Mattingly v. Hopkins

Finan, J., delivered the opinion of the Court. The Circuit’ Court for Montgomery County dismissed the appellants’ declaration, sounding in tort, as it was of the opinion that the three year statutory period of limitations had run prior to the filing of the suit. We are of the same mind. In 1951, Joseph A. Mattingly and Marion Mattingly, his wife (appellants), purchased lots 8, 9, 10, and 11 of block 2 in a subdivision known as Hillmeade-Bradley Hills in Montgomery County, Maryland.

In 1952, the appellants entered into an oral contract with Page F. Hopkins and Charles J. Maddox (appellees), a civil engineering firm, to resubdivide these lots. Appellees prepared and appellants approved, two plats which resubdivided the entire holdings of the appellants in the Hillmeade subdivision, save for a portion of land under and west of a creek which ran through the property, and which parcel faced on Fallen Oak Drive. In their amended declaration which was in the form of one count, filed October 25, 1967, the appellants (the original declaration was filed October 2, 1964) alleged: “* * * [T]hat they drew plats of resubdivision and placed them on record and attempted to lay out the lots on the ground by placing markers at the corners of said lots in accordance with the plat of resubdivision which is of record, but they failed to layout the resubdivision of said lands on the plot so as to get the greatest yield of lots from the property and they did further fail in laying out said resubdivision of ⁹⁰ lots on the ground to place the corner markers in the proper places as shown on the recorded plat of resubdivision in the office of the Clerk of the. Circuit Court for Montgomery County, Maryland, and as a direct result of this failure to carry out the contract in the manner in which they had agreed to do so and directly because of their error in placing the corner markers in the wrong places, the plaintiffs, relying on their work, when selling the resubdivided lots to third parties were caused to sell more land to said third parties than they intended to, the plaintiffs intending to sell to said third parties only the amount of land as was shown on the record plat and only the land as located on the record plat rather than the amount of land contained within the corner markers as laid out on the ground, and as a direct result thereof the plaintiffs were damaged in that they suffered a great loss of land * * * and in August, 1963, the Circuit Court for Montgomery County, Maryland rendered a decision wherein the lands that were contained within the bounds of the corner markers as incorrectly placed upon the ground by the said Page F. Hopkins and Charles Joseph Maddox was taken from the plaintiffs and granted to third parties who had purchased land from the plaintiffs, and again in June of 1966, the Circuit Court for Montgomery County, Maryland rendered a decision in a case in which the said Page F. Hopkins and Charles Joseph Maddox had been vouched in, wherein lands that we^e contained within the bounds of the corner markers as incorrectly placed upon the ground by the said defendants were taken from the plaintiffs and granted to third parties, * * * the said Page F. Hopkins and Charles Joseph Maddox failed to lay out said lots on the subdivision plat so as to get the highest yield of lots and ⁹¹ as a direct result of these errors, the plaintiffs suffered damages in that they sold land at a reduced price because they did not know the said land could give a greater yield of lots and further they did not know that the markers were not properly placed and that the markers designated more land than the plaintiffs intended to convey, and further the plaintiffs were damaged in that they were sued twice because of the defendants’ errors. * * *.” (Emphasis supplied.) Damages, including value of lost property, cost of new survey, litigation, etc., in the amount of $25,000 were alleged.

We have quoted directly from the amended declaration as the appellants argue that, although they set forth only one count in their declaration, they have actually stated two causes of action in one count; one based on the misplaced boundary pegs and the other on the misrepresentation as to the yield of lots on Fallen Oak Drive. The latter issue will be reserved for discussion later in this opinion. A general issue plea and a plea of limitations were filed by the appellees. Testimony was taken on behalf of the plaintiff-appellants as to the allegations contained in the amended declaration.

Mr. Mattingly testified that after the appellees had prepared the resubdivision, the plats were filed in the Land Records of Montgomery County on April 8, and December 30 of 1953. In 1953 he commenced to sell lots and continued to do so until the last sale to Mr. and Mrs. Charles W. Houston in February of 1959. The Mattinglys retained one lot on which they built their own home. In the summer of 1959, while attempting to lay out a tennis court, the appellants found what appeared to be a discrepancy between the plats and the physical markers on the lot upon which their home was built.

They called appellee Hopkins and told him of the apparent discrepancy and requested that he recheck the survey. It was not un ⁹² til May or June of 1960 that one of the appellees’ teams of surveyors appeared on the premises and proceeded to remove the iron pipes which were found to be incorrectly placed and drove in new iron pipes where they should have been placed originally. In December of 1962, the Houstons filed a suit against the appellants seeking reformation of their deed to include in the conveyance that portion of land between where the old boundary pegs were, to where the new stakes were located. As a result of that suit the Houstons were granted reformation of their deed and the appellants suffered a resulting loss of 1554 square feet of land.

In September, 1964, the owners of the resubdivided lots, lots 9, 10, 11, 12, 13 and 14, brought suit against the appellants which resulted in the further loss to the appellants of 2301.6 square feet of land. After appellant Joseph A. Mattingly had testified on behalf of the plaintiff-appellants as to the allegations contained in the amended declaration, the lower court entertained motions of the appellees to dismiss the suit on the premise that, as a matter of law, the action was barred by the statute of limitations. After hearing argument the lower court granted appellees’ motion and dismissed the proceedings. Although the testimony of the appellant, Joseph A. Mattingly, presents a complicated set of facts, concerning the concatenation of events, the issue before us is the rather narrow one of when the statute of limitations started to run.

Code, Article 57, § 1 provides that “all actions of account, actions of assumpsit, or on the case, * * * shall be commenced, * * * within three years from the time the cause of action accrued; * * (Emphasis supplied.) Like most general rules of law, those pertaining to “limitations” become less than profound when an attempt is made to apply them to specific cases. Much has been written as to when “limitations” should start to run. Some courts have held the cause of action accrues when the defendant commits his wrong, others when the plain ⁹³ tiff discovers the wrong, and still others have held that it does not acrue until the maturation of harm. Sometimes the happening of the wrong, the knowledge of it and the maturation of the harm are simultaneous.

When this occurs the recognition of the accrual of the cause of action is simple, when these elements happen sequentially it can become complex. Furthermore, there are nuances of difference in the accrual of the cause of action in cases arising out of actions ex contractu, as distinguished from actions ex delicto, and a further hybridization of actions arising out of professional malpractice and otherwise. An exhaustive discourse on the problems which emerge from the various combinations of events which spell out the accrual of the cause of action, is found in 63 Harv. L. Rev. 1177 (1950) and in 28 Md. L. Rev. 47 (1968).

Both articles cite numerous cases and the trend of decisions. In 28 Md. L. Rev. 47 , beginning at 61 there is a concise summary of “The Situation in Maryland.” See also Prosser, The Law of Torts (1964) § 30. However, we think the most viable articulation of the law, in so far as affording a solution to the case at bar is concerned, is found in Waldman v. Rohrbaugh, 241 Md. 137 , 215 A. 2d 825 (1966). In Waldman , Judge Hammond, now Chief Judge, writing for the Court stated, “* * * There is no doubt that as a general rule limitations against a right or cause of action begin to run from the date of the alleged wrong and not from the time that wrong is discovered by the claimant.

Kitten v. Geo. Wash. Cemetery, 231 Md. 337, 343 . * * *.” (Id. at 139.) Although Waldman is a medical malpractice case, the Court discussed various theories regarding the time the cause of action accrues and limitations start to run. In reading Waldman , it is quite apparent that in Maryland we have adopted the “discovery rule” in medical malpractice cases, originally laid down in Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917), but which rule had not been as clearly defined in Hahn as it subsequently was in Waldman .

In Waldman the Court stated that the statute of limitations commences to run “* * * from the mo ⁹⁴ ment of discovery, the moment he knows or should know he has a cause of action, within which to sue.” (Id. at 145.) This Court in Waldman also recognized that cases involving the construction of the statute of limitations “* * * in cases not involving malpractice [have] recognized the theory of the continuation of events, only the last of which starts the running of the statute. * * (Id. at 141.), citing W., B. & A. Elec. R. R. Co. v. Moss, 130 Md. 198 , 100 A. 86 (1917), and Vincent v. Palmer, 179 Md. 365 , 19 A. 2d 183 (1941). We emphasize the reference in Waldman to the “continuation of events theory” not because we have any extension of the wrongful act by a “continuation of events” in the case at bar, but because the “continuation of events theory,” like the “discovery rule,” has departed from the general rule originally recognized, that the statute began to run at the time of the commission of the wrongful act. Waldman , also cites Callahan v. Clemens, 184 Md. 520 , 41 A. 2d 473 (1945), wherein the Court recognized, that where there had been a negligent construction of a stone wall on another’s land in 1929, but no realization or discovery of the claimed defects until 1939, that the cause of action accrued in 1939.

We think there is no question but that applying the thrust of the Waldman opinion to the facts of the case at bar, the cause of action accrued when Mr. Mattingly discovered the discrepancy in the placing of the iron pipes serving as boundary markers in the ground as compared with their location on the plats. This occurred in the summer of 1959 and in our opinion the statute of limitations commenced to run from that date. Even, arguendo, if we were to adopt