Poffenberger v. Risser

421 A.2d 90, 46 Md. App. 600, 1980 Md. App. LEXIS 359

• Court: Court of Special Appeals of Maryland
• Decided: October 10, 1980
• Docket: 20, September Term, 1980
• Status: Published

Opinions

Lowe, J.,

delivered the opinion of the Court. Moore, J., filed a dissenting opinion at page 607 infra.

Whenever a limitations statute is invoked successfully a wrong is likely to survive without remedy for he who has been harmed. It is generally known in Maryland that for the most part a statutory bar will fall after three years. The real problem is three years from when.

Md. Code, Cts. & Jud. Art., § 5-101 tells us that:

"A civil action at law shall be filed within three years from the date it accrues ....” (Emphasis added).

Obviously then, the date of the action’s accrual is the crucial determination in applying limitations. See Young v. Mackell, 3 Md. Ch. 398, 408 (1850). The accrual of a cause of action means a right to institute and maintain a suit; i.e., whenever one person may sue another a cause of action has accrued and the statute begins to run, W., B. & A. Elec. R. R. Co. v. Moss, 130 Md. 198, 205 (1917). Unfortunately, the Legislature has not provided us with much guidance as to when an action accrues. The Court of Appeals, however, is not subject to that complaint.

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

"In Maryland, the general rule is that limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time the wrong is discovered.” Harig v. Johns-Manville Products, 284 Md. 70, 76 (1978), citing Killen v. Geo. Wash. Cemetery, 231 Md. 337 (1963).

This rule, however, seems to have been honored more in its breach than by its observance. Not only has the Legislature provided exceptions to this rule, see, e.g., Cts. & Jud. Art., §§ 5-201, 5-203, but, as pointed out in 28 Md. L. Rev. 47, 60 n. 100 (1968), at least one writer has maintained that Maryland was the first state to adopt the discovery test,¹ see 12 Wyo. L.J. 30, 34 (1957), enunciating it initially in the medical malpractice case of Hahn v. Claybrook, 130 Md. 179 (1917), on January 31,1917. Only three days later the Court of Appeals applied another exception in the W., B. & A. Elec. R. R. Co. case, supra, which we refer to as "the continuation of events” theory.² Harig, supra at 76.

Although those exceptions have been repeatedly applied with varying degrees of frequency — the latter sparingly, the former profusely — it wasn’t until 1978 that the Court of Appeals came up with what we now clepe the "inherently unknowable” refinement of the discovery exception to the general rule. See Harig, supra at 80. This was seemingly reasoned to break the confines of the discovery rule from its professional malpractice bonds,³ cf. Mattingly v. Hopkins, 254 Md. 88, 94-95 (1969) (case involving negligent land survey construed as one of professional malpractice so as to apply discovery rule), extending it to a cause of action for a latent disease based upon negligence or strict liability.

While the Court of Appeals in Harig espoused as the general rule that the limitations statute runs from the date of the wrong, it was moving even then more toward the discovery rule, although with seeming hesitancy. The plumb line drawn by the Court seems to extend beyond that established by the Legislature. The latter applies the discovery rule if a party is kept in ignorance of a cause of action by fraud.

"If a party is kept in ignorance of a cause of action by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.” Md. Code, Cts. & Jud. Art., § 5-203.

The Court of Appeals in Harig set forth another context for application of the discovery rule:

"In cases where the initial injury is inherently unknowable, however, the statute of limitations should not begin to run until the plaintiff should reasonably learn of the cause of action. .. . Avoiding possible injustice in such cases outweighs the desire for repose and administrative expediency, which are the primary underpinnings of the limitations statute.” Harig, supra at 80 (emphasis added).

The distinguishing factor which now invokes the discovery rule exception, rather than the general rule in the ordinary tort case (where lack of knowledge of the wrong is immaterial), seems to be whether the plaintiff could have known of the tort even before damage is manifest. Usually some harm or potential harm will be apparent to a reasonably diligent plaintiff and, if such is the case, the general rule will apply. Id.

In the case at bar the following undisputed facts are significant:

1. Appellant and his then wife, after viewing the premises, purchased a lot in an undeveloped subdivision from a developer in August of 1972 subject to a residential setback restriction of 15 feet from side lot lines.

2. Within a month appellee Risser contracted to build a house for appellant on the lot, undertaking to "center” the house thereon.

3. The Poffenbergers occupied the house beginning January 1973.

4. The Poffenbergers divorced and appellant’s wife conveyed her interest to him on August 24,1974.

5. In March of 1976, the neighboring lot was surveyed prior to improvement and appellant discovered therefrom that his house was between 7.84 and 13 feet from the neighbor’s side lot line thereby violating the 15 foot setback, making it some 40 feet from the opposite side line.

6. Suit was filed May 17, 1977 in the Circuit Court for Washington County.

7. Summary judgment was granted appellees on December 5, 1979 holding that the suit was barred by limitations.

Leaning toward error, if at all, on the side of prudence, the trial judge held that the statute began to run when appellant occupied the dwelling in January 1973. Erroneously assuming that the adoption of the discovery rule in Maryland malpractice cases constituted its adoption for all purposes (citing Leonhart v. Atkinson, 265 Md. 219 (1972)), the trial judge proceeded to hold that had the appellant used due diligence, the wrong should have been discovered. In short he applied the "prudent plaintiff’ or "due diligence” test. In so doing, however, he overlooked the fact that plaintiff had alleged factual circumstances which, if proved and believed, may have made the applicability of those tests susceptible to different factual interpretations.⁴ The standard to be applied for when a cause of action accrues is properly a judicial determination, Harig, supra at 75. But the factual nuances of the case, susceptible to varying interpretations to which that standard must be applied, are questions for a jury, subject to instructions of the court as to what in law is sufficient to constitute a bar or to take the case ouf of the statute. W., B. & A. Elec. R. R. Co., supra at 207. That which constitutes diligence and prudence is, like beauty, a judgment made through the eyes of the beholder, not to be summarily determined by judges as a matter of law.

In the context of this case, however, appellant had the burden of constructive notice with which a property owner is charged relating to restrictions in his deed, Levy v. Dundalk Co., 177 Md. 636, 644 (1940), and presumably regarding the location of his property lines as well, Heckrotte v. Riddle, 224 Md. 591, 594 (1961); Piper v. Jenkins, 207 Md. 308, 313-314 (1955) — especially where there was so obvious a violation of the setback restrictions due to the appellee’s gross failure to "center” the structure. Certainly the existence of constructive notice provided the judge strong reason to believe that appellant had sustained legal harm, but with the exercise of due diligence should have discovered the wrong. See, e.g., Mattingly v. Hopkins, 254 Md. at 95. In light of the Harig extension, it may be that the Court of Appeals would extend the application of the discovery exception in a property line case where a wrong related thereto is "inherently unknowable” because of a minimal intrusion, but as yet they have not gone that far.

Prior to Harig the only application of the discovery exception in Maryland in a case not dealing with professional malpractice ⁵ was by dicta in Callahan v. Clemens, 184 Md. 520, 527 (1945), which dealt with the faulty construction of a wall encroaching by .02 of a foot to .6 of a foot on a neighboring property. Limitations was only an alternative reason given by the Court of Appeals for affirming dismissal by the trial court, and it does not appear from the single sentence:

"Moreover, the allegedly tortious act of negligently erecting the wall occurred in 1929, and its alleged defects[⁶] became known to the complainant in 1939. A cause of action accrued at that time.” Id. at 527.

that the Court of Appeals at that juncture had any intention of extending the discovery exception beyond professional malpractice or fraud.

The case before us involved no professional malpractice and the facts as alleged or agreed indicate no fraud pursuant to Cts. & Jud. Art., § 5-203. ⁷ Even under the Harig extension the facts here do not approach a showing that the wrong was "inherently unknowable”, especially in light of the constructive knowledge imputed to them.

Although the trial court should have applied the general rule rather than the discovery exception, its visceral instincts were correct. It matters not what reasons are given in a court’s opinion so long as its judgment is correct. Cf. Hudson Bldg. Supply Co. v. Stulman, 258 Md. 304 (1970). Applying the general rule that the statute begins to run from the date of the wrong, summary judgment was properly entered. But because of the circumstantially equivocal nature of the terms "due diligence” and "prudent persons”, summary judgment based on the trial court’s rationale would have been questionable at best.

Judgment affirmed.

Costs to be paid by appellant.

1 . Briefly stated the discovery test is that the statute begins to run from the time of the discovery of the alleged injury, or when it should have been discovered by the exercise of due diligence. Ironically then, the more obvious the wrong done, the less chance of avoiding the statutory bar to recovery.

2 . "The general rule seems also settled that in the computation of the statutory period, in cases where there is an undertaking which requires a continuation of services, or the party’s right depends upon the happening of an event in the future, the statute begins to run only from the time the services can be completed or from the time the event happens.” W., B. & A. Elec. R. R. Co. v. Moss, 130 Md. 198, 204-205 (1917).

3 . Harig acknowledged the generally accepted view that but for statutory applications of the discovery exception (see, e.g., Cts. & Jud. Art., § 5-203 where a party is kept in ignorance by fraud), the discovery rule was applied almost exclusively to professional malpractice cases.

4 . Appellant contends that the overgrown nature of the undeveloped property obscured his ability to determine valid property lines. There was also some question in deposed testimony as to where wooden aboveground markers were located, if at all, at the time of purchase.

5 . Judge Finan, writing for the Court in Mattingly v. Hopkins, 254 Md. 88 (1969), strained to bring the case within the professional malpractice exception despite its having been a survey error involved:

"We see no basic distinction between the application of the 'discovery rule’ in a medical malpractice case and in the instant case, which assuming that engineering is a profession, is in essence a professional malpractice situation.” Id. at 94-95.

Harig made no attempt to restrict the exception to professional malpractice.

6 . There is no way of determining whether the inherently unknowable "alleged defects” alluded to were based upon the faulty structure of the now crumbling wall, its diversion of surface water, or its perceptively insignificant encroachment.

7 . Whether the remedial legislation found in § 5-203 singularly establishing fraud as the sole discovery rule exception to the "general rule”, was intended by the Legislature to restrict the application of discovery exceptions to that which it established in that 1868 statute, is a question apparently never addressed by the Courts. It is not an unreasonable hypothesis, however, despite the subsequent judicial expansions of the application of the discovery rule.