Toliver v. Waicker

62 A.3d 200, 210 Md. App. 52, 2013 WL 775595, 2013 Md. App. LEXIS 19
CourtCourt of Special Appeals of Maryland
DecidedMarch 1, 2013
DocketNo. 2245
StatusPublished
Cited by4 cases

This text of 62 A.3d 200 (Toliver v. Waicker) 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
Toliver v. Waicker, 62 A.3d 200, 210 Md. App. 52, 2013 WL 775595, 2013 Md. App. LEXIS 19 (Md. Ct. App. 2013).

Opinion

GRAEFF, J.

This appeal arises out of an order of the Circuit Court for Baltimore City granting summary judgment in favor of Gary Waicker, appellee/cross-appellant and against Tori Toliver and Shana Parker, appellants/cross-appellees (“appellants”) in a [55]*55lead paint case.1 At issue in the circuit court was whether there was a factual basis to support a finding of personal liability against Mr. Waicker for injuries allegedly suffered by appellants. The circuit court concluded that there was not, but sanctions for the filing of the suit were not warranted.

On appeal, each party presents one question for our review. Appellant presents the following question, which we have rephrased slightly:

Did the circuit court err in granting Mr. Waicker’s Motion for Summary Judgment because there is evidence from which a jury could find that Mr. Waicker was an “operator” of the subject property?

In a cross-appeal, Mr. Waicker, who moved for sanctions against appellants’ counsel in the circuit court, raises the following question, which we have rephrased:

Did the circuit court err in failing to award sanctions against appellants for filing the complaint without substantial factual or legal justification?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On November 3, 2009, Renee Baytop, mother of Tori Toliver, born November 6,1988, and Shana Parker, born December 9, 1990, filed a Complaint in the Circuit Court for Baltimore City against Mr. Waicker, individually, Investment Realty Specialists, Inc. (“IRS”), and four other individuals.2 The Complaint alleged negligence and a violation of the Maryland Consumer Protection Act (“CPA”), Md.Code (2005 Repl.Vol.) § 13-408 of the Commercial Law Article (“CL”), stating that, [56]*56inter alia, they were exposed to chipping, peeling and/or flaking lead paint from 1988-1995 when they lived in and/or frequented a residential property located at 1608 N. Chapel Street in Baltimore, Maryland (the “Property”). The Complaint alleged that the Property was owned and/or controlled and/or managed, either individually or by the use of agents, servants and/or employees by the defendants, and that as a result of that lead exposure, the children were permanently injured. In the alternative, appellants alleged that the defendants, “if sued in the capacity of a present or former corporate officer of a corporation which owned the said property, did personally participate in, inspire and/or induce the tortious acts or omissions complained of.” In support of their CPA claim, appellants alleged that, at the time the defendants leased the Property to Ms. Baytop, the defendants or the defendants’ agents knew that the dwelling contained flaking, loose or peeling paint and was unfit for human habitation, but they “impliedly represented that the dwelling was in compliance” with the Baltimore City Housing Code (the “Housing Code”)3 and other applicable laws.

On November 17, 2010, Mr. Waicker filed a Motion for Summary Judgment, appending his affidavit as an exhibit and asserting that he never owned or operated the Property. He further asserted that he could not be held personally liable for any torts of IRS because, even though he was a corporate officer of IRS, i.e., President, he had no “day-to-day operational duties with regard to rentals or maintenance,” and he “did not actively participate in, specifically direct or cooperate in the rental or maintenance of’ the Property. He also asserted that he was not the landlord of the Property and made no representations about the condition of the Property to anyone; thus, he had no personal liability under the CPA. On January 5, 2011, that motion was denied without prejudice, based on [57]*57the parties’ agreement to schedule a deposition of Mr. Waicker.

On April 28, 2011, after Mr. Waicker was deposed, he filed another Motion for Summary Judgment, setting forth the same arguments as in his November 17 motion, and appending his original affidavit and his deposition testimony as exhibits. This motion included, as did the original motion, a Request for Sanctions against appellants’ counsel, on the ground that he was “being sued in this case for no other purpose but harassment.”

Mr. Waicker’s sworn affidavit and deposition testimony comprise the material facts of this case,4 which are not in dispute. The following is a summary of those documents.

During all relevant time periods, Mr. Waicker was the President and sole stockholder of IRS, a Maryland corporation engaged in the management of residential properties for property owners under residential management agreements. Mr. Waicker’s duties as President were to oversee the financial affairs of the corporation; he was not an employee of IRS.

From 1985-1995, IRS managed more than six hundred properties for property owners. Mr. Waicker hired employees on behalf of IRS. The employees hired as property managers were in charge of managing the properties and overseeing all inspections, maintenance, and repairs needed for the properties managed by IRS. IRS had only one property manager at any one time, and that employee managed all of IRS’s properties. Several other employees of IRS were involved in renting the properties for the property owners, maintaining property records, taking rental collections, distributing keys to rental properties, and answering phones. Mr. Waicker did not “run” IRS. Rather, the “employees that were either the managers inside [and] ... the outside property manager” ran IRS.

[58]*58William Mosley was the property manager for IRS during the relevant time period. Mr. Waicker did not tell him specifically what his duties were, nor did he “put any policies in place.” He merely advised Mr. Mosley “that the properties were to be maintained [in compliance with] the ... Housing Code. That was the marching orders I would say.” Mr. Waicker did not conduct any type of verification to make sure that Mr. Mosley was keeping the properties in compliance, but IRS did not receive any housing court notices stating that the properties were not in compliance, which “indicated that [Mr. Mosley] was doing his job and he was doing it well.” Although Mr. Waicker was not aware of Mr. Mosley’s routine in conducting inspections of IRS-managed properties, he thought that Mr. Mosley conducted inspections to ensure properties were in compliance: (1) whenever Mr. Mosley “went out to verify that a repair was necessary or that a repair was completed”; or (2) during mandatory yearly inspections. Other than those situations, Mr. Waicker did not know when compliance inspections occurred. The owners of the properties managed by IRS had the authority to give Mr. Mosley directives specific to their properties, as did city officials and inspectors.

Sandy Gholson, the owner of the Property during the relevant time period, entered into a “Residential Management Agreement” (“RMA”) with IRS, as his agent, to manage the Property and one other property not at issue in this case. Pursuant to the RMA, IRS was to, inter alia, procure tenants for vacancies, collect rents, and attend to the making of necessary and proper repairs to the Property. The RMA was signed by Mr. Gholson and by Kathy Smith, an employee of IRS.

Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
62 A.3d 200, 210 Md. App. 52, 2013 WL 775595, 2013 Md. App. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toliver-v-waicker-mdctspecapp-2013.