Greene Tree Home Owners Ass'n v. Greene Tree Associates

RODOWSKY, Judge. The question presented here is whether limitations on certain claims in the petitioner’s first amended complaint are governed by Maryland Code (1974, 1998 RepLVoL), § 5-102 of the Courts and Judicial Proceedings Article (CJ). It provides: “(a) Twelve-year limitation.—An action on one of the following specialties shall be filed within 12 years after the cause of action accrues, or within 12 years from the date of the death of the last to die of the principal debtor or creditor, whichever is sooner: “(1) Promissory note or other instrument under seal; “(2) Bond except a public officer’s bond; “(3) Judgment; “(4) Recognizance; “(5) Contract under seal; or “(6) Any other specialty. ⁴⁵⁵ “(b) Suspension of time.—A payment of principal or interest on a specialty suspends the operation of this section as to the specialty for three years after the date of payment. “(c) Exception.—This section does not apply to a specialty taken for the use of the State.” Petitioner contends that its claims are based on statutory specialties because they allege violations of Maryland’s Consumer Protection Act (CPA), Maryland Code (1975, 1990 Repl.Vol.), §§ 13-101 through 13-501 of the Commercial Law Article (CL). We reject that contention for the reasons set forth below.

I The petitioner, The Greene Tree Home Owners Association, Inc. (the HOA), is a non-stock corporation organized pursuant to the Maryland Homeowners Association Act, Maryland Code (1974, 1996 Repl.Vol), §§ 11B-101 through 11B-114 of the Real Property Article (RP). The residential community, known as Greene Tree, is located in Baltimore County and consists of forty-five buildings containing a total of 200 residential units. On May 1, 1998, in the Circuit Court for Baltimore County, the HOA sued Greene Tree Associates, a partnership that developed and sold the lots, as well as the latter’s partners, Berngar Development Co., Inc. and River Oaks Construction Corporation. The HOA also sued Talles Construction Co., Inc., the general contractor on the project.

These defendants impleaded Columbia Roofing, Inc., a subcontractor of Talles. The defendants and third-party defendant are appellees in this appeal and collectively shall be referred to as Respondents. On July 8, the HOA filed an amended complaint, alleging design and construction defects in the roofs of the Greene Tree units. The amended complaint contained twenty-one common law counts, such as “negligent design” and “breach of express warranty,” one allegation of breach of statutory warranty pursuant to RP § 10-203, and six counts under the ⁴⁵⁶ CPA.

Each of the CPA counts of the amended complaint sought $8,500,000 in compensatory damages because of “substantial injury and damage to the structure of Greene Tree, damage to the units, damage to the value of Greene Tree and the owners’ units, damage from exposure to life/safety hazards, loss and/or diminishment of the peaceful use, occupancy and enjoyment of Greene Tree, damage from lost sales and/or rentals, and damage from the expenditure of funds for repairs, corrections and maintenance.” The HOA’s complaint admitted that individual purchasers of units at Greene Tree reported defective roof conditions to the Respondents as early as 1986. Furthermore, in December 1992, the HOA presented an expert’s report to the Respondents on the alleged roof defects. In February 1993, Respondents presented their expert’s report on the condition of the roofs to the HOA. In September 1994, the parties settled concerning other alleged building defects, exclusive of the roofs.

The HOA’s 1998 suit concerning the roofs was filed short of twelve years after initial complaints of roof defects. Respondents moved for partial summary judgment, arguing that, except for a single building containing six recently sold units, all of the HOA’s claims were barred by limitations. With respect to the CPA claims, Respondents asserted the applicable bar to be three years under the general statute of limitations, CJ § 5-101. It reads: “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 within which an action shall be commenced.” In response, the HOA pointed to its allegations of CPA violations and to CL § 13-408(a) which reads: “In addition to any action by the [Consumer Protection] Division or Attorney General authorized by this title and any other action otherwise authorized by law, any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title.” ⁴⁵⁷ The HOA argued that its private cause of action under the CPA is based on a statutory specialty and that statutory specialties fall within the language, “[a]ny other specialty” in CJ § 5—102 (a) (6).

The circuit court granted summary judgment in favor of the Respondents on the CPA claims, saying: “In passing the CPA the legislative intent was to liberalize the ability of consumers to bring claims by addressing certain elements of existing causes of action that already apply to the relationship between a buyer and a seller of goods, thus relaxing the burden for consumers. However, in doing so, the Legislature did not create a new relationship between the parties, create a new cause of action, or eliminate an existing cause of action. With the exception of making actionable ‘fraudulent omissions,’ the CPA merely expanded the existing remedies available to the buyers of new homes under traditional contract law theories. The case at issue is simply a case which alleges faulty/defective construction.

Merely because the relationship is that of buyer and seller (a relationship not created by the CPA) and the CPA concerns itself with the sale of real estate, does not create a specialty.” Thereafter, the HOA filed a voluntary dismissal without prejudice of its claims on behalf of recent purchasers, resulting in a final judgment, and the HOA appealed to the Court of Special Appeals. We granted the HOA’s petition for a writ of certiorari before the Court of Special Appeals considered the appeal. In its brief on appeal the HOA presents only the issue of which period of limitations applies to its claims under the CPA. II In its brief in chief the HOA argues that the General Assembly created a new cause of action by enacting the CPA.

In support the HOA cites, inter alia, Citaramanis v. Hallowell, 328 Md. 142 , 613 A.2d 964 (1992), where we said: ⁴⁵⁸ “Section 13-408(a) [of the CPA] provides a remedy to the consumer for many forms of misrepresentation not covered by the traditional theories of tort liability for deceit, contract actions for breach of express and implied warranties and warranties provided for under the Real Property Article and the Commercial Law Article.” Id. at 154 , 613 A.2d at 970 . The HOA further contends that this Court “has long recognized that causes of action and remedies created by statute are ‘specialties’ for limitations purposes.” Relying principally on a test for determining whether a statute creates a specialty debt that was quoted from 1 H.G. Wood, A Treatise on the Limitation of Actions § 39 (4th ed. 1916) (Wood on Limitation), in Mattare v. Cunningham, 148 Md. 309 , 129 A. 654 (1925), the HOA submits that a cause of action under the CPA is new and thus a statutory specialty. Citing Sterling v. Reecker, 176 Md. 567, 569 , 6 A.2d 237, 238 (1939), the HOA says that the principle whereby causes of action and remedies created by statutes are specialties “dates back to the original enactment of a statute of limitations by Parliament.” The HOA also has furnished us with the opinions or rulings by six different circuit court judges from four different counties who concluded on the above reasoning that limitations on an action under the CPA are twelve years. The Respondents take the position that Mattare and Sterling, supra, the only decisions of this Court holding that the actions involved were based on statutory specialties, “were based on statutes providing exclusive remedies, and like a bond or a judgment the actions did not require inquiry into the underlying facts and circumstances concerning liability.” The Respondents also contend that the instant claims are essentially based on a contractual relationship, and not the CPA, that applying the twelve year statute here would create an unwarranted disparity with the three year limitations period, that applying the three year statute is consistent with the purposes of statutes of limitations generally, and that the General Assembly did not intend the twelve year statute to apply when enacting the CPA. ⁴⁵⁹ The statutory construction question presented here cannot be answered by looking exclusively to the words of the statute.

Appropriately, both parties look to the relevant statutes of limitations as they were in effect prior to the enactment, as part of the code revision program, of the Courts and Judicial Proceedings Article by Chapter 2 of the Acts of 1973, First Special Session. The predecessor to CJ § 5-101 was Maryland Code (1957), Article 57, § 1. It read in relevant part as follows: “ § 1. Actions other than those upon specialties. “All actions of account, actions of assumpsit, or on the case, except as hereinafter provided, actions of debt on simple contract, detinue or replevin, all actions for trespass for injuries to real or personal property, all actions for illegal arrest, false imprisonment ... and all actions, whether of debt, ejectment or of any other description whatsoever, brought to recover rent in arrear ... shall be commenced, sued or issued within three years from the time the cause of action accrued.... ” The predecessor to CJ § 5-102 was Maryland Code (1957), Article 57, § 3.

It read in relevant part as follows: “§ 3. Actions on bonds, judgments or other specialties---- “No bill, testamentary, administration or other bond (except sheriffs’ and constables’ bonds), judgment, recognizance, statute merchant, or of the staple or other specialty whatsoever ... shall be good and pleadable, or admitted in evidence against any person in this State after the principal debtor and creditor have been both dead twelve years, or the debt or thing in action is above twelve years’ standing. ...” The Revisor’s Note to CJ § 5-101 advises: “This section is new language derived from Article 57, § 1. Rather than listing the various forms of action, it is decided that a blanket three-year provision, with exceptions for other limitations, be substituted. ⁴⁶⁰ “In addition, it is possible that the legislature has provided no statute of limitations for some statutory causes of action which cannot properly be considered action[s] of ‘case,’ ‘assumpsit,’ or ‘contract.’ Some ‘modern common-law’ torts (i.e., invasion of privacy), may not technically be actions on the case.” Maryland Code (1974), Revisor’s Note following CJ § 5-101. The Revisor’s Note to CJ § 5-102 advises: “This section is new language derived from Article 57, § 3.

The section is reorganized to list the various types of specialties. Two types of specialties formerly appearing in § 3 are proposed for deletion; they are ‘statutes merchant’ and ‘statutes of the staple.’ If either should exist presently, it would be included as ‘any other specialty’ so [that] the section does not impair any ‘obligation of contract.’ ” Based on the Revisor’s Note to § 5-101, the Respondents argue that applying a twelve year bar to CPA actions would be inconsistent with the Legislature’s understanding at the time of the 1974 Code revision that statutory causes of action for which no specific limitations period is provided would be subject to the general three-year statute of limitations. In its reply brief the HOA counters this argument by reference to Report No. 3F, dated July 16, 1973, of the Governor’s Commission to Revise the Annotated Code (the Commission). There, in discussing proposed § 5-101 the Commission said: “Many of the types of action listed in the present statute [Art. 57, § 1] are either obsolete or obscure....

It was felt that many lawyers may not be aware of the distinctions inherent in the ancient forms of action such as between trespass, case, and assumpsit____ It is possible that in enacting some modern statutory causes of action which do not fit within the old forms of action, the legislature may have neglected to provide specific statutes of limitation. In light of the above, it was felt that a general three year provision, with exceptions for actions not falling within the three year period, would be an improvement.” ⁴⁶¹ CJ § 5-102 provides exceptions to the general three year rule. In Report No. 3F, the Commission also said that proposed § 5-102 “retains the forms of action (specialties) in order to avoid making substantive changes.” Thus, the Re-visor’s Notes and the Commission Report do not directly answer the question that is before us. They inform us, however, that, if a CPA action is not an “other specialty” within the meaning of CJ § 5—102(a)(6), it would be governed by § 5-101. 1 The Revisor’s Notes and Commission Report further inform us that, in order to determine whether this CPA action is a statutory specialty, preserved as an “other specialty” under CJ § 5-102(a)(6), we must look to the forms of action as they existed at common law.

Ill Before addressing the judicial decisions, both in this country and in England, that have been concerned with statutory specialties in the limitations context, it is helpful to review certain forms of action at common law and also the language of the statutes of limitations under which statutory specialty cases have been decided. Many of the cases involving issues of statutory specialty are actions of debt, using that term in the common-law-pleading, form-of-action sense. Poe explains the difference between debt, covenant, and assumpsit as follows: “Assumpsit lay for the recovery of damages for the breach of a parol or simple contract. For example, a contract to build a house.

Covenant lay to recover damages for the breach of a contract under seal. For example, a contract ⁴⁶² under seal to build a house; or a policy of fire insurance under seal. Debt lay for the recovery of a specific and liquidated sum, whether the indebtedness was evidenced by an obligation with or without seal, verbal or written, express or implied. For example, a bond for a precise amount; a foreign or domestic judgment; the penalty given by statute and the like.

In debt, the specific sum due was always claimed as a debt; and although, at the end of the declaration, damages were claimed, they were usually nominal, being simply for the detention of the debt, and were commonly covered by an allowance for interest. In assumpsit and covenant, on the other hand, the claim technically was always for damages.” 2 1 J.P. Poe, Pleading and Practice in Courts of Common Law § 63, at 39 (Tiffany 5th ed.1925) (footnote omitted). Poe further describes when debt would lie. “From a very early date [debt] was the appropriate action to recover a penalty prescribed by Act of Parliament, at the suit either of the party grieved or of a common informer, in all cases where no particular action was named; and so it lies with us in all cases to recover fines and penalties imposed by statute, either when the statute names it, or names no action whereby the sum given, or penalty or forfeiture prescribed, may be sued for. It lies also to recover the sum due upon judgments or decrees, whether domestic (that is of Courts of other States, Districts or Territories of the Union) or foreign, for the payment of money.

It is an appropriate action also upon forfeited recognizances---- It is the proper action, also, to recover the sum due upon bonds, obligations under seal or any other specialties for the payment of a designated amount of ⁴⁶³ money, even though the bonds are with collateral conditions; and, indeed, it is the usual and familiar remedy in our courts upon bonds conditioned for the faithful performance of official or other duty, or for the payment of a certain sum of money by way of penalty.... In all these classes of cases, viz: on statutes, judgments and decrees, and sealed instruments for the payment of a sum certain of money, even though subject to conditions, it is the only appropriate remedy. It also lies upon every contract, express or implied, to pay a sum certain, whether the contract be verbal or written. Also, upon awards for the payment of money....

The only limitation now upon the applicability of this action in cases of contract, express or implied, verbal or written, parol or under seal, is the fundamental one—that the sum claimed, shall be certain, or capable of being readily made certain .... ” Id. § 138, at 98-99 (last emphasis added; footnotes omitted). The historical background of former Article 57, §§ 1 and 3 also should be briefly stated. The relevant portion of former Article 57, § 1 took the form in which it was quoted in Part II, supra, by Chapter 73 of the Acts of 1861. The relevant portion of the twelve year statute, former Article 57, § 3, took the form in which it was quoted in Part II, supra, by the adoption of the Code of 1888 where the provision also was Article 57, § 3.

Significantly, both the three year and the twelve year statutes trace to a common source, the Acts of 1715, Chapter 23. 3 The three year provision of the 1715 statute referred to specialties by way of exclusion, in that “all actions of debt for lending, or contract without specialty” were subject to a three year bar. In the twelve year provision of the 1715 statute, specialties were referred to by way of inclusion, inasmuch as the twelve year period applied to any “bill, bond, judgment, recognizance, statute merchant, or of the staple, or other specialty whatsoever.” ⁴⁶⁴ This colonial era, Maryland statute substituted for, and enlarged upon, the original British statute of limitations, 21 Jam. 1, ch. 16, § 3 (1623). 4 The statute of James, like the three year section of the 1715 Maryland statute, excluded specialties from the bar which applied to “all Actions of Debt grounded upon any Lending or Contract without Specialty.” No period of limitations was fixed by the statute of James for actions on specialties. 5 The Civil Procedure Act, 1833, 3 & 4 Will. 4 , ch. 42, § 3, established a twenty year period of limitations for certain actions, including “all actions of covenant or debt upon any bond or other specialty.” 6 The 1623 and 1833 British statutes were repealed by the Limitation Act, 1939, 2 & 3 Geo. 6, ch. 21. That enactment did not use, and likely intentionally avoided, the term “specialty.” It established a period of limitations of six years on “actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.” Id. § 2(d). A number of states in the United States enacted statutes of limitations that were patterned on the 1623 British statute.

As a result, decisions of this Court, and of other American courts, when trying to identify a statutory specialty, have looked to both American and English decisions. IV The earliest statement by this Court giving an example of a statutory specialty appears in Ward v. Reeder, 2 H. & McH. 145 , 154 (1789), where the Court commented, “An action grounded upon a statute, cannot be barred; such as debt for ⁴⁶⁵ an escape, etc.” 7 The example refers to the Statute of Westminster, 13 Edw. 1 , ch. 11 (1285), and to 1 Rich. 2 , ch. 12 (1377). During the centuries when imprisonment for debt was permissible, the jailer who allowed a debtor to escape became liable to the judgment creditor for the debt. Prior to the enactment of these statutes, there was a common law action on the ease for escape in which the defendant jailer could offer evidence in mitigation of damages.

See State ex rel. Creecy v. Lawson, 2 Gill 62, 71 (1844). The statute of Richard in part provided that “if any such Warden from henceforth be attainted by due Process, that he hath suffered or let such Prisoner to go at large against this Ordinance, then the Plaintiffs shall have their Recovery against the same Warden by Writ of Debt.” An action on this statute was a specialty and not within 21 Jam. 1, ch. 16, § 3. Jones v. Pope, 85 Eng.

Rep. 45, 52 (1666). The statute of Richard was in force in Maryland until imprisonment for debt was abolished by the Maryland Constitution of 1851, Article III, § 44. See 1 J.J. Alexander, British Statutes in Force in Maryland 243 (Coe 2d ed.1912). In State ex rel.

Creecy , this Court described the operation of the two British statutes as follows: “[The action on the ease] was the only remedy a plaintiff had at common law, until the Statute of West. (13th Ed. 1, ch. 11,) and 1 R. 2 , ch. 12. These statutes first gave the action of debt against a gaoler or sheriff for an escape. Where this remedy is employed under the statutes, the sheriff is put in the same situation in which the original debtor stood, and the jury cannot give a less sum than the creditor would have recovered against the defendant in the original suit.” 2 Gill at 71 .

Chief Judge Bond, writing for the Court in Sterling v. Reecher, 176 Md. 567 , 6 A.2d 237 , gave the following explanation for treating suits grounded on statutes as specialties: ⁴⁶⁶ “Since shortly after the enactment of the English statute of limitations on actions, 21 James 1, chapter 16, suits grounded on statutes have been held to be in debt on records of the highest rank, those of acts of Parliament, and hence specialties.” Id. at 569 , 6 A.2d at 238 (emphasis added). Citing Ward, 2 H. & McH. at 154, the Court in Sterling referred to “ ‘debt for an escape’ ” under the statute of Richard as an illustration of a statutory specialty. Sterling, 176 Md. at 569 , 6 A.2d at 238 . Mattare v. Cunningham, 148 Md. 309 , 129 A. 654 (1925), held that a workers’ compensation award, made in this State, was a statutory specialty.

Id. at 316 , 129 A. at 656-57 . The Court quoted from two sources for the characteristics of a statutory specialty. The first was Wardle v. Hudson, 96 Mich. 432 , 55 N.W. 992 (1893): “ ‘Specialty by statute means some right or cause of action given, by statute which does not exist at common law. In such cases the nature or cause of action does not depend, in any degree, upon any contract relation.

There is no original obligation whatever created by the act of the parties.’ ” Mattare, 148 Md. at 314-15 , 129 A. at 656 . This Court in Mattare also quoted the following passage from Wood on Limitation § 39, at 137-38, where the author was speaking of statutes of limitations patterned on 21 Jam. 1, ch. 16: “ ‘The test, whether a statute creates a specialty debt or not, might be said to be whether, independent of the statute, the law implies an obligation to do that which the statute requires to be done, and whether independently of the statute a right of action exists for the breach of the duty or obligation imposed by the statute. If so, then the obligation is not in the nature of a specialty, and is within the statute [of limitations], so long as the common-law remedy is pursued; but if the statute creates the duty or obligation, then the obligation thereby imposed is a specialty, and is not within the statute [of limitations]. If the statute imposes an obligation, and gives a special remedy therefor, which other ⁴⁶⁷ wise could not be pursued, but at the same time a remedy for the same matter exists at common law independently of the statute, and the statute does not take away the common-law remedy, the bar of the statute [of limitations] is effectual when the common-law remedy for the breach of the common-law duty or liability is pursued, but is not applicable when the special statutory remedy is employed.’ ” Id. at 315, 129 A. at 656 (emphasis added).

Wood cites two authorities for his test, Bullard v. Bell, 4 F. Cas. 624 (C.C.D.N.H.1817) (No. 2,121), and Robertson v. Blaine County, 90 F. 63 (9th Cir.1898). Both decisions are considered, infra. The Court in Mattare , rejecting the employer’s argument that the suit on the award was an enforcement proceeding and distinguishable from the statutory workers’ compensation remedy, said: “The proceeding before the commission was created by statute, had its foundation therein, and had for its purpose the compelling of payment by the employer ... [of] compensation for the injury or death. The suit upon the award, which is the approved and proper method of enforcing the award of the commission, is simply compelling the full and complete performance by the employer of the obligation imposed by the statute.

We think that reason and authority are conclusive upon the point, that the award of the Industrial Accident Commission is a specialty, within the meaning of section 3 of article 57 of the Code.... ” Id. at 316 , 129 A. at 656-57 . Although the arguments and opinion in Mattare focused on the debated nexus between the action on the award and the liability imposed by the workers’ compensation statute, it is clear that the claim was for a fixed sum. Mayor and City Council of Baltimore v. Household Finance Corp., 168 Md. 13 , 176 A. 480 (1935), involved a claim for a tax refund under a statute that “changed the common law rule that taxes paid under a mistake of law could not be recovered.” Id. at 14 , 176 A. at 481 . The City argued that ⁴⁶⁸ the suit was barred by the general, three year period of limitations, Article 57, § 1, while the taxpayer, relying on Mattare , argued that the refund statute made the claim a specialty.

The Court held that the claim was not on a specialty. In concluding that former Article 57, § 1 governed, and not § 3, the Court necessarily had to decide the form of action that was presented, because those statutes expressed the applicable limitations in the language of common law pleading. The Court held that the action was assumpsit, relying on the analysis by the Supreme Court of the United States in Metropolitan R.R. Co. v. District of Columbia, 132 U.S. 1 , 10 S.Ct. 19 , 33 L.Ed. 231 (1889). The District of Columbia statute of limitations involved in Metropolitan R.R. Co. was the 1715 Maryland statute.

The action in that case was brought by the District of Columbia to recover the cost of maintaining that portion of public streets within a specific distance outside of the rails of the defendant, a street railway company. The Act of Congress under which the defendant was incorporated placed that maintenance obligation on the street railway. Reversing a judgment in favor of the plaintiff, the Supreme Court held that the action was not a statutory specialty and was barred. This Court in Household Finance quoted the following reasoning of the Supreme Court: “ ‘The court below, in its opinion on the demurrer, suggests another ground, having relation to the form of the action, on which it is supposed that the plea of the statute of limitations in this case is untenable.

It is this: that the action is founded on a statute, and that the statute of limitations does not apply to actions founded on statutes or other records or specialties, but only to such as are founded on simple contract or on tort. We think, however, that the court is in error in supposing that the present action is founded on the statute. It is an action on the case upon an implied assumpsit arising out of the defendant’s breach of a duty imposed by statute, and the required performance of that duty by the plaintiff in consequence. This raised an implied ⁴⁶⁹ obligation on the part of the defendant to reimburse and pay to the plaintiff the moneys expended in that behalf.

The action is founded on this implied obligation, and not on the statute, and is really an action of assumpsit. The fact that the duty which the defendant failed to perform was a statutory one does not make the action one upon the statute. The action is clearly one of those described in the [three years portion of the 1715] statute of limitations.’ ” 168 Md. at 17-18 , 176 A. at 482 (quoting Metropolitan R.R. Co., 132 U.S. at 12-13 , 10 S.Ct. at 23 , 33 L.Ed. at 236 ). Household Finance was decided on the lack of a nexus between the refund statute and the claim asserted, by distinguishing between an action on the statute and an action for breach of the duty created by the statute.

The Household Finance Court, by its own admission, was influenced by the anomaly that would result if refund claims based on mistake of law enjoyed a twelve year period of limitations while refund claims based on mistake of fact would be barred after three years. Id. at 18 , 176 A. at 482 . Inasmuch as we shall not decide the case before us on nexus grounds, we need not opine, in this matter, on the reach of the holding in Household Finance. It is sufficient to note that Household Finance is consistent with viewing the refund statute as having expanded the common law restitutionary remedy for money paid under mistake of fact, that is, an expansion of the action for money had and received, a form of assumpsit and not of debt.

Sterling v. Reecher, 176 Md. 567 , 6 A.2d 237 , is an example of a type of statutory specialty on which a number, but not all, of the decisions agree, namely, the statutory imposition of liability on the shareholders of a defunct bank to pay the debts of the bank up to some limitation on a stockholder’s individual liability. The action in Sterling arose under Maryland Code (1924), Article 11, § 72, enacted by Chapter 219 of the Acts of 1910, § 68. In relevant part it provided: “Stockholders of every bank and trust company shall be held individually responsible, equally and ratably, and not ⁴⁷⁰ one for another, for all contracts, debts and engagements of every such corporation, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock.” Standing to bring an action based on this statutory liability was limited to a receiver, assignee, or trustee acting under the jurisdiction of a court. In a receiver’s action under the statute the defendant stockholder pled the three year statute of limitations.

The twelve year statute was held to apply because the action was based on a statutory specialty. This Court recognized the analytical difficulty of identifying a specialty by virtue of the nexus between the cause of action and the statute on which it is based: “And suits upon [statutes] are not within the original act lie., the three year statute of limitations] providing the limitation on actions on simple contracts.... But the element of contract in a subscription to stock, upon which the statute of Maryland lays the double liability, has produced uncertainty in the classification of suits to recover it. Are they grounded on contract or on the statute?” Id. at 569, 6 A.2d at 238 (citations omitted).

Attempting to state a general rule, the Court further wrote: “It has been held generally that when the statute creating a liability provides the remedy and allows no other, then the remedy could be only that provided, and it would be grounded on the statute, necessarily, but that a common law action of debt might lie either when such an action is given by the statute or when the statute provides for the payment of a sum of money but does not mention any mode of recovering it.” Id. at 570 , 6 A.2d at 238 . The holding in Sterling is essentially that there was a sufficient nexus between the statute and the action to create a specialty. Factors on which the Court relied included that the remedy was exclusive, that the 1910 bank statute had taken enforcement of the remedy from creditors and placed it with the receiver, that the new statute established liability directly to the bank, and that stockholders ⁴⁷¹ covered by the statute were those as of the date of the receivership and not as of the date when the bank’s debts were contracted. Id. at 570-71 , 6 A.2d at 239 .

Under the 1910 Maryland statute, it appears that the liability of a bank’s