Mills v. Galyn Manor Homeowner's Ass'n, Inc. , 239 Md. App. 663 ( 2018 )

David Mills, et al. v. Galyn Manor Homeowner’s Association, Inc., No. 1460, Sept. Term
2017. Opinion filed on December 21, 2018, by Berger, J.
CONSUMER PROTECTION - DEBT COLLECTION - HIRING ATTORNEYS TO
COLLECT DEBTS
Both the Federal Fair Debt Collection Practices Act (“FDCPA”) and the Maryland
Consumer Protection Act (“MCPA”) contain statutory exemptions for attorneys. Unlike
the FDCPA, which only imposes liability on “debt collectors,” the MCPA functions to hold
any “person” liable whether or not that person holds herself out as a professional debt
collector. Compare Md. Code (1975, 2013 Repl. Vol.), § 13-303, of the Commercial Law
Article (“CL”), with 15 U.S.C. § 1692f.
As a matter of public policy, under the FDCPA, a defendant is not ordinarily liable for her
attorney’s illegal debt collection activities unless the defendant independently qualifies as
a person subject to liability, i.e., a debt collector. In contrast, when the defendant is
independently subject to liability, i.e., a “person” under the MCPA, the defendant may be
held liable for her attorney’s actions because the defendant’s decision to hire an attorney
to engage in debt collection may be predicated on avoiding liability.
STATUTORY EXEMPTIONS - VICARIOUS LIABILITY
The principal in an agency relationship is not shielded from liability for the agent’s actions
simply because the agent is statutorily exempt. The principal must establish an
independent basis to receive the benefit of a statutory exemption.
UNFAIR DEBT COLLECTION - CHALLENGING THE VALIDITY OF A DEBT
The plaintiffs brought a viable Maryland Consumer Debt Collection Act claim where they
challenged the defendant’s right to file liens rather than the amount the defendant attempted
to collect. In alleging that the statute of limitations under the Maryland Contract Lien had
passed, the plaintiffs properly challenged the defendant’s methods of debt collection.
BREACH OF CONTRACT - STATUTE OF LIMITATIONS - CONTINUING HARM
The “continuing harm doctrine” tolls the statute of limitations in cases where there are
continuous unlawful acts, but not in cases where damages continue to accrue from a single
earlier breach of contract.
CONVERSION - MISAPPROPRIATION OF GARNISHED FUNDS
The circuit court did not err in granting the defendant judgment as a matter of law on the
plaintiffs’ conversion claim. The plaintiffs alleged that a conversion occurred when the
defendant failed to reduce the plaintiffs’ debt with garnished funds. The plaintiffs did not
have a right to possess the money at the time of the alleged misappropriation. The
plaintiffs, therefore, had no conversion claim.
Circuit Court for Frederick County
Case No. 10-C-16-000961
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1460
September Term, 2017
DAVID MILLS, ET AL.
v.
GALYN MANOR HOMEOWNER’S
ASSOCIATION, INC.
Berger,
Arthur,
Leahy,
JJ.
Opinion by Berger, J.
Filed: December 21, 2018
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
2018-12-21
14:06-05:00
Suzanne C. Johnson, Clerk
This case arises out of an action filed in the Circuit Court for Frederick County by
appellants, David and Tammy Mills (the “Homeowners”) against appellee, Galyn Manor
Homeowners Association, Inc. (“Galyn Manor”). In 2016, the Homeowners filed a
complaint challenging the way Galyn Manor calculated and collected debts. The
Homeowners specifically alleged violations of the Maryland Consumer Protection Act and
the Maryland Consumer Debt Collection Act, in addition to claims of conversion and
breach of contract.1 Thereafter, Galyn Manor filed a motion for summary judgment. The
circuit court granted Galyn Manor’s motion on the debt collection and consumer protection
claims. The court also disposed of the conversion and contract claims that arose prior to
April 1, 2013, ruling that those claims were time-barred. Any claims arising after that date
proceeded to trial. At trial, the court granted Galyn Manor’s motion for judgment at the
close of the Homeowners’ case-in-chief, ruling that the Homeowners did not present
sufficient evidence to satisfy the elements of either cause of action.
On appeal, the Homeowners pose four questions, which we set forth verbatim.
1. Did the Circuit Court err by concluding the Maryland
Consumer Protection Act didn’t apply to Appellant’s
claims of unfair and deceptive trade practices?
2. Did the Circuit Court err by concluding that the Maryland
Consumer Debt Collection Act does not protect consumers
who claim that a collector is collecting or attempting to
collect an invalid debt?
1
The Homeowners also sought an injunction and alleged malicious use of process,
fraud, and defamation. The circuit court granted Galyn Manor judgment as a matter of law
on each of these claims. The Homeowners do not appeal the disposition of these claims.
3
3. Did the Circuit Court err by ruling that all evidence of
breach of contract, collection activity and conversion
occurring prior to April 1, 2013 was time-barred?
4. Did the Circuit Court err by granting judgment in
Appellee’s favor on the breach of contract and conversion
claims?
For the reasons explained herein, we affirm in part and reverse in part, and remand the case
for further proceedings.
FACTS AND PROCEEDINGS
The Homeowners own a home in Frederick, Maryland and are members of Galyn
Manor, a homeowners’ association (“HOA”). As members of the HOA, the Homeowners
are bound by Galyn Manor’s governing documents. The governing documents contain the
bylaws and declaration of covenants, conditions, restrictions, and easements. The bylaws
and declaration require members to comply with certain rules and restrictions, and to pay
yearly assessment fees, due in quarterly installments. The declaration sets forth the way
delinquent assessments accrue interest and late fees. Galyn Manor may also seek
attorney’s fees and costs in collecting unpaid assessments. To secure the payment of
assessment fees, Galyn Manor holds a continuing lien on each member’s property.
The governing documents also authorize Galyn Manor to fine members who violate
certain sections of the declaration and bylaws. For example, fines are permitted when a
member constructs a structure on a lot without the HOA’s permission. The declaration
includes trailers in its definition of a “structure.” These fines may be enforced and collected
in the same manner as unpaid assessments.
4
In February 2007, Galyn Manor’s former management company -- Chambers
Management, Inc. (“Chambers”) -- discovered that the Homeowners regularly parked a
large trailer on their property overnight. Chambers notified the Homeowners that this
conduct was in violation of the HOA’s governing documents. Chambers further advised
the Homeowners that they would be subject to a $50 fine for each day that the trailer was
parked on their property. The Homeowners were given thirty days to correct the violation.
Chambers sent the Homeowners four more letters between April and October 2007, but the
Homeowners did not take any corrective action. On October 24, 2007, Chambers sent
another letter to the Homeowners, informing them that the Homeowners owed $645 in
fines. The letter further provided that it was the Homeowners’ final notice, that the
Homeowners had until November 26 to pay, and that the letter served as “an attempt to
collect a debt[.]”
In December 2007, Galyn Manor retained Andrews & Lawrence Professional
Services, LLC (“Andrews”) to provide legal services and to collect overdue assessments.
By March 2008, the Homeowners accrued $1,500 in parking violations, while also falling
behind on their quarterly assessment payments. Andrews notified the Homeowners in
April 2008 that it represented Galyn Manor and that the Homeowners owed $2,632.84 in
“assessments due, late fees and costs of collections, including attorney’s fees, authorized
by the Declaration.” The letter did not specifically provide whether the fines from the
parking violations were included in the stated amount. Andrews warned the Homeowners
that it would accelerate the debt and file a lien if the Homeowners did not satisfy the debt
within thirty days.
5
Andrews further provided the Homeowners with notice of their rights under the
Maryland Contract Lien Act (“MCLA”). Specifically, Andrews advised the Homeowners
that the debt would be presumed valid unless the Homeowners disputed its validity within
thirty days. The Homeowners did not dispute the debt or otherwise respond to the letter
within the thirty-day period. Andrews also attached a statement of the Homeowners’
account, which itemized each individual charge. A statement of lien was filed and recorded
in June 2008 in the amount of $3,581.88. This amount represented the amount due and
owing at the time, i.e. $2,632.84, plus interest, late fees, attorney’s fees, and costs.
The Homeowners responded to the notice on August 28, 2008. In a handwritten
letter to Andrews, the Homeowners agreed to “make payment arrangements for all overdue
quarterly HOA dues[,]” but “dispute[d] the validity of all other fines.” The Homeowners
further stated that they were preparing “factual evidence to proceed with a hearing.” The
Homeowners did not explain their failure to respond within the thirty-day period.
Andrews sent the Homeowners a second notice of acceleration and intent to file a
lien in August 2010. Andrews stated that the Homeowners owed $4,256.88 in assessments,
late fees, costs, and attorney’s fees. Andrews again provided the Homeowners with their
rights under the MCLA, and the Homeowners again failed to respond within thirty days.
Thereafter, a statement of lien in the amount of $4,791.58 was filed and recorded.
On October 14, 2010, Galyn Manor filed a complaint against the Homeowners in
the District Court for Frederick County. The District Court entered judgment in favor of
Galyn Manor in the amount of $1,872.93. In July 2011, Andrews filed a writ of
garnishment on behalf of Galyn Manor, seeking to garnish funds in the Homeowners’ bank
6
account to satisfy the judgment. Shortly thereafter, the Homeowners asked Galyn Manor
to rescind the garnishment. Galyn Manor agreed to rescind the garnishment on the
condition that the Homeowners sign a promissory note. Thereafter, a promissory note for
$3,429 was executed. The note obligated the Homeowners to make monthly payments of
$130. The note also included a confession of judgment and a waiver of exemptions.
The Homeowners made two timely payments on the promissory note before
defaulting. Galyn Manor filed a complaint for judgment by confession in the District Court
for Frederick County, seeking $2,069 -- the remaining amount owed on the promissory
note -- plus $413.80 in attorney’s fees.2 On July 18, 2013, the District Court awarded
Galyn Manor judgment. Galyn Manor filed another District Court complaint in August
2014 and a consent judgment of $3,297.53 was entered on November 7, 2014. On May
14, 2015, Galyn Manor garnished $3,497.53 from the Homeowners’ bank account. Despite
the garnishment, the record demonstrates that the Homeowners remained at least $5,000 in
arrears.
After nearly ten years of collection efforts, the Homeowners commenced this suit
on April 1, 2016. In March 2017, the Homeowners filed an amended complaint alleging
that Galyn Manor’s collection efforts violated the Maryland Consumer Protection Act
(“MCPA”) and the Maryland Consumer Debt Collection Act (“MCDCA”). The
Homeowners also brought conversion and breach of contract claims. Galyn Manor filed a
2
After defaulting, the Homeowners reduced the underlying balance by making
sporadic payments.
7
third-party complaint against Andrews, contending that Andrews agreed to indemnify
Galyn Manor for any liability.
In a memorandum opinion, the Circuit Court for Frederick County granted Galyn
Manor’s summary judgment motion on the MCPA claim, noting that the statute specifically
exempts attorneys. As a result, the circuit court held that Galyn Manor could not be held
vicariously liable. The circuit court also awarded Galyn Manor judgment as a matter of
law on the MCDCA claim, ruling that the Homeowners improperly used the statute as a
vehicle to dispute the validity of the debt, whereas the statute only proscribes certain
methods of collecting the debt.
Finally, the court granted Galyn Manor judgment as a matter of law on the
conversion and breach of contract claims that arose before April 1, 2013, holding that those
alleged breaches were barred by the statute of limitations. The Homeowners’ claims that
arose after April 1, 2013 proceeded to trial. At the close of the Homeowners’ case, the
court awarded Galyn Manor judgment as a matter of law, concluding that the Homeowners
did not present sufficient evidence to satisfy the elements of a breach of contract or
conversion claim. This appeal followed.
STANDARD OF REVIEW
The Homeowners challenge both the circuit court’s grant of summary judgment and
the grant of Galyn Manor’s motion for judgment at trial. “[T]hese rulings were premised
on purely legal issues,” therefore, “we apply the same standard of review.” Golub ex rel.
Golub v. Cohen, 138 Md. App. 508, 516 (2001). Under the Maryland rules, a circuit court
“shall enter judgment in favor of or against the moving party if the motion and response
8
show that there is no genuine dispute as to any material fact and that the party in whose
favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(f).
“The purpose of the summary judgment procedure is not to try the case or to decide
the factual disputes, but to decide whether there is an issue of fact, which is sufficiently
material to be tried.” Jones v. Mid-Atl. Funding Co., 362 Md. 661, 675 (2001) (citations
omitted). Thus, “[i]n reviewing the grant of a summary judgment motion, we are
concerned with whether a dispute of material fact exists,” id. (citations omitted), and our
review is de novo. MAMSI Life & Health Ins. Co. v. Callaway, 375 Md. 261, 278
(2003) (citing Green v. H & R Block, Inc., 355 Md. 488, 502 (1999)). In doing so, we
review the same record and issues of law as the trial court and are “tasked with determining
whether the trial court reached the correct result as a matter of law.” Id. (citing Tyma v.
Montgomery Cnty., 369 Md. 497, 504 (2002); Murphy v. Merzbacher, 346 Md. 525, 530-
31 (1997)). We view the evidence in the light most favorable to the Homeowners as the
nonmoving party. Jones, supra, 362 Md. at 676.
DISCUSSION
I.
The Homeowners first contend that the circuit court erred in granting Galyn Manor
judgment as a matter of law on their MCPA claim. The MCPA prohibits deception or other
misleading conduct in the collection of consumer debts. Md. Code (1975, 2013 Repl.
Vol.), § 13-303(5), of the Commercial Law Article (“CL”). The Homeowners seek to hold
Galyn Manor liable for Andrews’ conduct in collecting debts under a theory of respondeat
superior. Galyn Manor correctly points out that the MCPA does not apply to “[t]he
9
professional services of a … lawyer[.]” Galyn Manor contends that it did not engage in
any collection efforts of its own, and further argues that the attorneys for Andrews are
clearly exempt from liability under the statute. Consequently, Galyn Manor argues that it
may not be held directly or vicariously liable. The circuit court agreed with Galyn Manor,
holding:
All of the collection activities against [the Homeowners] were
conducted by [Andrews] on behalf of Galyn; however, the
MCPA exempts attorneys from being held liable under the
Act[.]
***
Therefore, Andrews cannot be held liable under [the]
MCPA. Also, [the Homeowners] cannot impute liability to an
attorney’s client (Galyn) under [the] MCPA. Fontell v.
Hassett, 870 F. Supp. 2d 395, 414 (D. Md. 2012) addressed the
issue of an HOA being vicariously liable for the collection
activities of their attorney. The Court held that since the law
firm was not subject to liability, the law firm’s client could not
be held vicariously liable under the Act. For these reasons, this
Court must grant summary judgment in favor of Galyn on
Count V.
For the reasons that follow, we disagree and reverse the circuit court’s entry of summary
judgment in connection with the Homeowners’ MCPA claim.
In Fontell, 870 F. Supp. 2d at 411-14, the United States District Court for the District
of Maryland held that a HOA could not be held vicariously liable under the Fair Debt
Collection Practices Act (“FDCPA”) when the HOA did not independently qualify as a
debt collector under the statute. The court observed that, from a policy perspective, “[a]
debt collector should not be able to hire an attorney to engage in illegal debt collection
practices on its behalf as a means of avoiding liability under the FDCPA.” Id. at 412.
10
Nevertheless, the court held that “if the client is not a debt collector subject to liability
under the FDCPA itself, then its decision to hire an attorney to engage in debt collection
practices on its behalf would not be predicated on evading FDCPA liability, and imputing
liability under those circumstances would not further the interests of the Act.” Id.
Contrary to Galyn Manor’s contention, Fontell does not stand for the proposition
relied upon by the circuit court because Galyn Manor is potentially subject to liability under
the MCPA. Unlike the FDCPA which only imposes liability on “debt collector[s,]” the
MCPA -- with some statutory exemptions -- functions to hold any “person” liable, whether
or not that person holds herself out as a professional debt collector. CL § 13-303; compare
15 U.S.C. § 1692f. Critically, the Fontell court noted that “[a] debt collector should not be
able to hire an attorney to engage in illegal debt collection practices on its behalf as a means
of avoiding liability under the FDCPA.” Fontell, supra, 870 F. Supp. 2d at 412. In this
case, Galyn Manor qualifies as a “person” subject to liability under the MCPA. Therefore,
“it would be improper for [Galyn Manor] to evade liability … by hiring an attorney to
commit violations on its behalf.” Id. (citing Fox v. Citicorp Credit Servs., Inc., 15 F.3d
1507, 1516 (9th Cir. 1994)).
In addition, Galyn Manor contends that a theory of recovery under respondeat
superior is not viable where the agent is exempt from liability. In doing so, Galyn Manor
cites to our recent opinion in Women First OB/GYN Assocs., LLC v. Harris, 232 Md. App.
647, 658 (2017), cert. denied 456 Md. 73 (2017). In our view, Galyn Manor’s reliance on
Women First is misplaced. In that case, we observed that “the Maryland appellate courts
have recognized two situations in which the resolution of a tort claim against an employee
11
acting within the scope of his employment will preclude respondeat superior liability on
the part of the employer: exoneration of the employee … and release of the employee[.]”
Id. (citations omitted). Neither Galyn Manor nor Andrews argue that Andrews was
exonerated or voluntarily released from liability. We did not address statutory exemptions
in Women First, and nothing in our opinion in this case should be construed as creating a
third category.
Notably, there are several reported opinions in Maryland that discuss whether a
principal may be held vicariously liable when the agent is immune. In D’Aoust v. Diamond,
424 Md. 549, 607 (2012), the Court of Appeals held that “unless there is an independent
source of immunity for the employer or principal, the cause of action premised on vicarious
liability can be brought even if the employee or agent is entitled to immunity.” More
recently, the Court of Appeals revisited its holding in D’Aoust to determine whether an
employer could assert an employee’s immunity under the Good Samaritan Act.3
TransCare Md., Inc. v. Murray, 431 Md. 225 (2013). The Court rejected the employer’s
“attempts to distinguish D’Aoust on the basis that it concerned common law immunity
rather than statutory immunity[,]” holding that “its conclusion applied to the concept of
immunity generally as it relates to causes of action based on vicarious liability.” Id. at 242.
Accordingly, the Court held that the employer could be held vicariously liable even
though the tortfeasor was immune from liability. Id. See also James v. Prince George’s
Cnty., 288 Md. 315, 332 (1980) (“As a general rule … the master remains liable for the
3
Immunity under the Good Samaritan Act is codified in CJ § 5-603.
12
servant’s conduct even though the servant is himself not liable because of a personal
immunity.”). We, therefore, hold that the circuit court erred, as a matter of law, in allowing
Galyn Manor to assert Andrews’ personal exemption. In short, Galyn Manor is not
shielded from liability under the MCPA simply because Andrews is exempt. TransCare,
Md., 431 Md. at 243.4
Galyn Manor and Andrews also urge us to conclude that the Homeowners’ debts
did not arise out of a consumer transaction. They further contend that, assuming the debts
arose out of consumer transactions, their claim under the MCPA is nevertheless barred by
the statute of limitations.5 The circuit court did not address any of these issues in its
memorandum opinion. As a result, we limit our opinion to the sole basis relied upon by
the circuit court in granting Galyn Manor’s motion for summary judgment. We, therefore,
reverse the circuit court’s order granting summary judgment on the Homeowners’ claim
under the MCPA, and remand the Homeowners’ MCPA claim for the circuit court’s
consideration consistent with this opinion. Nevertheless, on remand, the circuit court may
certainly consider these issues in the context of any additional motion for summary
judgment filed in this case.
4
To the extent that Galyn Manor or Andrews contend that a statutory exemption
differs from statutory immunity, we disagree. See Catonsville Nursing Home, Inc. v.
Loveman, 349 Md. 560, 576 (1998) (“BLACK’S LAW DICTIONARY 571 (6th ed. 1990), as
relative to the case at bar, defines exemption as: ‘Freedom from a general duty or service;
immunity from a general burden.’”). Clearly, the Court of Appeals has treated “immunity”
and “exemption” as synonyms, and we similarly do so here.
5
Galyn Manor and Andrews further maintain that the Homeowners have not
presented any issue of material fact precluding judgment as a matter of law in connection
with their claim under the MCPA.
13
II.
We next consider whether the circuit court erred in awarding Galyn Manor
judgment as a matter of law on the Homeowners’ MCDCA claim. The Homeowners
contend that Galyn Manor violated the MCDCA when Galyn Manor attempted to collect
the Homeowners’ overdue assessments, levied unauthorized fines against the
Homeowners’ account, charged interest and late fees, and filed liens that were allegedly in
violation of the MCLA. In relying on a case from the United States District Court for the
District of Maryland, the circuit court ruled as follows:
[The Homeowners’] claims under [the] MCDCA are
based on the argument that the underlying debt and associated
fees, fines, liens, and costs were invalid. But [the] MCDCA
provides no basis for liability in contesting the underlying debt
but rather, only the methods used to collect any alleged debt.
Accordingly, this Court will grant summary judgment in favor
of Galyn on [the MCDCA claim].
(citing Fontell v. Hassett, 870 F. Supp. 2d 395 (D. Md. 2012)).6
The principal issue raised by the Homeowners on appeal is whether the circuit court
improperly interpreted Fontell, and misread CL § 14-202(8) in ruling that the statute may
not be used to challenge the underlying validity of a debt. The Homeowners further
6
In Fontell, supra, 870 F. Supp. 2d at 405, the United States District Court for the
District of Maryland examined, in dicta, whether a plaintiff may bring a MCDCA claim to
challenge the validity of a debt. In that case, the plaintiff brought a MCDCA claim against
a HOA arguing that the HOA charged the plaintiff an assessment that the plaintiff had
already paid in full. Id. The plaintiff attributed the charge to a “billing error.” Id. The
court dismissed the plaintiff’s MCDCA claim stating that the MCDCA “is meant to
proscribe certain methods of debt collection and is not a mechanism for attacking the
validity of the debt itself.” Id. (emphasis in original).
14
contend that even if the circuit court correctly interpreted the statute, only some of the
Homeowners’ claims challenged the validity of the underlying debt, while several claims
challenged the methods of collection.
CL § 14-202(8) provides, in pertinent part, that “[i]n collecting or attempting to
collect an alleged debt a collector may not … [c]laim, attempt, or threaten to enforce a right
with knowledge that the right does not exist[.]” Under CL § 1-201(b)(34), the definition
of “right” includes “remedy.” “‘Remedy’ ‘means any remedial right to which an aggrieved
party is entitled with or without resort to a tribunal.’” CL § 1-201(b)(32). “To state a claim
under the [statute], [the Homeowners] must establish two elements: (1) [Galyn Manor] did
not possess the right to collect the amount of debt sought; and (2) [Galyn Manor] attempted
to collect the debt knowing that [it] lacked the right to do so.” Barr v. Flagstar Bank, FSB,
303 F. Supp. 3d 400, 420 (D. Md. 2018) (citation omitted).
Notably, there is only one reported opinion in Maryland that discusses whether a
plaintiff may use the MCDCA to challenge the validity of a debt. In Allstate Lien &
Recovery Corp. v. Stansbury, 219 Md. App. 575, 578 (2014), aff’d 445 Md. 187 (2015), a
vehicle repair shop billed an owner of a vehicle for repairs, but the owner was unable to
pay the bill in full. The shop filed a “garageman’s lien” with the Motor Vehicle
Administration and included a $1,000 processing fee in the lien amount.7 Id. at 579. The
vehicle owner sued the repair shop alleging that the garageman’s lien statute did not
7
The “garageman’s lien” statute is codified in CL § 16-202.
15
authorize processing fees, and therefore, the shop did not have the right to enforce the lien.
Id. at 582.
In its opposition, the repair shop relied on Fontell, contending that the vehicle owner
could not use the MCDCA to challenge the validity of the debt. Id. at 591. We expressly
noted that Fontell was “not helpful” because the vehicle owner never “disputed that he
owed the underlying debt.” Id. Instead, the vehicle owner challenged “the method of
collecting the debt, i.e., … including [processing] fees as part of the lien.” Id. Accordingly,
we held that the repair shop “did not have the right to include processing fees in the lien.”
As a result, the vehicle owner could succeed on his MCDCA claim. Id.
More recently, the United States District Court for the District of Maryland applied
our holding in Allstate Lien to determine what type of challenge is appropriate under CL §
14-202(8). In Barr, supra, 303 F. Supp. 3d at 419, the plaintiffs brought an MCDCA action
against a debt collector, alleging that the collector attempted to “collect past due payments,
late fees, and a per month payment they did not owe.” Id. at 420. The plaintiffs argued
that the collector failed to credit the amounts the plaintiffs already paid. Id. The court
dismissed the plaintiffs’ MCDCA claim, holding that “the [plaintiffs] dispute[d] the
amount owed, and this is not sufficient to state a MCDCA claim.” Id. Nevertheless, the
court observed that the plaintiffs’ claim would have survived dismissal had the plaintiffs
claimed that “that the amounts [the debt collector] sought to collect exceed[ed] the amount
owed as a result of the debt collector’s inclusion of an unauthorized charge.” Id. (citation
omitted).
16
Here, Galyn Manor contends that the Homeowners may not recover under the
MCDCA because the Homeowners are challenging the validity of the underlying debt.
Only a few of the Homeowners’ allegations, however, actually challenge the amount of
debt sought. Indeed, the Homeowners stated in their amended complaint that Galyn Manor
lacked the legal right to file liens because the statute of limitations had passed under the
MCLA.
In our view, the claim by the Homeowners is similar to the processing fee in Allstate
Lien. In Allstate Lien, we held that a party brought a viable MCDCA claim where he
acknowledged that he owed the underlying debt, but disputed the inclusion of a $1,000
processing fee in the lien. Similarly, the Homeowners acknowledge that they owed several
months of delinquent assessment fees. Critically, however, the Homeowners challenged
Galyn Manor’s right to file liens because the statute of limitations under the MCLA had
passed. Accordingly, the Homeowners may pursue a MCDCA claim because they
challenge Galyn Manor’s methods in filing liens. Therefore, the circuit court erred in
ruling -- as a matter of law -- that all of the Homeowners’ MCDCA allegations challenged
the validity of the underlying debt.
We further note that the Homeowners’ primary contention is that Galyn Manor
levied fines against the Homeowners that were not authorized by the HOA’s governing
documents. On remand, we direct the circuit court to consider whether these fines are the
type of “unauthorized” charges covered by the statute.
We, therefore, vacate and remand the circuit court’s granting of judgment as a
matter of law on the Homeowners’ MCDCA claim. We further direct the circuit court to
17
determine, in light of Allstate Lien and Barr, whether there is any dispute of material fact
as to whether Galyn Manor had the right to collect each debt, and if not, whether Galyn
Manor knew that it did not have such right.8
III.
The circuit court held that the Homeowners’ breach of contract claims that arose
before April 1, 2013 were barred by the statute of limitations. In a complaint for breach of
contract, the Maryland Code dictates the time period in which a claim must be filed:
A civil action at law shall be filed within three years from the
date it accrues unless another provision of the Code provides a
different period of time with which an action shall be
commenced.
Md. Code (1973, 2013 Repl. Vol.), § 5-101, of the Courts & Judicial Proceedings Article
(“CJ”).
The Homeowners had three years from the date of accrual of their cause of action
to file a timely complaint. The date of accrual begins “on the date when the plaintiff knew
or, with due diligence, reasonably should have known of the wrong.” Bacon v. Arey, 203
Md. App. 606, 652 (2012) (citation omitted).
The Homeowners argue that Galyn Manor breached the declaration when it levied
fines, fees, interest, costs, and attorney’s fees on their account. The record reflects that the
8
We do not address the Homeowners’ contention that Galyn Manor had any
knowledge as to the validity of the debt. We have limited our opinion to the sole basis
relied upon by the circuit court in granting Galyn Manor’s motion for summary judgment.
As discussed, supra, the Homeowners’ claim need not proceed to trial if the circuit court
finds no genuine dispute of material fact and determines that Galyn Manor is entitled to
judgment as a matter of law.
18
Homeowners were served with several letters in 2007 and 2008. The letters provided the
amounts the Homeowners owed in fines for parking a trailer on their property. The
Homeowners also fell behind on their quarterly assessment payments and were
subsequently notified that the unpaid assessments were accruing interest, late fees, and
attorney’s fees. The basis of the alleged breach of contract is that the declaration did not
authorize these types of charges.
The Homeowners discovered the alleged breach by no later than August 2008 when
they responded to a notice of acceleration and intent to file a lien. The Homeowners sent
a letter on August 28, 2008 -- after the lien had already been filed -- responding to the
notice. In the signed letter, the Homeowners agreed to “make payment arrangements for
all overdue quarterly HOA dues[,]” but “dispute[d] the validity of all other fines.” Clearly,
the statute of limitations on the breach of contract claim began to run in 2008.
In their attempt to revive the breach of contract claim, the Homeowners urge us to
apply the “continuing harm doctrine.” This doctrine tolls the statute of limitations in cases
where there are continuing violations. See Litz v. Md. Dep’t of Env’t, 434 Md. 623, 646
(2013). Maryland’s theory of continuing breach of contract is a limited one, however. To
apply the continuing harm doctrine, the breach itself -- rather than the damages -- must be
continuing in nature. If the allegation “is more properly understood as the ‘continuing
effects of a single earlier act’” then the limitations period is not tolled. Bacon, supra, 203
Md. App. at 662 (quoting MacBride v. Pishvaian, 402 Md. 572, 584 (2007) (“Continuing
violations that qualify under this theory are continuing unlawful acts, for example a
monthly over-charge of rent, not merely the continuing effects of a single earlier act.”),
19
abrogated on other grounds by Litz, supra, 434 Md. 623). Further, “[b]are assertions that
there is a continued course of conduct … [are] not enough to toll the statute of limitations.”
Bacon, supra, 203 Md. App. at 662.
Galyn Manor imposed fines on the Homeowners after the Homeowners repeatedly
parked a trailer on their property. The Homeowners contend that the imposition of these
fines violated the declaration, thereby establishing the breach of contract claim. These
fines then allegedly “begat interest, costs, attorney’s fees, and the filing of illegal liens[,]”
which, in the Homeowners’ view, created a subsequent breach of contract claim. Despite
warning Galyn Manor in August 2008 that they planned to formally contest the validity of
the fines, the Homeowners waited until April 2016 to file their complaint. The
Homeowners now argue that the statute of limitations for this claim was tolled because
Galyn Manor’s efforts in collecting the payment of the fines, by adding additional charges
and filing liens, constitute a continued harm. We disagree.
The continuing harm doctrine is not applicable in this case. In arguing that the
continuing harm doctrine applies, the Homeowners rely solely on the Court of Appeals’
opinion in Litz. We are not persuaded by the Homeowners’ reliance on Litz in their attempt
to frame Galyn Manor’s efforts in collecting the payment of the fines as continuous
breaches. There is simply no continuing duty of the sort explained in Litz that precludes
judgment as a matter of law. See Litz, 434 Md. at 648-49 (applying the doctrine in a
nuisance and negligence case, where the defendant had a continuous, ongoing duty to
control the discharge of contaminated ground and surface water).
20
In contrast, our recent opinion in Walton v. Network Solutions, 221 Md. App. 656(2015) is far more applicable. In that case, the defendant sent the plaintiff a string of email
solicitations. Id. at 674. The plaintiff requested that his email address be removed from
the mailing list, and one of the defendant’s employees confirmed that his address would be
removed. Id. Nevertheless, the plaintiff still received a similar email the next month, and
he continued to receive emails for two more years. Id. The plaintiff then brought a MCPA
claim against the defendant alleging that the employee’s prior statement was a
misrepresentation in violation of the MCPA. Id. at 675. We rejected the plaintiff’s attempt
to apply the continuing harm doctrine because the defendant made only one
misrepresentation. Id. at 676-77. We held that the allegation of a single breach was
insufficient to toll the limitations period even though damages may have continued to
accrue. Id.
In this case, there was only one breach from which all of the Homeowners’ alleged
harm flowed, and that was Galyn Manor’s imposition of fines related to the parking of the
trailer. Those fines were levied in 2007 and 2008 -- eight years before the Homeowners
filed their complaint. While we dealt with a different claim in Walton, the key facts are
substantially the same. As we held in Walton, it is insufficient to claim that damages
continue to flow from a single breach. In short, Galyn Manor’s various attempts to collect
payment of the fines constitute the “continuing effects of a single earlier act.” Bacon, 203
Md. App. at 662. As such, Galyn Manor’s actions do not, however, constitute “continuing
unlawful acts.” Id. See also Bey v. Shapiro Brown & Alt, LLP, 997 F. Supp. 2d 310, 316-
17 (D. Md. 2014) (declining to apply the continuing harm doctrine in a federal debt
21
collection case, holding that the “statute of limitations is not reset by each communication
where … the subsequent communications are continued efforts to collect the same
debt[.]”).
The Homeowners further maintain that it is “unreasonable, illogical, unjust, or
inconsistent with common sense” to impose a three-year statute of limitations on their
breach of contract claim, while providing Galyn Manor with twelve years to foreclose on
its liens. We refrain from entertaining this policy argument that is better addressed to the
legislature. Griffin v. Bierman, 403 Md. 186, 211 (2008) (“Our duty is not to substitute
our own judgment of what the law ought to be for what the Legislature declares it should
be.”).
The circuit court, therefore, did not err in granting Galyn Manor’s motion for
summary judgment because the claims that arose before April 1, 2013 were barred by the
statute of limitations. Thus, the court properly limited the claims that arose after April 1,
2013 to proceed to trial.
The Homeowners also appear to contend that even if the fines were legitimate,
Galyn Manor breached the declaration because the declaration “does not sanction the filing
of MCLA liens based on non-assessments.” We disagree. Without addressing whether the
fines were authorized, Galyn Manor maintains that it imposed the fines pursuant to Article
III of the declaration. That article specifically provides that the fines are “subject to
enforcement in the same manner as assessments under Article IX” of the declaration.
Article IX affords Galyn Manor the right to file liens pursuant to the MCLA to collect
assessment payments. These articles, taken together, demonstrate that the declaration did
22
provide Galyn Manor with the right to file liens to collect payment of the fines because the
fines “were contractually treated as assessments.” See, e.g., Agrelo v. Affinity Mgmt.
Servs., LLC, 841 F.3d 944, 951-52 (11th Cir. 2016) (“By agreeing to the terms of the
governing documents, the homeowners acknowledged that a failure to comply with HOA
requirements could result in a fine that would be deemed and treated as an individual
assessment.”). Thus, the filing of liens did not constitute a breach of the declaration.
IV.
The circuit court allowed the Homeowners’ breach of contract claims that arose
after April 1, 2013 to proceed to trial. After the Homeowners presented their case-in-chief,
the circuit court awarded Galyn Manor judgment as a matter of law. In the questions
presented and conclusion of their brief, the Homeowners state that the circuit court erred
in granting Galyn Manor’s motion for judgment on the breach of contract claim.
The Homeowners do not, however, provide any argument explaining how the circuit
court erred. We, therefore, decline to address the merits of this perceived error on appeal.
See Md. Rule 8-504(a)(6) (requiring an appellate brief to contain an “[a]rgument in support
of the party’s position on each issue”); Catler v. Arent Fox, LLP, 212 Md. App. 685, 712
(2013) (“Because they have failed to brief us appropriately, we conclude that appellants
have waived their right to appeal from this portion of the court’s order.”); Fed. Land Bank
of Balt., Inc. v. Esham, 43 Md. App. 446, 457-58 (1979) (“In prior cases where a party
23
initially raised an issue but then failed to provide supporting argument, this Court has
declined to consider the merits of the question so presented but not argued.”).9
V.
We lastly consider whether the circuit court erred in granting Galyn Manor’s motion
for judgment on the Homeowners’ conversion claim. This claim centers around the
consent judgment entered on November 7, 2014, and the subsequent garnishment. Shortly
after the District Court entered the judgment, Galyn Manor garnished funds from the
Homeowners’ bank account to satisfy the judgment. The Homeowners contend that Galyn
Manor misappropriated the garnished funds when it applied the funds to the arrears on the
amount owed by the Homeowners rather than the overdue assessments. In the
Homeowners’ view, this alleged misappropriation constitutes an unlawful conversion. We
disagree.
“A claim for conversion requires proof of the following elements: (1) the plaintiff’s
right to possess the disputed property, and (2) an intentional taking of that property by a
person without authority or permission.” Travel Comm., Inc. v. Pan Am. World Airways,
Inc., 91 Md. App. 123, 183 (1992). The property at issue is the $3,497.53 that Galyn Manor
garnished from the Homeowners’ bank account. The Homeowners’ claim fails because
they are unable to demonstrate that they had the right to possess the garnished funds at the
time of the alleged conversion. Indeed, the Homeowners admitted that they owed the
9
The Homeowners appear to also take issue with the circuit court’s order barring
any conversion claims that arose before April 1, 2013. The Homeowners have not provided
us with any argument. We, therefore, decline to address this perceived error for the reasons
explained, supra.
24
$3,497.53 and they never disputed the subsequent garnishment. While the Homeowners
take issue with Galyn Manor’s methods in allocating the garnished funds, this nonetheless
does not create a viable conversion claim.
Immediately after the garnishment, the Homeowners no longer had any possessory
right. Critically, the alleged conversion occurred when Galyn Manor credited the money
to the Homeowners’ general arrears rather than the overdue assessments. That is, the
alleged conversion took place after the money had been legally garnished. Accordingly,
we hold that the circuit court did not err in granting Galyn Manor’s motion for judgment
because the Homeowners did not have a right to possess the money when it was allegedly
converted. See Balt. & Ohio R.R. Co. v. Equitable Bank, N.A., 77 Md. App. 320, 327
(1988) (“In order to recover for conversion one must either have been in actual possession
or have had the right to immediate possession in the converted asset.”). 10
VI.
Finally, Galyn Manor filed a third-party complaint against Andrews, contending
that Andrews agreed to indemnify Galyn Manor for any liability. The circuit court
dismissed the third-party complaint because the Homeowners failed to establish any
liability against Galyn Manor. In this opinion, we reverse the grant of summary judgment
in connection with the Homeowners’ MCPA and MCDCA claims. As a result, we reinstate
Galyn Manor’s third-party complaint against Andrews in connection with these claims
10
We need not address Galyn Manor’s argument that money may not be the subject
of a conversion claim because the Homeowners’ claim fails on other grounds.
25
pursuant to the indemnification clause contained in the Professional Services Agreement
between Galyn Manor and Andrews.
JUDGMENT OF THE CIRCUIT COURT
FOR FREDERICK COUNTY AFFIRMED
IN PART AND REVERSED IN PART.
CASE REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION. COSTS TO BE SPLIT
EQUALLY BETWEEN THE PARTIES.
26