Williams v. Home Properties, L.P. et al

Filing 59

MEMORANDUM AND ORDER Granting 55 Motion for Partial Summary Judgment; Dismissing all claims in Count III; Directing plaintiff to arrange a telephone conference to set the date for trial of the claims in Counts I and II. Signed by Judge Marvin J. Garbis on 6/23/2015. (nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNISNICOLE WILLIAMS

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Plaintiff
vs.

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HOME PROPERTIES, L.P. et al.
Defendants
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CIVIL ACTION NO. MJG-13-2947

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MEMORANDUM AND ORDER RE: PARTIAL SUMMARY JUDGMENT
The Court has before it Defendant's Motion for Partial
Summary Judgment [Document 55] and the materials submitted
relating thereto.

I.

The Court finds a hearing unnecessary.

BACKGROUND
As discussed herein, Plaintiff Annisnicole Williams

("Williams") rented an apartment (the "Unit") in the Hunters
Glen Apartments ("Hunters Glen"), a subsidiary of Defendant Home
Properties, L.P. ("Home Properties").1

Shortly after taking

occupancy, Williams was bitten by bed bugs in the Unit.

She

vacated the premises and filed the instant lawsuit.
Williams filed the case in the Circuit Court for Frederick
County, Maryland naming as Defendants: Home Properties, a New

1

Home Properties raises no issue regarding its being held
liable for the actions or inactions of its subsidiary Hunters
Glen.

York entity; and Melissa LaChance (referred to herein as
"LaChance/Ellison" by virtue of her marriage and change of last
name to Ellison), a Maryland citizen.2

LaChance/Ellison was the

Hunters Glen Property Manager.
Home Properties removed the case to this Court, alleging
fraudulent joinder of LaChance/Ellison.

Williams filed a Motion

to Remand, [Document 6], denying fraudulent joinder of
LaChance/Ellison, but raising no issue as to the citizenship of
Home Properties.

In the Memorandum and Order Re: Remand and

Dismissal, [Document 21], the Court found that LaChance/Ellison
had been joined fraudulently and denied remand.
In the Complaint, Williams asserted claims in four Counts,
of which three remain pending3:
Count I

Negligence

Count II

Maryland Consumer Protection Act

Count III

Fraudulent Concealment

By the instant motion, Home Properties seeks summary
judgment on the claims in Count III (Fraudulent Concealment) and
on the claims for punitive damages.

2

LaChance/Ellison Dep. 6:8-17, 8:18-9:6.
In the Memorandum and Order Re: Remand and Dismissal,
[Document 21], the Court dismissed all claims against
LaChance/Ellison and dismissed a battery claim against Home
Properties in Count IV.
3

2

II.

SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the

pleadings and supporting documents "show[] that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law."

Fed. R. Civ. P.

56(a).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

The

Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
Thus, in order "[t]o defeat a motion for summary judgment,
the party opposing the motion must present evidence of specific
facts from which the finder of fact could reasonably find for
him or her."

Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md.

1999) (emphasis added).

However, "self-serving, conclusory, and

uncorroborated statements are insufficient to create a genuine
issue of material fact."

Int'l Waste Indus. Corp. v. Cape

3

Envtl. Mgmt., Inc., 988 F. Supp. 2d 542, 558 n.11 (D. Md. 2013);
see also Wadley v. Park at Landmark, LP, 264 F. App'x 279, 281
(4th Cir. 2008).
When evaluating a motion for summary judgment, the Court
must bear in mind that the "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed 'to secure the just, speedy and inexpensive
determination of every action.'"

Celotex, 477 U.S. at 327

(quoting Fed. R. Civ. P. 1).

III. DISCUSSION
The instant decision relates solely to Williams' Count III
fraudulent concealment claim.

The decision does not relate to

her Count I (negligence) or Count II (Maryland Consumer
Protection Act) claims.

A.

The Tort of Fraudulent Concealment

Williams presents a fraudulent concealment claim based on
the contention that Home Properties "had a duty to disclose the
information . . . regarding the infested condition of the [Unit]
and the bed bug-related history of the [Unit]."

Compl. ¶ 56.

She does not present a claim for failure to disclose.

4

Fraudulent concealment and failure to disclose are closely
related, yet distinct, torts.

Judge Hollander of this Court has

explained:
Ordinarily, under Maryland law, a mere
failure to disclose a material fact does not
constitute fraud, in the absence of a legal
duty to disclose that inheres in certain
types of transactions; "Maryland recognizes
no
general
duty
upon
a
party
to
a
transaction to disclose facts to the other
party."
However, "[e]ven in the absence of
a duty of disclosure, one who suppresses or
conceals facts which materially qualify
representations made to another may be
guilty of fraud."
Ademiluyi v. PennyMac Mortgage Inv. Trust Holdings I, LLC, 929
F. Supp. 2d 502, 531 (D. Md. 2013) (alteration in original)
(citations omitted).
"Fraudulent Concealment 'is any statement or other conduct
which prevents another from acquiring knowledge of a fact, such
as diverting the attention of a prospective buyer from a defect
which otherwise, he would have observed.'"
Corp., 916 A.2d 257, 274 (Md. 2007).

Lloyd v. Gen. Motors

It "includes the situation

where the defendant actively undertakes conduct or utters
statements designed to, or that would, divert attention away
from the defect," whereas "[a] claim of failure to disclose
. . . requires only that the defendant remain silent about, or
omit, facts that the defendant had a duty to disclose."
274 n.11 (emphasis added).

5

Id. at

B.

Pertinent Chronology

(before)
July 16, 2012

Hunters Glen was aware that the Unit was infected
with bedbugs.

July 16, 2012

Hunters Glen signed a Bed Bug Limited Service
Agreement with J.C. Ehrlich Co., Inc. ("JCE"), a
pest control company, for "the periodic treatment
of existing bed bug infestations" in the Unit,
specifically to "treat all areas – 3 visits."

July 17, 2012

LaChance/Ellison provided the prior tenant of the
Unit with a Notice to Vacate effective August 31,
2012 due to breaches of the lease.

Aug. 8, 2012

1st attempt to treat the Unit – JCE did not treat
the Unit because the prior tenant did not have
the Unit adequately prepared.

Aug. 15, 2012

1st treatment - 11 to 25 bedbugs - "Inspected and
treated throughout interior baseboards, sofa,
mattress," but "dressers not emptied, curtains
still hanging, items on floor[, and] Second
bedroom not prepared."

Aug. 22, 2012

2nd treatment – 11 to 25 bedbugs in "stuffed
furniture and bedroom" - "treatment to accessible
areas only" because "closets full, drawers not
emptied, curtains hanging, master bedroom not
prepared."

Sept. 1, 2012

Prior tenant vacated the Unit.

Sept. 4, 2012

3rd treatment – 2 bedbugs in "wall seam second
bedroom" – treatment to multiples areas,
including, inter alia, wall voids, baseboard
areas, wall seams, and door trim.

Sept. 4, 2012

Email from Hunters Glen service manager Eric
Maczis ("Maczis") to LaChance/Ellison stating
that the Unit "is infested with roaches and bbs
[bedbugs and] needs a partial tag [renovation]."

6

Sept. 5, 2012

Email from LaChance/Ellison acknowledging that
the Unit had roaches and bedbugs and needs
treatment.

Sept. 14, 2012 Apartment Inspection Report of the Unit by Home
Properties indicated "BBs [bedbugs], roaches."
Oct. 15, 2012

Email from Maczis to LaChance/Ellison stating
that he "found a dozen bbs [bedbugs] coming out
of [the] wall" in the Unit.

Oct. 16, 2012

Email from LaChance/Ellison to Jeff Patterson at
JCE regarding the Unit, stating: "We need to
treat this vacant unit tomorrow please. This is
the unit we had down for a while treating while
vacant. . . . Not sure why after 3 treatments it
still had BB's but need to get rid of them before
new clients move in." [Document 56-6] at 3.

Oct. 17, 2012 4th treatment – 11 to 25 bedbugs in bedrooms – JCE
"inspected and treated interior areas for bedbugs
/ heavy activity in bedroom."
Oct. 22, 2012

Email from LaChance/Ellison to Brandi Casey
("Casey") in the Hunters Glen leasing office
stating that the Unit was still infested with
bedbugs and stating that the prospective needed
to "find another apartment."

Oct. 22, 2012

Email from Casey to LaChance/Ellison stating that
the prospective tenant needed a first floor
apartment and that the Unit was the only one
apartment available at the time.

Oct. 22 Dec. 4, 2012

No evidence regarding any communication with JCE
regarding any possible further treatment, any
further inspection, or any knowledge by the
Hunters Glen staff members who rented the Unit to
Williams that the infestation still was present
on December 4, 2012.

Dec. 4, 2012

Email from Hunters Glen to Williams indicating
that she would be living in the Unit instead of
in the apartment she originally rented.

Dec. 15, 2012

Williams moved into the Unit.

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Dec. 23, 2012

Williams woke up with bedbug bites.

Dec. 27, 2012

JCE suggested to Casey that Williams brought the
bedbugs with her to the Unit.

Dec. 27, 2012

LaChance/Ellison emailed Casey stating "NO
[WILLIAMS] DID NOT [BRING THE BEDBUGS]! THE UNIT
WAS INFESTED WITH THEM FROM THE PREVIOUS
RESIDENTS AND EHRLICH TREATED IT SEVERAL TIMES."

Jan. 3, 2013

Williams vacated the Unit.

C.

Elements of the Claim

In Maryland, a plaintiff who seeks to recover on a
fraudulent concealment claim must prove, by clear and convincing
evidence, that:
(1)

the defendant owed a duty to the
plaintiff to disclose a material fact;

(2) the defendant failed to disclose that
fact;
(3)

the defendant intended
deceive the plaintiff;

to

defraud

(4)

the
plaintiff
took
justifiable
reliance
concealment; and

(5)

the plaintiff suffered damages as a
result of the defendant's concealment.

action
on

or

in
the

Lloyd, 916 A.2d at 274 (citation omitted).4

4

In its motion, Home Properties refers to the elements
required to prove the tort of fraud, not fraudulent concealment.
See [Document 55-1] at 8. "Fraud encompasses, among other
things, theories of fraudulent misrepresentation, fraudulent
concealment, and fraudulent inducement." Sass v. Andrew, 832
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Home Properties is entitled to summary judgment by virtue
of the absence of adequate evidence to prove the third of these
elements.

Williams has not presented sufficient evidence – if

she has presented any at all – to prove that there was any
intent to defraud her.5

Indeed, she does not even articulate a

possible motive for any such deception.
This finding renders it unnecessary to address the first
and second elements.

However, since the Court finds additional

grounds for summary judgment in regard to these elements, they
shall be addressed herein.

A.2d 247, 261 (Md. Ct. Spec. App. 2003). However, the Court of
Special Appeals of Maryland has explained that:
In other words, "fraudulent concealment—
without any misrepresentation or duty to
disclose—can constitute common-law fraud. .
. . Although silence as to a material fact
(nondisclosure),
without
an
independent
disclosure duty, usually does not give rise
to an action for fraud, suppression of the
truth
with
the
intent
to
deceive
(concealment) does." This is so because, as
the
Supreme
Court
has
explained,
a
fraudulent concealment is "equivalent to a
false representation."
Rhee v. Highland Dev. Corp., 958 A.2d 385, 390 (Md. Ct. Spec.
App. 2008) (alteration in original) (citations omitted).
5
Just as Williams failed to present even an allegation in
the Complaint sufficient to establish the intentional tort of
battery. See Memorandum and Order Re: Remand and Dismissal,
[Document 21] at 6, ("Williams has not alleged facts that
present any possibility of a successful claim against either
Home Properties or [LaChance/Ellison] for battery.").
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1.

Duty to Disclose

Judge Williams of this Court explained in My National Tax &
Insurance Services, Inc. v. H & R Block Tax Services, Inc., 839
F. Supp. 2d 816 (D. Md. 2012):
Absent a fiduciary relationship, . . . a
plaintiff seeking to establish fraudulent
concealment must prove that the defendant
took affirmative action to conceal the cause
of action and that the plaintiff could not
have discovered the cause of action despite
the exercise of reasonable diligence.
In
other words, for a claim of fraudulent
concealment to be actionable, plaintiffs
generally
must
allege
and
prove
the
existence of a fiduciary relationship.
Id. at 819 (alteration in original) (citations and internal
quotation marks omitted).
The Court of Appeals of Maryland has held that "absent
special circumstances to the contrary, the landlord-tenant
relationship is a contractual relationship," and not a fiduciary
one.

MacBride v. Pishvaian, 937 A.2d 233, 240 (Md. 2007)

abrogated on other grounds by Litz v. Maryland Dep't of Env't,
76 A.3d 1076 (Md. 2013).
Williams has not presented evidence adequate to prove that
Williams and Hunters Glen had anything other than an arm'slength contractual relationship.

Williams has presented no

evidence of special circumstances to indicate that her
relationship with Home Properties was anything but a traditional
landlord-tenant relationship.

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2.

Failure to Disclose

Williams has not presented evidence adequate to prove, by
the requisite clear and convincing standard, that the Hunters
Glen staff member(s) who, on December 4, 2012, informed Williams
that she could rent the Unit,6 knew that, at the time of the
rental the Unit was bedbug infested.

Of course, the evidence

could establish that the Hunters Glen staff member(s) knew of
the infestation as of October 22.

Hence, perhaps there could

have been negligence for a failure to determine the status prior
to Williams' rental of the Unit.

However, Williams' Count III

claim is not based on negligence, but on fraudulent concealment.
There is no evidence adequate to prove that any Hunters
Glen employee took affirmative action to conceal the current
existence of bedbug infestation since there is no evidence
proving that any such employee actually knew of the thenexisting condition.

Of course, a jury could find that there was

an implicit negligent representation that the Unit was not
infested, by virtue of its rental to Williams, or that there was
a breach of contract by virtue of the rental.

However, again,

Williams' Count III claim is not based on a negligent
misrepresentation or breach of contract, but on fraudulent
concealment.
6

Instead of the apartment she originally intended to rent.
11

IV.

PUNITIVE DAMAGES
The Court is hereby granting summary judgment to Home

Properties on Court III (fraudulent concealment).

Thus,

Williams' entitlement to any punitive damages must be based on
the claims in Count I (negligence) and Count II (Maryland
Consumer Protection Act).

Punitive damages cannot be recovered

on these claims.
"Punitive damages are not available in a private cause of
action under the Consumer Protection Act."

Frazier v. Castle

ford, Ltd., 59 A.3d 1016, 1026 n.20 (Md. 2013)).
"In a non-intentional tort action, the trier of facts may
not award punitive damages unless the plaintiff has established
that the defendant's conduct was characterized by evil motive,
intent to injure, ill will, or fraud, i.e., 'actual malice.'"
Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 652 (Md. 1992).
A defendant acts with actual malice when he "makes a
misrepresentation with intent to deceive and 'actual knowledge'
of the falsity of the representation."
1026.

Frazier, 59 A.3d at

The Court has granted summary judgment with regard to the

only claim based upon a misrepresentation – for fraudulent
concealment.

As to the negligence claim, Williams has presented

no evidence from which a reasonable jury could find that any

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tortious conduct was "characterized by evil motive, intent to
injure, [or] ill will."
Accordingly, Home Properties is entitled to summary
judgment on Williams' claims for punitive damages.

V.

CONCLUSION
For the foregoing reasons:
1.

Defendant's Motion for Partial Summary Judgment
[Document 55] is GRANTED.
a.

All claims in Count III are dismissed.

b.

All claims in Counts I and II against
Defendant Home Properties shall proceed to
trial.

2.

Defendant J.C. Ehrlich's Motion to Dismiss the
Third Party Complaint and/or to Compel
Arbitration of Third Party Plaintiff's Claims,
[Document 43], remains pending.

3.

Plaintiff shall arrange a telephone conference,
to be held prior to July 3, 2015 to set the date
for trial of the claims in Counts I and II.

SO ORDERED, on Tuesday, June 23, 2015.

/s/__________
Marvin J. Garbis
United States District Judge

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