Appellants, three married couples, obtained financing to purchase new homes through appellees, several realtors, mortgage agencies, banks and their employees. Appellants filed a class action lawsuit in the Circuit Court for Howard County, asserting a number of claims related to an alleged mortgage fraud scheme. The circuit court granted summary judgment as to all counts in appellants' original complaint on statute of limitations grounds. It also denied class certification on grounds of insufficient numbers, and granted a motion to strike appellants' second amended complaint because of prejudice to appellees. Appellants appealed, presenting the following questions for our consideration:
For the reasons that follow, we shall affirm in part and reverse in part the judgment of the circuit court.
This case involves six appellants and eleven appellees. Appellants consist of three married couples: Frank and Catherine LaRocca, Kenneth and Angela Pfeifer, and Mehdi Nafisi and Forough Iranpour. All are residents of Maryland who owned a primary residence and contacted appellees regarding purchasing a new primary residence. Since there are eleven appellees, they have been divided into three groups. The "Realtor Appellees" are the Creig Northrop Team, P.C., ("the Northrop
While the dates differ, appellants generally shared the same experience in obtaining financing and purchasing their new homes through the Northrop Team. During 2006 and 2007, appellants contacted the Northrop Team regarding purchasing new homes. Through discussions with Ms. Matthews, appellants were led to believe that the Northrop Team would make available to them a "Bridge Loan Program." Under the Bridge Loan Program, appellants would obtain financing using the equity in their old homes, while at the same time receiving a primary purchase money mortgage for their new home, that was non-contingent upon the sale of the old home. Unbeknownst to appellants, the purported Bridge Loan Program did not exist and likely violated the underwriting policies of the lenders. Appellants allege that the Realtor Appellees concealed the lack of a Bridge Loan Program by using forgeries and other misrepresentations to obtain fraudulent financing. Appellants each entered into a non-contingency contract to purchase a new home and obtained a home equity line of credit ("HELOC") through PNC. At each appellants' closing for the HELOC, they reviewed and signed a number of documents, including a Uniform Residential Loan Application, referred to as Form 1003. The Laroccas and the Pfeifers closed on their HELOCs in 2006 and the Nafisis/Iranpours closed on theirs in 2007. The parties understood that under the loan program, they would be paying for three mortgages until the old homes were sold. They completed the mortgage process, sold their old homes, and paid off the HELOCs in July 2006, for the Laroccas, June 2007, for the Pfeifers, and September 2007 for the Nafisis/Iranpours. In mid-2010 and mid-2011, appellants were individually contacted by counsel, informing them that another case
Appellants filed the instant case as a class action lawsuit in December 2011, with appellants as the named plaintiffs and proposed class representatives. In their complaint, they asserted that in order to effectuate the Bridge Loan Program, appellees acted to conceal from others that appellants still owned their old homes. Appellants claim that appellees made misrepresentations regarding appellants' income and the status of the old homes so that appellants could qualify for loans they were unqualified for. As a result of appellees' fraudulent actions, their old homes
Appellants' class action complaint included eleven counts against the Realtor and Banking Appellees. Appellees moved to dismiss the complaint, asserting statute of limitations as a defense. The court denied the motion, ordering discovery to continue so that it could be determined whether limitations barred the action. During discovery, appellants issued a subpoena requesting compensation documents from Lakeview. Since Lakeview was not a party to the action at that time, the Realtor Appellees moved for a protective order. The court granted the order after reviewing the documents in camera and reasoning that they were not related to any of the counts alleged in appellants' complaint. Following discovery, appellees moved for summary judgment on all counts, again arguing the statute of limitations defense. Before the court ruled on the motion for summary judgment, appellants filed a second amended complaint, adding a new count and three new appellees, the Title Appellees and Ms. Northrop. Following a hearing on the motion for summary judgment, the court granted the motion, finding that as a matter of law, the statute of limitations began accruing at the parties' respective HELOC closings in 2006 and 2007 and therefore, the limitations period had run by the time the complaint was filed in December 2011. The court also denied appellants' motion for class certification and granted appellees' motion to strike the second amended complaint. Appellants noted a timely appeal against all appellees.
Additional facts shall be provided, infra, to the extent they prove relevant in addressing the issues presented.
Summary judgment is proper where the circuit court determines that there are no genuine disputes as to any material fact and that the moving party is entitled to judgment as matter of law. See Md. Rule 2-501. Disputes concerning contract interpretation are questions of law and frequently regarded as appropriate for summary judgment. See Sandler v. Executive Mgmt. Plus, 203 Md.App. 399, 423, 38 A.3d 478 (2012) (noting that contract interpretation is a question of law). See also Bank of Montreal v. Signet Bank, 193 F.3d 818, 835 (4th Cir.1999).
We review a circuit court's grant of summary judgment de novo. Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 506, 883 A.2d 1008 (2005). In reviewing the grant of a motion for summary judgment, appellate courts focus on whether the circuit court was legally correct. Laing v. Volkswagen of Am., Inc., 180 Md.App. 136, 152-53, 949 A.2d 26 (2008) (citations omitted). "The parameter for appellate review is determining `whether a fair minded jury could find for the plaintiff in light of the pleadings and the evidence presented, and there must be more than a scintilla of evidence in order to proceed to trial....'" Id. at 153, 949 A.2d 26. "Additionally, if the facts are susceptible to more than one inference, the court must view the inferences in the light most favorable to the non-moving party." Id.
We review rulings on motions for protective orders, motions to strike, and motions for class certification all under an abuse of discretion standard. See Creveling v. Gov't Employees Ins. Co., 376 Md. 72,
Our standard of review for determining whether a [c]ircuit [c]ourt used a correct legal standard in determining whether to grant or deny class certification is de novo. Philip Morris, Inc. v. Angeletti, 358 Md. 689, 726, 752 A.2d 200 (2000).
At the conclusion of discovery, the Realtor appellees moved for summary judgment, again asserting limitations as a defense.
On appeal, appellants advance similar arguments, namely that the factual disputes
Maryland Code, (2006 Repl.Vol. 2012), Courts and Judicial Proceedings § 5-101 [hereinafter Cts. & Jud. Proc.] provides:
Generally, the statute of limitations begins to accrue when a plaintiff knows of the wrong he or she sustained. See Kumar v. Dhanda, 198 Md.App. 337, 343, 17 A.3d 744 (2011) (explaining that for example, in a breach of contract case the date of accrual is the date of the breach). Modernly, the discovery rule provides that "the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong." Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677 (1981). This Court and the Court of Appeals have acknowledged that the discovery rule, while originally adopted as an exception, is now the general rule. See Lumsden v. Design Tech Builders, Inc., 358 Md. 435, 444, 749 A.2d 796 (2000).
Id. (quoting Poffenberger, 290 Md. at 636, 431 A.2d 677).
In Poffenberger, a homeowner brought suit against his homebuilder for failing to comply with applicable building restrictions. 290 Md. at 633, 431 A.2d 677. The home had been built in 1972 and the homeowner filed suit after he discovered the building violation in 1976. Id. The homebuilder moved for summary judgment relying on Cts. & Jud. Proc. § 5-101, asserting that the homeowner's suit was barred by the three year statute of limitations. Id. The homebuilder argued that the action began accruing when the home was completed in 1972 while the homeowner argued that the action did not begin accruing until he discovered the violation in 1976. Id. at 634, 431 A.2d 677. The circuit court granted summary judgment and the homeowner appealed. The Court of Appeals began its analysis by announcing that the discovery rule was applicable to all actions and accordingly, could be applied in the case. Id. at 636, 431 A.2d 677. The homebuilder argued that the homeowner had constructive notice in 1972 because the plat and deed showed the land boundaries. Id. at 637, 431 A.2d 677. The Court of Appeals rejected this argument, holding that in order for there to be notice sufficient to begin tolling of the statute of limitations, a plaintiff required actual notice. Id. It explained that there are two forms of actual notice, express and implied:
Id. The Court concluded that there was no dispute that the homeowner lacked express notice, but there was clearly a dispute as to whether he had implied notice. Id. at 638, 431 A.2d 677. It remanded back to the circuit court so that the factual dispute could be addressed at trial. Id.
While a grant of summary judgment is appropriate where the statute of limitations has expired, the Court of Appeals has explained that the question of accrual under Cts. & Jud. Proc. § 5-101 may be a question for a jury. Frederick Rd. Ltd. P'ship v. Brown & Sturm, 360 Md. 76, 95, 756 A.2d 963 (2000). The Court stated that: "[t]his determination may be based solely on law, solely on fact, or on a combination of law and fact, and is reached after careful consideration of the purpose of the statute and the facts to which it is applied." Id.
Appellants rely on Dashiell v. Meeks, 396 Md. 149, 913 A.2d 10 (2006) in support of their argument that the circuit court erred in finding that their claims were barred as a matter of law. There, Meeks hired Dashiell as his attorney in 1989 to draft a prenuptial agreement in anticipation of his upcoming wedding. Id. at 157, 913 A.2d 10. According to Meeks, the draft of the agreement he reviewed with Dashiell contained an alimony waiver provision. Id. However, unbeknownst to Meeks, the final version which he and his fiancé signed did not include the waiver. Id. At trial, Meeks claimed that he was unaware any changes had been made between the first draft and the final draft, and that Dashiell had indicated that he did not need to read the final draft because no changes had been made. Id. at 159, 913 A.2d 10. In 2001, Meeks and his wife separated and it was at this point Meeks discovered the signed agreement lacked the alimony waiver. Id. Meeks filed a legal malpractice action against Dashiell claiming he was negligent in failing to include the waiver and in advising Meeks that he did not need to read the contract prior to signing. Id. Dashiell moved for summary judgment, arguing in part that the claim was barred under the three year statute of limitations. The court granted the motion based on limitations and Meeks appealed to this Court. Id. We vacated the circuit court's ruling, concluding that the claim was not barred by the statute of limitations. Id. at 158, 913 A.2d 10 (citing Meeks v. Dashiell, 166 Md.App. 415, 890 A.2d 779 (2006) (en banc)).
Dashiell appealed and the Court of Appeals granted certiorari. The Court began its analysis by acknowledging the general rule "under Maryland contract law that, as between the parties to an agreement, a party who signs a contract is presumed to have read and understood its terms and that the party will be bound by them when that document is executed." Id. at 167, 913 A.2d 10. The Court explained that absent fraud, duress or mutual mistake, the Court will not rescind an agreement because one party, due to their own carelessness in reading the terms, does not want to abide by the agreement. Id. The Court then held that the trial court erred when it found that Meeks was "charged with knowledge ... at the time he signed the document." Id. at 168, 913 A.2d 10. Applying the discovery rule, the Court concluded that there was a question of fact regarding whether Meeks was on notice. It held that "the discovery rule tolls the running of the statute of limitations and it is ordinarily a question for the jury or the ultimate factfinder as to whether
This Court and the Court of Appeals have reached the same conclusion in other cases. See Frederick Road, 360 Md. 76, 756 A.2d 963 (2000) and Supik v. Bodie et al., 152 Md.App. 698, 834 A.2d 170 (2003). In Frederick Road, an elderly couple, the Kings, hoping to minimize estate and gift taxes, contacted their attorney, Brown, regarding transferring their farm land to their children before they died. 360 Md. at 81, 756 A.2d 963. The Kings' other attorney, Wolf, believed that the land was valued somewhere between $20 million and $100 million. Id. Brown believed that if the Kings appraised the farm as "farm use only", valuing it between $515,000 and $720,000, they would incur significant tax savings. Id. Wolf strongly disagreed with Brown's advice and expressed his objections to the Kings. Id. at 82, 756 A.2d 963. Eventually, in 1981, the Kings proceeded with Brown's plan, sold their farm to their children for approximately $600,000 and discharged Wolf as their attorney. Id. In response, Wolf sent the Kings a letter expressing his concerns regarding Brown's valuation plan and that they could be subject to serious tax consequences. The Kings died and Brown continued to represent the King children on matters relating to the farm. Id. at 84, 756 A.2d 963. Five years after the transfer, the IRS began investigating the land transfer and issued a deficiency assessment of more than $68 million in penalties and taxes. Id. The IRS contended the sale of the land had been undervalued and as a result, not enough taxes had been paid. Id. Brown convinced the King children that Wolf had sent the IRS his letter to their parents expressing his concerns about the sale amount, and as a result, they had no defenses and should settle with the IRS for $20 million. Id. at 85, 756 A.2d 963. The King children agreed and in 1988 settled with the IRS. In 1991, they filed a malpractice suit against Wolf. Id. at 87, 756 A.2d 963. The circuit court granted Wolf summary judgment reasoning that if the King children had sustained any damages, it was the result of Brown's poor legal advice in the 1981 sale and Brown's failure to contest the admissibility of Wolf's letter in tax court. Id. In 1995, seven years after the IRS settlement, the King children filed a malpractice action against Brown. Id. at 88, 756 A.2d 963. The circuit court granted Brown summary judgment after finding that the King children's claims were barred by statute of limitations and/or laches. Id. at 89, 756 A.2d 963. The King children appealed and we affirmed the circuit court's judgment. Id. See also Frederick Road v. Brown & Sturm, et al., 121 Md.App. 384, 710 A.2d 298 (1998).
Before the Court of Appeals, the King children argued that Brown had deliberately prevented them from discovering his wrongdoing and that therefore, the court erred in finding their claims were barred. Id. at 91, 756 A.2d 963. Brown contended that there were distinct acts in 1982, 1985, 1987, and 1988 that placed the King children on inquiry notice of a potential cause of action. Id. at 92, 756 A.2d 963. The Court of Appeals reviewed the underlying principles of the discovery rule. Id. at 95-96, 756 A.2d 963. It explained that "the question of notice generally requires the balancing of factual issues and the assessment of the credibility or believability of the evidence." Id. at 96, 756 A.2d 963. (quoting O'Hara v. Kovens, 305 Md. 280, 294-95, 503 A.2d 1313 (1986)). The Court also explained that there were some circumstances
Id. at 99, 756 A.2d 963 (quoting O'Hara, 305 Md. at 302, 503 A.2d 1313). The Court held that because of the relationship between the parties, a jury could have found that the King children were not on notice of a potential claim against Brown.
In Supik, 152 Md.App. at 704, 834 A.2d 170, the plaintiffs were represented by the defendant in a toxic tort litigation against two exterminators who had treated the plaintiffs' home. Over the course of the three years the defendant represented them, the parties would occasionally disagree regarding a course of action or, in more extreme instances, the defendant would act contrary to the plaintiffs' wishes. Id. at 705-08, 834 A.2d 170. Eventually, they settled the toxic tort case but subsequently, the plaintiffs learned that the settlement was for an amount significantly less than it likely was worth. Id. at 708, 834 A.2d 170. As a result, the plaintiffs filed a legal malpractice action against the defendant. Id. In response, the defendant moved for summary judgment using the statute of limitations as its defense. The circuit court granted summary judgment, finding that the plaintiffs were on inquiry notice of malpractice before the settlement occurred. Id. at 709, 834 A.2d 170. The plaintiffs appealed.
On appeal, citing Frederick Road, we observed that "Maryland's appellate courts have repeatedly stated that the determination of when a cause of action "accrues" under § 5-101 of the Courts and Judicial Proceedings Article is one left to the court for judicial determination." Supik at 710, 834 A.2d 170. We then explained that "[w]e read O'Hara and Frederick Road directing that
Id. at 722, 834 A.2d 170.
Returning to the case at bar, the question was whether appellants were on inquiry notice that the Bridge Loan Program did not exist and that appellants were fraudulently representing that it did. Appellees contend that the inclusion of false gross rental income on Form 1003 should have indicated some level of fraudulent activity. Although we are not persuaded that one mention of false income on a loan application form is necessarily notice that the Bridge Loan Program did not exist, we will not decide that issue. Our inquiry is whether it is a question of law for the court or a question of fact for the jury if appellants were reasonably on notice. As Maryland courts have held, summary judgment is appropriate when statute of limitations is at issue, if there is no dispute of material fact. However, there could be instances when accrual involves questions of fact and law. This case is one such instance. Akin to Dashiell and Frederick Road, the parties dispute if there were acts that were sufficient to trigger notice in a reasonable person. Additionally, there appears to be some dispute regarding whether the Form 1003 was fraudulent in some way because of appellants' discovery that other leases had been forged. Appellants never affirmatively recalled seeing the gross rental income on the Form. As such, the court's decision that gross rental income should have put them on notice involved the credibility of their testimony. As we explained in Supik, when credibility is at issue, the question is one to be decided by the finder of fact. We conclude that there were genuine disputes of material fact and therefore, the circuit court erred in granting summary judgment.
Before the circuit court, appellants alleged violations of Maryland Code, (1975 Repl.Vol.2013), § 12-403 of the Commercial Law Article [hereinafter Com. Law], known as the Secondary Mortgage Loan Law ("SMLL"). Recently, the Court of Appeals provided a review of the SMLL's background in the opinion of Thompkins v. Mountaineer Investments, LLC, 439 Md. 118, 123-27, 94 A.3d 61, No. 43, September Term 2013, 2014 WL 2808066 (Jun. 23, 2014).
Following the circuit court's grant of summary judgment as to counts I to IX and XI, the Banking Appellees moved for summary judgment as to count X, the alleged SMLL violations. During the prior motion for summary judgment, the parties had agreed that the applicable statute of limitations for the SMLL count was twelve years, so the count was not barred. However, PNC was not a party to the prior motion for summary judgment and as a result, in its motion contended that the SMLL count was subject to a three year statute of limitations under Cts. & Jud. Proc. § 5-201. Appellants argued before the trial court that the Banking Appellees had violated the SMLL by falsely advertising the existence of a non-contingent Bridge Loan Program. The circuit court granted summary judgment, after finding that the SMLL did not apply to Ms. Matthews or Ms. Windesheim because they were not lenders; that the communications with Michelle Matthews did not qualify as advertising under the statute; and that the statute was not intended to regulate the type of conduct performed by the Banking Appellees.
On appeal, appellants argue the circuit court erred because by advertising that a nonexistent Bridge Loan Program was an option, appellees had falsely advertised loan availability in violation of the SMLL. They also posit that Ms. Matthews and Ms. Windesheim qualify as lenders under the SMLL and that the court erred in its determination concerning the penalties that appellees would be required to pay. Additionally, PNC maintains that the SMLL claim is barred by limitations and that in the alternative, there is no evidence that it violated the SMLL.
As a preliminary note, the SMLL applies only to secondary mortgages, and therefore, in the instant case, is only applicable to appellants' HELOCs. While the Banking Appellees are comprised of five entities, the SMLL claim could only apply to those parties involved with the HELOCs. Thus, Prosperity and Wells Fargo are not subject to the SMLL because they are parties to this action as a result of their involvement with the primary purchase money loans. PNC provided the HELOCs and Ms. Windesheim was the loan officer for PNC, therefore, both of these parties could be subject to the SMLL. Lastly, Ms. Mathews was the loan officer for Prosperity, which was not covered by the SMLL, but appellants contend
Courts & Judicial Proceedings § 5-102 provides:
PNC maintains that the traditional three year statute of limitations applies to the SMLL claim because it does not fall under any of the speciality exceptions of Cts. & Jud. Proc. § 5-102. Master Financial, Inc. v. Crowder, 409 Md. 51, 972 A.2d 864 (2009) [hereinafter Crowder], was a case in which the Court of Appeals addressed whether a claim brought under several provisions of the SMLL
Crowder, 409 Md. at 70, 972 A.2d 864. The Court noted that the duties and obligations were solely a product of the SMLL and that the Com. Law § 12-413 provided remedies that could only be recovered under the statute and they were fixed and ascertainable. Id. at 72, 972 A.2d 864.
PNC asserts that the SMLL claim under Com. Law § 12-403 fails the first prong of the speciality analysis because it already exists at common law, specifically as fraud and negligent misrepresentation. We conclude that a claim brought under Com. Law § 12-403 is a specialty and subject to the twelve year statute of limitation. We find the Court of Appeals decision in AGV Sports Group, Inc. v. Protus IP Solutions, Inc., 417 Md. 386, 10 A.3d 745 (2010), is instructive. There, the plaintiffs brought suit asserting violations of the Maryland and federal Telephone Consumer Protection Acts ("TCPA"). Id. at 389, 10 A.3d 745. The federal District Court of Maryland certified a question to the Court of Appeals, instructing it to decide if a claim under the Maryland TCPA was a statutory specialty. Id. at 390, 10 A.3d 745. The defendant advanced several arguments in support of its claim that the TCPA was not a specialty, among which was the assertion that the first prong of the specialty analysis was not satisfied. Id. at 397, 10 A.3d 745. The defendant contended that the same rights protected under the TCPA could also be pursued under the common law actions of conversion and trespass to chattels and that in addition, the TCPA permitted a plaintiff to recover unliquidated damages, which violated the third prong. Id. The Court agreed with the defendant, and reasoned that the common law actions were sometimes pursued along with TCPA claims. The Court also explained that the TCPA expressly permitted a plaintiff to recover liquidated damages, pursuant to the statute, and unliquidated damages that could be recovered under the common law.
Returning to the instant case, we find the facts of AGV distinguishable. Appellants could have pursued a lawsuit under common law fraud and negligent misrepresentation. However, considering the intent of the legislature in enacting the SMLL, the claims are different. The SMLL was enacted to protect the unsophisticated buyer and "achieves this beneficent purpose by penalizing even the unwitting violator, to the extent of limiting him to recovery of the principal amount of the loan." Thomkinson v. Mortgage Lenders Network USA, Inc., 209 Md.App. 685, 696, 61 A.3d 829 (2013) (quoting Duckworth v. Bernstein, 55 Md.App. 710, 724, 466 A.2d 517 (1983)). The common law claims of fraud and negligent misrepresentation must be established by demonstrating that the perpetrator knowingly or intentionally committed them.
Next we turn to the question of the Banking Appellees' potential liability under the SMLL. Commercial Law Article § 12-401(b)(2) states that a lender is a "person who makes a secondary mortgage loan" or a licensee of such a person. A person is defined as "an individual, corporation, business trust, statutory trust, estate, trust, partnership, association, two or more persons having a joint or common interest, or any other legal or commercial entity." Com. Law § 12-401(h). Commercial Law Article § 12-403, provides:
Finally, a lender is subject to civil liability under Com. Law § 12-413 if:
Resolving whether the Banking Appellees' acts were prohibited by the SMLL requires statutory interpretation. In Thomkinson, supra, 209 Md.App. at 697, 61 A.3d 829 we explained that:
(quoting Town of Oxford v. Koste, 204 Md.App. 578, 585-86 (2012)).
We have explained that the SMLL was enacted as a "legislative approach to consumer protection" Id. at 696, 61 A.3d 829. It "is a law intended to guard the foolish or unsophisticated borrower, who may be under severe financial pressure, from his own improvidence." Id. (quoting Duckworth v. Bernstein, 55 Md.App. 710, 724, 466 A.2d 517 (1983)).
While a person may commit an act that violates the SMLL, they are only subject to liability if they are a "lender" under the statute. Herein lies the dispute regarding Ms. Mathews and Ms. Windesheim. While appellants contend they are lenders, the Banking Appellees assert that they are not. Michelle Mathews was a loan officer for Prosperity. There is no dispute that Prosperity did not fund the HELOCs. Appellants assert that Ms. Mathews was a lender because she was the loan officer who primarily facilitated appellants' HELOCs. In cases that applied the SMLL, entities that were considered lenders were the banks that provided the funding. See Master Fin., Inc. v. Crowder, 409 Md. 51, 56, 972 A.2d 864 (2009) (plaintiffs brought suit alleging SMLL violations against the entities which originated their secondary mortgages); Norwest Bank Minnesota, N.A. v. Pence, 132 Md.App. 363, 365, 752 A.2d 681 (2000). See also Royal Fin. Servs., Inc. v. Eason, 183 Md.App. 496, 497, 961 A.2d 1161 (2008) (lawsuit against a bank which gave the plaintiff a secondary mortgage on her primary residence). While it is clear that Ms. Mathews was involved in the process, under the intent and language of the SMLL, she was not a lender for its purposes. As the statute explains, a lender is a "person who makes a secondary mortgage loan." Although Ms. Mathews was heavily involved in the process, she was not an employee of the institution that provided the HELOCs. Therefore, as to Ms. Mathews, we conclude that the circuit court did not abuse its discretion in granting summary judgment.
Suzanne Windesheim, on the other hand, was a loan officer for PNC, the bank that provided the HELOCs to appellants. As provided in Com. Law § 12-401 a lender is the organization that provided the secondary loan. Additionally, a person is prohibited from false advertising, and pursuant to Com. Law § 12-401, a person can be an individual. The Court of Appeals has explained that a corporation can only be liable as a result of acts by its employees. See Southern Management Corp. v. Taha, 378 Md. 461, 836 A.2d 627 (2003). In Taha, the plaintiff sued his former employer and two employees for malicious prosecution. Id. at 470, 836 A.2d 627. The jury found the employer corporation liable but not the employees. Id. at 473, 836 A.2d 627. On appeal, the question for the Court of Appeals was whether, under the doctrine of respondeat superior, a corporation could be held liable when its employees were exonerated. Id. at 478, 836 A.2d 627. The Court explained that if an employee is "responsible for the acts about which the complaint is made by the plaintiff, the employer is also responsible since they would have been acting in the course of their employee responsibilities."
Id. at 480, 836 A.2d 627. For liability to exist, an employee must be acting pursuant to its employer's authority, which simply means that the act was "incident to the performance of the duties entrusted to the employee by the employer." Id. at 481, 836 A.2d 627 (quoting Ennis v. Crenca, 322 Md. 285, 293-94, 587 A.2d 485 (1991)).
Here, because PNC's personhood is a legal fiction, it may only "act" as a result of its employees actions. Although PNC made the HELOCs, Ms. Windesheim was its loan officer who facilitated that process. As the loan officer for PNC, Ms. Windesheim acted under the auspices of PNC. Furthermore, considering that this Court has previously held that the law is intended to penalize "even the unwitting violator," if Ms. Windesheim falsely advertised the Bridge Loan Program pursuant to her position duties as PNC's loan officer, she may be liable under the SMLL and consequently, so may PNC. Therefore, she is a lender under the SMLL and it is a question of fact whether she violated the statute. We hold that the circuit court erred in granting summary judgment as to Ms. Windesheim.
Appellants assert that by misrepresenting the availability of the non-contingent Bridge Loan Program, appellees violated Com. Law § 12-403 which prohibits false advertising by lenders. They argue that by advertising the loan as "Home Equity Lines and Loans (to make your client non-contingent)," appellees were advertising the Bridge Loan Program was legitimate when it was not. Prosperity and PNC admitted that a non-contingent Bridge Loan was not a mortgage program offered by either bank. Before the trial court, appellants were unable to present any information establishing that PNC advertised the false loan. The evidence proffered was that PNC indirectly advertised through Ms. Mathews, when she informed appellants of the Bridge Loan Program. PNC denies that it advertised the program.
The SMLL does not define "advertise." However, Commercial Law § 13-101 states:
Relying on the Commercial Article's definition of "advertise" and on its plain meaning, it is clear that advertising involves
An indirect advertisement is advertising that is not performed by the defendant itself but is prohibited because it intentionally results in the same outcome.
Id. at 541, 667 A.2d 624. Continuing, the Court explained that there was no evidence or dispute that the manufacturers did not sell or advertise to the plaintiffs, nor did they exert any influence over the sale or were otherwise involved. Id. at 542, 667 A.2d 624. The Court then cited cases where plaintiffs were allowed to proceed when the defendants had been accused of indirectly violating a statute. The Court differentiated between those cases, reasoning that the statutes involved all provided that the acts could be performed indirectly in order to subject one to liability.
Appellants contend that not only would Ms. Mathews' conversations with appellants regarding the Bridge Loan Program qualify as advertisements pursuant to the SMLL, but also that the brochures distributed by her company would qualify as well. As was explained above, Ms. Mathews was not a lender and not subject to the SMLL. However, the statute provides that a lender may not indirectly advertise. PNC could be held liable if it could be shown that, through some arrangement, Ms. Matthews actively advertised on behalf of PNC. Appellants contend that a five-step non-contingent Bridge Loan Program was advertised described as a "Buy-First-Sell-Later" process. Additionally, there appears to be no dispute that a non-contingent Bridge Loan does not exist at any of the banks involved. It is a question of fact whether there were any acts that could satisfy the advertisement requirement of Com. Law § 12-403. Considering the text of the statute and the context of the SMLL as a whole, the prohibition against false advertising applies to dissemination of information to the public and could include personalized "sales pitches" made by realtors. Accordingly, the circuit court erred in granting summary judgment as to the SMLL claim as to PNC.
Appellants filed their complaint as a class action and sought certification for the following class:
Following a hearing, the circuit court denied appellants class certification, finding that the proposed class was not numerous enough to warrant certification. On appeal, appellants argue that the circuit court erred in its conclusion and that the court improperly calculated the class size as the number of transactions instead of the number of persons. In contrast, appellees contend that appellants' estimate was speculative and accordingly, the circuit court did not err in denying class certification.
This Court has explained that the purposes of class actions are "to overcome the impracticalities of overtly cumbersome joinder requirements," and to "promote the objectives of judicial economy and access to the legal system, particularly for persons with small individual claims." Christensen v. Philip Morris USA Inc., 162 Md.App. 616, 640, 875 A.2d 823 (2005) (quoting Kirkpatrick v. Gilchrist, 56 Md.App. 242, 249, 467 A.2d 562 (1983) and Philip Morris, Inc. v. Angeletti, 358 Md. at 732, 752, 752 A.2d 200 (2000)). In order for an action to warrant class certification, it must meet the statutory requirements enumerated in Maryland Rule 2-231(a).
In its order denying class certification, the court found that appellants had met all of the prerequisites except for numerosity. The court explained that the estimated number of transactions was not so numerous that joinder was impracticable and that the method appellants employed to reach their estimate was not sufficient.
In Philip Morris, Inc. v. Angeletti, 358 Md. at 732, 752, 752 A.2d 200 (2000), the plaintiffs filed a class action against Phillip Morris and other tobacco companies for injuries suffered by using tobacco products. They filed a Md. Rule 2-231 motion for class certification, seeking to certify a class that included all Maryland
Maryland Rule 2-231 uses the same language as Federal Rule 23
Id.
Appellants also rely on Hoving v. Lawyers Title Ins. Co., 256 F.R.D. 555 (E.D.Mich.2009), in support of their argument
Returning to the case at bar, appellants argue that the court erred in two ways in denying class certification: by counting the number of transactions instead of people, which resulted in a class size of 20 to 34, and by finding that the method used to reach the estimate was not sufficient. Our task in reviewing the court's denial of class certification is to determine whether "no reasonable person would take the view adopted by the [trial] court." Mardirossian, 184 Md.App. at 217, 964 A.2d 713. The court's rationale for finding that the method of calculating the class size was not sufficient is explained below:
The court was concerned that the decision of what years to use in calculating the class size did not appear to be a reliable estimate. The court's concern arose from appellants' own statement during argument on class certification, that they "chose to add a year on each side" as a "buffer." Despite the court's concerns, it stated: "The [p]laintiffs failed to demonstrate numerosity, however, even if their method of estimating the size of the proposed class is acceptable under the law. The [c]ourt will not consider the year 2004 in determining the issue of numerosity. The [c]ourt, however, will consider 2008 because, if not for any other reason, all of the [d]efendants were employed in the positions they held during the time period of the alleged conspiracy." The court's finding that the method was insufficient was not determinative because the court accepted appellants' method in order to determine numerosity. The court did find that the class size was not large enough, given the insufficient number of transactions. In finding that it would consider
We conclude that the court did not abuse its discretion in finding that the class size consisted of the number of loan transactions and not the number of parties to the loans. The U.S. District Court stated in Mitchell that a class size of forty members can be sufficient to render a class large enough to make joinder impossible. However, the court found that the class size would likely be between 20 and 34 transactions, and therefore, was not large enough to warrant certification. The facts of this case differ from class actions where the harm suffered is based upon an act directed against an individual person. Here, the act was fraud arising out of each of the loan transactions. We agree with the circuit court that appellees' alleged fraud was committed in relation to each loan. It did not matter how many people were co-borrowers for each loan, but rather that the transaction itself that was allegedly fraudulent. Therefore, we hold that the circuit court did not abuse its discretion in denying appellant's class certification.
Appellants filed a second amended complaint on March 14, 2013. The amended complaint included a new Count XII against Mr. Northrop, the Northrop Team, Long & Foster, and three new parties, Ms. Northrop, Ms. Eagan and Lakeview Title Company, alleging violations of the Real Estate Settlements and Procedures Act ("RESPA")
Appellants argue that the court erred because the second amended complaint was "timely and appropriate." Appellees respond that the court did not strike the amended complaint on the grounds of timeliness and therefore the argument is baseless. We agree with appellees. The court indicated that prejudice to appellees
During discovery, appellants served a subpoena with a notice of deposition duces tecum on Lakeview. At this time in the litigation, Lakeview was not a party to the case and neither was Ms. Northrop. The subpoena sought in relevant part:
The Realtor appellees filed a motion for a protective order, requesting that the court prohibit the disclosure of the above requested information that was not related to appellants' loan transactions. They argued that the requested information was overly broad and that because Lakeview was not a party or mentioned in appellants' complaint, the information was unrelated to appellants' claims. Pursuant to an order from the court, Lakeview submitted the requested documents to the circuit court and the court performed an in camera review. Following the in camera review, the court granted the motion for protective order and quashed the subpoena. The court found that because neither Lakeview nor Ms. Northrop were parties to the action and none of the documents related to transactions involving any of appellants, that the documents were not responsive to the issues of appellants lawsuit.
On appeal, appellants contend that Ms. Northrop provided testimony, approximately nine months after the grant of the protection order, that rendered the compensation records relevant. They maintain that based on the later testimony, the circuit court's grant of the protective order was an abuse of discretion because the documents were relevant. The Realtor appellees respond that the court's ruling was not an abuse of discretion because at the time Lakeview and Ms. Northrop were not parties to the action and the documents were not related to any claim.
Maryland Rule 2-403 governs protective orders.
When a party requests a protective order, it is within the purview of the circuit court to first examine the documents in camera, in order to determine whether to grant the
In Tanis v. Crocker, 110 Md.App. 559, 678 A.2d 88 (1996), the plaintiff and defendant had previously been married to one another. Id. at 566, 678 A.2d 88. Upon divorce, the court entered a child support order regarding the parties two children. Id. at 567, 678 A.2d 88. Several years later, the plaintiff sought that the child support be modified. Id. During the proceedings, the plaintiff requested that the defendant produce unredacted income tax returns for several years, information regarding a home mortgage he had applied for and information regarding the sale of his home. Id. at 572, 678 A.2d 88. The defendant filed a motion for a protective order, arguing that he had provided the plaintiff with his W2's which contained the same information as the income tax returns and that some of the information from his mortgage and home sale documents could be used against him in another pending litigation between the two. Id. at 573, 678 A.2d 88. The court granted the defendant's motion and the plaintiff appealed.
We explained that a "trial court [does] not abuse its discretion when it grant[s a protective order] motion as long as good cause was shown and the order was issued to protect appellee from annoyance, embarrassment, oppression or undue burden or expense." Id. at 574, 678 A.2d 88. We then turned to federal decisions construing Federal Rule of Civil Procedure 26
Returning to the instant case, the circumstances differ from those presented in Tanis because the party from which the documents were sought was not a party to the action. Additionally, the information sought was regarding another non-party. The Realtor Appellees argued, and the circuit court agreed, that because the documents sought were not related to a party to the action or related to any of the causes of action asserted in appellants' complaint, that the documents were not relevant. Before this Court, appellants contention that the court abused its discretion rests on events that occurred after the motion for protective order. More than one year after the original request for documents from Lakeview and more than six months after the court's grant of the protective order, appellants attempted to add claims against Lakeview and Ms. Northrop in their second amended complaint.
Sass v. Andrew, 152 Md.App. 406, 429, 832 A.2d 247 (2003). To establish negligent representation, a plaintiff must show:
Lloyd v. Gen. Motors Corp., 397 Md. 108, 135-36, 916 A.2d 257 (2007).
The Court explained that by contracting to not directly or indirectly compete with the plaintiff, the father could "neither compete himself, no employ or combine with others to do it. What he [could not] do directly, he [could not] do indirectly." Id. at 570. After explaining that the covenant clearly prohibited the father from participating in any way in competition with the plaintiff, the Court opined: "the defendant could, not only not become interested in any opposition, but that he could not, in any manner, aid or become instrumental in setting up, or carrying on, an opposition line of stages; and that without such construction, the word "indirect," employed in the contract, would have no meaning or effect whatever.")
Federal Rules of Civil Procedure, Rule 23.
Fed.R.Civ.P. 26(c)(1).
