Heavenly Days Crematorium, LLC v. Harris, Smariga & Associates, Inc.

MATRICCIANI, J. On October 29, 2009 appellant, Heavenly Days Crematorium, LLC (“Heavenly Days”), filed a complaint against appellee, Harris, Smariga and Associates, Inc. (“HSA”), in the Circuit Court for Frederick County seeking monetary damages for breach of contract and professional negligence. On August 16, 2010, the circuit court entered an order granting HSA’s motion to dismiss, without prejudice, for failure to file a certificate of qualified expert under Maryland Code (1973, 2006 Repl.Vol.), Courts and Judicial Proceedings Article (“CJP”) section 3-2C-02. Heavenly Days presents one question for our review, which we have edited for clarity: 1 I. Was the circuit court legally correct in granting HSA’s motion to dismiss for failure to file a certificate of qualified expert? For the reasons set forth below, we answer yes and affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS Heavenly Days owns and operates the Greenbriar Kennels Memorial Crematorium (“crematorium”), an animal cemetery and crematorium in Urbana, Maryland. In August of 2004, Heavenly Days applied to move its crematorium—at that time operating in Rockville, Maryland—to its current location in ²⁵⁷ Urbana. The application process required Heavenly Days to obtain plan approval, zoning variances, and various building permits from the State of Maryland and Frederick County. Heavenly Days hired HSA, a firm that offers site planning and civil engineering services, to assist Heavenly Days with the permit application and approval process.

From 2004 through 2007, HSA employee Chris Mayo was Heavenly Days’s contact person during the application process. Mayo submitted a site plan to the Frederick County Planning Commission (“FCPC”) in the fall of 2004, and on January 19, 2005 the FCPC gave the site plan a conditional approval. There were seven conditions attached to the conditional approval, one of which was that construction of the crematorium had to begin within two years to vest the approval. Under the Frederick County Zoning Ordinance (“Zoning Ordinance”) site plan applicants may request a one-time six month extension, provided the request is made at least thirty days before the expiration of the two year conditional approval period.

Zoning Ordinance § 1-19-3.220. After the FCPC granted the conditional approval, other Frederick County agencies made comments on the site plan that needed to be addressed before the county would sign off on the site plan. Additionally, Heavenly Days wished to increase the size of the crematorium and HSA had to relocate the crematorium building because it had not accounted for the effect that the exhaust fans would have on dog kennels located outside the building. To address the comments and reflect changes in the site plan, Mayo worked with Heavenly Days and the FCPC to submit a revised site plan.

By the fall of 2006, however, certain issues with the site plan had not yet been resolved. The conditional approval was due to expire on January 19, 2007 unless a request for a six month extension was made by December 19, 2006. Mayo requested a December 15, 2006 meeting with the county to submit a revised site plan and request the six month extension. The county never responded to Mayo’s request, however, and the December 19 deadline passed without anyone requesting a six ²⁵⁸ month extension.

On January 5, 2007 Mayo, along with representatives from Heavenly Days and its subcontractors, met with county planners and requested an extension. The county denied this request as untimely. Mayo submitted a revised site plan on January 10, 2007. The county did not approve the revised site plan before the January 19 deadline passed, and thus the original site plan’s conditional grant of approval lapsed.

Heavenly Days alleged that Mayo did not use reasonable care in preparing the site plan by failing to: (1) correct errors in Heavenly Days’s site plan; (2) satisfy timely the conditions of a conditional approval granted by the county, and; (3) request timely an extension to satisfy such conditions. Heavenly Days contends that Mayo’s negligence caused the site plan’s deficiencies; that as a result of Mayo’s negligence Heavenly Days incurred penalties and fines, suffered construction delays, and had to repeat certain construction tasks; and that Mayo’s negligence ultimately forced Heavenly Days to restart the application process. Heavenly Days filed suit against HSA in the Circuit Court for Frederick County on October 29, 2009, seeking monetary damages for breach of contract and “professional negligence.” 2 On January 20, 2010 HSA filed a motion to dismiss for failure to state a claim upon which relief can be granted, arguing that Heavenly Days failed to make out a case for the breach of contract claim, and that Heavenly Days’s negligence claim was barred by the economic loss rule. On February 22, 2010 Heavenly Days filed an opposition to HSA’s motion to dismiss, and filed therewith an amended complaint.

HSA withdrew its initial motion to dismiss, but on March 19, 2010 filed a motion to dismiss Heavenly Days’s amended complaint. HSA based this second motion to dismiss on Heavenly Days’s failure to file a certificate of qualified expert (“certificate”) ²⁵⁹ within ninety days of filing the original complaint as required by CJP § 3--2C-02. Heavenly Days’s opposition to HSA’s second motion to dismiss included as an exhibit a certificate identifying Thomas Lane as an expert qualified to testify on the standards of practice as a property line surveyor. In an August 12, 2010 motions hearing, Heavenly Days asked the circuit court to exercise its discretion under CJP § 3-2C-02(c) to waive or modify the certificate requirement and extend the ninety-day deadline for filing the certificate.

HSA argued that Heavenly Days had not made a timely showing of good cause to waive or modify the certificate requirement, and therefore the circuit court did not have discretion to do so. On August 16, 2010 the Circuit Court for Frederick County entered an order granting HSA’s motion to dismiss without prejudice. Heavenly Days filed timely notice of appeal to this Court on August 24, 2010. DISCUSSION I. Standard of Review In Kearney v. Berger we reviewed the trial court’s grant of the defendant’s motion to dismiss a medical malpractice claim for failure to file a certificate under § 3-2A-04(b)(4). 182 Md.App. 186 , 957 A.2d 682 (2008).

We noted: In reviewing a trial court’s grant of a motion to dismiss, the truth of all well-plead relevant and material facts is assumed, as well as all inferences which can be reasonably drawn from the pleadings. Dismissal at the trial court level will only be proper if, after assuming the allegations and permissible inferences flowing therefrom are true, the plaintiff would not be afforded relief, (internal quotation and citations omitted). Id. at 190-91 , 957 A.2d 682 . Accordingly, the following discussions assumes the truth of the facts as set forth in the Heavenly Days’s amended complaint and HSA’s motion to dismiss the amended complaint. ²⁶⁰ II.

Malpractice Claims Against Licensed Professionals A. Statutory Definitions Courts and Judicial Proceedings Article § 8-2C-01(b) defines a “claim” as a civil action, including an original claim, counterclaim, cross-claim, or third-party claim, originally filed in a circuit court or United States District Court against a licensed professional or the employer, partnership, or other entity through which the licensed professional performed professional services that is based on the licensed professional’s alleged negligent act or omission in rendering professional services, within the scope of the professional’s license, permit, or certificate, for others. Courts and Judicial Proceedings Article § 3-2C-01(c) enumerates five categories of “licensed professionals” based on certifications or licenses under Maryland Code (1997, 2010 Repl. Vol.), Business Occupations and Professions Article (“BOP”). For our purposes here, a “licensed professional” means a professional engineer licensed under BOP title 14.

A professional engineer is “unless context requires otherwise, an engineer who is licensed by the [State Board for Professional Engineers] to practice engineering.” BOP § 14-101(g). Business Occupations and Professions Article § 14-101(f)(1) defines “practice engineering” as providing “any service or creative work the performance of which requires education, training, and experience in the application of special knowledge of the mathematical, physical, and engineering sciences and the principles and methods of engineering analysis and design. “Practice engineering” also includes consultation, design, evaluation, investigation, and design coordination in regard to a building or other structure. BOP § 14-101(f)(2). 3 ²⁶¹ Neither party disputes that Mayo does not hold a license to practice engineering issued by the State Board for Professional Engineers. 4 As BOP § 14-101(g) indicates, however, in certain contexts a non-licensed individual may be considered a “professional engineer.” Under BOP § 14-303(a)(1), a non-licensed individual who is the employee or subordinate of a professional engineer may practice engineering without a license. Lastly, CJP § 3-2C-01(d) defines a “qualified expert” as “an individual who is a licensed professional, or comparably licensed or certified professional under the laws of another jurisdiction, knowledgeable in the accepted standard of care in the same discipline as the licensed professional against whom a claim is filed.” For suits under CJP § 3-2C-02 the claimant must file a certificate of a qualified expert with the court.

A valid certificate must “[cjontain a statement from a qualified expert attesting that the licensed professional failed to meet an applicable standard of professional care.” CJP § 3-2C-02(a)(2)(i). Failure to file the certificate within ninety days after filing the complaint entitles the defendant to dismissal without prejudice. Id. § (a)(1). Upon a showing of good cause by the claimant, the court has discretion to waive or modify the filing requirement.

Id. § (c)(1). Heavenly Days contends that CJP § 3-2C-02 applies only to allegations against an individual licensed professional, and that its complaint is against a corporation, HSA, based on the negligence of Chris Mayo, who is not a licensed professional under the statute. HSA counters that the General Assembly amended CJP § 3-2C-02 in 2005 to require a certificate under ²⁶² circumstances such as these, and thus the fact that Mayo did not have a license is inconsequential. The circuit court held that “there’s no doubt in my mind that the statute was triggered, and that there is a need for a certificate to be filed, timely filed[.]” Where an order of the trial court involves an interpretation and application of Maryland statutory law, the reviewing court “must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review.” Schisler v. State, 394 Md. 519, 535 , 907 A.2d 175 (2006).

To make this determination, we must examine the definitions of the terms “licensed professional,” “claim,” and “professional negligence” under CJP § 3-2C-01. “The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Chow v. State, 393 Md. 431, 443 , 903 A.2d 388 (2006) (internal citations omitted). “If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Jones v. State, 336 Md. 255, 261 , 647 A.2d 1204 (1994). If the language of the statute is ambiguous, however, we consider “not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and purpose of [the] enactment” under consideration. Fraternal Order of Police v. Mehrling, 343 Md. 155, 174 , 680 A.2d 1052 (1996) (internal quotations and citations omitted). An ambiguity exists within a statute when there exists “two or more reasonable alternative interpretations of the statute.” Chow, 393 Md. at 444 , 903 A.2d 388 .

B. “Claim” Against a “Licensed Professional” In its amended complaint, Heavenly Days alleged that HSA agreed to provide planning and civil engineering services in connection with its application for approval of the crematorium. Specifically, Heavenly Days engaged HSA to prepare a site plan for the crematorium and submit it to Frederick County. To determine whether HSA’s complaint is a “claim” ²⁶³ within the meaning of CJP § 3-2C-01(b), we look to the nature of the underlying services. The requirements for site plans and the process by which the county approves them are set forth in the Zoning Ordinance §§ 1-19-3.300.1 through 1-19-3.300.4. 5 Site plans must ²⁶⁴ contain topographical maps, surveying benchmarks, right of way locations, area computations, soil analysis, and other engineering data.

Zoning Ordinance § 1-19-3.300.3. Under the Zoning Ordinance, the county’s approval of a site plan accounts for stormwater management considerations. Zoning Ordinance § 1-19-3.300.1. The site plan prepared by HSA included stormwater management calculations prepared, signed, and sealed by a licensed professional engineer, HSA employee T. Merchant McDonald.

Thus, HSA’s preparation of the site plan falls within the phrase “practice engineering” under BOP § 14-101(f)(1). Heavenly Days contends that the only employee of HSA with whom it had contact is Mayo, but the record indicates that other HSA employees—at least one of whom, McDonald, was a licensed professional engineer—contributed to the crematorium site plan application. Though Heavenly Days focus ²⁶⁵ es on a few specific actions or inactions by Mayo, the scope of work was more comprehensive and involved other HSA employees. HSA contends that Mayo performed planning and engineering services by virtue of her position with HSA, and that McDonald was the licensed professional engineer handling and overseeing the engineering services on the crematorium project.

Indeed, McDonald’s seal appears on the storm-water management documents. The site plan itself is not sealed, presumably because under the Zoning Ordinance, site plans themselves may be submitted by applicants who are not professional engineers. Zoning Ordinance § 1—19— 3.300.3(G)(3). But the record makes clear that Mayo was more than a mere courier who transported the site plan to the county offices.

In the fall of 2005 Mayo submitted the site plan to the FCPC. The FCPC granted the site plan a conditional approval on January 19, 2005. This site plan accurately depicted the crematorium building as 40’ X 80', but contained an inaccurate written comment describing the building as 40' X 30'. Heavenly Days later desired to change the size of the building to 40' X 100'.

Heavenly Days asked Mayo to get approval from the FCPC for the change and to correct the written comment on the site plan. In addition to coordinating these changes with the county, this task would have required substantive revisions to the site plan in the form of recalculated building areas for the crematorium and new comments on the site plan. Zoning Ordinance § 1-19-3.300.3. Such revisions invoke the definition of “practice engineering” under BOP § 14-101(f), specifically design coordination in regard to a building under BOP § 14—101 (f)(2)(vii).

Mayo submitted a revised site plan purporting to address these changes, but the revised site plan did not correct the original written mistake describing the building as 40' X 30' and also did not show a building 40' X 100' in size, as requested. In alleging that Mayo failed to correct the mistakes in the revised site plan, Heavenly Days attacks the professional engineering services that HSA provided. Here, Heavenly Days attempts to separate the underlying act—the ²⁶⁶ preparation of a site plan completed in part by HSA engineer T. Merchant McDonald, P.E.—from a subsequent failure by HSA employee Chris Mayo to submit timely a properly-revised site plan. This does not change the fact that the alleged breach was of a professional standard of care in providing engineering services. 6 Heavenly Days claimed there was another issue with the site plan Mayo submitted, and alleged in its amended complaint that “HSA had failed to take into account the number of exhaust fans that would be required to keep the machines working and by locating the crematorium up against the retaining wall the fans would blow directly on the outside runs for the dogs.” (emphasis added).

Calculating the number of exhaust fans required to properly ventilate a building is a quintessential mechanical engineering task. See Kutz & Myer, Mechanical Engineer’s Handbook § 55.5 (2nd ed. 1998), Eugene A. Avallone & Theodore Baumeister, Marks’ Standard Handbook for Mechanical Engineers § 14.5 (11th ed. 2007). Siting a building at a proper location in light of its use and surrounding circumstances is a quintessential civil engineering task. Nitsure, Pawar, & Kulkarni, Basic Civil Engineering 2-2 (2006).

By the language of its own amended complaint, Heavenly Days attributes the failure to properly perform these tasks to HSA as a firm of engineers, not to Mayo as an individual without an engineering license. That Mayo was the individual who delivered the engineering documents to the FCPC does not change the fact that the nature of the complaint is HSA’s negligent performance of engineering services. As previously noted, CJP § 3-2C-01(b) defines “claim” as “a civil action ... against a licensed professional or the employer ... through which the licensed professional performed professional services that is based on the licensed professional’s alleged negligent act or omission in rendering ²⁶⁷ professional services.... ” The parties offer competing interpretations of this term. Heavenly Days contends that an action against a corporate employer is not a “claim” when the only professional negligence alleged is that of an unlicensed employee.

HSA counters that the negligence alleged against HSA was not just that of Mayo, and that under the circumstances “claim” includes an action against a corporate employer providing professional services. To aid in our interpretation of the term, we look to the meaning of “claim” in light of the 2005 amendment and legislative policy advanced thereby. See Fraternal Order of Police v. Mehrling, 343 Md. 155, 174 , 680 A.2d 1052 (1996). Prior to 2005, CJP § 3-2C-01(b) read: “Claim” means a civil action, including an original claim, counterclaim, cross-claim, or third-party claim, originally filed in circuit court against a licensed professional that is based on the licensed professional’s alleged negligent act or omission in rendering professional services, within the scope of the professional’s license, permit, or certificate, for others.

In 2005 the General Assembly amended CJP § 3-2C-01(b) 7 in response to a case that resulted in a professional negligence claim moving forward despite the plaintiffs failure to file a certificate of qualified expert. See Department of Legislative Services, SB 143 Fiscal and Policy Note (2005) (“This bill legislatively reverses the Court of Appeals [sic] April 2004 holding in Baltimore County v. RTKL Associates Inc., 380 Md. 670 , 846 A.2d 433 .”). 8 In Baltimore County v. RTKL Associates, the Court of Appeals interpreted CJP §§ 3-2C-01 and -02 as they were before the 2005 amendment to CJP § 3-2C-01(b). 380 Md. ²⁶⁸ 670, 846 A.2d 433 (2004). Baltimore County contracted with RTKL Associates (“RTKL”) to provide engineering and construction support services for a proposed education center. A subcontractor of RTKL set inaccurate grading benchmarks, which caused the County to incur substantial damages and delays.

The County sued both contractors, but failed to file a certificate of qualified expert under CJP § 3-2C-02. After pre-trial motions and interlocutory appeals, the Circuit Court for Baltimore County granted the defendants' motion to dismiss. The circuit court held that the certificate requirement of the then-existing CJP § 3-2C-02 applied only to individuals, and not to suits against corporate firms such as RTKL. Still, the circuit court granted the defendants’ motion to dismiss, holding that the three year statute of limitations of CJP § 5-101 applied against the County and had expired.

Id. at 672-74, 846 A.2d 433 . The Court of Appeals granted certiorari on its own initiative, reversed the circuit court on the statute of limitations issue, and remanded to the circuit court for further proceedings. Id. at 689 , 846 A.2d 433 . The Court interpreted the then-existing CJP §§ 3-2C-01 and -02, and held that the circuit court was correct in denying defendants’ motion to dismiss on the ground of failure to file a certificate of qualified expert.

The Court reasoned that: Section 3-2C-01(c) defines a “licensed professional,” for our purposes, as “an architect licensed under Title 3 of the Business Occupations and Professions Article” and “[a] professional engineer licensed under Title 14 of the Business Occupations and Professions Article.” Section 3-303(a) of the Business Occupations Article makes clear that only an individual may be licensed as an architect. (“To qualify for a license, an applicant shall be an individual who meets the requirements of this section.”). Section 14-304(a) contains the same requirement for licensure as a professional engineer. The restriction is a necessary one, as both laws require, as a qualification of obtaining a license, certain educational experience and successful completion of an examination, which, obviously, only individuals are capable of ²⁶⁹ satisfying.

Thus, although both laws permit a corporate practice of architecture and engineering, under certain conditions, only individuals may be licensed. Id. at 690, 846 A.2d 433 . In holding that only individuals may be licensed professionals under the statute, the Court of Appeals interpreted properly the term “licensed professional” as then-defined under CJP 3-2C-01(c) and its companion sections in the BOP article. In the next legislative session, the General Assembly passed SB 143 and amended CJP § 3-2C-01(b) as follows: “Claim” means a civil action, including an original claim, counterclaim, cross-claim, or third-party claim, originally filed in circuit court or United States District Court against a licensed professional or the employer, partnership, OR OTHER ENTITY THROUGH WHICH THE LICENSED PROFESSIONAL performed professional services that is based on the licensed professional’s alleged negligent act or omission in rendering professional services, within the scope of the professional’s license, permit, or certificate, for others, (emphasis added in style of Maryland Legislative Drafting Manual to indicate text added to pre-2005 statute).

Heavenly Days argues that the 2005 amendment did not expand the application of CJP §§ 3-2C-01 and -02 to complaints against business entities when such complaints are not based on alleged negligence of a “licensed professional.” Heavenly Days reasons that because Mayo did not possess any of the professional licenses enumerated in CJP § 3-2C-01(c) the certificate requirement does not apply to its claim against HSA. HSA does not allege that Mayo carried a professional license; it relies instead on an interpretation of “claim” under CJP § 3-2C-01(b) that includes claims against business entities. HSA argues further that the General Assembly’s intent in enacting the 2005 amendment was “to expand the scope of ‘claim’ to include suits against the firms through which professionals practice.” We agree with HSA on both points. It is clear that the General Assembly amended CJP § 3-2C-01(b) in response to ²⁷⁰ Baltimore County v. RTKL, so that in future cases the claimant would be required to file a certificate when suing a professional business entity that employed the alleged negligent licensed professional.

Further, case law interpreting the policy of the certificate requirement under the medical malpractice statute suggests that CJP § 3-2C-01 applies here. See Chen v. State, 370 Md. 99, 106 , 803 A.2d 518 (2002) (“Two statutory provisions concerning the same subject matter are considered to be in pari materia and must be interpreted accordingly.”). We interpreted an analogous statute requiring a certificate of qualified expert in medical malpractice claims as reflecting an intent to, as HSA puts it, “winnow professional negligence cases at an early stage, avoiding costly litigation where ultimate proof is likely to be absent.” D’Angelo v. St. Agnes Healthcare, Inc., 157 Md.App. 631, 645 , 853 A.2d 813 (2004) (“The obvious purpose of the certificate requirement reflects the General Assembly’s desire to weed out, shortly after suit is filed, nonmeritorious medical malpractice claims.”). As discussed, the crux of Heavenly Days’s complaint is the alleged deficiencies in the professional engineering services that HSA provided.

To hold that Heavenly Days’s complaint is not a “claim” under CJP § 3-2C-01(b) would be contrary to the policy of a statutory scheme designed in part to protect professional engineering firms from nonmeritorious tort claims. Finally, the 2005 amendment to CJP § 3-2C-01(b) actually contained two substantive changes. The first change, as discussed above, was in response to Baltimore County v. RTKL. The second change, not directly on point here, was in response to a federal district court case.

In Adams v. NVR Homes, plaintiffs sued a homebuilder for various claims, including professional negligence, but did not file a certificate of qualified expert. 135 F.Supp.2d 675 (2001). The United States District Court for the District of Maryland denied defendants’ motion for summary judgment on the negligence claim, holding that CJP § 3-2C-01 did not apply because the action was not originally filed in a Maryland circuit court, as required by the statute at that time. Id. at 716. In response, ²⁷¹ the General Assembly addressed the jurisdictional aspect of CJP § 3-2C-01(b) by requiring a certificate for cases originally filed in a United States District Court (in addition to those filed in a Maryland circuit court).

Chapter 125, Acts of 2005, SB 143 (2005); see supra pages 262-63, 32 A.3d at 162. The two substantive changes to CJP § 3-2C-01(b) serve to expand the scope of the certificate requirement, which supports our view that the General Assembly intended CJP § 3-2C-02 to apply when a claim involves professional services rendered in part by a non-licensed employee of a professional corporate employer. Because the certificate requirement is designed to “weed out” claims of professional negligence, we must interpret it broadly so as to effectuate the goal of the General Assembly. Chow v. State, 393 Md. 431, 443 , 903 A.2d 388 (2006).

We therefore hold that Heavenly Days’s complaint is a “claim” within the meaning of CJP § 3-2C-01(b). C. Professional Negligence Heavenly Days argues in the alternative that CJP § 3-2C-02 does not apply because it contemplates only claims based on “professional negligence,” and its claim, contrary to its characterization in the amended complaint, is based merely on “ordinary negligence.” Heavenly Days reasons that “the proof of the negligent acts alleged by Heavenly Days does not require knowledge of a licensed expert.” Heavenly Days contends that Mayo’s alleged negligence, “if proven, would be so obviously shown that the trier of fact could recognize it without expert testimony.” Schultz v. Bank of America, 413 Md. 15, 29 , 990 A.2d 1078 (2010). HSA counters that Heavenly Days’s complaint is a “claim” within the meaning of CJP § 3-2C-01(b)—regardless of Heavenly Days’s effort to label it ordinary negligence—because “the statute does not speak to the proof required at trial. It speaks only to the requirement to file a certificate within ninety days of filing a suit against a firm through which a licensed professional practices, if the suit is based on alleged negligent acts or omissions in rendering professional services.” The circuit court held: ²⁷² I know [Heavenly Days] says it’s ordinary negligence, that it’s just failure to do this or to do that.

But when I went back and re-read the first amended complaint, which I needed to do just briefly again, when you look at the negligence