Old Frederick RD., LLC v. Wiseman

74 A.3d 820, 213 Md. App. 513, 2013 Md. App. LEXIS 103
CourtCourt of Special Appeals of Maryland
DecidedSeptember 4, 2013
DocketNo. 2356
StatusPublished
Cited by1 cases

This text of 74 A.3d 820 (Old Frederick RD., LLC v. Wiseman) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Old Frederick RD., LLC v. Wiseman, 74 A.3d 820, 213 Md. App. 513, 2013 Md. App. LEXIS 103 (Md. Ct. App. 2013).

Opinion

ZARNOCH, J.

What started out as an everyday contract dispute turned into a bewildering contest involving two rival contracts, one representing the parties’ actual agreement and the other a fake created to benefit its maker. This tale of deception began when appellant Old Frederick Rd., LLC (the “LLC”), through its sole and managing member, appellant Vincent S. Serio, engaged appellee John H. Wiseman to manage the construction of a house on Old Frederick Road in Ellicott City. After finishing the project, Wiseman filed a claim in the Circuit Court for Howard County for money he contended was still owed under contract. Serio defended the suit with a second competing contract and argued that Wiseman already had been paid under that agreement. The trial court was faced with deciding which contract represented the actual terms of the parties’ agreement. The court concluded that Serio’s document was the phony contract, which he created to try to avoid the terms of the real agreement.

[516]*516Wiseman prevailed on a request for a mechanic’s lien against the constructed property and on his contract claim against the LLC and Serio. Additionally, the court required the LLC and Serio to jointly and severally pay $13,393.30 in attorney’s fees because of Serio’s frivolous defense against Wiseman’s claims. The LLC and Serio filed a limited appeal, asking this Court to find that the circuit court erred in its judgment for attorney’s fees against Serio in his individual capacity.1 2For the reasons set forth below, we affirm the court’s decision to hold Serio personally liable for the judgment awarding attorney’s fees.

FACTS AND LEGAL PROCEEDINGS

Serio is the sole and managing member of Old Frederick Rd., LLC, which he apparently created to build and sell a single family home. The LLC planned for construction of the house located at 8906 Old Frederick Road in Ellicott City to begin sometime in July of 2009. At that time, Serio, as managing member of the LLC, entered into a contract with Wiseman for his services to manage the construction of the house.

After the construction was completed, in August 2010, Wise-man filed a complaint in the circuit court. He alleged that he [517]*517was still owed $7,609.56. Wiseman first sued to establish and enforce a mechanic’s lien, for unjust enrichment, and for breach of contract. The mechanic’s lien was sought only against the LLC and the other two counts named the LLC and Serio. Serio answered the Complaint contending that Wiseman submitted a sham contract, and he attached to his Answer what he claimed was the true agreement.

Before the trial on the merits, Wiseman amended his Complaint twice. The final iteration contained four counts. He amended the mechanic’s lien action to add Serio as a party because he had become the property’s owner.2 Wiseman also retained his breach of contract claim against Serio and the LLC. He further added a count against both parties for attorney’s fees under Md.Code (1974, 2010 RepLVol.), Real Property Article (“RP”), § 9-303 3 and a count for attorney’s fees against Serio under Md. Rule 1-341.4

A bench trial was held in December 2011. Wiseman introduced a copy of a contract and Serio introduced what he said were the two originals of a rival contract. Although Wiseman did not object to the admission of Serio’s contracts, Wiseman’s [518]*518copy was entered into evidence over Serio’s objection that the contract was not an original. Each party contended his respective contract represented the agreement between the LLC and Wiseman.

Suspiciously, the differences dealt almost exclusively with payment terms. Both contracts were three-pages long. The first pages were identical except for the dates. Wiseman’s agreement was dated July 7 and Serio’s was July 16. The second page contained the payment terms. The second page of Wiseman’s agreement read:

ESTIMATE
4. The estimated total cost for the Builder/Consultant to perform the above delineated work will be $12,000.00. Upon the execution of this Agreement, a fee of $4,000.00 is required. Upon the issuance of a Howard County Framing inspection, another payment of $4,000.00 will become payable and due. Upon the issuance of the Final Inspection and Use and Occupancy Permit from Howard County, a balance of $4,000.00 will become due and payable.
5. The Builder/Consultant had estimated the above fee based on an estimated building time of 90 work days from the time of the excavation of the foundation.
6. All permits and associated fees are the responsibility of the Owner.
7. All costs to purchase any materials and payment for the work performed for the Owner by any contractor, distributor, or engineer, but not limited to the aforementioned, are to be paid by the Owner.

The second page of the agreement that Serio presented to the court contained several differences. The following is a reproduction of the second page with the differences emphasized.

ESTIMATE PAYMENT
4. The estimated total cost for the Builder/Consultant to perform the above delineated work will be $12J?00.00 [519]*519$8,000.00. Upon the execution of this Agreement, a fee of $4,000.00 is required. Upon the issuance of a Howard County Framing inspection, another final payment of $4,000.00 will become payable and due. Upon the issuance of the Final Inspection and Use and Occupancy Permit from Howard County, a balance of $4,000.00 will become due and payable.
5. The Builder/Consultant had estimated the above fee based on an estimated building time of 90 240 work days from the time of the excavation of the foundation.
6. All permits and associated fees are the responsibility of the Owner.
7. All costs to purchase any materials and payment for the work performed for the Owner by any contractor, distributor, or engineer, but not limited to the aforementioned, are to be paid by the Owner.
8. The Builder/Consultant will NOT perform any labor nor provide any materials for this house, without a separate signed written Agreement with Owner, to do so.

The third pages were simply signatures. Wiseman testified that his signature on Serio’s contracts could have been his, however, Serio testified that he did not believe his signature on Wiseman’s contract was his. A handwriting expert testified that Serio’s signature, on Wiseman’s contract, was likely a simulation.

As the fact-finder, the judge determined that the agreement between the parties was embodied in the contract that Wise-man introduced and that Serio had simply created his version of the contract to avoid the original agreement. Several pieces of evidence support the court’s decision.

Wiseman testified that normally he would charge around $30,000 for the type of job Serio asked him to perform. He also stated that the project requested typically would take around 90 days. Wiseman introduced contracts from some of his other jobs, which corroborated his testimony regarding his rate and time estimate.

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Cite This Page — Counsel Stack

Bluebook (online)
74 A.3d 820, 213 Md. App. 513, 2013 Md. App. LEXIS 103, Counsel Stack Legal Research, https://law.counselstack.com/opinion/old-frederick-rd-llc-v-wiseman-mdctspecapp-2013.