HARRELL, J.
We consider in this case primarily whether Respondents
On 11 January 2008, the law firm of Buonassissi, Henning, & Lash, P.C. ("BHL"), as agent for the American Servicing Company ("ASC"), the mortgage servicer, initiated a foreclosure action against Nickens's parents, the mortgagors, in the Circuit Court for Baltimore City. Nickens notified BHL that he resided in the property when he entered an appearance in the foreclosure proceeding. The property was sold at a foreclosure sale, which was ratified by the Circuit Court on 30 January 2009. The mortgagee, Deutsche Bank National Trust Company ("Deutsche Bank"), was the successful foreclosure sale purchaser and was awarded a judgment of possession on 14 May 2009.
At some time thereafter, BHL retained the property management services of Mount Vernon Realty Group, LLC ("MVRG"), owned by James E. Parks, III, and which employs Parks' mother, Irene Parks. Also after the 14 May 2009 award of the judgment of possession, the Parkses and MVRG notified Nickens that they intended to enter the home and remove Nickens's belongings, unless he vacated the house. On 6 September 2009, having learned apparently from a letter to them from Nickens relating that he would be out of town on that day,
Nickens filed a complaint against Respondents in the Circuit Court on 19 April 2010. In an amended complaint, he asserted ten counts relative to Respondents'
On appeal, Nickens presented to the Court of Special Appeals two central questions relevant to our review here: (1) whether the Circuit Court erred in dismissing Nickens's forcible entry claim,
We granted Nickens's petition for a writ of certiorari, Nickens v. Mount Vernon Realty Group, LLC, 425 Md. 396, 41 A.3d 570 (2012), to consider two questions:
We shall affirm in part and reverse in part the judgment of the Court of Special Appeals. We hold, first, that the long-recognized remedy of peaceable self-help allows a property owner to use reasonable means to repossess his, her, or its property from an unlawful possessor of that real property. Under the well-pleaded facts and reasonable inferences, even viewed in a light favorable to Nickens in this case, Respondents, as agents of the successful foreclosure purchaser, employed the peaceable self-help remedy reasonably
Ordinarily, when a trial court purports to grant a motion to dismiss, we review that action based solely on the allegations contained within the four corners of the complaint, Converge Servs. Group, LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871, 879 (2004); Green v. H & R Block, 355 Md. 488, 501, 735 A.2d 1039, 1046 (1999); however, "pursuant to Maryland Rule 2-322(c), when a trial judge is presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment." Okwa v. Harper, 360 Md. 161, 177, 757 A.2d 118, 127 (2000). Throughout the Circuit Court's hearing on Respondents' motions to dismiss, Nickens and Respondents referred to asserted facts not included in the amended complaint, including an affidavit of Terry Lee Nickens, one of the former owners of the property; a copy of the deed of trust for the property; and, copies of email communications between the parties. The motions judge did not exclude expressly on the record that the extrinsic factual averments were not considered. Thus, we regard the trial court's action on Respondents' motions to dismiss as the grant of motions for summary judgment.
"[T]he proper standard for reviewing the granting of a summary judgment motion should be whether the trial court was legally correct." Heat & Power Corp. v. Air Products & Chemicals, Inc., 320 Md. 584, 592, 578 A.2d 1202, 1206 (1990); Honaker v. W.C. & A.N. Miller Dev. Co., 278 Md. 453, 458 n.3, 365 A.2d 287, 290 n.3 (1976); Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 8, 327 A.2d 502, 509 (1974).
Upon review of a summary judgment motion, "`we are first concerned with whether a genuine dispute of material fact exists' and then whether the movant is entitled to summary judgment as a matter of law." Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 71, 782 A.2d 807, 833 (2001) (quoting Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 113, 753 A.2d 41, 47 (2000)).
Nickens does not dispute that Respondents had the legal right to possess the property at issue when MVRG and the Parkses locked him out of the house. The parties disagree as to whether the manner by which Respondents repossessed the property (and disposed of Nickens's belongings) was lawful. Respondents maintain that they employed lawfully the common law remedy of self-help. Nickens contends that a surreptitious lock-out is not a permitted form of peaceable self-help, but rather a forcible entry, and that the procedure made available in Balt. City
We concern ourselves first with the English common law statutes of 5 Richard II, Chapter 8 (1381) and 8 Henry VI, Chapter 9 (1429),
Before the fourteenth century in England, a title owner could enter lawfully his property and "regain his possession by force" from an unlawful possessor. Moxley v. Acker, 294 Md. 47, 50, 447 A.2d 857, 858 (1982) (quoting G. Liebmann, Maryland Practice 82-83 (vol. 2, 1976)). Thereafter, 5 Rich. II, c.8 limited the amount of "force" that a titleholder may use to repossess his property by establishing that a right of entry may be made with "not a strong hand, nor with a multitude of people, but only in a peaceable and easy manner," and made violative conduct a criminal misdemeanor.
Nickens asserts that the prohibition of forcible entry in 5 Rich. II, c.8 protects possession, but not title. He is mistaken. The statute established "that a man may be guilty of a forcible entry into ... incorporeal hereditaments whereof a writ of entry will lie, as rents or tithes .... A person cannot be guilty of a forcible entry who breaks open his own dwelling house, forcibly detained from him by one claiming the bare custody of it." Id., reprinted in Alexander, supra, at 248 (emphasis added). The common law definition of forcible entry allows expressly property owners to repossess their properties from those who have only physical possession of it. Hence, the common law imported to Maryland in 1776 from England, currently in force through Article 5 of the Maryland Declaration of Rights, provided Respondents with the right to employ peaceable self-help against Nickens, who had only physical possession of the dwelling. Nickens could not (and did not) have a cause of action for forcible entry.
Even had Nickens pleaded originally the civil remedy of forcible detainer, he could not succeed, because a forcible detainer action under 8 Henry VI, c.9 is available only to title owners, but not to unlawful possessors, of real property. This statute extended the law of 5 Rich. II, c.8 to a civil remedy called forcible detainer, which allowed a "claimant to regain possession of property wrongfully detained" by one originally
Nickens places great weight on 8 Hen. VI, c.9, § 6, reprinted in Alexander, supra, at 305, which provides that "if any Person be put out, or disseised of any Lands or Tenements in forcible manner, or put out peaceably, and after holden out with strong hand ... the Party grieved in this behalf shall have Assise of Novel disseisin...." Novel disseisin, or as more commonly known in the time of King Henry VI, the assize of novel disseisin, was a "writ for a tenant" who has been ejected from his land or tenement. Black's Law Dictionary 140 (9th ed.2009). The "institution" of the assize of novel disseisin was a tort of the 12th and 15th centuries, but became "wholly obsolete by the mid-17th century." Id. Black's Law Dictionary further elucidates the archaic term by explaining that novel disseisin "`meant that if a freeholder of land was ejected from his property he could require the sheriff to set up a jury of twelve'" and the King's Justices would then question "`the jurors whether the freeholder had been illegally put out of his holding, as he complained, and if they said that he had then the court would restore the land to him at once.'" Id. (quoting Donald W. Sutherland, The Assize of Novel Disseisin 1-2 (1973)) (emphasis added). In the time of 8 Hen. VI, c.9, a freeholder had a claim of right or inheritance to a fee simple or any actual or potential real property possessory interest under the law. Id. at 736. Because Nickens is not a freeholder, in that he does not have any right to lawful possession of the dwelling in question, he does not have a cause of action under 8 Hen. VI, c.9, § 6 or, as discussed above, under 5 Rich. II, c.8.
There being no common law support for Nickens's action for forcible entry, we examine next whether, as Nickens asserts, Respondents' conduct was an unlawful use of self-help. Self-help is a long-established common law remedy for titleholders in Maryland.
Significant to the present case, in Manning we determined
Id. at 512. Moreover, we discussed that in the common law, "wherever a right of entry existed, the party entitled to such right might lawfully enter, oust the disseisor, and regain the possession by force, if force was necessary for that purpose." Id. at 511. We observed further that 5 Rich. II, c.8 required the peaceable exercise of the right of entry to address the risks of violence and disorder, which an absolute right of entry may entail. Id. Indeed, we emphasized particularly that a standard of reasonableness applies to the exercise of a titleholder's right to self-help in possessing his property: "[i]f, in effecting the entry... there be any unnecessary force used, or any want of unreasonable care, whereby injury be done the person or the goods of the occupant, an action may be sustained for such injury ..." Id. at 512 (emphasis added).
More modern case law details the development of forcible entry. In K & K Management, Inc. v. Lee,
More recently, this Court spoke approvingly of a landlord's use of the self-help remedy in a criminal law setting in Laney v. State, 379 Md. 522, 842 A.2d 773 (2004).
Prior notice to the unlawful possessor that repossession of the realty will occur is not required. As we indicated in K & K Management, peaceable restitution of property may occur even without prior notice because it is "entirely compatible with a desire to avoid a confrontation possibly leading to violence." 316 Md. at 178-79, 557 A.2d at 985.
Self-help continues to be a remedy available in Maryland generally for titleholders to repossess their properties. Similar to the plaintiff in Manning, Nickens resided at the property in Baltimore by "the permission and under the authority" of his parents, who had been the property's
As we held in Manning, to effectuate lawfully the right to self-help, a titleholder must use reasonable care in dispossessing the individual residing at the property. Id. at 512. To determine if the exercise of this remedy is lawful, we apply a standard of reasonableness based on the attendant circumstances. Under the undisputed material facts on this record, Respondents acted reasonably in effecting the lock-out as a matter of law. The record shows that Nickens knew, since early 2009, that his parents' property had been sold at a foreclosure sale. Nickens admitted that he had no legal right to remain on the property. The parties stipulated that Nickens received notice that Respondents intended to enter and repossess the property;
Nickens maintains that, even if Respondents had the right to employ self-help, they were obliged to complete the statutory process available in Baltimore City in order to repossess the realty. In this regard, Nickens points to the 2008 ordinance at Balt. City Code Art. 13, § 8B-2, which, Nickens asserts, provided Respondents an exclusive procedure to possess the property in 2009 by waiting for a writ of possession to issue and having the writ executed by a Sheriff in Baltimore City, after two weeks' notice to Nickens.
When interpreting statutory language, "the statute must be given a reasonable interpretation, not one that is absurd, illogical, or incompatible with common sense." Lark v. Montgomery Hospice, Inc., 414 Md. 215, 228, 994 A.2d 968, 976 (2010) (quoting Lockshin v. Semsker, 412 Md. 257, 276, 987 A.2d 18, 29 (2010)); see also Fisher v. Eastern Corr. Inst., 425 Md. 699, 707, 43 A.3d 338, 343 (2012). Our goal is, as much as possible, to harmonize Section 8B-2 with the common law remedy of peaceable self-help (as derived from its antecedent English statutes), for "various consistent and related enactments, although made at different times and without reference to one another, nevertheless should be harmonized as much as possible." Pete v. State, 384 Md. 47, 65-66, 862 A.2d 419, 429-30 (2004) (citations omitted); see also Fisher, 425 Md. at 710, 43 A.3d at 344 (stating that "various statutory provisions covering the same subject matter are to be construed, if at all possible, so that together the sections harmonize with one another and no section is rendered nonsensical or nugatory").
For a statute or ordinance to abolish a right available through the common law, the statutory language must indicate an express abrogation or an abrogation by implication by adoption of a statutory scheme that is so clearly contrary to the common law right that the two cannot occupy the same space. Selig v. State Highway Admin., 383 Md. 655, 677, 861 A.2d 710, 723 (2004) ("In order to hold that a statute has abrogated common law rights existing at the date of its enactment, it must clearly appear that they are repugnant to the act, or the part thereof invoked, that their survival would in effect deprive it of its efficacy and render its provisions nugatory."). See also Robinson v. State, 353 Md. 683, 693, 728 A.2d 698, 702 (1999) (explaining that there is a "generally accepted rule of law that statutes are not presumed to repeal the common law `further than is expressly declared, and that a statute, made in the affirmative without any negative expressed or implied, does not take away the common law.'") (quoting Lutz v. State, 167 Md. 12, 15, 172 A. 354, 356 (1934)).
The express language of Section 8B-2 does not suggest that adoption of the ordinance abrogated or superseded expressly the common law remedy of peaceable self-help available to property owners and their agents in Baltimore City. The legislative history of the ordinance does not represent that it nullifies, amends, or supersedes Maryland pre-existing common law. § 8B-2; see Zetty, 365 Md. at 153, 776 A.2d at 638. The text of Section 8B-2 does not indicate that all foreclosure purchasers must resort to its statutory repossession process exclusively; rather, the language implies that it is but another manner by which a foreclosure purchaser may repossess property in Baltimore. In short, the express language of Section 8B-2 does not clearly indicate that the common law right to peaceable self-help is "repugnant to the act, or the part thereof invoked, that [its] survival would in effect deprive it of its efficacy and render its provisions nugatory." Selig, 383 Md. at 677, 861 A.2d at 723.
Based on the express language of the ordinance, we conclude that the Mayor and City Council of Baltimore did not intend to supersede pervasively and comprehensively
The public policy of restoring the lawful possession of real estate peaceably also calls for our affirmation of the reasonable use of self-help in foreclosure repossession. For a foreclosure purchaser dispossessed of his, her, or its property by a defaulted mortgagor's or illegal occupant's recalcitrant possession, the common law right to self-help provides a nonviolent, reasonable approach to reclaiming the realty to which he, she, or it is entitled. See, e.g., Manning, 47 Md. at 512, K & K Management, 316 Md. at 179, 557 A.2d at 985; Empire Properties, 386 Md. at 640, 873 A.2d at 1194. The significance of the reasonable use of peaceable self-help to foreclosure purchasers is even greater in light of the many cases in which a mortgagor or trespasser refuses to leave a foreclosed property:
Empire Properties, 386 Md. at 649-50, 873 A.2d at 1200 (quoting Alexander Gordon IV, Gordon on Maryland Foreclosures § 26.3, at 1062-64 (4th ed.2004)) (emphasis in Empire Properties). Thus, the Court of Special Appeals and the Circuit Court were correct, on this record, in entering summary judgment for Respondents as to Petitioner's "forcible entry" claim.
We consider next whether Nickens pleaded a potentially triable claim that Respondents, when they used peaceable self-help to enter and repossess the real property at issue, committed the tort of conversion in their disposal of Nickens's personalty found within the dwelling. Conversion is an intentional tort that requires an exertion of ownership or dominion over another's personal property in denial of or inconsistent with the owner's right to that property. Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 261, 841 A.2d 828, 835 (2004); Allied Investment Corp. v. Jasen, 354 Md. 547, 560, 731 A.2d 957, 963 (1999).
An act of ownership may occur by "initially acquiring the property or by retaining it longer than the rightful possessor permits," and includes the destruction of another's property as well as a "wrongful, tortious or unlawful taking of
Although having the intent to exercise dominion or control over another's property is a necessary element of an action for conversion, a defendant is liable nonetheless for conversion if he, she, or it acted in "good faith and lacked any consciousness of wrongdoing," as long as the act is an interference with the owner's control of the property. Id. at 261, 841 A.2d at 836. Property cannot be "converted" once it is abandoned because abandonment entails the relinquishment of any interest to the property; hence, the abandoned personalty will "[belong] to anyone who takes possession of it." Steinbraker v. Crouse, 169 Md. 453, 457-58, 182 A. 448, 450 (1936). The relinquishment, however, must indicate affirmatively that the owner has "walk[ed] off and [left] it with no intention to again claim it or exercise rights of ownership over it." Id.
In their briefs, Respondents assert that, because Nickens was not in lawful possession of the realty, all of his belongings within the realty were abandoned and, hence, no conversion occurred, no matter how his personalty was disposed of by them. To support this argument, Respondents rely on our discussion of the abandonment concept in Laney, 379 Md. at 545-51, 842 A.2d at 785-90. Laney involved, however, the abandonment doctrine as it relates to the U.S. Constitution's Fourth Amendment guarantee against unreasonable searches and seizures and the related concept of the expectation of privacy; consequently, Laney is of little value in deciding the question of conversion in the civil law context of the present case. Whether one has a legal claim to, or a reasonable expectation of, privacy in the real property where his personalty is located is irrelevant to whether one has relinquished his interest in the personalty under the common law regarding real and personal property. Rather, the issue in civil action for conversion is whether the owner of the personalty manifested an intent to walk away "with no intention to again claim [the personalty] or exercise" his rights of ownership over his personal property. Steinbraker, 169 Md. at 458, 182 A. at 450.
In the present case, a reasonable inference from the well-pleaded facts is that Nickens did not manifest an intent to abandon his belongings in the house simply because he continued his occupancy after the foreclosure sale became final, or when he notified the Parkses that he would be out of town for a period, but would return impliedly. The record does not show that Nickens expressed in any way to the Parkses or MVRG that he meant to relinquish his interest to his belongings when he traveled out of town. Abandonment had not been demonstrated as a matter of law, on the record as developed, as of the time summary judgment was entered in Respondents' favor.
Although it is clear that Nickens did not have any legal claim to the possession of the realty, the peaceable self-help remedy calls for the foreclosure purchaser's and its agents' exercise of reasonable means in dealing with the mortgagor's or occupant's personalty, as well as in the manner of repossessing the realty. For example, in affirming the landlord's use of self-help,
Our line of self-help remedy cases espouses the exercise of reasonable means to dispose of personalty, despite an occupant's lack of lawful possession of the realty. The foreclosure purchaser and its agents have the duty to use peaceable and reasonable self-help with "no more force than necessary" to repossess the real property. Manning, 47 Md. at 512. Disposition of the personalty found therein, therefore, is also held to a standard of reasonableness, and those actors may be liable for the disposition of the personalty that is not accomplished in a reasonable way. This rule is consistent with the peaceable purpose of the self-help remedy. See K & K Management, 316 Md. at 178, 557 A.2d at 965.
Here, at the time summary judgment was entered, the record was silent as to how Respondents disposed of Nickens's personal property found within the house. Nickens pleaded properly in his amended complaint the elements of the tort of conversion. Despite the Parkses' and MVRG's threats that they would repossess the house, the record as developed to that point, revealed no evidence as to whether, prior or subsequent to the repossession, they alerted Nickens as to when or how they would dispose of his property, whether he would have an opportunity to collect his property later, or for how long they or someone might hold his property. There was no apparent interaction between Nickens or Respondents regarding the disposal of the property, unlike what occurred in K & K Management, 316 Md. at 146, 557 A.2d at 969. In short, there was no evidence that Respondents acted reasonably as to the disposition of Nickens's personalty. Although Respondents had the legal right to use self-help, it remains to be determined whether they exercised this right reasonably as to Nickens's personalty. Discovery may reveal material facts relevant to answering this question and whether a triable claim exists.
As the self-help remedy is rooted in the common law and usually occurs outside the judicial process, the courts must ensure that mortgagors' and evicted tenants' or occupants' interests in their personalty are protected as much as reasonably possible under the circumstances. The state of the record in the present case lacks any indication of what Respondents did with Nickens's personalty and, hence, Respondents were not entitled to judgment as a matter of law on the conversion claim. Discovery and further proceedings about the circumstances surrounding this aspect of Respondents' exercise of self-help is required. It was reversible error to enter summary judgment for Respondents on Nickens's conversion count.
Moxley, 294 Md. at 50-51, 447 A.2d at 859 (quoting G. Liebmann, Maryland Practice 82-83 (vol. 2, 1976)).
Reprinted in, Alexander, supra, at 301-303. This statute applied the limitations on reentry in 5 Rich. II, c.8 by providing a civil remedy for those who lawfully "held," or possessed, realty. Eubanks, 125 Md.App. at 662, 726 A.2d at 847. Originally, forcible detainer required actual "force" before a cause of action existed; however, we have held that force is no longer required for a claim against forcible detainer only. Moxley v. Acker, 294 Md. at 53, 447 A.2d at 860. This provides another reason to distinguish forcible detainer from forcible entry as separate causes of action.
