Hector v. Bank of New York Mellon

Ashley Hector, et al. v. Bank of New York Mellon, No. 10, September Term, 2020. Opinion by Biran, J. ESTATES AND TRUSTS – TRUSTEES – INDIVIDUAL TRUSTEE LIABLITY – The Court of Appeals held that a tort plaintiff may sue a trustee in its individual capacity for acts or omissions undertaken in the course of trust administration. Although it is well settled that an entity acting in its individual capacity, and the same entity acting as a trustee, are, in law, two distinct persons, a plaintiff may name the entity as a defendant in both capacities in a complaint. As the Restatement (Third) of Trusts § 105 (Am.

Law Inst. 2012) explains, although the modern approach concerning trustee liability to third parties allows a plaintiff to assert a claim against a trustee in its representative capacity, a trustee is not insulated from also being sued in an individual capacity. ESTATES AND TRUSTS – TRUSTEES – INDIVIDUAL TRUSTEE LIABLITY – PERSONAL FAULT – The Court of Appeals held that, as a matter of Maryland common law, in order to obtain a judgment against a trustee in its individual capacity for a tort committed in the course of trust administration, a plaintiff must prove that the trustee is personally at fault. The Court determined that the General Assembly did not intentionally omit this standard when it passed the Maryland Trust Act. Principles of equity, as well as the applicable provisions of the Restatement (Third) of Trusts, support the adoption of this standard for individual trustee liability.

ESTATES AND TRUSTS – TRUSTEES – INDIVIDUAL TRUSTEE LIABILITY – PERSONAL FAULT – “STATUTE OR ORDINANCE RULE” – The Court of Appeals held that a trustee may be personally at fault if it fails to comply with a duty imposed on it by statute or ordinance. The “Statute or Ordinance Rule” provides that, in order to make out a prima facie case in a negligence action, all that a plaintiff must show is: (a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of. The Court declined to recognize an exception to the application of the Statute or Ordinance Rule where the defendant is a trustee. A trustee may not absolve itself of duties imposed on it by statute or ordinance by delegating those duties to a third party.

BALTIMORE CITY HOUSING CODE – DEFINITION OF “OWNER” – The Court of Appeals held that a purchaser of a property covered under the former Baltimore City Housing Code generally became an “owner” of the property, within the meaning of the Housing Code, upon the ratification of the foreclosure sale by the circuit court. Where, as here, the foreclosure purchaser was also the beneficiary of a deed of trust that allowed the beneficiary to obtain possession of the property prior to ratification, then the purchaser became an “owner” as of the date of the foreclosure sale. Until it purchased the property at foreclosure, the beneficiary of the deed of trust was considered a “mortgagee” and therefore exempt from the definition of “owner” under the Housing Code. Circuit Court for Baltimore City Case No. 24-C-16-002488 Argued: October 29, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 10 September Term, 2020 ASHLEY HECTOR, ET AL. v. BANK OF NEW YORK MELLON Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.

Opinion by Biran, J. Filed: May 27, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-06-03 10:40-04:00 Suzanne C. Johnson, Clerk As young children, Petitioners Ashley Hector and Alyaa Hector (collectively, the “Hectors”) lived with their parents in a rowhouse in Baltimore City that contained lead- based paint. While the Hector family lived in the home, the paint chipped in several rooms, including Ashley’s and Alyaa’s bedroom. Blood tests taken in January 2002 – after the Hector family had lived in the home for approximately one year – revealed that both girls had elevated levels of lead in their bodies. The Hector family moved out of the home in the spring of 2002.

The Hector family’s landlord, Sharlene Epps-Smith, had taken out a mortgage on her interest in the property. That mortgage subsequently was bundled with many others and became part of, and owned by, a residential mortgage backed securitization trust. The trustee of this trust was the Bank of New York, which is now known as the Bank of New York Mellon (“BNYM”), the Respondent in this case.1 On December 27, 2001, following Ms. Epps-Smith’s default on the mortgage, BNYM as Trustee caused Ms. Epps-Smith’s interest in the property to be sold at foreclosure; BNYM as Trustee was the purchaser. On February 5, 2002, the Circuit Court for Baltimore City ratified the foreclosure sale to BNYM as Trustee.

In June 2016, the Hectors (through their father) filed an Amended Complaint in the Circuit Court for Baltimore City against BNYM in its individual capacity, in which they claimed that BNYM’s negligence while serving as Trustee resulted in their lead poisoning. 1 For ease of reference, we refer to both the Bank of New York Mellon and to its predecessor, the Bank of New York, as “BNYM.” The Hectors alleged that they suffered severe and permanent brain damage as a result of their exposure to lead. After discovery was concluded, the circuit court granted summary judgment to BNYM on the ground that the Hectors had erroneously named BNYM in its individual capacity, as opposed to its fiduciary (trustee) capacity. On appeal, the Court of Special Appeals held that BNYM could theoretically be liable in its individual capacity for a tort it committed while serving as the Trustee. Although the intermediate appellate court thus disagreed with the circuit court’s reason for ruling against the Hectors, it affirmed the circuit court’s judgment on another ground: that the Hectors had failed to produce facts from which the trier of fact could conclude that BNYM was personally at fault for the failure to properly maintain the property.

The Hectors petitioned this Court for further review. We agree with the Court of Special Appeals that (1) a trustee may be held individually liable for a tort committed in the course of trust administration, if (2) the trustee is personally at fault. We affirm the Court of Special Appeals on these points. However, contrary to the Court of Special Appeals, we conclude that the Hectors satisfied their burden at summary judgment as to BNYM’s personal fault by producing facts from which a jury could find that BNYM breached a duty it owed to the Hectors under the Baltimore City Housing Code as the “owner” of the property.

Thus, we will reverse the judgment of the Court of Special Appeals and remand this case to the circuit court for further proceedings. 2 I Background A. Facts A review of the evidence in the summary judgment record in the light most favorable to the Hectors reveals the following facts: 1. Ms. Epps-Smith’s Interest in 447 North Linwood Avenue On September 30, 1999, Intercoastal Investment Trust (“Intercoastal”) purchased a two-story rowhouse located at 447 North Linwood Avenue in Baltimore City (the “Property”) for $15,000. That same day, Sharlene Epps-Smith2 entered into a 99-year lease agreement with Intercoastal, whereby Ms. Epps-Smith agreed to pay Intercoastal a lump sum of $60,000 and to make an annual rent payment of $96.00.3 In addition, on the same date, Ms. Epps-Smith executed a Purchase Money Deed of Trust for $54,000 secured by her interest in the Property. The original beneficiary of this deed of trust was First Equity Mortgage, Inc., which was defined in the document as “Lender.” Among other provisions, the deed of trust stated that Ms. Epps-Smith, as the “Borrower,” “shall have possession of the Property until Lender has given Borrower notice of default[.]” 2 Sharlene Epps-Smith is also referred to as “Sharlene Epps” and “Sharlene Smith” at various points in the record.

We will refer to her as Ms. “Epps-Smith,” which is how her name appears in the Hectors’ Second Amended Complaint. 3 The agreement between Intercoastal and Ms. Epps-Smith was a lease for ground rent. As we have previously explained, “[t]he ground lease is a centuries-old home financing tool found almost exclusively in Maryland.” State v. Goldberg, 437 Md. 191, 196 (2014). 3 The rowhouse at 447 North Linwood Avenue was built in 1900 and contained lead- based paint. 2. The Securitization of Ms. Epps-Smith’s Mortgage On December 1, 1999, BNYM as Trustee, together with CWMBS, Inc. (“CWMBS”) and Indymac, Inc. (“Indymac”), created a special purpose vehicle in the form of a trust, known as Residential Asset Securitization Trust 1999-A9 Mortgage Pass- Through Certificates, Series 1999-I (the “Trust”). This kind of trust (often called a residential mortgage backed securitization trust) serves as a repository for loans and to hold mortgage collateral and other contract rights for its owners, who are the certificateholders and who hold a beneficial interest in the trust.

At the time the Trust was created, BNYM as Trustee executed a Pooling and Servicing Agreement (“PSA”) establishing and governing the rights and responsibilities of the parties in the administration of the Trust. The other parties to the PSA were CWMBS as the “Depositor” and Indymac as the “Seller” and “Master Servicer.” Among other things, the PSA set forth the scope of BNYM’s duties as Trustee, as well as its liabilities to the Trust. Along with many other mortgage instruments, Ms. Epps-Smith’s mortgage on her leasehold interest in the Property became a part of, and owned by, the Trust. 3. Ms. Epps-Smith’s Default on the Mortgage and the Foreclosure Proceedings Ms. Epps-Smith quickly defaulted on her mortgage, only paying a total of $348.30.

In November 2001, BNYM as Trustee caused a foreclosure action to be filed in the Circuit Court for Baltimore City. On November 21, 2001, BNYM as Trustee appointed the substitute trustees to initiate the foreclosure action and conduct the sale. The substitute 4 trustees filed the papers docketing the foreclosure action in the Circuit Court on November 26, 2001. An auction went forward on December 27, 2001, at which time BNYM as Trustee purchased Ms. Epps-Smith’s leasehold interest in the Property.

A judge of the Circuit Court signed an order ratifying the sale on February 5, 2002. BNYM as Trustee filed a motion for possession with respect to the Property on March 11, 2002. The circuit court granted the motion for possession on August 15, 2002. A deed conveying the leasehold interest in the Property to BNYM as Trustee was recorded in Baltimore City’s land records on May 23, 2003. 4.

The Hector Family’s Rental of the Property and the Hectors’ Exposure to Lead- Based Paint The Hector family rented the Property as tenants of Ms. Epps-Smith beginning in late 2000 or early 2001, and ending at some point in the spring of 2002. The family included Ashley and Alyaa, twin sisters born in September 1997, and their parents, Lamont and Danielle Hector. Mr. and Mrs. Hector interacted primarily with Daniel Smith, the brother of Ms. Epps-Smith, regarding the upkeep of the Property. Prior to the Hectors moving into the Property, Mr. Smith painted the interior of the house.

Within approximately a month or two of moving in, Mr. and Mrs. Hector noticed paint chipping on the walls in the children’s bedroom, kitchen, and master bedroom. After they complained about the chipping paint, Mr. Smith repainted. Three to four months later, Mr. and Mrs. Hector noticed the paint chipping again and alerted Mr. Smith to the problem. However, Mr. Smith did not repaint again.

In response, the Hectors withheld rent. Mr. Smith filed a landlord/tenant action in the summer 5 of 2001 for unpaid rent, but failed to appear for court. However, according to Mr. Hector, a representative of the bank “that foreclosed on the Property” attended the court proceeding. That representative, who Mr. Hector thought was from “New York Bank,” informed Mr. Hector of the foreclosure proceedings and said that Mr. Smith should not be attempting to rent out the Property or to collect rent.

On another occasion, a different representative of “the bank” came to the Property and informed Mr. Hector that: (1) the bank “actually owned the [P]roperty”; (2) the “house was foreclosed on”; (3) no one was supposed to be in the Property; (4) the bank had tried to turn the water off but could not do so because the Property was occupied; and (5) the bank was going to file for an eviction. Blood tests taken on Ashley and Alyaa Hector on January 7, 2002, revealed that both children had elevated lead levels. The Hectors’ test results prompted an inspection by the Baltimore City Health Department on or about March 7, 2002, which led to the issuance of a violation notice to Ms. Epps-Smith on March 13, 2002, and an emergency violation notice and order on April 2, 2002 to Mr. Smith to remove the “lead nuisance” from the property. The Hectors voluntarily vacated the Property in the spring of 2002.

B. The Hectors’ Lawsuit 1. Complaint On April 27, 2016, the Hectors (through their father) filed a Complaint against Ms. Epps-Smith and Mr. Smith in the Circuit Court for Baltimore City, seeking damages for injuries related to lead-paint poisoning. On June 10, 2016, the Hectors filed an Amended Complaint adding BNYM as a defendant. The Amended Complaint consisted of three counts, each for negligence against one of the named defendants, alleging severe and 6 permanent brain damage as a result of lead poisoning.

With respect to BNYM in Count III, the Hectors alleged, among other things: For that all [sic] of the time mentioned herein the Defendant, [BNYM], owned and/or controlled, either individually or by the use of agents, apparent agents, servants and/or employees, a lot of ground and building known as [the Property] . . . which [BNYM] either individually or by agents, apparent agents, servants or employees, had a duty to manage, supervise, and maintain pursuant to the Baltimore City Code. [BNYM], as trustee under a Pooling and Servicing Agreement, pursuant to a foreclosure, did purchase [the Property] at auction on December 27, 2001. On September 19, 2016, BNYM filed an Answer to the Amended Complaint. In its Answer, BNYM generally denied liability, and specifically asserted that it “ha[d] no personal liability for [the Hectors’] claims.” The parties then engaged in discovery. 2. Motion for Summary Judgment On May 21, 2018, BNYM moved for summary judgment.

In relevant part, BNYM argued that it was not an owner or holder of legal title, or a vendee in possession of the Property, prior to the date the Hectors vacated the Property, and could not be an owner of the Property because it was acting in an administrative capacity and did not have control over the Property sufficient to be charged with a duty to maintain it. BNYM further asserted that the Hectors sued BNYM improperly in its individual capacity, when the appropriate capacity was as a trustee. The Hectors opposed the motion for summary judgment, arguing that BNYM was an “owner” of the Property during the relevant period under the plain language of the Baltimore City Housing Code. See Balt.

City Code (2000 Repl. Vol.), Art. 13, §§ 103(b) and 105(jj) (the “Housing Code” or the “Code”). In addition, the Hectors asserted that the 7 Maryland Trust Act, Md. Code, Est. & Trusts (“ET”) § 14.5-908(b) (2017 Repl. Vol.) (sometimes referred to herein as the “Trust Act” or the “Act”), permits a tort claim against a trustee in the trustee’s individual capacity.

On July 11, 2018, the circuit court held a hearing on the motion for summary judgment. The Hectors’ counsel confirmed during his presentation that the Hectors sued BNYM in its individual capacity, not in its capacity as a trustee. Ruling from the bench, Judge Barry G. Williams granted summary judgment in favor of BNYM on the ground that the Hectors had failed to sue the appropriate party: But at a very base level, what the Plaintiff has done here is sued the Bank of New York Mellon. All through the papers, there’s the issue of the Bank of New York Mellon, whether there’s a trustee.

And I assumed that at some point there would either have been an amendment to the complaint or that there would be an issue with Defense and Plaintiff agreeing. I do not have that. For those reasons, the Court will find, based on summary judgment that there’s no dispute as to any material fact, whether a party is entitled to judgment as a matter of law, that the Bank of New York Mellon is not the trustee, that the Bank of New York Mellon as presented by Counsel for Plaintiff is not the appropriate party to be sued, and the motion for summary judgment is granted on that point. Over BNYM’s objection, Judge Williams granted the Hectors’ oral motion for leave to amend the first Amended Complaint. 3.

The Second Amended Complaint and BNYM’s Motion to Strike or Dismiss On July 24, 2018, the Hectors filed a Second Amended Complaint. In the caption, the Hectors named BNYM as a defendant “Individually, and as Trustee.” The Second Amended Complaint again also named Ms. Epps-Smith and Mr. Smith as co-defendants. 8 On August 10, 2018, BNYM filed a motion to strike and/or dismiss the Second Amended Complaint. BNYM argued that BNYM in its individual capacity was not a proper party, as Judge Williams had previously ruled on summary judgment. On October 3, 2018, the circuit court held a hearing on BNYM’s motion.

In his presentation, the Hectors’ counsel noted that the Trust no longer was in existence. Thus, it was clear that, for the Hectors to receive any recovery from BNYM, there would need to be a finding of individual liability on the part of BNYM. The parties agreed that the only issue before the circuit court was whether the Hectors had properly named BNYM as a defendant in the Second Amended Complaint in its individual capacity. In an oral ruling, Judge John S. Nugent granted the motion to dismiss: It is this Court [sic] position that that matter has already been decided, clearly decided, by Judge Williams.

He granted summary judgment on behalf of Defendant Bank of New York Mellon in their individual capacity. This Court sees no reason to reconsider or to interfere with the order of Judge Williams. Therefore the motion will be granted as to the Bank in its individual capacity. Following Judge Nugent’s ruling, the Hectors filed a Stipulation of Dismissal with Prejudice with respect to their claims against Ms. Epps-Smith and Mr. Smith.

The Hectors then noted a timely appeal. 4. Appeal The Court of Special Appeals affirmed the judgment of the circuit court, but for different reasons. Hector v. Bank of New York Mellon, 244 Md. App. 322 (2020). The intermediate appellate court relied on the Restatement (Third) of Trusts for the proposition that the Hectors could sue BNYM in its individual capacity for a tort it allegedly committed while serving as the Trustee of the Trust.

Id. at 332 . Thus, the court disagreed with the 9 circuit court’s reasoning for dismissing the Second Amended Complaint as to BNYM. See id. However, interpreting Judge Nugent’s dismissal of the Second Amended Complaint as “effectively affirming the initial grant of summary judgment,” id. at 325 , the Court of Special Appeals considered whether BNYM was entitled to summary judgment on another ground.

Although the court stated that BNYM as Trustee was an “owner” of the Property under the Housing Code during the relevant period, id. at 338 , the court held that, in order to survive summary judgment, the Hectors had to produce facts sufficient to generate a dispute as to whether BNYM was “personally at fault” for the alleged tort. Id. at 332-33 . The intermediate appellate court relied on this Court’s opinion in Allen v. Dackman, 413 Md. 132 (2010), in concluding that, in order to be personally at fault, BNYM must have “personally committed, inspired, or participated” in the alleged tort. Id. at 341 (quoting Dackman, 413 Md. at 141 ).

The court then discussed an affidavit attached to BNYM’s summary judgment motion from Phillip R. Burnaman, II, an expert in mortgage-backed securitization transactions. Mr. Burnaman explained that the PSA called for the Master Servicer (Indymac), not the Trustee (BNYM), to make decisions concerning foreclosures and other actions the Trust might take with respect to properties secured by the mortgages in the Trust. Thus, according to Mr. Burnaman (as recounted by the court), “[i]t is clear here … that the securitization trustee was not the owner of the mortgage loans or the … property, did not act like an owner of the … property and was not consulted by the servicer when and as the servicer made a series of decisions regarding the loan foreclosure, the … 10 property and appropriate loss mitigation alternatives.” Id. at 339. To the contrary, Mr. Burnaman opined that “BNYM as Trustee’s only involvement with trust property was passive, and that it was not engaged in the active real estate business.” Id.

(internal quotation marks omitted). The Court of Special Appeals held that the Hectors had not sufficiently contradicted Mr. Burnaman’s affidavit concerning BNYM’s “passive” role as to the Property. Id. at 341- 42. Having concluded that the Hectors did not produce facts sufficient to show that BNYM was personally at fault, the intermediate appellate court affirmed the circuit court’s judgment in favor of BNYM.

Id. at 342. On March 16, 2020, the Hectors filed a petition for a writ of certiorari. On May 8, 2020, we granted the Hectors’ petition. 468 Md. 544 (2020). We have rephrased the Hectors’ questions presented into the following two questions: I. Did the circuit court err in dismissing the Second Amended Complaint as to BNYM in its individual capacity?

II

Is BNYM entitled to summary judgment either because it was not personally at fault for the negligence that allegedly harmed the Hectors, or because it was not an “owner” of the Property, within the meaning of the Housing Code, while the Hectors lived there? II Standard of Review “The standard for appellate review of a trial court’s grant of a motion for summary judgment is simply whether the trial court was legally correct ... and is subject to no deference.” Hamilton v. Kirson, 439 Md. 501, 522 (2014) (internal quotation marks and citations omitted). Id. Thus, we conduct an independent review of the record to determine 11 whether the parties generated a dispute of material fact and, if not, whether the moving party was entitled to judgment as a matter of law.

Id. We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts in the record against the moving party. See id. III Discussion A. BNYM May Be Individually Liable for a Tort It Allegedly Committed in Its Capacity as Trustee.

We first consider the circuit court’s dismissal of the Second Amended Complaint on the ground that the Hectors may not seek to hold BNYM liable in its individual capacity for acts and omissions BNYM allegedly committed in its capacity as Trustee. The Court of Special Appeals disagreed with the circuit court’s reasoning for granting judgment to BNYM, holding that BNYM, at least in theory, “could be held individually liable for actions it took in its representative capacity as trustee.” Hector, 244 Md. App. at 332 . We agree. At common law, neither a trust nor a trustee in its representative capacity could sue or be sued.

See Doermer v. Oxford Fin. Grp., 884 F.3d 643, 647 (7th Cir. 2018); see also Richardson v. Klaesson, 210 F.3d 811, 813 (8th Cir. 2000) (explaining that, at common law, a trust estate “was not a juridical entity … and the trustee, qua trustee, was not a juristic person.”). That being the case, under the traditional approach concerning trustee liability to third parties that developed at common law, a trustee was “personally liable for torts committed by the trustee or the trustee’s agents or employees, without regard to 12 whether the trustee [was] personally at fault.” Restatement (Third) of Trusts, Introductory Note to ch. 21, at 94 (Am. Law Inst. 2012).

However, the trustee was entitled to indemnification from the trust estate if the trustee acted properly. Id. Over the past several decades, this traditional approach has fallen out of favor. The Third Restatement of Trusts explains: Commentators have long criticized the traditional approach as unfair to trustees whenever the trust estate is insufficient to provide full indemnity, and perhaps to third parties if the trustee’s own assets are insufficient to satisfy all of the trustee’s debts....

Reacting to these concerns, most American states ... no longer follow the traditional rules. Under the modern approach adopted in this Chapter, third parties may proceed against a trustee in the trustee’s fiduciary (“representative”) capacity whether or not the trustee is also personally liable, with the trustee shielded from personal liability insofar as the trustee acted properly. Id. Indeed, under the Maryland Trust Act, “[a] claim based on a contract entered into by a trustee in the fiduciary capacity of the trustee, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the fiduciary capacity of the trustee, regardless of whether the trustee is personally liable for the claim.” ET § 14.5- 908(b); see also Restatement (Third) of Trusts § 105 (“A third party may assert a claim against a trust for a liability incurred in trust administration by proceeding against a trustee in the trustee’s representative capacity, whether or not the trustee is personally liable.”).

Although the modern approach thus allows a third party to assert a claim against a trust by proceeding against a trustee in its representative capacity, the rule stated in § 105 of the Third Restatement of Trusts “does not insulate a trustee from also being sued in an individual capacity.... Plaintiffs may sue trustees in both individual and representative 13 capacities, it frequently being unclear at the outset of litigation whether the facts will give rise to representative or individual liability.” Id. cmt. c; see also id. cmt. a (“This Section does not preclude a third party from proceeding against a trustee in both the trustee’s individual and representative capacities; in fact, this is frequently done.”). Indeed, the phrase “whether the trustee is personally liable for the claim” in ET § 14.5-908(b) suggests that, in some cases, a trustee will be individually liable for a tort it commits in the course of trust administration. Here, in the caption of the operative complaint (the Second Amended Complaint), the Hectors named BNYM in both its individual and trust capacities.

BNYM argues that the circuit court correctly dismissed the complaint as to BNYM in its individual capacity because “[t]here is no evidence that BNYM in its individual capacity had any involvement with the Property outside of its management of Trust assets pursuant to the terms of the PSA.” BNYM may be correct that it acted in connection with the Property only in its trustee capacity, but it does not follow from this premise that BNYM can only be liable in its trustee capacity for a tort it committed in the course of administering the Trust. Although it is well settled that an entity acting in its individual capacity, and the same entity acting as a trustee, “are, in law, two entirely separate and distinct persons,” Alexander v. Rose, 181 Md. 447, 454 (1943), a plaintiff may name the entity as a defendant in both capacities in a complaint. See, e.g., Snyder v. U.S. Bank N.A., 387 F. Supp.3d 867, 871-72 (N.D. Ill. 2019) (plaintiffs alleged that bank defendants were liable both in their capacities as trustees and “in their individual capacities in relation to their own acts and omissions”; court denied defendants’ motion for judgment on the pleadings with respect to 14 claims against them in their individual capacities); Colorado Springs Cablevision, Inc. v. Lively, 579 F. Supp. 252 , 255-56 & nn.6-7 (D. Colo. 1984) (“Even if Lively was being sued solely in his individual capacity, the complaint should not be dismissed. It is a generally accepted rule that a trustee may be personally liable to third parties for obligations incurred during the administration of a trust.

These obligations may arise out of torts committed by the trustee ... or as a result of owning property held in trust”; although “in Colorado a trustee will only be personally liable if he is ‘personally at fault’ ... [,] [e]ven if this provision were applicable, dismissal of the action at this stage would be inappropriate, for fault is a factual issue.”); In re Schneider, 417 B.R. 907, 914 (Bankr. N.D. Ill. 2009) (“Referencing Sarah in the Complaint in her alternative capacities with respect to the fraudulent transfer claim does not necessarily mean that the [plaintiff] sued the wrong party on that claim.”); People v. Braum, 263 Cal. Rptr. 3d 1 , 18-19 (Cal. Ct. App. 2020) (defendant held personally liable for civil penalties after having been sued in both his individual capacity and trustee capacity).4 Because BNYM may be individually liable for acts or omissions it committed in its capacity as a trustee, the Hectors were permitted to sue BNYM in its individual capacity. 4 As a matter of pleading, under Maryland Rule 2-304(a), “[i]t is not necessary to aver ... the authority of a party to sue or be sued in a representative capacity.” Here, however, in response to Judge Williams’s ruling, the Hectors specified in the Second Amended Complaint that they were proceeding against BNYM in both its individual and trustee capacities.

We gather that, on remand, the Hectors will only ask the jury to award damages against BNYM in its individual capacity, as the Trust no longer exists. As discussed below, to obtain a judgment against BNYM in its individual capacity, the Hectors will need to prove at trial that BNYM was personally at fault. 15 It follows that the circuit court erred in dismissing the Second Amended Complaint on the ground that the Hectors improperly named BNYM as a defendant in its individual capacity. B. BNYM Is Not Entitled to Summary Judgment on Other Grounds. Although the Court of Special Appeals held that the circuit court’s reason for granting judgment to BNYM was incorrect, the intermediate appellate court affirmed the judgment on another ground.

Specifically, the Court of Special Appeals held that the Hectors failed to produce facts at the summary judgment stage sufficient to generate a dispute as to whether BNYM as Trustee was “personally at fault” for the alleged tort. Id. at 332-33. BNYM argues that this holding of the Court of Special Appeals is correct.5 In addition, BNYM asserts that it is also entitled to summary judgment for another reason. It contends that, even if a trustee can be personally liable for a tort by virtue of its ownership of a dwelling that is subject to the Housing Code, it is undisputed that BNYM did not become an “owner” of the Property until after the Hectors moved out. 5 We take note of the unusual posture of this case.

Although the circuit court granted BNYM’s motion for summary judgment, the court permitted the Hectors to amend their complaint. After the Hectors did so, BNYM filed its motion to dismiss or strike, which the circuit court granted. As a technical matter, it is that order of dismissal from which the Hectors appealed. However, in the Court of Special Appeals, the Hectors framed the question for which it sought review as whether the circuit court “err[ed] in granting summary judgment by finding as a matter of law, that ...

BNYM, as Trustee ... had no individual duty to minor children residing in an old dangerous rental property in Baltimore City, where BNYM defaulted the debtor, foreclosed on the property, and purchased the dwelling at auction.” As the Court of Special Appeals observed, Judge Nugent granted the motion to dismiss because Judge Williams previously had granted summary judgment to BNYM on the same ground. Thus, the intermediate appellate court viewed Judge Nugent’s ruling as “effectively affirming the initial grant of summary judgment,” Hector, 244 Md. App. at 325 , and accepted the Hectors’ invitation to review whether BNYM was entitled to summary judgment. We shall do the same. See also note 6 below. 16 According to the Hectors, to withstand BNYM’s motion for summary judgment, they were required only to show that sufficient facts exist for a jury to conclude that BNYM breached a duty the Housing Code imposed upon it as an “owner” of the Property.

The Hectors further contend that BNYM became an “owner” of the Property prior to the date they moved out in the spring of 2002. We agree with the Hectors.6 1. A Trustee “Owner” of Property Covered under the Housing Code May Be Individually Liable for Harm Suffered by an Occupant If the Trustee Fails to Comply with an Owner’s Duties Under the Code. a. Pertinent Provisions of the Housing Code To understand the scope of a trustee’s individual liability for alleged torts involving the failure to maintain properties in Baltimore City, it is helpful to begin by discussing 6 Although BNYM raised these alternate grounds for summary judgment in the circuit court, Judge Williams did not address them.

As we recently explained in State v. Rovin, No. 29, Sept. Term 2020, slip op. at 54 (Md. March 2, 2021), “[w]e must be cognizant of the general rule that in appeals from the granting of a motion for summary judgment, absent exceptional circumstances, Maryland appellate courts will only consider the grounds upon which the lower court granted summary judgment.” (Internal quotation marks and citation omitted). However, “because this is a general rule rather than an absolute one, there are exceptions.” Id. For example, “an appellate court may affirm on a different ground where the trial court would have had no discretion to deny summary judgment as to that ground.” Id. This exception applies to BNYM’s argument that it is entitled to judgment as a matter of law because it did not become an “owner” of the Property until after the Hectors moved out.

If BNYM is correct about that, Judge Williams would have lacked discretion to deny summary judgment, had he believed he needed to reach that alternate ground. As for the Court of Special Appeals’ holding that the Hectors failed to produce facts showing that BNYM as Trustee was “personally at fault,” another exception to the general rule applies. As we stated in Rovin, “an appellate court may affirm on a different ground where the two grounds are so interrelated that they cannot be properly considered as separate and distinct.” Id. at 54-55. (cleaned up).

The questions of whether a trustee may be sued in its individual capacity for a tort committed in the course of trust administration and, if so, what the plaintiff must prove to establish individual liability, are sufficiently interrelated to warrant our reaching the latter question, despite the fact that Judge Williams did not do so. 17 several pertinent provisions of the Housing Code.7 The Housing Code is “liberally construed” to effectuate its “remedial” purposes that are “essential to the public interest.” Housing Code § 103(b). Those remedial purposes, among others, are to: (1) establish and maintain basic minimum requirements, standards, and conditions essential for the protection of the health, safety, morals, and general welfare of the public and of the owners and occupants of dwellings in the City of Baltimore; (2) establish minimum standards governing the condition, use, operation, occupancy, and maintenance of dwellings and other structures, and the utilities, facilities, and other physical components, things, and conditions to be supplied to dwellings in order to make dwellings safe, sanitary, and fit for human habitation; [and] (3) fix certain responsibilities and duties of owners, operators, agents, and occupants of dwellings[.] Id. § 103(a). Under the Housing Code, “[a]ny person who is either an owner or operator of a property subject to this Code shall be responsible for compliance with all of the provisions of the Code.” Id. § 310(a). 7 When we refer to the Housing Code in this opinion, we mean the Housing Code as it existed during the time when the Hectors resided at the Property: late 2000/early 2001 through the spring of 2002. In December 2002, the Baltimore City Council repealed Division V of Article 13 of the Baltimore City Code, which comprised the Housing Code.

The City Council subsequently enacted the Building, Fire, and Related Codes of Baltimore City, which currently incorporates the 2018 edition of the “International Property Maintenance Code” published by the International Code Council, Inc., as supplemented, amended, or otherwise modified by the Mayor and City Council of Baltimore. The International Property Maintenance Code addresses many of the topics that were covered in the Housing Code. See Baltimore City Department of Legislative Reference, Building, Fire, and Related Codes of Baltimore City (2020), available at https://ca.baltimorecity.gov/codes/Art%2000%20-%20Bldg,%20Fire.pdf [https://perma.c c/EB5D-B56U]. 18 Section 702 of the Housing Code requires that “[e]very building ... occupied as a dwelling shall, while in use ..., be kept in good repair, in safe condition, and fit for human habitation.” Under § 703, “good repair and safe condition shall include but is not limited to the following standards ... [a]ll walls, ceilings, woodwork, doors and windows shall be kept clean and free of any flaking, loose, or peeling paint.” Under the Housing Code, an “owner” is (1) any person, firm, corporation, guardian, conservator, receiver, trustee, executor, or other judicial officer, who, alone or jointly or severally with others, owns, holds, or controls the whole or any part of the freehold or leasehold title to any dwelling or dwelling unit, with or without accompanying actual possession thereof; and (2) shall include in addition to the holder of legal title, any vendee in possession thereof, but shall not include a mortgagee or an owner of a reversionary interest under a ground rent lease. Id. § 105(jj).

We have held that the term “owner” in the Housing Code has “a broader meaning than it does in the traditional sense,” reaching “not only ... those who actually own the title to a dwelling, but also those who ‘hold[ ] or control[ ]’ that title as well.” Allen v. Dackman, 413 Md. at 148 (quoting Housing Code § 105(jj)). To ascertain whether someone other than the actual title owner is deemed to be an “owner” under the Code, “the relevant determination ... is whether [the person] had an ability to change or affect the title to the property at issue.” Id. at 149 (cleaned up). We explained in Dackman that “the ability to buy and sell the property ... is an example of controlling the title to a dwelling.” Id. at 150 n.13. 19 b. The “Statute or Ordinance Rule” The Hectors base their argument for reversal of summary judgment on the “Statute or Ordinance Rule.” At common law and in the absence of a statute, “a landlord ordinarily has no duty to keep rental premises in repair, or to inspect the rental premises either at the inception of the lease or during the lease term.” Brooks v. Lewin Realty III, Inc., 378 Md. 70, 78 (2003), abrogated on other grounds by Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 594 (2011).

However, “where there is an applicable statutory scheme designed to protect a class of persons which includes the plaintiff, another well-settled Maryland common law rule has long been applied by this Court in negligence actions. That rule states that the defendant’s duty ordinarily is prescribed by the statute or ordinance and that the violation of the statute or ordinance is itself evidence of negligence.” Id. (internal quotation marks and citation omitted). Thus, “in order to make out a prima facie case in a negligence action, all that a plaintiff must show is: (a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.” Id. at 79.

We have referred to this two-part test as the “Statute or Ordinance Rule.” See Blackburn Ltd. P’ship v. Paul, 438 Md. 100 , 111 n.6 (2014); Polakoff v. Turner, 385 Md. 467, 476 (2005). In Brooks, we explained that, “[w]here there is evidence that the violation of the statute proximately caused the plaintiff’s injury, evidence of such violation is sufficient evidence to warrant the court in submitting the case to the jury on the question of the defendant’s negligence.” Brooks, 378 Md. at 79 (cleaned up). The jury “must then evaluate whether the actions taken by the defendant were reasonable under all the circumstances.” 20 Id. We stressed that the case law explicating the Statute or Ordinance Rule does not “impose[] upon the plaintiff the additional burden of proving that the defendant was aware that he or she was violating the statute or ordinance.” Id. at 80 .

Rather, “[i]t is the violation of the statute or ordinance alone which is evidence of negligence.” Id. In Brooks, this Court examined the application of the Statute or Ordinance Rule in the context of a Baltimore City lead paint case. There, a child allegedly suffered lead poisoning as a result of consumption of lead-based paint, which was present in the form of flaking, loose, and peeling paint in the leased premises. Id. at 72-74 .

The plaintiffs alleged in count one of their complaint that the defendants were negligent in allowing these conditions to exist within the premises, and that their negligence caused the child’s elevated blood lead level. See id. We observed that the Housing Code “imposes numerous duties and obligations upon landlords who rent residential property to tenants,” id. at 81 , and quoted this Court’s prior opinion in Brown v. Dermer, 357 Md. 344, 367 (2000), for the proposition that “by enacting §§ 702 and 703 of the Housing Code, the City Council sought to protect children from lead paint poisoning by putting landlords on notice of conditions which could enhance the risk of such injuries.” Id. Thus, we held that, under the Statute or Ordinance Rule, “if the plaintiffs can establish a violation of the Housing Code which proximately caused [the child’s] injuries, then the plaintiffs are entitled to have count one of their complaint submitted to the trier of facts … [because] the plaintiffs need not prove that Lewin Realty had notice of the Housing Code violation.” Id. at 81. 21 c.

Should We Recognize a “Trustee Exception” to the Statute or Ordinance Rule? BNYM does not dispute that, at some point while serving in its trustee capacity, it became an “owner” of the Property within the meaning of the Housing Code. The parties disagree on the point in time when BNYM became an “owner.”8 However, BNYM asserts that, even if it was an “owner” during the time the Hector family occupied the Property, it cannot be individually liable for any injuries the Hectors allegedly suffered as a result of exposure to lead paint during BNYM’s period of ownership. BNYM contends that, when the owner of a property is a trustee, a plaintiff must do more than show a violation of the Housing Code and proximate causation to have its claim of negligence against the trustee in its individual capacity go to a jury.

According to BNYM, (1) a plaintiff must produce facts from which the jury could find that the trustee owner was “personally at fault” for the tort; and (2) to show that the trustee was “personally at fault,” the plaintiff must prove that the trustee “personally committed, inspired, or participated” in the tort. In making this argument, BNYM effectively asks us to recognize an exception to the Statute or Ordinance Rule for trustee defendants. For the reasons discussed below, we decline to do so. i. The “Personally at Fault” Standard for Individual Trustee Liability to Third Parties We do agree, however, with BNYM’s preliminary contention: a trustee may be held individually liable for a tort committed as part of the administration of the trust only if the trustee is personally at fault. 8 We address that question in Section B.2 below. 22 In 2014, the General Assembly enacted the Maryland Trust Act as Title 14.5 of the Estates and Trusts Article. 2014 Md. Laws ch. 585.

The Trust Act is “a modified version of the Uniform Trust Code [(“UTC”)] drafted by the National Conference of Commissioners on Uniform State Laws.” Senate Judicial Proceedings Committee, Floor Report, Senate Bill 240 (2014). The Act “provides a more comprehensive codification of the law of trusts within the Maryland Code. It partially codifies the existing law in Maryland governing trusts, but also contains modifications and additions to existing law.” Id. Relevant to this case, the Trust Act, ET § 14.5-908, provides: (a) Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into by the trustee in the fiduciary capacity of the trustee in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity.

(b) A claim based on a contract entered into by a trustee in the fiduciary capacity of the trustee, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the fiduciary capacity of the trustee, regardless of whether the trustee is personally liable for the claim. As the Court of Special Appeals noted, prior to this case, no appellate court had interpreted § 14.5-908. Hector, 244 Md. App. at 331 . Section 14.5-908 is the codification, in part, of UTC § 1010.

UTC § 1010 provides: (a) Except as otherwise provided in the contract, a trustee is not personally liable on a contract properly entered into in the trustee’s fiduciary capacity in the course of administering the trust if the trustee in the contract disclosed the fiduciary capacity. 23 (b) A trustee is personally liable for torts committed in the course of administering a trust, or for obligations arising from ownership or control of trust property, including liability for violation of environmental law, only if the trustee is personally at fault. (c) A claim based on a contract entered into by a trustee in the trustee’s fiduciary capacity, on an obligation arising from ownership or control of trust property, or on a tort committed in the course of administering a trust, may be asserted in a judicial proceeding against the trustee in the trustee’s fiduciary capacity, whether or not the trustee