It is been real years. three statutory bar will fall after part most from when. years is three problem Art., § that: Code, 5-101 tells us

Md. Cts. & Jud. three "A at law shall be filed within civil action (Emphasis ....” years from the date it accrues added). then, accrual is the

Obviously the date of the action’s Young limitations. See applying crucial determination (1850). Mackell, 398, The accrual of a cause 3 Md. Ch. suit; i.e., right of action means a to institute maintain a cause of action has person may whenever one sue another run, W., A. Elec. R. begins to B. & accrued and the statute (1917). 198, Unfortunately, Moss, R. Co. v. 130 Md. guidance as to

Legislature provided has not us with much Appeals, of is when an action accrues. The Court subject complaint. not to that differing rules on Although jurisdictions various — e.g., wrong

when a cause of action accrues when the committed, it matures into a when it is discovered or when —harm to a rule that Maryland professes general to adhere wrong rather begin limitations to run from the time of the or harm therefrom wrong than when the is discovered Court for the Advising matured. the United States District date of a cause of action Maryland District of of the accrual liability, Appeals the Court of negligence and strict stated that:

"In Maryland, general rule is that limitations against a right begin or cause of action to run from alleged wrong the date of the and not from the time Harig is discovered.” v. Johns-Manville Products, (1978), citing Killen v. Cemetery,

Geo. Wash. 231 Md. 337 rule, however, This to have been honored more seems only Legislature breach than its observance. Not has the provided exceptions rule, see, to this e.g., Art., Cts. & Jud. 5-201, §§ 5-203, but, pointed out in 28 Md. L. Rev. (1968), n. 100 least one writer has maintained that Maryland was the first state adopt test,1 the discovery see 12 Wyo. (1957), L.J. enunciating initially it in the medical malpractice Claybrook, case of Hahn v. 130 Md. 179 (1917), January 31,1917. Only days three later the Court Appeals of exception W., another in the B. & A. Elec. R. R. Co. supra, which we refer to as "the continuation theory.2 events” Harig, supra at 76. Although exceptions those have been repeatedly applied — with varying degrees frequency sparingly, the latter — profusely the former until wasn’t 1978 that the Court Appeals up clepe "inherently came with what we now unknowable” refinement exception to the general rule. Harig, See supra at 80. seemingly This was discovery reasoned to the break confines of the rule from its professional bonds,3 malpractice Mattingly cf. Hopkins, (1969) (case 254 Md. 94-95 involving negligent land survey construed one professional malpractice of so as to rule), apply discovery extending to a cause of action for a upon liability. latent disease based negligence or strict While the Court of in Appeals Harig espoused gen- as the eral rule that the limitations statute runs from the date of the wrong, moving it was then even more toward the rule, discovery although seeming hesitancy. plumb line by drawn the beyond Court seems to extend Briefly discovery 1. begins stated the test is that the statute to run from discovery alleged the discovered obvious the injury, time of the of the or when it should have been by diligence. Ironically then, the exercise of due the more done, wrong avoiding statutory the less chance of the bar to recovery. general computation "The rule seems also settled in the statutory period, in undertaking requires cases where there is an which services, party’s right depends upon continuation of of or the happening the future, begins only an event in the the statute run to from the time the completed W., services can be happens.” or from the time the event B. & A. Moss, Elec. R. R. Co. v. 204-205 Harig acknowledged generally accepted the statutory view that but for applications discovery exception (see, of e.g., Art., the § Cts. & Jud. 5-203 party kept ignorance by fraud), where a is the rule was exclusively professional almost malpractice to cases. the applies The latter by Legislature. the established of of a cause kept ignorance party is discovery rule if a by fraud. action of action a cause kept ignorance

"If of party is party, the cause action an fraud of adverse the time when accrue shall be deemed to ordinary discovered, by the exercise party Md. discovered the fraud.” diligence have should Code, Art., § Jud. 5-203. Cts. & another context Harig set forth Appeals

The Court of discovery rule: application of inherently is injury

"In initial cases where the unknowable, however, the of limitations statute begin plaintiff run until should should not Avoiding .. . cause of action. reasonably learn outweighs possible injustice in such cases expediency, repose and administrative desire for underpinnings of primary which are the Harig, (emphasis at 80 supra limitations statute.” added). now invokes the distinguishing factor which rule in the exception, general rather rule than (where

ordinary knowledge lack of tort case immaterial), plaintiff could seems be whether Usually damage known of even is manifest. the tort before to a apparent harm potential some harm or will and, is the reasonably diligent plaintiff if such general will Id. apply. following sig- are undisputed

In the at bar the facts case nificant: wife, viewing and the

1. his then after Appellant undeveloped a lot an premises, purchased developer August subdivision from of 15 subject to a residential setback restriction feet from side lot lines.

2. to appellee Within a month Risser contracted lot, on the appellant for

build a house the house thereon. undertaking to "center” beginning the house Poffenbergers occupied 3. The January 1973. appellant’s and wife Poffenbergers divorced

4. The 24,1974. August to him on conveyed her interest neighboring lot was In March of 5. appellant surveyed improvement prior between that his house was therefrom discovered side lot line neighbor’s and 13 feet from 7.84 setback, making 15 foot thereby violating the line. opposite side some 40 feet from in the Circuit Court May 6. Suit was filed County. Washington granted appellees Summary judgment was 7. suit was holding that December barred limitations. all, error, prudence, if on the side at

Leaning toward appellant to run when began judge trial held that the statute Erroneously January dwelling occupied discovery rule in assuming adoption that for all adoption cases constituted Maryland malpractice (1972)), Atkinson, Leonhart v. (citing purposes used that had the to hold judge proceeded the trial have been discovered. should diligence, due diligence” or "due applied "prudent plaintiff’ he short the fact he overlooked doing, test. In so which, proved if alleged factual circumstances plaintiff had of those tests believed, may applicability made the The stan- interpretations.4 factual susceptible to different action accrues for when a cause of dard to be But determination, at 75. Harig, supra judicial properly varying case, susceptible nuances of the the factual are applied, must be to which that standard interpretations undeveloped overgrown Appellant nature of contends property There was ability lines. property valid his to determine obscured aboveground deposed testimony question to where wooden also some located, all, purchase. if at the time of markers were 605 questions jury, subject for a to instructions of the court as to what in law is sufficient to constitute a bar or to take the W., case ouf Co., of the statute. B. & A. supra Elec. R. R. diligence is,

207. That which constitutes prudence like beauty, judgment a made through eyes beholder, of the not to summarily determined judges as a matter oflaw.

In the context of this appellant had the burden of constructive notice with property which a owner is charged relating deed, Levy restrictions in his v. Dundalk Co., 636, (1940), 177 Md. 644 presumably regarding property well, location of his Riddle, lines as Heckrotte v. (1961); 224 Md. Jenkins, Piper v. 207 Md. — (1955) 313-314 especially where there was so obvious a violation of the setback due appellee’s restrictions to the gross failure to "center” the Certainly structure.

existence of constructive provided judge notice strong harm, reason to believe legal had sustained diligence but with the of due have discovered exercise should See, wrong. e.g., 254 Md. at 95. In Mattingly Hopkins, light extension, may Harig be that the Court of Appeals application discovery excep- would extend the of the tion in property line case where a related thereto is "inherently intrusion, unknowable” because of a minimal yet they but as gone have not that far. discovery excep- Harig only application

Prior to Maryland dealing professional tion in in a case not Clemens, Md. malpractice bywas dicta in Callahan v. (1945), faulty which dealt with the construction of encroaching by a wall .02 of a foot to .6 of a foot on a only an alternative neighboring property. Limitations was given by affirming dismissal Appeals reason the Court of Finan, Judge writing Mattingly Hopkins, for the Court (1969), bring professional malpractice strained to the case within the exception despite having survey been a error involved: application "We see no basic distinction between the 'discovery case, malpractice rule’ in a medical case and in the instant assuming engineering profession, which is a is in essence professional malpractice situation.” Id. at 94-95. Harig attempt exception professional malpractice. made no to restrict the court,

by the trial and it does not appear single from the sentence:

"Moreover, the allegedly negligently tortious act of erecting the wall occurred in and alleged its defects[6] became known to complainant the 1939. A cause of action accrued that time.” Id. at 527. juncture any

that the Court of at that had intention Appeals beyond of extending discovery exception professional the malpractice or fraud. malpractice no professional

The case before us involved alleged and or indicate no agreed pursuant the facts as fraud Art., § Harig to Cts. & Jud. 5-203. Even under the showing extension the facts here do not that the approach unknowable”, "inherently especially light was of knowledge imputed the constructive to them. general

Although the trial court should discovery its visceral exception, rule rather than the given not what reasons are instincts were correct. It matters judgment is correct. Cf. opinion long in a court’s so Stulman, 258 Md. 304 Bldg. Supply Hudson Co. begins to run Applying general rule that the statute wrong, summary judgment properly of the was from the date circumstantially equivocal entered. But because of diligence” "prudent persons”, terms "due and nature of the the trial court’s rationale summary judgment based on at best. questionable would have been Judgment affirmed. by paid appellant. Costs to be inherently way determining unknowable whether the 6. There is no faulty "alleged upon of the now structure defects” alluded to were based water, perceptively wall, crumbling or its its diversion of surface insignificant encroachment. legislation singularly § Whether the remedial found in 5-203 rule”, establishing was intended exceptions apparently discovery "general exception fraud as the sole to the by Legislature application to restrict statute, question to that which it established in that is a never It not an unreasonable addressed Courts. hypothesis, despite subsequent judicial expansions application of the rule. Moore, J., dissenting:

This appellee’s case was decided summary on motion for judgment, without supporting opposing The affidavits. gleaned relevant facts as exhibits from the declaration and significant are may and be summarized as follows: Appel- lant, Poffenberger, Jr.,1 Howard W. purchased an unimproved planned lot development of Brightwood Washington County. Acres in appellant, deed to dated August 22, 1972, September was recorded on lot was subject to the conditions and restrictions in the deed plat. recorded Paragraph 6 of "B” plat Section provided: portion any building open porches

"No except steps any shall be nearer to located lot front line or to lot nearer the side street line than the minimum building set-back line shown on this plat. portion any building open porches No of except steps any and shall be within of located 15 feet other added.) side lot lines.” (Emphasis 23, 1972, August

On appellant into a contract entered with the appellee, Risser, developer Donald E. and builder operating "Quality under the of in name Homes” Hagerstown, Maryland, for the of a on construction house the lot. It was that agreed appellant’s understood and residence in would the of the and constructed center lot that restrictions, the comply construction would with all including back completed set lines. The house was 1972; December occupancy appellant the took place January 1973.

This was a new There no on dwelling subdivision. was either appellant side of the purchase at the time of his of the lot nor the during years construction ofhis home. Some three later, adjacent March surveyed, an lot was and at that time appellant first discovered his was that residence quoted built of violation the above set back restriction. It was only some 41 feet from one lot side line but feet from opposite the side lot line. appellant’s profession We are told that is that of schoolteacher. May 17,1977, in the Court appellant

On filed suit Circuit County against for the builder for breach of Washington alia, alleged, negligence. contract and The declaration inter lot, overgrown the purchase that at the time of the was with weeds there was no visible definition lines; boundary that the at no time located nor, indeed, place where his residence was to be constructed to any had before construction as the location knowledge completely upon expertise the house but "relied skill” of the builder.

Summary judgment granted appellee was ground he three had not commenced his action within years reaching from the cause of date his action accrued. decision, "discovery” rule but trial court knowledge of although plaintiff found that had no actual 1976, he did have prior the error to March constructive knowledge. arbitrarily period The court then held that the — began January appel- limitations run in the date to occupied quote lant first his home. To the court’s "Memorandum Opinion,” Court, is no before the from which

"[T]here evidence actually it could be the Plaintiff found March, question prior discovered defect in "However, question not there is a as whether or prior the Plaintiff the defect should discovered It charged to 1976. is clear that Plaintiff is restrictive knowledge applicable lines, establishing the lot set back covenants side having among the such covenants been recorded being County and covenants Land Records of this Dundalk, Md. running Levy with the land. v. 177 "This believes the Plaintiff Court of his similarly charged specific knowledge rise to the property give so as to boundaries Plaintiff have had or inference that should question of the defect in should known time he occupied dwelling January, 1973, The January, Court concludes that is the date began the statute of limitations to run and the Court expired finds that it in January, 1976. The must, therefore, Court conclude entitled, law, Defendants are aas matter of summary judgment as a result of having this action been barred the Statute of Limitations.”

I court, affirming the trial majority concludes that "its correct,” i.e., visceral instincts were the result was proper although the court’s reasoning wrong. was majority holds that there was professional no malpractice to justify the application of the discovery rule and that the "general rule” should have applied.2 been Earlier opinion, the majority that, view, also made it plain doctrine of constructive property notice of restrictions was controlling. The opinion states:

"In context of this had the burden of constructive notice with which a property owner is charged relating to restrictions in deed, Levy his Co., 636, Dundalk 177 Md.

(1940), and presumably regarding the location of property his well, lines Riddle, Heckrotte v. 591, (1961);

Md. Piper Jenkins, 207 Md. — (1955) 313-314 especially where there was so obvious a violation of the setback restrictions due to the appellee’s gross failure to 'center’ the struc- ture.”

I respectfully my view, differ. In rule3 is Harig Corp., 2. In v. Johns-Manville Products 394 A.2d (1978), Judge Murphy general Chief stated that "the rule” is that against right begin limitations the or cause of action to run from the date alleged wrong and not from the time the was discovered. majority opinion in this case does not state when the statute under general begun Presumably rule would have to run. it would have been point reasonably at a of in time soon after the commencement of construction appellant’s residence in 1972. (n. majority points 1), discovery rule, As the out under the the statute begins of limitations alleged to run from the time of the

610 applicable principle here but ancient of constructive 4

notice is not. appellant exercised is whether pivotal question

The by upon inflicted him the due to discover diligence agree, which, as to builder, majority appears an issue on the susceptible of determination properly was not in Since summary judgment this case. appellee’s motion for Maryland in applied was first when the rule 1917 Claybrook, 130 Md. Hahn v. malpractice in a medical "professional” diverse 179, 83, A. it been 100 has (1972) 509, 290 Md. A.2d 530 Dorsey, v. 265 settings: Watson 697, Price, Staton, Whaley & 254 Md. 255 and Mumford v. v. (1969) Leonhart (attorney malpractice); 359 A.2d (1972) Atkinson, 219, Md. A.2d 1 and Feldman v. 265 289 (1969) 288, Granger, (accountingmal 255 Md. 257 A.2d 421 88, Hopkins, Md. 904 practice); Mattingly v. 253 A.2d (1969) firm); (negligence engineering of civil Steelworkers (1969) 440, Menefee, Md. 258 A.2d Holding Co. v. (architectural malpractice). and contractor factually appeal,

In a case similar to instant Callahan Clemens, (1945), 41 A.2d 473 the Court of negligent involving with a claim Appeals was confronted encroached, although slightly, of a which construction wall Henderson, neighboring Judge writing on a for the property. Court, negligent that the construction occurred observed alleged complainant defects became known years cause action accrued at that "[a] later i.e., majority time,” 1939. Id. at A.2d not in Callahan have Appeals did suggests that Court beyond discovery exception "any extending intention may have or the Court professional malpractice fraud.” What of Callahan is point. significance intended not was there professionals) (applicable case; did on the the Court so applied in a construction supra. Claybrook, authority of the 1917 decision Hahn injury, diligence. of due when should have been discovered the exercise denigration 4. No It is constructive doctrine is intended. notice law, susceptible proper fundamental applications. and sound innumerable Furthermore, viability recognized of Callahan was some Menefee, years 25 later in Co. v. Holding Steelworkers 255 440, (1969), Md. 258 A.2d 177 wherein the Court another construction case applied rule to two defendants, a building one contractor and the other an Court, Writing stated, Singley architect. for the "we Judge previously [citing Clemens] indicated Callahan v. that may involving faulty to a case 444, construction.” Id. at 258 A.2d at Mattingly 179. See Hopkins, 88, 94, 904, 253 A.2d 907 majority The concludes that this case there was no "professional” malpractice, apparently fully without considering import prior of these construction cases nor word, contemporary interpretations "professional.” not, old, "profession” term is as of limited to a few (4th ed.) Dictionary selected endeavors. Black’s Law at 1375 "profession” defines as: vocation,

"A calling, occupation or employment labor, skill, education, involving special knowledge and compensation profit, or but the labor and skill involved predominantly intellectual, mental physical rather than or manual.” (D.

In Inc., Aulen v. Triumph Explosive, Supp. F. 1944), Md. professionals the status as machine designers employed in factory There, a munitions was at issue.

Court noted:

"Fifty years ago probable it is the plaintiffs’ occupation as designer machine would not have been classed as a profession; but it is evident from the Administrator’s definition scope that the 'professional’ term has been much broadened for [Fair Standards] administration of the Labor Act. years many recent professions new have become

recognized. It Laws, was said in United States v.

1895, 258, 266, 998, 1001, 163 U.S. 16 S. Ct. 41 L. Ed. 'Formerly, theology, law, and medicine specifically were known 'the professions'; as but as the applications learning of science and are affairs, departments

extended to other other name. implies vocations also receive the The word knowledge, professed special attainments (Emphasis skill.” from mere distinguished original.) Id. at 8. concluded, alia, designers, whose inter Court in character predominately

work was intellectual and varied discretion, engaged in required the exercise of were City Accord, Mayor capacity. Council "professional” (1935) A. Smith, 168 Md. Baltimore v. See, e.g., Mauzy professional). (municipal hospital nurse (1979), wherein Hornbeck, 285 Md. 400 A.2d community employees of a that a number of Court found The Court referred employees.” college "professional were case, Jewelry prior Castelberg a Dvorine language in (1936) A. 661, 185 which dealt Corp., 170 Md. profession,” pointed and was a "learned optometry whether out at A.2d 1097: profession was learned concept "[T]he meaning historically limited than the literal more 'may applied to 'profession’ which be of the word knowledge of some any calling special requiring learning Certainly .. . .” of science or branch positions Their meaning. fall this plaintiffs within skill, knowledge, and and special education involve intellectual predominantly and is the labor skill Obviously the nor- or manual. physical rather than not employee’ is meaning 'professional mal states, employees 'in limited, as Board’s (courses college teaching field offered ” credit).’ view, developer, modern builder my a plumber or distinguished carpenter, from a foreman or site, professional is engaged on a construction electrician Homes” builder "Quality gross work. The failure lot constituted house properly this case to locate the malpractice. negligence professional then, inquiry, The critical is the appellant whether knew or should have known by that the construction his home appellee was in of the set violation back restrictions.5 making of that determination necessitates a more com- plete present factual record than is in this case. The deficiency not, may my judgment, by application cured of the doctrine that was on constructive notice property of his apply theory lines. To such a in the context of a professional malpractice where actual notice is lacking, logical fallacy.6 is a meaningless It would render lay reliance which persons customarily place upon architects, engineers, surveyors and builders. The doctrine perfectly is applicable grantors and grantees and their successors interest. It has no in malpractice relevance action the hapless against homeowner a careless builder developer upon special knowledge whose placed he full reliance.

Finally, it is subversive of the rationale of the discovery rule as explained 76-77, in Harig, supra, at 394 A.2d at 303:

"Ordinarily, potential plaintiff tort immediately aware that he has wronged. been He put therefore is on notice that the statute of begins limitations to run from the date of the alleged wrong. Reynolds R. J. Tobacco Co. (5th

Hudson, 1963). 314 F.2d 781-782 Cir. Our predecessors recognized, in profes- cases, sional malpractice the fact that a tort has may been go committed years, unnoticed for because plaintiff the is unqualified to ascertain the initial wrong and could not reasonably expected to know of the tort until actual injury is Appellant’s alleged only 5. placed shrubbery declaration that not he had great expense lot, at and created a lawn what he believed to be his but septic system that also his adjoining and drainfield was installed on the property. Indeed, "general here, 6. applicable if the rule” is rather than the "dis-

covery rule,” holds, majority appears why as the there to be no reason the all. Where the majority had to concern itself with constructive at notice general invoked, knowledge rule is "lack of of the is immaterial.” Id. at 603.

614 Rohrbaugh, Waldman

experienced. (1966). inherently unknowable A.2d 825 action, coupled type of this of cause of character consequences the harsh of peculiarly from the general the of accrual adherence to predecessors to 'wrong,’ our prompted date in determining recognize principle the injury accrues for latent when a cause action resulting professional malpractice.” from Furthermore, majority’s opinion is with the the at odds application property of the statute of limitations another 88,Md. Mattingly Hopkins, line A.2d 904 legal the Mattingly, plaintiff-appellant sustained by placement by Hopkins, harm negligent of stakes engineer, Mattingly’s civil when a resubdivision of land was Mattingly. Although he prepared request at subsequently subdivided purchased lots parties, them in 1952 to third the Court held that the to sell begin to run until statute of limitations did not appeared be a perceived what first year appellant physical and the markers. discrepancy plats between the rule. Finan stated Judge Court "assuming engineering profession, [this] is a 94-95, Id. at professional malpractice essence a situation.” there was no importantly, perhaps, at More A.2d constructive Mattingly, attorney, an was on holding that lines of subdivided lots from property notice of the his purchased or at the time he plat grantees, or deeds his it. The lot or subdivided Court stated: bar, Mattingly, Mr. is a "In the who case Bar, certainly practicing Maryland member of strong that he had sustained had reason to believe discrepancy between harm when he noted legal pipes ground on the of the iron placement in the summer plats their location on the unquestionably confirmed when and this was May correctly replaced pipes the iron appellees caused We think the mistake June that time was discovered at appellees’negligence diligence should of reasonable with the exercise he had made knew that He have been discovered. on the location property based

conveyances of individuals to several ground pipes iron on on the error 1959 and that years 1953 to during the by the adverse compounded, ground thus made, only cast a cloud not conveyance he had grantees, his but those of to his own land the title (Emphasis equity.” law, certainly if then not added.) 95, 253 A.2d at 908. Id. at notice, found, absent constructive

As the trial court knowledge of the case had no the instant in violation of the set back of the house placement builder's violation at the have known of the restriction and would not laid, was the foundation footings poured, time the were erected, the house applied, and mortar joists the bricks family in. nor, course, he and his moved completed when he did not exercise finding The record fails to sustain a I reverse and remand. diligence. reasonable would

Case Details

Case Name: Poffenberger v. Risser

Court Name: Court of Special Appeals of Maryland

Date Published: Oct 10, 1980

Citation: 421 A.2d 90

Docket Number: 20, September Term, 1980

Court Abbreviation: Md. Ct. Spec. App.