Mercantile Place #1 Limited Partnership v. Renal Treatment Centers - Mid Atlantic, Inc.

Filing 44

MEMORANDUM OPINION Signed by Judge Paula Xinis on 11/8/2017. (cags, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MERCANTILE PLACE #1 LIMITED
PARTNERSHIP

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Plaintiff,
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Civil Action No. PX 17-1266

v.
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RENAL TREATMENT CENTERSMID ATLANTIC, INC.

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Defendant.
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MEMORANDUM OPINION
Pending before the Court are cross-motions for summary judgment filed by Mercantile
Place #1 Limited Partnership (“Plaintiff”) and Renal Treatment Centers – Mid Atlantic, Inc.
(“Defendant”). ECF Nos. 4 & 24. Plaintiff initially filed its Complaint on March 10, 2017 with
the Circuit Court for Prince George’s County. On April 10, 2017, Plaintiff moved for summary
judgment, ECF No. 4, and on May 8, 2017, Defendant removed the case to this Court, and later
entered a cross-motion for partial summary judgment. ECF No. 24. On July 3, 2017, Plaintiff
moved to extend the time by which it could seek leave to amend the Complaint until after the
resolution of the dispositive motions, ECF No. 27. Defendant also requested, and the Court
granted, that discovery be stayed pending resolution of the cross-motions for summary judgment.
ECF No. 38. The issues are now fully briefed and a hearing was held on November 3, 2017. For
the reasons stated below, Defendant’s Motion for Partial Summary Judgment on Damages, ECF
No. 24, is GRANTED and Plaintiff’s Motion for Summary Judgment, ECF No. 4, is DENIED.
Plaintiff’s Motion for Extension of Time to Request Leave to Amend Complaint, ECF No. 27, is
GRANTED.

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I. BACKGROUND
The following facts are undisputed. Plaintiff Mercantile Place #1 Limited Partnership
(“Plaintiff” or “Lessor”) is a Maryland Limited Partnership that manages and leases real property
throughout the state of Maryland, including 1300 Mercantile Lane, Largo, Maryland 20774
(“Property”). ECF No. 2. Defendant Renal Treatment Centers (“Defendant” or “Lessee”) is a
renal treatment facility incorporated in Delaware and licensed to do business in Maryland. Id.
On November 22, 2000, Plaintiff and another dialysis treatment facility entered into a Lease
(“Original Lease”). ECF No. 21-2. Defendant replaced the original treatment facility as tenants
of the Property in 2004. The parties executed an amendment to the Original Lease dated
December 21, 2004 (“2004 Amendment”). ECF No. 28-1. The parties then executed a new
Lease Agreement on November 20, 2009 (“2009 Lease”). ECF No. 24-1. The parties agree that
the 2009 Lease is the operative agreement for purposes of resolving the pending motions. Id.;
see also ECF Nos. 2 & 19.
Under the 2009 Lease, utilities are considered “rent” payable to Plaintiff Lessor and are
separately metered by Defendant Lessee. See 2009 Lease, ECF No. 24-1 at ¶¶ 3, 4, 20. To
determine the Defendant’s monthly water and sewer usage, Plaintiff formally requests that an
agent from Defendant’s property management company, Knollwood Development, enter the
leased premises and read the Lessee’s water meter (“sub-meter”). Based on these sub-meter
readings, Plaintiff determines the amount of “rent” charges against individual Lessees. ECF No.
26 ¶ 10; see also Complaint, ECF No. 2 at ¶ 6; Cohen Affidavit, ECF No. 21-1 at ¶¶ 43–48.
Failure to pay water and sewer expenses is a material breach of the Lease. See 2009 Lease, ECF
No. 24-1; see also Complaint, ECF No. 2.
In 2004, Defendant initiated a significant construction project to remodel the Property.
ECF Nos. 21 & 21-4. In the construction plans, Defendant represented that new plumbing would

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include a new sub-meter, water meter bypass valve, and meter shut-off valves. ECF Nos. 21-4 &
26-5. Plaintiff was provided with all project and design plans and, pursuant to the terms of the
2004 Lease Amendment, possessed the right to oversee construction and receive compensation
for any time spent reviewing the Lessee’s changes to the Property. See 2004 Amendment, ECF
No. 28-1 at ¶ 8 (“Lessee acknowledges that Lessor has incurred, and will continue to incur, costs
related to its review of the plans for the improvement of the Space and ultimately, monitoring the
installation of said improvements . . . Lessee [will compensate] for the costs of associates of
Lessor reviewing plans and monitoring progress of the construction of improvements over
time.”).
In June 2005, Defendant installed a new water sub-meter at the Property. ECF No. 21 at
¶ 17. Thereafter, from July 26, 2005 to September 2016, Plaintiff was given monthly access to
the Defendant’s Property to record the sub-meter reading without incident. Each month,
Defendant paid Plaintiff for the amount of water as reflected in the sub-meter reading. See ECF
No. 21 at ¶ 17.
On September 26, 2016, one of Plaintiff’s partners, Seth Cohen (“Mr. Cohen”) had
occasion to inspect the Property with plumber Mike Mallick. Cohen Affidavit, ECF No. 21-1 at
¶ 22. During the inspection, Mr. Cohen and Mr. Mallick observed that the plumbing did not
include water meter shut-off valves. The gentlemen also discovered that the water meter bypass
valve was open to Defendant’s water supply, allowing water to be used by Defendant that was
unmetered and thus unrecorded. ECF Nos. 19-2 & 21.
Defendant immediately informed Plaintiff that the meter bypass valve was open and that
once the valve was closed, Plaintiff would “closely monitor the meter.” ECF No. 19-2. Plaintiff
proceeded to take daily readings of the sub-meter for the first week, followed by weekly readings

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until the next regularly scheduled monthly reading. ECF No. 19-2. The purpose of these
readings was to ascertain Defendant’s average monthly water usage when properly metered and
compare this data to Defendant’s historic monthly usage. Id. Plaintiff would use these readings
to perform an analysis “over the next couple of months” to approximate the Defendant’s correct
monthly usage, determine when the bypass valve was first opened, and “initiate revised billing so
that the unmetered water can be paid for.” Id. Upon receipt of Plaintiff’s email, Defendant
immediately closed the bypass valve. ECF No. 19.
From September 27, 2016 until October 27, 2016, Plaintiff recorded sub-meter readings
averaging 8,817 gallons per day. Complaint, ECF No. 2 at ¶ 32. Previous monthly readings
from the installation of the new sub-meter in July 2005 to Plaintiff’s discovery of the open valve
in 2016 averaged around 4,089 gallons per day. Id. at ¶ 12. Based upon this data, the Plaintiff
invoiced the Defendant on October 28, 2016, for unpaid water totaling $326,754.28 and citing
Paragraph 5 of the 2009 Lease which states:
Lessee does hereby covenant and agree to take and to hold, and does hereby take and
hold, the Premises for the said term at the said rental, payable as aforesaid and under the
conditions, covenants and agreements contained therein, and agrees to pay all bills for
electricity, water and sewer service chargeable against the Premises as same shall
become due and payable.
2009 Lease, ECF No. 24-1 at ¶ 5. Plaintiff created the October 28, 2016 billing statement by
applying the newly recorded daily average of 8,817 gallons per day to the prior eleven years and
adjusting each monthly water bill for historical water and sewer costs that had not already been
paid. ECF No. 21; see also ECF Nos. 4-2, 4-3, & 4-4. Defendant refused to pay this invoice,
pleading ignorance of the open water bypass valve, pointing to Plaintiff’s “failure to mitigate
damages,” challenging Plaintiff’s methodology to calculate the unpaid rent, and asserting that the
statute of limitations has run on a lion’s share of Plaintiff’s claimed damages. ECF No. 19. At

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an impasse, Plaintiff filed suit, alleging breach of contract and seeking $326,754.28 in damages,
plus interest of at least $16,337.72. See Complaint, ECF No. 2 at ¶¶ 16 –18; see also 2009
Lease, ECF No. 24-1. The viability of this claim thus gives rise to the pending motions.
II. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The party moving for summary judgment bears the burden of demonstrating
the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144,
157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the
non-moving party, summary judgment must be denied. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The facts, and all inferences drawn from the facts, must be viewed in the
light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v.
Shreve, 535 F.3d 225, 230 (4th Cir. 2008). The opposing party cannot rest on the mere
allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing,
point to facts that give rise to a genuine dispute that is material to the claims. Fed. R. Civ. P.
56(c)(1); Anderson, 477 U.S. at 252. When a court is called upon to decide cross-motions for
summary judgment, it must review each motion separately on its own merits to decide whether
either party deserves judgment as a matter of law. Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir. 2003).

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III. ANALYSIS
A. Choice of Law
Because this Court exercises diversity jurisdiction over this case, it applies Maryland’s
choice of law rules. See Wells v. Liddy, 186 F.3d 505, 521 (4th Cir. 1999) (“A federal court
sitting in diversity must apply the choice-of-law rules from the forum state.”). In Maryland, it is
“generally accepted that the parties to a contract may agree as to the law which will govern their
transaction.” Kronovet v. Lipchin, 288 Md. 30, 43 (1994). The parties’ choice of law is to be
honored unless, “1) the state whose law is chosen has no substantial relationship to the parties or
the transaction; or 2) the strong fundamental public policy of the forum state precludes the
application of the choice of law provision.” American Motorists Ins. Co. v. ARTA Group, Inc.,
338 Md. 560, 572 (1995).
Here, the parties’ 2009 Lease and the 2004 Amendment both specifically state that
Maryland law will apply to any disputes arising from the contract. 2009 Lease, ECF No. 24-1 at
¶ 20; 2004 Amendment, ECF No. 28-1 at ¶ 17. Because the parties agree that the 2009 Lease
governs the parties’ dispute, and do not argue that its choice of law provision is unenforceable,
the Court will apply substantive Maryland law. See 2009 Lease, ECF No. 24-1; see also ECF
Nos. 4 at ¶ 1 & 19 at 2.
B. Defendant’s Partial Motion for Summary Judgment
Defendant principally argues that Plaintiff’s claims are limited to the three years prior to
filing suit. First, Defendant asserts that § 5-101 of the Courts and Judicial Proceedings (CJP)
Article of the Maryland Code requires that a three year statute of limitations apply to this breach
of contract action, not the twelve year rule of CJP § 5-102(a)(5) claimed by Plaintiff. ECF No.
24 at 3–6. Defendant also argues that under continuing harm doctrine, Plaintiff’s recovery is

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limited to the three years that precede the filing of suit, ECF No. 24 at 7–8, whereas Plaintiff
argues that the entirety of their claim, including over a decade of alleged damages, was accrued
by the discovery rule. ECF No. 26 at 8–14. The Court addresses each argument in turn.
1. Applicable Limitations Period on Contract Claim
In Maryland, actions arising from breach of a lease agreement are customarily subject to
a three-year statute of limitations under CJP § 5-101. See Tipton v. Partner’s Mgmt Co., 364
Md. 419, 445–46 (2001). Plaintiff, however, contends that CJP § 5-102(a)(5) more appropriately
applies, extending the limitations period to twelve years. Complaint, ECF No. 2. Section 5102(a)(5), entitled “Action on specialties,” provides that “an action on one of the following
specialties,” to include “a Contract under seal” shall be filed “within 12 years after the cause of
action accrues.”
Plaintiff points to two places in the 2009 Lease which refer to it being “under seal.”
Mere reference to a document as being under seal, however, is not sufficient to pull an agreement
within § 5-102(a)(5)’s reach. Ely v. Science Applications Int’l Corp., 716 F. Supp. 2d 403, 404–
06 (D. Md. 2010) (applying the three year statute of limitations to a commercial lease in which
the word “SEAL” appeared twice). Rather, the evidence must demonstrate that the parties
clearly intended to create a specialty contract, and more particularly that “either party intended
that [the contract] be sealed so as to waive the three-year period of statutory limitation” that
would otherwise apply. Id. at 406. Absent such evidence, the Court must apply the three-year
limitations period to residential or commercial leases executed “under seal.” See Tipton, 364
Md. at 436–39 (discussing the legislative history of the predecessor to § 5-101, which was
incorporated by reference, stating that “all actions, whether of debt, ejectment or of any other
description whatsoever, brought to recover rent in arrear, reserved under any form of lease . . .

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all distraints issued to recover such rent shall be commenced, sued or issued within three years
from the time the cause of action accrued.”). Because no record evidence reflects a clear intent
to waive the three year limitations period in favor of the twelve year limitations period, the Court
applies a three year statute of limitations to Plaintiff’s contract claim.
2. Accrual of Claim
Having decided that a three year limitations period applies, the Court must next
determine when the Plaintiff’s claim accrued. In Maryland, determination of claim accrual is
ordinarily “left to judicial determination,” Frederick Road Ltd. P’ship v. Brown & Sturm, 360
Md. 76, 95 (2000), and “may be based solely on law, solely on fact, or on combination of law
and fact.” Hecht v. Resolution Trust Corp., 333 Md. 324, 334 (1994).
Plaintiff argues that its claims are not limited to the three years preceding suit because it
could not have known that the water meter bypass valve was left open and thus the discovery
rule will toll its claim. ECF No. 26 at 10. The discovery rule is designed to protect a plaintiff
“where it was not reasonably possible to have obtained notice of the nature and cause of an
injury.” Poole v. Coakley & Williams Const., Inc., 423 Md. 91, 132 (2011). The rule provides
that the time by which accrual is measured must be tolled “until such time as the potential
plaintiff either discovers his or her injury, or should have discovered it through the exercise of
due diligence,” id. at 131 (internal citations omitted); see also Pierce v. Johns-Manville Sales
Corp., 296 Md. 656, 663 (1983).
The discovery rule, however, does not toll limitations of Plaintiff’s claims here.
Construing the evidence in the light most favorable to Plaintiff, it is beyond dispute that Plaintiff
could monitor the installation of the Defendant’s plumbing. See 2009 Lease, ECF No. 24-1 at ¶
12 (stating that “Lessor shall have the right to inspect, and perform service work or

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improvements within, through, around, or adjacent to the Premises at any time)”; see also 2004
Amendment, ECF No. 28-1 at ¶ 8 (negotiated amendment to the original Lease establishing that
“Lessee acknowledges that Lessor has incurred, and will continue to incur, costs related to its
review of the plans for the improvement of the Space and ultimately monitoring the installment
of said improvements” and that Lessee would compensate Lessor for “costs of associates of
Lessor reviewing plans and monitoring progress of the construction of improvements over
time.”) (emphasis added). It is also undisputed that when Plaintiff exercised their contractual
rights and requested access to inspect Defendant’s property, Plaintiff was given access. See, e.g.,
Cohen Affidavit, ECF No. 21-1 at ¶ 19, 22. Additionally, it is undisputed that Plaintiff’s agents,
the property management service, took monthly readings of the water meter starting on July 26,
2005. ECF No. 26 at ¶ 9–10. This means Plaintiff or its agent accessed the water meter well
over 100 times, each time giving Plaintiff fresh opportunity to notice the opened bypass valve.1

ECF No. 19-2. Moreover, as Plaintiff itself highlighted in its September 26, 2016 email to
Defendant, which included the photograph above, the water meter bypass valve is directly above

1

Between June 2005 and September 2016, approximately 135 monthly inspections took place.  

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the submeter. Id. (“As seen above, the valve directly above the meter controls the flow of
incoming water “around” the meter. With the valve being open, it is allowing unmetered water
to enter DaVita’s plumbing system.”). Plainly, therefore, a reasonable person in Plaintiff’s
position could have discovered their potential claims before September 2016. Id.; see also
Cohen Affidavit, ECF No. 21-1 at ¶¶ 22–24, (“[I]t was observed that the water meter bypass
valve was in the open position during this visual inspection.”).2
It is also noteworthy that, according to Plaintiff, the opened water meter bypass valve
resulted in a 2,000 to 4,000 gallon per day increase in unmetered water at the Property. ECF No.
21-6. Plaintiff pays the water bill for the entire building and so is specifically familiar with the
total average volume of water consumed in the building. Plaintiff is further familiar with the
average usage of tenants with sub-meters, as they bill each separately for their share of consumed
water. See Cohen Affidavit, ECF No. 21-1 at ¶ 43. Plaintiff therefore had ample opportunity to
note the increase in overall water consumption for which it must have paid out of pocket, id. at ¶
47, and could have investigated accordingly. Because, with the exercise of due diligence, it was
reasonably possible for Plaintiff to have learned about the increase in unmetered water, the
discovery rule does not save Plaintiff’s claims.
But all is not lost for Plaintiff. Where, as here, plaintiff alleges the defendant committed
a series of acts or established an unlawful course of conduct, i.e., “continuing violations,” and at
least one tortious act took place within the limitations period, the “continuing harm” exception to
the discovery rule applies. See Litz v. Maryland Dept. of Environment, 434 Md. 623, 646 (2013);
Chevron U.S.A. Inc. v. Apex Oil Co., Inc., 113 F. Supp. 3d 807 (D. Md. 2015). This is so

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Plaintiff moves pursuant to Rule 56(d) of the Federal Rules of Civil Procedure for additional discovery on whether
its contractual right to inspect the construction project satisfies the discovery rule, as Defendants contend. ECF No.
39. However, given the undisputed facts before the Court, Plaintiff’s requested discovery would not generate any
triable issue of fact regarding when Plaintiff could have discovered that the water bypass valve was open.
Accordingly, the Court denies this request.

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because “[e]very repetition of the wrong creates further liability and creates a new cause of
action, and a new statute of limitations begins to run after each wrong perpetuated.” Chevron,
113 F. Supp. 3d at 820 (quoting Jones v. Speed, 320 Md. 249, 262 n.4 (1990)). Under the
continuing harm exception, limitations is tolled regardless of when the wrongdoing should have
been discovered, but damages are limited to only violations that took place within the applicable
limitations period. Chevron, 113 F. Supp. 3d at 820; see also Shell Oil v. Parker, 265 Md. 631,
636 (1972).
Here, the plain language of the operative Lease, as well as Plaintiff’s Complaint, triggers
the continuing harm exception. Plaintiff’s breach of contract claim arises from alleged monthly
underpayment of utilities in violation of the Lease. See Complaint, ECF No. 2 at ¶ 6–17. The
2009 Lease plainly states that “Lessee shall pay as additional rent the costs of such service based
on the reading of the submeter by Lessor along with the actual costs incurred by Lessor related
thereto.” See 2009 Lease, ECF No. 24-1, ¶ 20 (emphasis added); see also id. at ¶ 3 (stating that
“[a]ll additions and adjustments hereinafter provided shall be deemed as being additional rent.”);
id. at ¶ 7 (requiring that non-payment of water and sewer service will be treated as “default in the
payment of any installment of rent.”). Rent becomes a payable debt when the time stipulated for
payment arrives, see, e.g., Ely v. Science Applications Int’l Corp., 716 F. Supp. 2d 403, 408–09
(D. Md. 2010) (citing Lochner v. Martin, 218 Md. 519 (1959)), and the 2009 Lease requires that
rent is paid “on or before the first day of each month during the Lease term,” including “all
additions and adjustments hereinafter . . . deemed as being additional rent.” 2009 Lease, ECF
No. 24-1, ¶ 3; see also 2000 Lease, ECF No. 21-2. Thus, every month that Defendant did not
pay for water it used, it inflicted a continuing harm on Plaintiff. Accordingly, the “claimant’s
damages are limited to those occurring within the three year period prior to the filing of the

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action.” Chevron U.S.A. Inc. v. Apex Oil Co., Inc., 113 F. Supp. 3d 807, 820 (D. Md. 2015)
(internal citation omitted). All claims for unpaid water usage before March 10, 2014, therefore,
are time barred.
C. Plaintiff’s Motion for Summary Judgment
Because Plaintiff’s claims based on conduct that occurred before March 10, 2014 are time
barred, Plaintiff’s motion for summary judgment is denied as to all claims which pre-date March
10, 2014.
As to the surviving claims, the parties do not dispute that the bypass valve was indeed open
when Plaintiff inspected the plumbing on September 26, 2016. ECF No. 19. The parties also do
not dispute that the 2009 Lease governs this case. Id. Further, the parties do not dispute that a
portion of the water used by Defendants would have escaped the meter reading due to the open
bypass valve, and thus Defendant would not have reimbursed Plaintiff for the entire amount of
water that Defendant consumed on any day in which the valve was open. Id. at 3.
The more vexing issue, however, is Plaintiff’s proof on how long the bypass valve had been
open during the three year claim period, as well as the proper measure of damages. As an initial
matter, it bears noting that liability and damages, to some extent, rely on the same factual
predicate. For Plaintiff to demonstrate that Defendant breached the 2009 Lease, it must show
that Defendant used water for which it did not pay. Accordingly, to the extent genuine issues of
disputed fact exist as to the proper measure of unpaid water attributable to Defendant, summary
judgment is inappropriate as to both liability and damages.
Regarding the state of the evidence on the alleged unpaid water, Plaintiff provides only
summary charts of Defendant’s average water consumption both before and after the bypass
valve was shut. Defendant vigorously disputes the reliability of these charts, noting that they are

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“wholly unsupported by source documents.” ECF No. 19 at 4. Summary charts, standing alone,
are inadmissible without determining the chart’s accuracy based on the underlying data. See
Fed. R. Evid. 1002 (“An original writing . . . is required in order to prove its content unless these
rules or a federal statute provide otherwise.”); Fed. R. Evid. 1006 (allowing parties to use a
summary chart “to prove the content of voluminous writings” provided that the originals are
available for examination); see also Gordon v. United States, 344 U.S. 414, 421(1953) (“The
elementary wisdom of the best evidence rule rests on the fact that the document is a more
reliable, complete and accurate source of information as to its contents and meaning than
anyone's description.”).
Plaintiff has not submitted any original utility or accounting records to demonstrate the
accuracy of its calculations. See Summary Charts, ECF Nos. 21-6 & 21-7; see also Cohen
Affidavit, ECF No. 21-1 at ¶¶ 30, 38 (stating “Mercantile Place examined all prior water bills”
and calculated damages by adjusting “each monthly water bill from June 2005 through
September 27, 2016.”). Plaintiff’s own engineering expert further undercuts the reliability of the
summary charts in opining that Plaintiff’s calculations are based on too small of a data set to be
statistically sound. See ECF No. 32-1 at 5, 10. Plaintiff’s expert employs a different
methodology, the calculations of which reduced average water consumption by roughly 2,000
gallons than what is reflected in Plaintiff’s charts. Id. (noting Plaintiff’s “initial assessment,
although logical, was based on too small of a data set,” and it was more likely that Defendant’s
average daily water consumption from 2005 – 2016 was around 6,669 gallons per day as
compared to Plaintiff’s claimed number of 8,817). Accordingly, when comparing the summary
charts to Plaintiff’s own expert report, genuine issues of material fact remain regarding the scope

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of Defendant’s liability and the proper measure of damages. Plaintiff’s Motion must therefore be
denied.
D. Plaintiff’s Motion for Extension of Time to Request Leave to Amend Complaint
For the reasons discussed in the November 3, 2017 hearing, Plaintiff’s Motion for Extension
of Time to Request Leave to Amend Complaint is granted and Plaintiff may amend its
Complaint on or before November 23, 2017.
IV. CONCLUSION
Accordingly, the Court shall GRANT Defendant’s Motion for Partial Summary
Judgment, ECF No. 24, DENY Plaintiff’s Motion for Summary Judgment, ECF No. 4, and
GRANT Plaintiff’s Motion for Extension of Time, ECF No. 27. Further, Defendant’s Motion for
Leave to File Surreply, ECF No. 25, is DENIED as moot. A separate order will follow.

11/8/2017
Date

/S/
Paula Xinis
United States District Judge

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