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NEH, LLC v. Salinas,","paragraph_id":"para_1"},{"text":"No. 0284, Sept. Term, 2024. Opinion by Reed, J.","paragraph_id":"para_2"},{"text":"Appellee home buyer (Buyer) filed action against Seller, 3919 NEH, LLC, for breach of","paragraph_id":"para_3"},{"text":"contract, intentional and negligent misrepresentation and violation of the Maryland","paragraph_id":"para_4"},{"text":"Consumer Protection Act for damages arising out of Seller’s failure to disclose presence of","paragraph_id":"para_5"},{"text":"animal waste and infestation in attic, and whether those issues had been remediated prior","paragraph_id":"para_6"},{"text":"to settlement.","paragraph_id":"para_7"},{"text":"Seller completed the Real Property Disclosure Statement a few months prior to the sale, as","paragraph_id":"para_8"},{"text":"required by Section 10-702 of the Real Property Article. Md. Code (1996, 2023 Repl. Vol.,","paragraph_id":"para_9"},{"text":"2025 Supp.) § 10-702 of the Real Property Article. (Disclosure Statement). The Disclosure","paragraph_id":"para_10"},{"text":"Statement provided that seller had no actual knowledge of any latent defects in the property.","paragraph_id":"para_11"},{"text":"When the Buyer obtained a home inspection before settlement, that inspector reported the","paragraph_id":"para_12"},{"text":"presence of animal waste in the attic. Buyer informed the Seller prior to settlement about","paragraph_id":"para_13"},{"text":"the infestation, and Seller hired a contractor to conduct a remediation. Shortly after taking","paragraph_id":"para_14"},{"text":"possession, Buyer noticed effects and/or presence of animal activity in the attic. Buyer","paragraph_id":"para_15"},{"text":"hired an exterminator, which sent a technician to examine the attic. The technician observed","paragraph_id":"para_16"},{"text":"a relatively minimal amount of animal waste. Buyer and his family left for a vacation, and","paragraph_id":"para_17"},{"text":"on their return detected a significant odor and possible activity in the attic. The pest control","paragraph_id":"para_18"},{"text":"technician returned, and discovered extensive amounts of animal waste and observed that","paragraph_id":"para_19"},{"text":"a screen intended to prevent entry by wildlife into the attic was insufficient.","paragraph_id":"para_20"},{"text":"The jury found that the contractor who was responsible for the repair and remediation was","paragraph_id":"para_21"},{"text":"the Seller’s agent and that the contractor’s knowledge of any latent defects, viz effects of","paragraph_id":"para_22"},{"text":"animal infestation and resulting damage, was imputed to the Seller, thus finding that the","paragraph_id":"para_23"},{"text":"Seller had actual knowledge. Seller argued that it had fulfilled its disclosure obligations","paragraph_id":"para_24"},{"text":"under Section 10-702, and should not have been liable for the contractor’s knowledge. Its","paragraph_id":"para_25"},{"text":"focus in its Motion for Judgment NOV and on appeal was that its disclosure obligation was","paragraph_id":"para_26"},{"text":"limited by its representation on the Residential Disclosure form. It asserted that the trial","paragraph_id":"para_27"},{"text":"court misrepresented the disclosure law. The Maryland Association of Realtors filed an","paragraph_id":"para_28"},{"text":"amicus brief, arguing that the jury’s verdict ran counter to the law and warning that the trial","paragraph_id":"para_29"},{"text":"court’s error places a burden on sellers not contemplated by the General Assembly and that","paragraph_id":"para_30"},{"text":"the protections of the Disclosure Statute will be lost. The court disagreed, and upheld the","paragraph_id":"para_31"},{"text":"jury’s finding that the contractor’s knowledge would be imputed to the Seller-principal.","paragraph_id":"para_32"},{"text":"During the litigation, Seller sought the oral deposition testimony of Buyer’s spouse, who","paragraph_id":"para_33"},{"text":"claimed that she was unable to be present for this testimony because of mental health issues.","paragraph_id":"para_34"},{"text":"Following extensive litigation of this issue, the circuit court issued a protective order","paragraph_id":"para_35"},{"text":"initially excusing the spouse from providing oral deposition testimony based on letters","paragraph_id":"para_36"},{"text":"from health care professionals.","paragraph_id":"para_37"},{"text":"At trial, the Seller argued that the pest control technician should not have been accepted as","paragraph_id":"para_38"},{"text":"an expert. She had earlier testified at deposition that she was not an expert. The trial court","paragraph_id":"para_39"},{"text":"accepted her as an expert, citing her extensive experience and credentials, but limited her","paragraph_id":"para_40"},{"text":"testimony, as urged by Seller’s counsel, to the contents of her report.","paragraph_id":"para_41"},{"text":"Seller also raised the issue of spoliation of evidence. The trial court permitted the pest","paragraph_id":"para_42"},{"text":"control technician to testify about the extent of animal waste that had been removed from","paragraph_id":"para_43"},{"text":"the attic and then discarded. Spoliation was not established, given that the waste had been","paragraph_id":"para_44"},{"text":"discarded over a year prior to the commencement of this action. Further, Seller did not raise","paragraph_id":"para_45"},{"text":"this issue until filing its Motion for Judgment.","paragraph_id":"para_46"},{"text":"Both sides were awarded attorney’s fees. Buyer’s counsel received a greater proportion of","paragraph_id":"para_47"},{"text":"the total fees awarded. Although Maryland follows the American Rule, which provides that","paragraph_id":"para_48"},{"text":"parties bear their own counsel fees regardless of the outcome of litigation, fees recovered","paragraph_id":"para_49"},{"text":"here were based in part on the fee shifting provision of the Maryland Consumer Protection","paragraph_id":"para_50"},{"text":"Act and the real estate sales contract.","paragraph_id":"para_51"},{"text":"Held. The Appellate Court affirmed the judgment on the jury’s findings on the merits. The","paragraph_id":"para_52"},{"text":"Court upheld the finding that the contractor’s knowledge was imputed to the Seller, such","paragraph_id":"para_53"},{"text":"that the Seller knew of the continuing presence of the animal infestation and the effects","paragraph_id":"para_54"},{"text":"thereof. The Court pointed out in a footnote that contractors can in many instances be","paragraph_id":"para_55"},{"text":"agents, and further noted authority that a contractor may not constitute an agent in some","paragraph_id":"para_56"},{"text":"circumstances. Although Seller argued that the construction company contractor was not","paragraph_id":"para_57"},{"text":"an agent, its focus was on its disclosure obligations under Section 10-702 of the Real","paragraph_id":"para_58"},{"text":"Property Article and it did not adequately brief this argument before the Appellate Court.","paragraph_id":"para_59"},{"text":"The Appellate Court also found that the circuit court did not abuse its discretion in issuing","paragraph_id":"para_60"},{"text":"a protective order so that Buyer’s spouse would not be compelled to appear for an oral","paragraph_id":"para_61"},{"text":"deposition.","paragraph_id":"para_62"},{"text":"The Appellate Court ruled that the trial court did not abuse its discretion by accepting the","paragraph_id":"para_63"},{"text":"pest control technician as an expert. The trial court cited the technician’s extensive","paragraph_id":"para_64"},{"text":"experience and training in so ruling, and limited her testimony essentially to the four","paragraph_id":"para_65"},{"text":"corners of her written report.","paragraph_id":"para_66"},{"text":"The Appellate Court rejected Seller’s argument that the trial court erred by admitting the","paragraph_id":"para_67"},{"text":"pest control technician’s report based in part on evidence of animal waste that the","paragraph_id":"para_68"},{"text":"technician’s company had discarded. The Panel noted that the issue was not raised until","paragraph_id":"para_69"},{"text":"Seller’s Motion for Judgment. Further, the Court pointed out that the waste had been","paragraph_id":"para_70"},{"text":"discarded over one year prior to the lawsuit.","paragraph_id":"para_71"},{"text":"Finally, the Court vacated the attorney’s fee award and remanded to the trial court to","paragraph_id":"para_72"},{"text":"consider in detail the factors set forth in Md. Rule 2-703(f)(3).","paragraph_id":"para_73"},{"text":"STANDARD OF REVIEW – SUMMARY JUDGMENT","paragraph_id":"para_74"},{"text":"Appellate review of the grant of a motion for summary judgment is common. An appellate","paragraph_id":"para_75"},{"text":"court has plenary review of a lower court’s ruling. Less common is appellate review of a","paragraph_id":"para_76"},{"text":"denial of a motion seeking summary judgment. That standard is an abuse of discretion, as","paragraph_id":"para_77"},{"text":"the Court concluded.","paragraph_id":"para_78"},{"text":"AGENCY – IMPUTED KNOWLEDGE.","paragraph_id":"para_79"},{"text":"The Court reiterates that “[o]ne of the general principles of an agency relationship is that","paragraph_id":"para_80"},{"text":"the knowledge of the agent is knowledge of the principal.” Anderson v. General Casualty","paragraph_id":"para_81"},{"text":"Ins. Co., 402 Md. 236, 248 (2007). Even an independent contractor can be considered an","paragraph_id":"para_82"},{"text":"agent in the appropriate circumstance. The jury found that knowledge held by the","paragraph_id":"para_83"},{"text":"contractor in this instance was imputed to the Seller, and thus found both intentional and","paragraph_id":"para_84"},{"text":"negligent misrepresentation about the condition of the property. As to the nature of the","paragraph_id":"para_85"},{"text":"agency relationship, the Court concluded that Seller failed adequately to argue in its brief","paragraph_id":"para_86"},{"text":"whether the contractor, Distinct Construction, was an agent. The Court emphasizes that","paragraph_id":"para_87"},{"text":"“arguments not presented in a brief or not presented with particularity will not be","paragraph_id":"para_88"},{"text":"considered on appeal.” Bert v. Comptroller of the Treasury, 215 Md. App. 244, 269 n. 15","paragraph_id":"para_89"},{"text":"(2013). In this instance, Seller’s argument was focused on the Disclosure statute and its","paragraph_id":"para_90"},{"text":"supposed limitations on a Seller’s obligations.","paragraph_id":"para_91"},{"text":"REAL PROPERTY – DISCLOSURE – COMMON LAW REMEDIES –","paragraph_id":"para_92"},{"text":"MARYLAND CONSUMER PROTECTION ACT.","paragraph_id":"para_93"},{"text":"The residential disclosure provisions of Section 10-702 of the Real Property Article","paragraph_id":"para_94"},{"text":"continue to be viable and the Court’s decision leaves that provision in place. The Court","paragraph_id":"para_95"},{"text":"emphasizes that common law and statutory consumer protections are available to a buyer","paragraph_id":"para_96"},{"text":"in the appropriate case. Specifically, causes of action for intentional and negligent","paragraph_id":"para_97"},{"text":"misrepresentation have not been displaced by Section 10-702. Further, relief under the","paragraph_id":"para_98"},{"text":"Maryland Consumer Protection Act remains available in an appropriate case such as that","paragraph_id":"para_99"},{"text":"present here.","paragraph_id":"para_100"},{"text":"DISCOVERY - PROTECTIVE ORDER – ORAL DEPOSITION","paragraph_id":"para_101"},{"text":"The Court upheld the circuit court’s issuance of a protective order excusing Buyer’s spouse","paragraph_id":"para_102"},{"text":"from sitting for an oral deposition. The lower court accepted representations from two","paragraph_id":"para_103"},{"text":"mental health professional’s that requiring the spouse to testify at an oral deposition would","paragraph_id":"para_104"},{"text":"be harmful. Seller insisted that the justification was inadequate. Although the spouse","paragraph_id":"para_105"},{"text":"answered written questions and was later ordered to testify at trial, and refused to appear,","paragraph_id":"para_106"},{"text":"there was no abuse of discretion in the issuance of the circuit court’s earlier protective","paragraph_id":"para_107"},{"text":"order.","paragraph_id":"para_108"},{"text":"PERSUASIVE AUTHORITY – FEDERAL INTERPRETATIONS OF CIVIL","paragraph_id":"para_109"},{"text":"RULES","paragraph_id":"para_110"},{"text":"The Court rejected Buyer’s complaint that Seller cited only federal cases as authority for","paragraph_id":"para_111"},{"text":"its discovery argument. The Court emphasizes that while “federal cases are not","paragraph_id":"para_112"},{"text":"controlling,” Maryland Courts may “look for guidance to federal decisions construing the","paragraph_id":"para_113"},{"text":"corresponding federal rule[.]” See Tanis v. Crocker, 110 Md. App. 559, 574 (1996). See","paragraph_id":"para_114"},{"text":"also Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, 472 (6th ed.","paragraph_id":"para_115"},{"text":"2024).","paragraph_id":"para_116"},{"text":"ATTORNEY’S FEES","paragraph_id":"para_117"},{"text":"The Court vacates the trial court’s award of attorney’s fees and remands for a detailed","paragraph_id":"para_118"},{"text":"consideration of the factors set forth in Md. Rule 2-703(f)(3). The entitlement to fees is","paragraph_id":"para_119"},{"text":"based on the contractual provisions and the Maryland Consumer Protection Act.","paragraph_id":"para_120"},{"text":"Circuit Court for Howard County","paragraph_id":"para_121"},{"text":"Case No.: C-13-CV-21-000596","paragraph_id":"para_122"},{"text":"REPORTED","paragraph_id":"para_123"},{"text":"IN THE APPELLATE COURT","paragraph_id":"para_124"},{"text":"OF MARYLAND","paragraph_id":"para_125"},{"text":"No. 0284","paragraph_id":"para_126"},{"text":"September Term, 2024","paragraph_id":"para_127"},{"text":"______________________________________","paragraph_id":"para_128"},{"text":"3919 NEH, LLC","paragraph_id":"para_129"},{"text":"v.","paragraph_id":"para_130"},{"text":"ERICK GALBAN SALINAS","paragraph_id":"para_131"},{"text":"______________________________________","paragraph_id":"para_132"},{"text":"Reed,","paragraph_id":"para_133"},{"text":"Tang,","paragraph_id":"para_134"},{"text":"Wright, Alexander, Jr.","paragraph_id":"para_135"},{"text":"(Senior Judge, Specially Assigned),","paragraph_id":"para_136"},{"text":"JJ.","paragraph_id":"para_137"},{"text":"______________________________________","paragraph_id":"para_138"},{"text":"Opinion by Reed, J.","paragraph_id":"para_139"},{"text":"_____________________________________","paragraph_id":"para_140"},{"text":"Filed: October 5, 2026","paragraph_id":"para_141"},{"text":"* Judge Anne Albright did not participate in the","paragraph_id":"para_142"},{"text":"Court’s decision to designate this opinion for","paragraph_id":"para_143"},{"text":"publication pursuant to Maryland Rule 8-605.1.","paragraph_id":"para_144"},{"text":"This is an appeal by a real estate seller, 3919 NEH, LLC (“NEH”), from a judgment","paragraph_id":"para_145"},{"text":"entered after a jury trial awarding damages and attorneys’ fees to the home purchaser, Erick","paragraph_id":"para_146"},{"text":"Galban Salinas (Salinas). A jury in the Circuit Court for Howard County returned verdicts","paragraph_id":"para_147"},{"text":"finding NEH liable for intentional misrepresentation, negligent misrepresentation, and","paragraph_id":"para_148"},{"text":"violations of the Maryland Consumer Protection Act, related to alleged misrepresentations","paragraph_id":"para_149"},{"text":"of the presence of latent defects in the property and whether they were remedied prior to","paragraph_id":"para_150"},{"text":"settlement. NEH seeks appellate review of the judgment, adverse rulings by the circuit","paragraph_id":"para_151"},{"text":"court on various motions, and the attorneys’ fees awards. For the reasons set forth below,","paragraph_id":"para_152"},{"text":"we shall affirm in part, vacate in part, and remand.","paragraph_id":"para_153"},{"text":"BACKGROUND","paragraph_id":"para_154"},{"text":"Factual Background","paragraph_id":"para_155"},{"text":"NEH is described as a “Maryland corporation … which is in the business of home","paragraph_id":"para_156"},{"text":"renovation and resale[.]” John Matthew Burgess, a member of NEH, described the entity","paragraph_id":"para_157"},{"text":"as a “consultant company that helps people buy and sell real estate or … invest in real","paragraph_id":"para_158"},{"text":"estate.”1 In August 2018, NEH acquired a single-family house on Canvasback Drive in","paragraph_id":"para_159"},{"text":"1 We have considered portions of the trial transcripts that are not included in the","paragraph_id":"para_160"},{"text":"record extract. Maryland Rule 8-501(c) provides in part that the “record extract shall","paragraph_id":"para_161"},{"text":"contain all parts of the record that are reasonably necessary for the determination of the","paragraph_id":"para_162"},{"text":"questions presented[.]” Although the rule does not preclude our consideration of a part of","paragraph_id":"para_163"},{"text":"the record that is not included in the record extract, see Rule 8-501(c), “[w]e cannot be","paragraph_id":"para_164"},{"text":"expected to delve through the record to unearth factual support favorable to [the]","paragraph_id":"para_165"},{"text":"appellant.” Rollins v. Capital Plaza Associates, L.P., 181 Md. App. 188, 201 (2008)","paragraph_id":"para_166"},{"text":"(quotation marks and citation omitted). Notwithstanding, we consider it necessary to set","paragraph_id":"para_167"},{"text":"forth additional portions from the record to provide a helpful timeline and clearer picture","paragraph_id":"para_168"},{"text":"of events.","paragraph_id":"para_169"},{"text":"2","paragraph_id":"para_170"},{"text":"Columbia (“property”), and hired Fred Berger, a contractor and owner of Distinct","paragraph_id":"para_171","court_paragraph":2},{"text":"Construction Services, LLC, to renovate the property by removing all the interior contents","paragraph_id":"para_172"},{"text":"and fixtures; a second contractor removed and disposed of the prior occupant’s belongings.2","paragraph_id":"para_173"},{"text":"Berger had worked with NEH before and produced excellent results in renovating","paragraph_id":"para_174"},{"text":"properties. On this occasion, his company’s proposal was also “competitive” and his","paragraph_id":"para_175"},{"text":"availability was timely.","paragraph_id":"para_176"},{"text":"After completing the renovations, NEH listed the property for sale. On April 10,","paragraph_id":"para_177"},{"text":"2019, Ernest Steven Loffler, another member of NEH, completed a “Maryland Residential","paragraph_id":"para_178"},{"text":"Property Disclosure and Disclaimer Statement” (“Disclosure Statement”) for the property.3","paragraph_id":"para_179"},{"text":"By signing the Disclosure Statement, he represented that there were no “material defects,","paragraph_id":"para_180"},{"text":"including latent defects, affecting the physical condition of the property” that were known","paragraph_id":"para_181"},{"text":"to him.","paragraph_id":"para_182"},{"text":"On July 1, Salinas made an offer to NEH for the purchase of the property.4 The","paragraph_id":"para_183"},{"text":"Disclosure Statement was delivered to Salinas at that time. There is no indication that he","paragraph_id":"para_184"},{"text":"requested an updated Disclosure Statement. The Contract for Sale provided that the","paragraph_id":"para_185"},{"text":"property was sold “as is.” Loffler accepted the contract on July 2 on behalf of NEH, and","paragraph_id":"para_186"},{"text":"settlement was completed on July 29.","paragraph_id":"para_187"},{"text":"2 In its brief to this Court, NEH represents that the house was “gutted.”","paragraph_id":"para_188"},{"text":"3 See Md. Code (1996, 2023 Repl. Vol., 2025 Supp.) § 10-702 of the Real Property","paragraph_id":"para_189"},{"text":"Article. (Disclosure Statement).","paragraph_id":"para_190"},{"text":"4 Salinas testified at his November 28, 2022 deposition that while his spouse, Freyja","paragraph_id":"para_191"},{"text":"Rose Galban, was also on the deed, he was “the only one on the mortgage.”","paragraph_id":"para_192"},{"text":"3","paragraph_id":"para_193"},{"text":"Prior to settlement, the property was inspected by Salinas’ mortgage lender, which","paragraph_id":"para_194","court_paragraph":3},{"text":"appraised the property for purposes of evaluating the value for his VA loan. The VA loan","paragraph_id":"para_195"},{"text":"inspector did not report the presence of any defects. A termite inspection was conducted on","paragraph_id":"para_196"},{"text":"July 16, and this inspection reported no issues with the attic.","paragraph_id":"para_197"},{"text":"Salinas also had an inspection conducted at his expense and enlisted Highland Home","paragraph_id":"para_198"},{"text":"Inspections Inc. (Highland) to complete this task. A Highland inspector, accompanied by","paragraph_id":"para_199"},{"text":"Salinas, surveyed the property on July 10. They went up into the attic and Salinas was with","paragraph_id":"para_200"},{"text":"the Highland inspector when he saw animal feces. Highland Inspections submitted a","paragraph_id":"para_201"},{"text":"detailed report that day. They discovered the presence of animal feces in the attic","paragraph_id":"para_202"},{"text":"underneath insulation. The inspector pulled up insulation at an area above where he had","paragraph_id":"para_203"},{"text":"seen staining in the ceiling; he did not pull up insulation from other locations in the attic.5","paragraph_id":"para_204"},{"text":"When this came to light, Salinas contacted his real estate agent, Ashley Migliore, who then","paragraph_id":"para_205"},{"text":"informed NEH by an email dated July 11.6 He expected NEH to address the condition of","paragraph_id":"para_206"},{"text":"5 The Highland inspector reported his observations and provided an urgent","paragraph_id":"para_207"},{"text":"recommendation:","paragraph_id":"para_208"},{"text":"Condition: • Evidence of active moisture presence was noted at the time of","paragraph_id":"para_209"},{"text":"the inspection, visually and as determined by using a moisture meter. Above","paragraph_id":"para_210"},{"text":"the stained area, within the attic, was a large amount of feces under the","paragraph_id":"para_211"},{"text":"insulation and between the joists; more than likely left by a rac[c]oon (photo","paragraph_id":"para_212"},{"text":"is only example). I believe the stain in the closet is from urine and","paragraph_id":"para_213"},{"text":"decomposed feces. Animal urine and feces can lead to major health concerns.","paragraph_id":"para_214"},{"text":"I recommend that all feces be removed immediately and affected ceiling","paragraph_id":"para_215"},{"text":"drywall be replaced.","paragraph_id":"para_216"},{"text":"6 The agent sent an email to Salinas confirming that NEH would address this issue.","paragraph_id":"para_217"},{"text":"She wrote: “The home inspection went well and the seller agreed to make the requested","paragraph_id":"para_218"},{"text":"repairs even though it was an AS IS sale. That’s amazing.”","paragraph_id":"para_219"},{"text":"4","paragraph_id":"para_220"},{"text":"the attic. He also testified that he would have terminated the contract if NEH “had not","paragraph_id":"para_221","court_paragraph":4},{"text":"agreed to make these repairs.” He proceeded with the sale, however, because he was","paragraph_id":"para_222"},{"text":"assured that the repairs were made. He testified that he “got the actual document at closing","paragraph_id":"para_223"},{"text":"that everything that we had requested was repaired.”","paragraph_id":"para_224"},{"text":"Salinas and his agent returned to the property on Friday, July 26, three days prior to","paragraph_id":"para_225"},{"text":"settlement, to “make sure” that repairs had been completed. He testified that “not","paragraph_id":"para_226"},{"text":"everything had been fixed and we also weren’t able to get into the attic.”7 NEH arranged","paragraph_id":"para_227"},{"text":"for this inspection, and Salinas was not prevented or restricted from accessing any part of","paragraph_id":"para_228"},{"text":"the property. He thought that he could see the property on the morning of the closing, July","paragraph_id":"para_229"},{"text":"29, but he could not enter the house because the lockbox had been removed.","paragraph_id":"para_230"},{"text":"At closing on July 29, Salinas “was provided with a document that listed the items","paragraph_id":"para_231"},{"text":"that were repaired[.]” That document, the July 22 invoice from Distinct Construction, LLC,","paragraph_id":"para_232"},{"text":"was admitted as Plaintiff’s Exhibit 4, and stated that the “Animal feces found inside attic","paragraph_id":"para_233"},{"text":"and in the insulation and staining on closet ceiling from animal feces repaired.” Salinas","paragraph_id":"para_234"},{"text":"understood from this that all the items that needed to be addressed “were repaired or","paragraph_id":"para_235"},{"text":"remediated.” Salinas and his family started moving in after closing on July 29. During this","paragraph_id":"para_236"},{"text":"process, they were aware of an odor in the house. He recounted:","paragraph_id":"para_237"},{"text":"[Salinas’ Counsel]: Okay, and during the move-in process … did you notice","paragraph_id":"para_238"},{"text":"anything about the home?","paragraph_id":"para_239"},{"text":"A: Yes. We noticed that there was a smell in the house, like a foul smell","paragraph_id":"para_240"},{"text":"that we couldn’t place where it was coming from. And so we tried to clean","paragraph_id":"para_241"},{"text":"as much as we could, especially because we had our infant son so we wanted","paragraph_id":"para_242"},{"text":"7 The attic would have been accessible, if Salinas had brought a ladder to reach that","paragraph_id":"para_243"},{"text":"part of the property.","paragraph_id":"para_244"},{"text":"5","paragraph_id":"para_245"},{"text":"to make sure just we weren’t exposing him to something that we’re just not","paragraph_id":"para_246","court_paragraph":5},{"text":"aware of. And then also, we noticed some noises coming from the attic as","paragraph_id":"para_247"},{"text":"well.","paragraph_id":"para_248"},{"text":"Salinas called an exterminator, Orkin Residential Services, and a representative","paragraph_id":"para_249"},{"text":"responded that same day. The Orkin specialist “went into the attic just to see what they","paragraph_id":"para_250"},{"text":"could find and they were able to find some animal waste in the attic.” Salinas testified that","paragraph_id":"para_251"},{"text":"“[a]fter that … we reached out again to our real estate agent and asked her to reach out to","paragraph_id":"para_252"},{"text":"the sellers.”8","paragraph_id":"para_253"},{"text":"At this point, Salinas and his family had planned on visiting his family in Puerto","paragraph_id":"para_254"},{"text":"Rico for a vacation, and they left the house “shortly after that.” From there, they attempted","paragraph_id":"para_255"},{"text":"without success to contact their agent so she could raise this issue with the sellers.9 The","paragraph_id":"para_256"},{"text":"transcript reflects the following:","paragraph_id":"para_257"},{"text":"Q: Okay, and while you were in Puerto Rico, what did you do if anything","paragraph_id":"para_258"},{"text":"about what Orkin found in your home?","paragraph_id":"para_259"},{"text":"A: We attempted to contact the real estate agent several times just hoping","paragraph_id":"para_260"},{"text":"that she would be able to contact and speak to the sellers to see about","paragraph_id":"para_261"},{"text":"addressing the situation because it was supposed to have been addressed and","paragraph_id":"para_262"},{"text":"we just never heard back.","paragraph_id":"para_263"},{"text":"8 It is unclear from Salinas’ testimony whether the agent contacted NEH. That agent,","paragraph_id":"para_264"},{"text":"Ms. Migliore, had passed away in 2019.","paragraph_id":"para_265"},{"text":"9 Salinas recalled that “[w]e attempted to contact the real estate agent several times","paragraph_id":"para_266"},{"text":"just hoping that she would be able to contact and speak to the sellers to see about addressing","paragraph_id":"para_267"},{"text":"the situation because it was supposed to have been addressed and we just never heard","paragraph_id":"para_268"},{"text":"back.” Plaintiff’s expert, Ms. Celeste Holman-Curlee, testified that Salinas’ wife, Ms.","paragraph_id":"para_269"},{"text":"Galban, who had tried to reach their agent without success, complained that “they’d","paragraph_id":"para_270"},{"text":"actually blocked [Galban’s] number.”","paragraph_id":"para_271"},{"text":"6","paragraph_id":"para_272"},{"text":"The Salinas family returned from Puerto Rico on August 22 and noticed that the","paragraph_id":"para_273","court_paragraph":6},{"text":"odor had worsened. They tried cleaning the house again and contacted Orkin, which","paragraph_id":"para_274"},{"text":"scheduled a “full-on inspection.” That inspection revealed “a lot of stuff in the attic,","paragraph_id":"para_275"},{"text":"different animal waste, feces, urine[,] vomit.” The inspector also noted that the “gable vents","paragraph_id":"para_276"},{"text":"themselves were not screened.” Salinas explained: “That’s how the animals were getting","paragraph_id":"para_277"},{"text":"in. And [there were] other points of ingress into the house.” Following this, Salinas and","paragraph_id":"para_278"},{"text":"family went to a hotel. During this time, Orkin personnel took about “5, 6 days” to clean","paragraph_id":"para_279"},{"text":"the attic and seal any entry points, allowing the Salinas family to return. Orkin prepared a","paragraph_id":"para_280"},{"text":"report on August 29. After completing the repairs and removing the soiled materials, Orkin","paragraph_id":"para_281"},{"text":"employees discarded those items.","paragraph_id":"para_282"},{"text":"On cross-examination, Salinas acknowledged that he did not know the condition of","paragraph_id":"para_283"},{"text":"the property on April 10, 2019, when the Disclosure Statement had been completed. Nor","paragraph_id":"para_284"},{"text":"did he know whether Loffler, or anyone else at NEH, knew about the animals in the attic,","paragraph_id":"para_285"},{"text":"or any undisclosed latent defect, as of April 10. Nor was Salinas aware that he could have","paragraph_id":"para_286"},{"text":"requested an updated Disclosure Statement. Salinas also acknowledged that the mortgage","paragraph_id":"para_287"},{"text":"lender’s VA appraisal inspector discovered no animal activity in the attic. Nor did a termite","paragraph_id":"para_288"},{"text":"inspection reveal any animal activity or presence in the attic.10 The cross-examination","paragraph_id":"para_289"},{"text":"10 In its brief, NEH emphasizes that “[Salinas] was not informed of any animal activity","paragraph_id":"para_290"},{"text":"in the attic after the termite inspection or the inspection to appraise the Property’s value in","paragraph_id":"para_291"},{"text":"connection with his mortgage loan application.” While it is not clear whether the VA","paragraph_id":"para_292"},{"text":"appraiser was able to access the attic, the [termite] inspector who prepared the “Wood","paragraph_id":"para_293"},{"text":"Destroying Insect Inspection Report” indicated that there was “No access or entry” to the","paragraph_id":"para_294"},{"text":"attic when he reported that certain areas “were obstructed or inaccessible.”","paragraph_id":"para_295"},{"text":"7","paragraph_id":"para_296"},{"text":"turned to the July 10 home inspection that had been arranged by Salinas, as well as his","paragraph_id":"para_297","court_paragraph":7},{"text":"opportunities to inspect the property in the days before closing.","paragraph_id":"para_298"},{"text":"Salinas didn’t know how many animals had entered the attic, when they deposited","paragraph_id":"para_299"},{"text":"their excrement, especially when his family was in Puerto Rico, and whether the animals","paragraph_id":"para_300"},{"text":"had burrowed under the insulation. He testified, however, that “there was stuff found before","paragraph_id":"para_301"},{"text":"I went on vacation[.]” He also acknowledged that he did not know whether any member of","paragraph_id":"para_302"},{"text":"NEH, or their contractor, had actual knowledge of the animal waste. He insisted, however,","paragraph_id":"para_303"},{"text":"that “they [the conditions] were concealed.”","paragraph_id":"para_304"},{"text":"Loffler, a member of NEH, described the process of buying this property and","paragraph_id":"para_305"},{"text":"removing all the house’s contents. NEH hired Berger’s company, Distinct Construction, to","paragraph_id":"para_306"},{"text":"complete the renovation of the house, and another contractor to do the “cleanout, which is","paragraph_id":"para_307"},{"text":"take all the junk out and fill up the dumpsters and so on.” Loffler would periodically visit","paragraph_id":"para_308"},{"text":"the property to observe Berger’s work. He emphasized that Berger had done “great work”;","paragraph_id":"para_309"},{"text":"Berger had worked on several projects for NEH with good results.","paragraph_id":"para_310"},{"text":"Loffler recalled that the property was listed for sale shortly after the Disclosure","paragraph_id":"para_311"},{"text":"Statement had been signed. He testified that during the period when it was vacant, he would","paragraph_id":"para_312"},{"text":"check on the property “[w]eekly, at least” by conducting a “[t]op to bottom inspection of","paragraph_id":"para_313"},{"text":"just a visual walkthrough.” He had never gone into the attic. During open-house events, no","paragraph_id":"para_314"},{"text":"person had complained to Loffler about any smells or odors coming out of the attic. He","paragraph_id":"para_315"},{"text":"emphasized that “[a]t no time was there any smell nor sounds. No sounds, no smell,","paragraph_id":"para_316"},{"text":"nothing.”","paragraph_id":"para_317"},{"text":"8","paragraph_id":"para_318"},{"text":"Loffler recounted that the property had been “inspected by Howard County, top to","paragraph_id":"para_319","court_paragraph":8},{"text":"bottom.” He testified that Salinas had arranged for a home inspection on July 10, 2019,","paragraph_id":"para_320"},{"text":"after which his real estate agent, Ashley Migliore, sent an email to John Burgess with a list","paragraph_id":"para_321"},{"text":"of items that needed attention, including “[a]nimal activity in attic, feces found inside attic","paragraph_id":"para_322"},{"text":"and in the insulation and staining on closet ceiling from animal feces.” Based on these","paragraph_id":"para_323"},{"text":"revelations, NEH engaged Distinct Construction to address this issue. When asked whether","paragraph_id":"para_324"},{"text":"the contractor had any “specialized training in animal waste removal or remediation[,]”","paragraph_id":"para_325"},{"text":"Loffler responded: “There was nothing needed in this particular situation. It was just some","paragraph_id":"para_326"},{"text":"waste in some insulation that needed to be replaced.” Before Berger started the repairs,","paragraph_id":"para_327"},{"text":"NEH contacted John Adcock, owner of Adcock’s Trapping Service, who sent a","paragraph_id":"para_328"},{"text":"representative to inspect the attic. The results of this inspection were “very minor.” It was,","paragraph_id":"para_329"},{"text":"according to Loffler, “not a major project.”","paragraph_id":"para_330"},{"text":"Loffler relied on Berger’s representation that the work had been done and did not","paragraph_id":"para_331"},{"text":"personally check on the work “[b]ecause he has done other projects for us, and did good","paragraph_id":"para_332"},{"text":"work and we’d never had a problem.” No one at NEH inspected Berger’s work “[b]ecause","paragraph_id":"para_333"},{"text":"we never follow up on a -- once we give him a punch list, it’s taken care of.” Loffler did","paragraph_id":"para_334"},{"text":"not know of any undisclosed latent defect in the house prior to the settlement date. Nor did","paragraph_id":"para_335"},{"text":"he have any knowledge of existing defects in the attic after receiving Berger’s invoice that","paragraph_id":"para_336"},{"text":"stated that all issues have been addressed; he “heard nothing more about that.”","paragraph_id":"para_337"},{"text":"John Burgess recalled that the previous owner of the house was a “hoarder,” that the","paragraph_id":"para_338"},{"text":"house “was worn” and required a contractor to remove all the building’s contents for","paragraph_id":"para_339"},{"text":"renovation. To accomplish this, NEH contracted with Berger of Distinct Construction","paragraph_id":"para_340"},{"text":"9","paragraph_id":"para_341"},{"text":"Services to “tak[e] care of … all of the rehab.” He emphasized that during all the open","paragraph_id":"para_342","court_paragraph":9},{"text":"house events, no one reported animal activity in the attic or a bad smell.","paragraph_id":"para_343"},{"text":"Burgess described the actions NEH took after receiving the Highland inspection","paragraph_id":"para_344"},{"text":"report:","paragraph_id":"para_345"},{"text":"Once we got the home inspection -- or not the home inspection, the additional","paragraph_id":"para_346"},{"text":"punch list of items, I told Steve to please call Adcock right away. We had","paragraph_id":"para_347"},{"text":"used them over the years. They have been very good at what they’ve done.","paragraph_id":"para_348"},{"text":"And we called them right away to get in there to see if there was any --","paragraph_id":"para_349"},{"text":"because she said animal activity, our concern was that there were live animals","paragraph_id":"para_350"},{"text":"up there, which we didn’t know about. So we called them right away to get","paragraph_id":"para_351"},{"text":"up there ASAP, as soon as possible to take a look at that.","paragraph_id":"para_352"},{"text":"* * *","paragraph_id":"para_353"},{"text":"[T]hey did the inspection and they informed us that it was free and clear.","paragraph_id":"para_354"},{"text":"There were no animals up there. And he noticed two spots of fecal matter, as","paragraph_id":"para_355"},{"text":"Ashley had reported to us. But it was free and clear and there were no animals","paragraph_id":"para_356"},{"text":"in the attic.","paragraph_id":"para_357"},{"text":"* * *","paragraph_id":"para_358"},{"text":"[T]here was some feces … droppings in the attic and no active entry points","paragraph_id":"para_359"},{"text":"found along the roof line.","paragraph_id":"para_360"},{"text":"Salinas and his realtor, Ashley Migliore, conducted a “final walkthrough” on the","paragraph_id":"para_361"},{"text":"Friday before closing. Ms. Migliore contacted Burgess and reported that “the purchasers","paragraph_id":"para_362"},{"text":"10","paragraph_id":"para_363"},{"text":"wanted some more items taken care of.” He assured her that NEH would take care of these","paragraph_id":"para_364","court_paragraph":10},{"text":"items, notwithstanding the fact that this sale involved an “as-is situation.”11","paragraph_id":"para_365"},{"text":"Burgess insisted that he did not know of any latent defects in the house prior to the","paragraph_id":"para_366"},{"text":"closing date. He had “first learn[ed] about animal activity in the attic” after Ms. Migliore","paragraph_id":"para_367"},{"text":"called him “[a]fter the [July 10] home inspection.” On cross-examination, Burgess","paragraph_id":"para_368"},{"text":"acknowledged that NEH had filed a lawsuit against Fred Berger and Adcock claiming that","paragraph_id":"para_369"},{"text":"any damages incurred by Salinas were attributable to those contractors. Eventually, NEH","paragraph_id":"para_370"},{"text":"and those contractors entered into a settlement agreement.","paragraph_id":"para_371"},{"text":"Fred Berger has been a general contractor since 1986. He emphasized that he is not","paragraph_id":"para_372"},{"text":"an employee of NEH, but serves as a contractor. He operates his business in Washington,","paragraph_id":"para_373"},{"text":"D.C. and was licensed in Maryland as a home improvement contractor. He acknowledged","paragraph_id":"para_374"},{"text":"that, at the time of the events of this matter, his Maryland contractor’s license was inactive;","paragraph_id":"para_375"},{"text":"it had been forfeited. On cross-examination, Berger also acknowledged that his company’s","paragraph_id":"para_376"},{"text":"LLC had been forfeited in the State of Maryland at the time his contract with NEH had","paragraph_id":"para_377"},{"text":"been signed.","paragraph_id":"para_378"},{"text":"Berger was contracted to renovate the property in early 2019. He detected no signs","paragraph_id":"para_379"},{"text":"of any animal activity during his process. He stressed that should any of the workers find","paragraph_id":"para_380"},{"text":"signs of animal activity or some other pre-existing problems with the house, they would","paragraph_id":"para_381"},{"text":"identify the problem and inform Berger, who would then report to Burgess or Loffler.","paragraph_id":"para_382"},{"text":"11 “In the case of an ‘as is’ sale, the purchaser bears considerably greater risk, and","paragraph_id":"para_383"},{"text":"generally has no remedy for later-discovered damage to, or defects on the property, unless","paragraph_id":"para_384"},{"text":"there is a showing that the seller committed fraud or otherwise acted in bad faith.” Wonder","paragraph_id":"para_385"},{"text":"City, LLC v. Dipietro, 268 Md. App. 218, 229 (2025) (citation omitted).","paragraph_id":"para_386"},{"text":"11","paragraph_id":"para_387"},{"text":"Berger emphasized that he saw no signs of anything when he had the attic insulation","paragraph_id":"para_388","court_paragraph":11},{"text":"installed. Asked about the two times that his workers went to the house to address issues in","paragraph_id":"para_389"},{"text":"the attic, Berger testified:","paragraph_id":"para_390"},{"text":"[NEH Counsel]: … And do you recall doing work regarding the …","paragraph_id":"para_391"},{"text":"attic?","paragraph_id":"para_392"},{"text":"* * *","paragraph_id":"para_393"},{"text":"A: Yes, we were given a picture of some stuff. I sent the guys back up to","paragraph_id":"para_394"},{"text":"remove it, put it into the trash bag and put it out to the front where the","paragraph_id":"para_395"},{"text":"dumpster was.","paragraph_id":"para_396"},{"text":"Q: Okay. And was the insulation replaced?","paragraph_id":"para_397"},{"text":"A: Yes, sir.","paragraph_id":"para_398"},{"text":"Q: There was also I guess staining of the ceiling below that area. Do you","paragraph_id":"para_399"},{"text":"recall that?","paragraph_id":"para_400"},{"text":"A: I think there was something there and I think we spot primed it with","paragraph_id":"para_401"},{"text":"KILZ and then we just touched up. We did a lot of touchups and house.","paragraph_id":"para_402"},{"text":"Q: Okay, did you know about any animal activity in attic before that time","paragraph_id":"para_403"},{"text":"when you were asked to address that?","paragraph_id":"para_404"},{"text":"A: No, sir.","paragraph_id":"para_405"},{"text":"Q: And did you provide a document to Loffler stating that you performed","paragraph_id":"para_406"},{"text":"the work?","paragraph_id":"para_407"},{"text":"A Yes, sir. … [W]e document to the owners indicating this was done,","paragraph_id":"para_408"},{"text":"this was done and this was done.","paragraph_id":"para_409"},{"text":"12","paragraph_id":"para_410"},{"text":"Berger’s workers last went to the property on the weekend before closing to address three","paragraph_id":"para_411","court_paragraph":12},{"text":"items that had been noted by Ms. Migliore. He said that “[i]t was very minor.”","paragraph_id":"para_412"},{"text":"John Adcock testified for the plaintiff. He “ran a company [Adcock’s Trapping","paragraph_id":"para_413"},{"text":"Service] that removes nuisance wildlife from people’s homes.” One of the services","paragraph_id":"para_414"},{"text":"provided by Adcock Trapping is home inspections. He recalled that an Adcock technician,","paragraph_id":"para_415"},{"text":"Mr. Gann, inspected the property on July 16. A “proposal” form addressed to Loffler was","paragraph_id":"para_416"},{"text":"created based on this inspection. The technician observed “Raccoon[] feces in the attic","paragraph_id":"para_417"},{"text":"(very old droppings). No active entry points found along the roof line.” He recommended","paragraph_id":"para_418"},{"text":"the following action: “Removing fascia under front gable vent and around attic access","paragraph_id":"para_419"},{"text":"panel. Deodorize and replace approx. (1) piece of R30 insulation under gable vent.”","paragraph_id":"para_420"},{"text":"Mr. Adcock’s company was not hired to complete the tasks recommended in its","paragraph_id":"para_421"},{"text":"proposal. On cross-examination, Adcock was asked whether the issue described in the","paragraph_id":"para_422"},{"text":"proposal was a “difficult issue, a serious issue for [the] trapping service to provide[.]” He","paragraph_id":"para_423"},{"text":"testified that “[f]rom the evidence that this reads, apparently did not appear to be any big","paragraph_id":"para_424"},{"text":"deal.”","paragraph_id":"para_425"},{"text":"Celeste Holman-Curlee is a regional field-trainer for “Orkin Pest Control under","paragraph_id":"para_426"},{"text":"Rollins Brands.”12 She has also been a certified home inspector and branch manager for","paragraph_id":"para_427"},{"text":"Orkin. In her current position, she “train[s] new inspectors for signs and things of what’s","paragraph_id":"para_428"},{"text":"going on in the home, what are the symptoms of bigger problems and issues, moisture, the","paragraph_id":"para_429"},{"text":"types of droppings, type of scat, what pests leave them and how to remediate them.” Her","paragraph_id":"para_430"},{"text":"12 We will refer to Ms. Holman-Curlee as Ms. Curlee, which is how her name appears","paragraph_id":"para_431"},{"text":"in the transcript.","paragraph_id":"para_432"},{"text":"13","paragraph_id":"para_433"},{"text":"current level of experience in this field was gained through “training and through","paragraph_id":"para_434","court_paragraph":13},{"text":"experience[.]”","paragraph_id":"para_435"},{"text":"Based on her responses, Ms. Curlee was proffered over objection as an expert in the","paragraph_id":"para_436"},{"text":"field of pest control. A bench conference ensued and the transcript reflects the following","paragraph_id":"para_437"},{"text":"exchange:","paragraph_id":"para_438"},{"text":"[NEH Counsel]: Your Honor, I specifically asked her during her deposition","paragraph_id":"para_439"},{"text":"if she has any expert opinions. She said, “No, I’m not an expert.”","paragraph_id":"para_440"},{"text":"[Salinas’ Counsel]: Your Honor, she’s testified to her experience, to her level","paragraph_id":"para_441"},{"text":"of training, to being in over 15,000 attics, to doing this work over a decade,","paragraph_id":"para_442"},{"text":"the specific training that she has animal scat.","paragraph_id":"para_443"},{"text":"I understand what Mr. Golding is saying, but I believe we’ve met the","paragraph_id":"para_444"},{"text":"qualifications for designation as an expert under the law.","paragraph_id":"para_445"},{"text":"THE COURT: Looking at that, although individuals don’t necessarily","paragraph_id":"para_446"},{"text":"identify themselves as experts, sometimes they are, even just like that. She","paragraph_id":"para_447"},{"text":"has described the level of experience that I think goes beyond the common","paragraph_id":"para_448"},{"text":"person in this area. And I believe that she may be helpful to the jurors who","paragraph_id":"para_449"},{"text":"might not also have that level of experiences.","paragraph_id":"para_450"},{"text":"I will, over objection, identify her as an expert.","paragraph_id":"para_451"},{"text":"* * *","paragraph_id":"para_452"},{"text":"She’s limited as to what is reported in the general topics that are in her report.","paragraph_id":"para_453"},{"text":"She can’t go beyond her report.","paragraph_id":"para_454"},{"text":"Ms. Curlee first responded to the property in early August, before the Salinas family","paragraph_id":"para_455"},{"text":"went on vacation to Puerto Rico. She went into the attic, walked through the attic quickly,","paragraph_id":"para_456"},{"text":"“saw a small area of daylight down at the end and saw some squirrel droppings.” As a","paragraph_id":"para_457"},{"text":"result, she recommended that Salinas contact their agent or their home inspector.","paragraph_id":"para_458"},{"text":"14","paragraph_id":"para_459"},{"text":"After the Salinas family returned from Puerto Rico, they contacted Ms. Curlee again","paragraph_id":"para_460","court_paragraph":14},{"text":"because it “smelled like something [had] died in the house.” She returned to the house, and","paragraph_id":"para_461"},{"text":"again ascended to the attic and “started pulling up the insulation, the newer bat[ted] …","paragraph_id":"para_462"},{"text":"insulation[]” and “found mouse droppings, raccoon scat, squirrel droppings[.]” She","paragraph_id":"para_463"},{"text":"described it as the “worst contamination [she had] seen in an attic.”","paragraph_id":"para_464"},{"text":"She had prepared an inspection report for Orkin Pest Control, and was asked to","paragraph_id":"para_465"},{"text":"comment on portions of the report, which contained photographs and video recordings.","paragraph_id":"para_466"},{"text":"When asked about the screens that should cover the gable vents for ventilation, she","paragraph_id":"para_467"},{"text":"testified:","paragraph_id":"para_468"},{"text":"A: They’re the gable vents for ventilation in an attic. They show that the","paragraph_id":"para_469"},{"text":"lower portion of those gable vents have been rescreened, but not the upper","paragraph_id":"para_470"},{"text":"portion. It was only a partial screening. They used a window screen as well,","paragraph_id":"para_471"},{"text":"like for just a regular, traditional window, not like for wildlife, or hardware","paragraph_id":"para_472"},{"text":"cloth, or anything like that.","paragraph_id":"para_473"},{"text":"Q: Okay, and is there a specific type of screening used for wildlife?","paragraph_id":"para_474"},{"text":"A: Yes, hardware cloth. Some people call it chicken wire, but yeah.","paragraph_id":"para_475"},{"text":"Q: Would an animal be able to force its way through regular screening?","paragraph_id":"para_476"},{"text":"A: Yes, absolutely.","paragraph_id":"para_477"},{"text":"* * *","paragraph_id":"para_478"},{"text":"Q: So what you found – you’re saying there was, based on your findings,","paragraph_id":"para_479"},{"text":"a layer of old insulation, then all of the animal waste, and then new insulation","paragraph_id":"para_480"},{"text":"on top of that?","paragraph_id":"para_481"},{"text":"A: Correct.","paragraph_id":"para_482"},{"text":"15","paragraph_id":"para_483"},{"text":"* * *","paragraph_id":"para_484","court_paragraph":15},{"text":"You can see the new insulation laid on top of the old, contaminated","paragraph_id":"para_485"},{"text":"insulation. And so you can see the staining on the wood and everything from","paragraph_id":"para_486"},{"text":"the urine and the feces.","paragraph_id":"para_487"},{"text":"On cross-examination, Ms. Curlee explained that she did not notice an odor in the","paragraph_id":"para_488"},{"text":"attic when she first went up there because she was wearing a full respirator. She was asked","paragraph_id":"para_489"},{"text":"about her deposition testimony, in which she described the squirrel droppings on top of the","paragraph_id":"para_490"},{"text":"new insulation as “no big deal.” She explained: “I viewed that as not a big deal because","paragraph_id":"para_491"},{"text":"they just had a home inspection and they had just purchased the home. The squirrel","paragraph_id":"para_492"},{"text":"droppings I saw were on top of the new insulation. ... The amount of contamination I saw","paragraph_id":"para_493"},{"text":"on top of the newer insulation was very recent and very minimal.”","paragraph_id":"para_494"},{"text":"16","paragraph_id":"para_495"},{"text":"Circuit Court Litigation","paragraph_id":"para_496","court_paragraph":16},{"text":"On September 1, 2021, Salinas and his spouse Freyja Rose Galban filed suit against","paragraph_id":"para_497"},{"text":"NEH seeking damages in excess of $75,000 for breach of contract, intentional","paragraph_id":"para_498"},{"text":"misrepresentation, and negligent misrepresentation.13 NEH filed a counterclaim on January","paragraph_id":"para_499"},{"text":"10, 2022, asserting that Salinas did not attempt to mediate the claims in his complaint, and","paragraph_id":"para_500"},{"text":"sought attorneys’ fees.14 On June 8, 2022, Salinas filed his “First Amended Complaint” that","paragraph_id":"para_501"},{"text":"repeated the original counts and added a count alleging a violation of the Maryland","paragraph_id":"para_502"},{"text":"Consumer Protection Act.15","paragraph_id":"para_503"},{"text":"This matter would go before a circuit court jury, but not until NEH filed a “Motion","paragraph_id":"para_504"},{"text":"for Summary Judgment” and a “Motion to Compel,” which were denied on April 5.16 A","paragraph_id":"para_505"},{"text":"four-day trial commenced on April 22, 2024. After the plaintiff rested, NEH moved for","paragraph_id":"para_506"},{"text":"judgment. Counsel for NEH asserted that the plaintiff failed to adduce any evidence that","paragraph_id":"para_507"},{"text":"13 The Amended Complaint also alleged that NEH breached the contract for failing to","paragraph_id":"para_508"},{"text":"reply to Salinas’ “requests to begin the mediation process[]” as provided in the contract. In","paragraph_id":"para_509"},{"text":"addition, Salinas complained about defects in the chimneys and basement fireplace. The","paragraph_id":"para_510"},{"text":"chimneys and fireplace issues are not implicated in this appeal, although they are relevant","paragraph_id":"para_511"},{"text":"to attorneys’ fees. NEH did not respond to the mediation request because “there was no","paragraph_id":"para_512"},{"text":"factual merit to Salinas’ accusations and … the Request for Mediation was made more than","paragraph_id":"para_513"},{"text":"a year after” the transfer of property.","paragraph_id":"para_514"},{"text":"14 The counterclaimant NEH also filed a “Third Party Complaint” against Distinct","paragraph_id":"para_515"},{"text":"Construction Services and Adcock’s Enterprises. This matter was resolved and does not","paragraph_id":"para_516"},{"text":"affect this appeal.","paragraph_id":"para_517"},{"text":"15 Freyja Rose Galban had originally joined this action as a plaintiff, but was","paragraph_id":"para_518"},{"text":"subsequently dismissed from this case.","paragraph_id":"para_519"},{"text":"16 The circuit court also denied motions for summary judgment filed by Fred Berger and","paragraph_id":"para_520"},{"text":"Adcock Enterprise (third-party defendants).","paragraph_id":"para_521"},{"text":"17","paragraph_id":"para_522"},{"text":"NEH or any associate had “actual knowledge of a latent defect in the house when the house","paragraph_id":"para_523","court_paragraph":17},{"text":"was sold … or when [the] [D]isclosure [S]tatement was made[.]” Counsel pointed out that","paragraph_id":"para_524"},{"text":"there was no testimony as to “when the attic contamination got in there … when that","paragraph_id":"para_525"},{"text":"happened, how many animals” there were or whether the infestation occurred when the","paragraph_id":"para_526"},{"text":"Salinas family was in Puerto Rico. With respect to discovery of some contamination after","paragraph_id":"para_527"},{"text":"the home inspection report in mid-July 2019, Counsel averred that “[a]t that point, it’s not","paragraph_id":"para_528"},{"text":"a latent defect[,] … [i]t’s an exposed defect.” Because the contamination had been exposed,","paragraph_id":"para_529"},{"text":"“it turned from a latent defect to an open defect. There was no disclosure requirement.”","paragraph_id":"para_530"},{"text":"The trial court denied the motion. NEH renewed the motion at the close of evidence, and","paragraph_id":"para_531"},{"text":"the trial court denied it in part.17","paragraph_id":"para_532"},{"text":"The jury reached a verdict, finding that NEH had actual or imputed knowledge of","paragraph_id":"para_533"},{"text":"the presence of the animal waste in the attic; that NEH or any of its independent contractors","paragraph_id":"para_534"},{"text":"intentionally concealed that fact; that NEH or any of its independent contractors","paragraph_id":"para_535"},{"text":"negligently misrepresented that fact; and that NEH or any of its independent contractors","paragraph_id":"para_536"},{"text":"violated the Maryland Consumer Protection Act. The jury also found that NEH had not","paragraph_id":"para_537"},{"text":"breached its contract with Salinas. The jury also found for NEH on counts alleging","paragraph_id":"para_538"},{"text":"misrepresentations with respect to latent defects in the chimneys and fireplace. On April","paragraph_id":"para_539"},{"text":"26, 2024, judgment was entered on the verdict in the sum of $15,579.02. NEH filed a timely","paragraph_id":"para_540"},{"text":"“Motion for Judgment Notwithstanding the Verdict and/or Motion to Revise Judgment,”","paragraph_id":"para_541"},{"text":"which the court denied. On June 6, the trial court awarded attorney’s fees to both counsel:","paragraph_id":"para_542"},{"text":"17 The trial court granted the motion with regards to “Count 2, the breach of contract","paragraph_id":"para_543"},{"text":"for failing to engage in mediation.”","paragraph_id":"para_544"},{"text":"18","paragraph_id":"para_545"},{"text":"$20,000 to NEH’s counsel and $74,000 to Salinas’ lawyer. The court reduced the awards","paragraph_id":"para_546","court_paragraph":18},{"text":"to judgment in the amount of $54,000 in favor of Salinas by offsetting the award to his","paragraph_id":"para_547"},{"text":"attorney by that granted to NEH’s counsel.","paragraph_id":"para_548"},{"text":"Appeal to this Court","paragraph_id":"para_549"},{"text":"On appeal, NEH presents the following questions, which we have recast as","paragraph_id":"para_550"},{"text":"follows:18","paragraph_id":"para_551"},{"text":"1. Did the trial court err in not entering judgment in favor of NEH?","paragraph_id":"para_552"},{"text":"2. Did the trial court abuse its discretion in prohibiting NEH from","paragraph_id":"para_553"},{"text":"conducting an oral deposition of Ms. Galban and in not instructing the jury","paragraph_id":"para_554"},{"text":"to consider her refusal to respond to written deposition questions and appear","paragraph_id":"para_555"},{"text":"at trial as ordered?","paragraph_id":"para_556"},{"text":"3. Did the trial court abuse its discretion by denying NEH’s motion to","paragraph_id":"para_557"},{"text":"exclude expert opinions from Appellee’s expert?","paragraph_id":"para_558"},{"text":"4. Did the trial court err in awarding attorneys’ fees to appellee?","paragraph_id":"para_559"},{"text":"18 NEH specifically frames the Questions Presented as follows:","paragraph_id":"para_560"},{"text":"1. Whether the trial court erred by failing to enter judgment in NEH’s","paragraph_id":"para_561"},{"text":"favor in the absence of any admissible evidence of NEH having actual","paragraph_id":"para_562"},{"text":"knowledge of an undisclosed latent defect and by rendering NEH liable for","paragraph_id":"para_563"},{"text":"the alleged knowledge of NEH’s independent contractors regarding latent","paragraph_id":"para_564"},{"text":"defects in the Property[.]","paragraph_id":"para_565"},{"text":"2. Whether the trial court erred by prohibiting NEH from conducting the","paragraph_id":"para_566"},{"text":"in-person oral deposition of Ms. Galban and denying NEH’s request for a","paragraph_id":"para_567"},{"text":"special jury instruction after Ms. Galban refused to answer written deposition","paragraph_id":"para_568"},{"text":"questions and defied a trial subpoena commanding her to appear at trial[.]","paragraph_id":"para_569"},{"text":"3. Whether the trial court erred by denying NEH’s motion in limine to","paragraph_id":"para_570"},{"text":"exclude expert opinions from Salinas’ designated expert witnesses and","paragraph_id":"para_571"},{"text":"allowing Salinas to present expert opinions to the jury that were not disclosed","paragraph_id":"para_572"},{"text":"during discovery and were based on destroyed evidence[.]","paragraph_id":"para_573"},{"text":"4. Whether the trial court erred by awarding attorneys’ fees to Salinas[.]","paragraph_id":"para_574"},{"text":"19","paragraph_id":"para_575"},{"text":"The Maryland Association of Realtors®, Inc. (“MAR”) has filed an Amicus Brief","paragraph_id":"para_576","court_paragraph":19},{"text":"in support of NEH.19","paragraph_id":"para_577"},{"text":"STANDARDS OF REVIEW","paragraph_id":"para_578"},{"text":"The resolution of this appeal requires us to apply several standards of review. We","paragraph_id":"para_579"},{"text":"review the circuit court’s denial of a motion for summary judgment for an abuse of","paragraph_id":"para_580"},{"text":"discretion. Metropolitan Mtg. Fund, Inc. v. Basiliko, 288 Md. 25, 28-29 (1980) (collecting","paragraph_id":"para_581"},{"text":"cases). “Motions for judgment under Md. Rule 2-519 and motions for judgment","paragraph_id":"para_582"},{"text":"notwithstanding the verdict under Md. Rule 2-532 test the sufficiency of the evidence at","paragraph_id":"para_583"},{"text":"trial.” Matter of City of Hagerstown, 265 Md. App. 581, 608, cert. denied sub nom. City of","paragraph_id":"para_584"},{"text":"Hagerstown v. Johnson, 492 Md. 402 (2025). We","paragraph_id":"para_585"},{"text":"review a grant or denial of a motion for judgment notwithstanding the verdict","paragraph_id":"para_586"},{"text":"for legal correctness, by viewing the evidence and the reasonable inferences","paragraph_id":"para_587"},{"text":"to be drawn from it in the light most favorable to the non-moving party and","paragraph_id":"para_588"},{"text":"determining whether the facts and circumstances only permit one inference","paragraph_id":"para_589"},{"text":"with regard to the issue presented.","paragraph_id":"para_590"},{"text":"Mayor & City Council of Baltimore v. Varghese, 493 Md. 1, 11 (2025) (cleaned up). The","paragraph_id":"para_591"},{"text":"standard of review of a court’s denial of a motion for JNOV is the same as","paragraph_id":"para_592"},{"text":"the standard of review of a court’s denial of a motion for judgment at the","paragraph_id":"para_593"},{"text":"close of the evidence, i.e., whether on the evidence presented a reasonable","paragraph_id":"para_594"},{"text":"fact-finder could find the elements of the cause of action by a preponderance","paragraph_id":"para_595"},{"text":"of the evidence.","paragraph_id":"para_596"},{"text":"19 On December 20, 2024, the Chief Judge of this Court entered an Order granting the","paragraph_id":"para_597"},{"text":"“Motion of the Maryland Association of Realtors, Inc. for Leave to File Amicus Curiae","paragraph_id":"para_598"},{"text":"Brief,” and granting appellee leave to file a reply to the Amicus brief. “Amicus briefs are","paragraph_id":"para_599"},{"text":"allowed for the purpose of supporting or opposing the issues presented by the parties in the","paragraph_id":"para_600"},{"text":"appellate process. Amici are not allowed to raise other issues.” Poku v. Friedman, 403 Md.","paragraph_id":"para_601"},{"text":"47, 54 n.8 (2008).","paragraph_id":"para_602"},{"text":"20","paragraph_id":"para_603"},{"text":"University of Maryland Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 329, cert. denied,","paragraph_id":"para_604","court_paragraph":20},{"text":"427 Md. 65 (2012). We “will find error in a denial of a motion for judgment or JNOV if","paragraph_id":"para_605"},{"text":"the evidence does not rise above speculation, hypothesis, and conjecture, and does not lead","paragraph_id":"para_606"},{"text":"to the jury’s conclusion with reasonable certainty.” Scapa Dryer Fabrics, Inc. v. Saville,","paragraph_id":"para_607"},{"text":"418 Md. 496, 503 (2011) (cleaned up). We review the trial court’s decision “without","paragraph_id":"para_608"},{"text":"deference.” Osiris Holding of Maryland, LLC v. Daniels, 264 Md. App. 337, 359 (2025)","paragraph_id":"para_609"},{"text":"(cleaned up).","paragraph_id":"para_610"},{"text":"We review the trial court’s decisions regarding discovery for an abuse of discretion.","paragraph_id":"para_611"},{"text":"Adventist Healthcare, Inc. v. Mattingly, 244 Md. App. 259, 273 (2020). An award of","paragraph_id":"para_612"},{"text":"attorney’s fees is ordinarily reviewed for abuse of discretion. SunTrust Bank v. Goldman,","paragraph_id":"para_613"},{"text":"201 Md. App. 390, 397 (2011). See also, Monmouth Meadows Homeowners Ass’n., Inc. v.","paragraph_id":"para_614"},{"text":"Hamilton, 416 Md. 325, 332 (2010). We review a trial court’s decision to admit or exclude","paragraph_id":"para_615"},{"text":"expert testimony only for an abuse of discretion. Rochkind v. Stevenson, 454 Md. 277, 285","paragraph_id":"para_616"},{"text":"(2017). “[I]n actions under fee-shifting statutes [such as the Maryland Consumer Protection","paragraph_id":"para_617"},{"text":"Act] the lodestar approach is ordinarily the appropriate one to use in determining a","paragraph_id":"para_618"},{"text":"reasonable counsel fee.” Friolo v. Frankel, 373 Md. 501, 504-05 (2003). The decision","paragraph_id":"para_619"},{"text":"whether to allow any fee is discretionary. Id. at 512.","paragraph_id":"para_620"},{"text":"DISCUSSION","paragraph_id":"para_621"},{"text":"I","paragraph_id":"para_622"},{"text":"Denial of Judgment in Favor of NEH","paragraph_id":"para_623"},{"text":"NEH maintains that the trial court “misapplied the law governing the disclosure","paragraph_id":"para_624"},{"text":"obligations of a seller of residential real property,” when it denied NEH’s pre-trial motion","paragraph_id":"para_625"},{"text":"21","paragraph_id":"para_626"},{"text":"for summary judgment, its motion for judgment, and its motion for judgment NOV. It","paragraph_id":"para_627","court_paragraph":21},{"text":"emphasizes that Section 10-702 of the Real Property Article limits the disclosure obligation","paragraph_id":"para_628"},{"text":"to reveal any defect of which it has “actual knowledge.” 20 This argument tracks the","paragraph_id":"para_629"},{"text":"language of the statute, which, according to NEH, sets the upper limit of a property seller’s","paragraph_id":"para_630"},{"text":"disclosure obligation.21","paragraph_id":"para_631"},{"text":"NEH insists that not only was it not obligated to go beyond the requirements of the","paragraph_id":"para_632"},{"text":"Disclosure Statute, contrary to the trial court’s rulings, but that it had no duty to investigate","paragraph_id":"para_633"},{"text":"the condition of the attic. Nor was it required to ask its contractor, Fred Berger, whether he","paragraph_id":"para_634"},{"text":"had any knowledge of undisclosed latent defects.","paragraph_id":"para_635"},{"text":"NEH also emphasizes that the contractor’s knowledge should not be imputed to","paragraph_id":"para_636"},{"text":"NEH. It maintains that because NEH and its members were unaware of any defects and","paragraph_id":"para_637"},{"text":"thus had no actual knowledge, it fulfilled its disclosure obligations. It complains that","paragraph_id":"para_638"},{"text":"“imputing” the contractor’s knowledge to NEH “created an impossible obligation” for","paragraph_id":"para_639"},{"text":"other “similarly situated” real estate vendors.","paragraph_id":"para_640"},{"text":"NEH further portrays the verdicts as inconsistent, arguing that the jury findings of","paragraph_id":"para_641"},{"text":"negligence and misrepresentation cannot be reconciled with the finding that it did not","paragraph_id":"para_642"},{"text":"breach its contract with the buyers.","paragraph_id":"para_643"},{"text":"20 Md. Code (2023 Repl. Vol., 2025 Supp.), § 10-702 of the Real Property Article","paragraph_id":"para_644"},{"text":"(“RP”).","paragraph_id":"para_645"},{"text":"21 NEH’s “Statement of the Case” provides that “[t]his case primarily concerns","paragraph_id":"para_646"},{"text":"whether an independent contractor’s alleged knowledge of undisclosed latent defects in a","paragraph_id":"para_647"},{"text":"single-family house can be imputed to the seller who did not have actual knowledge of a","paragraph_id":"para_648"},{"text":"latent defect.”","paragraph_id":"para_649"},{"text":"22","paragraph_id":"para_650"},{"text":"In its Amicus brief, MAR takes a similar approach. MAR claims that the “main","paragraph_id":"para_651","court_paragraph":22},{"text":"purpose of RP § 10-702 [the Disclosure Statement] is to provide purchasers with","paragraph_id":"para_652"},{"text":"information that permits them to make an informed decision whether to submit an offer to","paragraph_id":"para_653"},{"text":"purchase … or rescind.” MAR further cautions that “sellers arguably will be saddled with","paragraph_id":"para_654"},{"text":"the burden of conducting multiple inspections and analyses of residential property prior to","paragraph_id":"para_655"},{"text":"marketing it in order that they may attempt to limit the scope of liability which may be","paragraph_id":"para_656"},{"text":"imposed upon them via amorphous ‘imputed knowledge’ of others.”","paragraph_id":"para_657"},{"text":"Salinas of course takes a different view of the trial court’s actions. He supports the","paragraph_id":"para_658"},{"text":"trial court’s application of the law of agency in denying NEH’s motions and in agreeing","paragraph_id":"para_659"},{"text":"with the jury’s verdicts. While NEH’s “recitation of the [Disclosure Statute] is accurate,”","paragraph_id":"para_660"},{"text":"Salinas avers, NEH’s argument ignores the existence of common-law remedies in the","paragraph_id":"para_661"},{"text":"context of real estate transactions. Both the disclosure obligations of RP § 10-702 and","paragraph_id":"para_662"},{"text":"appropriate common law remedies can co-exist. Salinas stresses this point in his reply to","paragraph_id":"para_663"},{"text":"the Amicus Brief filed by MAR. He avers that the Disclosure Statute is “not even","paragraph_id":"para_664"},{"text":"implicated here” because the evidence at trial “centered around statements made by NEH","paragraph_id":"para_665"},{"text":"and its contractor[.]”","paragraph_id":"para_666"},{"text":"The gravamen of Salinas’ argument is that the knowledge obtained by","paragraph_id":"para_667"},{"text":"Berger/Distinct Construction should be imputed to NEH, the contractor’s principal. He","paragraph_id":"para_668"},{"text":"maintains that this is derived from the principal-agent relationship that was created between","paragraph_id":"para_669"},{"text":"NEH and Berger/Distinct Construction.","paragraph_id":"para_670"},{"text":"In his brief, Salinas points out that “NEH never argued or alleged that Berger was","paragraph_id":"para_671"},{"text":"not its agent or independent contractor[.]” This is somewhat inaccurate. We construe the","paragraph_id":"para_672"},{"text":"23","paragraph_id":"para_673"},{"text":"tenor of NEH’s arguments to be that Berger was an independent contractor, the assumption","paragraph_id":"para_674","court_paragraph":23},{"text":"being that neither Berger nor Distinct Construction was an “agent.” Berger testified that","paragraph_id":"para_675"},{"text":"his company is a “contractor” and that Distinct Construction “ha[d] crews and","paragraph_id":"para_676"},{"text":"subcontractors, independent contractors.” 22 While it is apparent that NEH denies that","paragraph_id":"para_677"},{"text":"Berger was acting as an agent, we discern no adequately developed argument that addresses","paragraph_id":"para_678"},{"text":"this threshold legal issue. “[A]rguments not presented in a brief or not presented with","paragraph_id":"para_679"},{"text":"particularity will not be considered on appeal.” Bert v. Comptroller of the Treasury, 215","paragraph_id":"para_680"},{"text":"Md. App. 244, 269 n. 15 (2013).","paragraph_id":"para_681"},{"text":"22 Our Supreme Court has observed:","paragraph_id":"para_682"},{"text":"It can be assumed - there is no necessity to decide and we do not - that the","paragraph_id":"para_683"},{"text":"Smith Company in the execution of its obligations under the contract with","paragraph_id":"para_684"},{"text":"the Co-operative was generally an independent contractor. ... Yet, in the","paragraph_id":"para_685"},{"text":"broadest sense, when one accomplishes a given result through the efforts of","paragraph_id":"para_686"},{"text":"another, there is an agency. The rules which govern the relations of principal","paragraph_id":"para_687"},{"text":"and agent, of employer and employee, and of employer or owner and","paragraph_id":"para_688"},{"text":"independent contractor, are often distinct but may be identical so that one","paragraph_id":"para_689"},{"text":"statement will suffice for all and illustrations may be drawn from all fields.","paragraph_id":"para_690"},{"text":"... An agent who is not a servant is, therefore, an independent contractor when","paragraph_id":"para_691"},{"text":"he contracts to act on account of the principal[.]","paragraph_id":"para_692"},{"text":"Ivy H. Smith Co. v. Warffemius, 201 Md. 367, 374 (1953) (cleaned up). The Court, however,","paragraph_id":"para_693"},{"text":"cautioned that “[w]hile an agent who contracts to act and who is not a servant is therefore","paragraph_id":"para_694"},{"text":"an independent contractor, not all independent contractors are agents. Generally, an","paragraph_id":"para_695"},{"text":"independent contractor who is not an agent must have contracted to do a specific work and","paragraph_id":"para_696"},{"text":"have the right to control the mode and manner of doing it.” Id. (cleaned up). Nonetheless,","paragraph_id":"para_697"},{"text":"“[a]n independent contractor … may be an agent under Maryland law[.]” Spencer v.","paragraph_id":"para_698"},{"text":"Henderson-Webb, Inc., 81 F. Supp. 2d 582, 596 (D. Md. 1999) (citing Candlewood","paragraph_id":"para_699"},{"text":"Obstetric-Gynecologic Associates v. Signet Bank/Maryland, 805 F. Supp. 328, 331","paragraph_id":"para_700"},{"text":"(D.Md.1992) (in turn citing Ivy H. Smith Co. v. Warffemius)).","paragraph_id":"para_701"},{"text":"24","paragraph_id":"para_702"},{"text":"Given the assumed principal-agent relationship, the focus would turn to the","paragraph_id":"para_703","court_paragraph":24},{"text":"knowledge attributable to NEH as a result. Salinas emphasizes, correctly, that there is a","paragraph_id":"para_704"},{"text":"solid legal basis for imputing Berger’s knowledge to NEH.","paragraph_id":"para_705"},{"text":"MAR, in its Amicus brief, denigrates imputed knowledge as “amorphous.” We shall","paragraph_id":"para_706"},{"text":"assume from this description that MAR effectively dismisses the efficacy and validity of","paragraph_id":"para_707"},{"text":"imputed knowledge, especially under the circumstances found here.","paragraph_id":"para_708"},{"text":"Regardless, “[o]ne of the general principles of an agency relationship is that the","paragraph_id":"para_709"},{"text":"knowledge of the agent is knowledge of the principal.” Anderson v. General Casualty Ins.","paragraph_id":"para_710"},{"text":"Co., 402 Md. 236, 248 (2007) (cleaned up). See also, Durst v. Durst, 225 Md. 175, 180","paragraph_id":"para_711"},{"text":"(1961) (“It is axiomatic that knowledge acquired by an agent in the course of his agency is","paragraph_id":"para_712"},{"text":"imputed to his principal.”). “Generally, notice of a fact that an agent knows or has reason","paragraph_id":"para_713"},{"text":"to know is imputed to the principal if knowledge of the fact is material to the agent’s duties","paragraph_id":"para_714"},{"text":"to the principal, unless the agent acts adversely to the principal or has a duty to not disclose","paragraph_id":"para_715"},{"text":"the fact to the principal.” US Wind Inc. v. InterMoor, Inc., 640 F. Supp. 3d 390, 401-02 (D.","paragraph_id":"para_716"},{"text":"Md. 2022) (cleaned up).","paragraph_id":"para_717"},{"text":"This concept is consistent with § 5.01 of the Restatement (Third) of Agency, which","paragraph_id":"para_718"},{"text":"provides:","paragraph_id":"para_719"},{"text":"§ 5.01 Notifications and Notice-In General","paragraph_id":"para_720"},{"text":"(1) A notification is a manifestation that is made in the form required by","paragraph_id":"para_721"},{"text":"agreement among parties or by applicable law, or in a reasonable manner in","paragraph_id":"para_722"},{"text":"the absence of an agreement or an applicable law, with the intention of","paragraph_id":"para_723"},{"text":"affecting the legal rights and duties of the notifier in relation to rights and","paragraph_id":"para_724"},{"text":"duties of persons to whom the notification is given.","paragraph_id":"para_725"},{"text":"25","paragraph_id":"para_726"},{"text":"(2) A notification given to or by an agent is effective as notification to or by","paragraph_id":"para_727","court_paragraph":25},{"text":"the principal as stated in § 5.02.","paragraph_id":"para_728"},{"text":"(3) A person has notice of a fact if the person knows the fact, has reason to","paragraph_id":"para_729"},{"text":"know the fact, has received an effective notification of the fact, or should","paragraph_id":"para_730"},{"text":"know the fact to fulfill a duty owed to another person.","paragraph_id":"para_731"},{"text":"(4) Notice of a fact that an agent knows or has reason to know is imputed to","paragraph_id":"para_732"},{"text":"the principal as stated in §§ 5.03 and 5.04.","paragraph_id":"para_733"},{"text":"Section 5.03 of the Restatement (Third) of Agency provides:","paragraph_id":"para_734"},{"text":"§ 5.03 Imputation of Notice of Fact to Principal","paragraph_id":"para_735"},{"text":"For purposes of determining a principal’s legal relations with a third party,","paragraph_id":"para_736"},{"text":"notice of a fact that an agent knows or has reason to know is imputed to the","paragraph_id":"para_737"},{"text":"principal if knowledge of the fact is material to the agent’s duties to the","paragraph_id":"para_738"},{"text":"principal, unless the agent","paragraph_id":"para_739"},{"text":"(a) acts adversely to the principal as stated in § 5.04, or","paragraph_id":"para_740"},{"text":"(b) is subject to a duty to another not to disclose the fact to the principal.","paragraph_id":"para_741"},{"text":"To be sure, as one commentator has noted:","paragraph_id":"para_742"},{"text":"Imputation also requires a counter-intuitive willingness to assume that one","paragraph_id":"para_743"},{"text":"person’s knowledge, without more, is known by another person. These","paragraph_id":"para_744"},{"text":"difficulties are worth confronting, though, because imputation is central to","paragraph_id":"para_745"},{"text":"the bases on which agency ascribes responsibility for one person’s actions to","paragraph_id":"para_746"},{"text":"another person and thus to agency doctrine as a whole.","paragraph_id":"para_747"},{"text":"Deborah A. DeMott, When is a Principal charged with an Agent's Knowledge?, 13 Duke","paragraph_id":"para_748"},{"text":"J. of Comp. & Int’l Law 291 (2003). The fact that “a principal may be deemed to have","paragraph_id":"para_749"},{"text":"legally received certain knowledge or notice that has, in fact, been received only by the","paragraph_id":"para_750"},{"text":"agent … resides at the very heart of agency law[.]” Marin Roger Scordato, Evidentiary","paragraph_id":"para_751"},{"text":"Surrogacy and Risk Allocation: Understanding Imputed Knowledge and Notice in Modern","paragraph_id":"para_752"},{"text":"26","paragraph_id":"para_753"},{"text":"Agency Law, 10 Ford. J. Corp. & Fin. L. 129 (2004) (footnotes omitted). Professor Scordato","paragraph_id":"para_754","court_paragraph":26},{"text":"continues:","paragraph_id":"para_755"},{"text":"Generally known as the “imputed knowledge rule” this aspect of agency law","paragraph_id":"para_756"},{"text":"legally charges the principal with information obtained by the agent within","paragraph_id":"para_757"},{"text":"the scope of the agent’s service for the principal. The law will treat the","paragraph_id":"para_758"},{"text":"principal as having actually received the information in question, even if it is","paragraph_id":"para_759"},{"text":"clear from the facts of the case that the agent failed to transmit the","paragraph_id":"para_760"},{"text":"information to the principal, and therefore clear that the principal never","paragraph_id":"para_761"},{"text":"actually possessed it.","paragraph_id":"para_762"},{"text":"Id. at 131-32 (footnotes omitted).","paragraph_id":"para_763"},{"text":"We conclude, based on the record before us, that any knowledge acquired by Mr.","paragraph_id":"para_764"},{"text":"Becker/Distinct Construction during its relationship with NEH with respect to this property","paragraph_id":"para_765"},{"text":"is imputed to NEH. This includes not only the knowledge of the presence of any animals","paragraph_id":"para_766"},{"text":"and animal waste, issues with the chimneys and fireplace, but also any knowledge that the","paragraph_id":"para_767"},{"text":"screening installed on the gable vent was ineffective at resisting any animal incursion, and","paragraph_id":"para_768"},{"text":"whether these defects were remediated.","paragraph_id":"para_769"},{"text":"Although we concur with Salinas that RP § 10-702 does not dictate the result in this","paragraph_id":"para_770"},{"text":"case, we briefly address the Disclosure Statement signed by Loffler on April 10, 2019. A","paragraph_id":"para_771"},{"text":"seller’s Disclosure Statement is required by Md. Code (2023 Repl. Vol., 2025 Supp.), § 10-","paragraph_id":"para_772"},{"text":"702 of the Real Property Article (“RP”). RP § 10-702 was added to the Code, 1993","paragraph_id":"para_773"},{"text":"Maryland Laws ch. 640.","paragraph_id":"para_774"},{"text":"Section 10-702 essentially requires the seller of certain real property to provide a","paragraph_id":"para_775"},{"text":"“written residential property condition [D]isclosure [S]tatement” which shall:","paragraph_id":"para_776"},{"text":"27","paragraph_id":"para_777"},{"text":"(1) Disclose any latent defects of which the vendor has actual knowledge","paragraph_id":"para_778","court_paragraph":27},{"text":"that a purchaser would not reasonably be expected to ascertain by a careful","paragraph_id":"para_779"},{"text":"visual inspection and that would pose a direct threat to the health or safety of","paragraph_id":"para_780"},{"text":"the purchaser or an occupant; and","paragraph_id":"para_781"},{"text":"(2) State that:","paragraph_id":"para_782"},{"text":"(i) Except for latent defects disclosed under item (1) of this subsection,","paragraph_id":"para_783"},{"text":"the vendor makes no representations or warranties as to the condition of the","paragraph_id":"para_784"},{"text":"real property or any improvements on the real property; and","paragraph_id":"para_785"},{"text":"(ii) The purchaser will be receiving the real property “as is”, with all","paragraph_id":"para_786"},{"text":"defects, including latent defects, that may exist, except as otherwise provided","paragraph_id":"para_787"},{"text":"in the contract of sale of the real property.","paragraph_id":"para_788"},{"text":"RP § 10-702(c)(1)(i), (d). RP § 10-702(i) provides","paragraph_id":"para_789"},{"text":"(2) A vendor is not liable for an error, inaccuracy, or omission in a","paragraph_id":"para_790"},{"text":"[D]isclosure [S]tatement made under this section if the error, inaccuracy, or","paragraph_id":"para_791"},{"text":"omission was based upon information that was:","paragraph_id":"para_792"},{"text":"(i) Not within the actual knowledge of the vendor; [or]","paragraph_id":"para_793"},{"text":"* * *","paragraph_id":"para_794"},{"text":"(iii) Provided to the vendor by a report or opinion prepared by a licensed","paragraph_id":"para_795"},{"text":"engineer, land surveyor, geologist, wood-destroying insect control expert,","paragraph_id":"para_796"},{"text":"contractor, or other home inspection expert, dealing with matters within the","paragraph_id":"para_797"},{"text":"scope of the professional’s license or expertise.","paragraph_id":"para_798"},{"text":"“The seller’s disclosure is based on the seller’s actual knowledge at the time” the","paragraph_id":"para_799"},{"text":"Disclosure Statement is signed. 79 Op. Att’y General 402, 404 (1994). In short, we agree","paragraph_id":"para_800"},{"text":"with all the parties that RP § 10-702(i)(2) means what it says and sets forth the criteria as","paragraph_id":"para_801"},{"text":"to when a “vendor is not liable for an error, inaccuracy, or omission in a [D]isclosure","paragraph_id":"para_802"},{"text":"28","paragraph_id":"para_803"},{"text":"[S]tatement[.]” Indeed, Salinas has no quarrel with the statute, or with the concern raised","paragraph_id":"para_804","court_paragraph":28},{"text":"by MAR that a seller’s duty to disclose should not be expanded.","paragraph_id":"para_805"},{"text":"What NEH and the MAR effectively overlook or ignore, however, is that a buyer of","paragraph_id":"para_806"},{"text":"real property, such as Salinas, has available common law remedies that have not been","paragraph_id":"para_807"},{"text":"abrogated by RP § 10-702 and which formed the basis of the jury’s misrepresentation","paragraph_id":"para_808"},{"text":"verdicts. Similarly, the Consumer Protection Act claim was a viable cause of action.","paragraph_id":"para_809"},{"text":"Arguments that are mired in interpretations of RP § 10-702 fail to address the common law","paragraph_id":"para_810"},{"text":"remedies available to a victim of either intentional misrepresentation or negligent","paragraph_id":"para_811"},{"text":"misrepresentation. 23 Indeed, commentators have observed that “statutory disclosure","paragraph_id":"para_812"},{"text":"requirements are in addition to any other disclosure obligations required by the common","paragraph_id":"para_813"},{"text":"law.” Katherine A. Pancaka, Thomas J. Micelib and C.F. Sirmans, Residential Disclosure","paragraph_id":"para_814"},{"text":"Laws: The Further Demise of Caveat Emptor, 24 Real Est. L. J. 291, 310 (1996). These","paragraph_id":"para_815"},{"text":"commentators further noted:","paragraph_id":"para_816"},{"text":"Although recent legislation may have halted the universal imposition on","paragraph_id":"para_817"},{"text":"brokers of a duty to inspect, brokers can still be found liable to a purchaser","paragraph_id":"para_818"},{"text":"23 MAR warns that the “error by the trial court, if allowed to stand, places the burden","paragraph_id":"para_819"},{"text":"on sellers of residential property not contemplated by the Maryland Legislature when § 10-","paragraph_id":"para_820"},{"text":"702 was enacted or since that time.” They also complain that the “protection [of RP § 10-","paragraph_id":"para_821"},{"text":"702(m)(3)] will be lost if Maryland real estate licensees have imposed upon them an","paragraph_id":"para_822"},{"text":"obligation to inform buyers and sellers of residential real estate of the nature, scope and","paragraph_id":"para_823"},{"text":"effect of knowledge that may or may not be imputed to sellers.” We disagree. The fact that","paragraph_id":"para_824"},{"text":"the licensee is required to inform buyers of their rights and obligations is not unduly","paragraph_id":"para_825"},{"text":"burdensome. According to the Bill Analysis for House Bill (HB) 1210, which was enacted","paragraph_id":"para_826"},{"text":"as RP § 10-702: “Informing a seller or buyer of the seller’s and buyer’s ‘rights and","paragraph_id":"para_827"},{"text":"obligations’ constitute the ‘sole duties owed by the licensee to the parties to a residential","paragraph_id":"para_828"},{"text":"real estate transaction under this bill.’” Senate Judicial Proceedings Committee,","paragraph_id":"para_829"},{"text":"Department of Legislative Reference, 1993 General Assembly of Maryland, Floor Report","paragraph_id":"para_830"},{"text":"for House Bill 1210. The statute does not cabin the common law remedies available to a","paragraph_id":"para_831"},{"text":"buyer.","paragraph_id":"para_832"},{"text":"29","paragraph_id":"para_833"},{"text":"under the traditional common-law theories of intentional misrepresentation,","paragraph_id":"para_834","court_paragraph":29},{"text":"intentional concealment, and negligent misrepresentation. All information","paragraph_id":"para_835"},{"text":"that a broker provides to a purchaser must be accurate. A broker is still","paragraph_id":"para_836"},{"text":"required to use due care in obtaining information used in representations","paragraph_id":"para_837"},{"text":"made about the property in its marketing effort and/or in response to","paragraph_id":"para_838"},{"text":"questions from buyers. Additionally, a broker may not withhold material","paragraph_id":"para_839"},{"text":"information; a broker, in short, is not permitted to conceal information from","paragraph_id":"para_840"},{"text":"a potential purchaser.","paragraph_id":"para_841"},{"text":"Id. at 311.","paragraph_id":"para_842"},{"text":"The jury found in favor of Salinas on four questions on the verdict sheet.","paragraph_id":"para_843"},{"text":"The jury returned the following verdicts:","paragraph_id":"para_844"},{"text":"1. Do you find that 3919 NEH, LLC had actual knowledge, or imputed","paragraph_id":"para_845"},{"text":"knowledge through any of its independent contractors, that there was","paragraph_id":"para_846"},{"text":"animal waste in the attic on the date the property was sold to Plaintiff?","paragraph_id":"para_847"},{"text":"Yes","paragraph_id":"para_848"},{"text":"6. Do you find by clear and convincing evidence that 3919 NEH, LLC,","paragraph_id":"para_849"},{"text":"or any of its independent contractors, intentionally concealed the","paragraph_id":"para_850"},{"text":"existence of the animal waste in the attic of the home it sold to Erick","paragraph_id":"para_851"},{"text":"Galban Salinas?","paragraph_id":"para_852"},{"text":"Yes","paragraph_id":"para_853"},{"text":"8. Do you find by a preponderance of the evidence that 3919 NEH, LLC,","paragraph_id":"para_854"},{"text":"or any of its independent contractors, negligently misrepresented the","paragraph_id":"para_855"},{"text":"existence of the latent defects in the home it sold to Erick Galban","paragraph_id":"para_856"},{"text":"Salinas?","paragraph_id":"para_857"},{"text":"Yes","paragraph_id":"para_858"},{"text":"9. Do you find by a preponderance of the evidence that 3919 NEH, LLC,","paragraph_id":"para_859"},{"text":"or any of its independent contractors, violated the Maryland","paragraph_id":"para_860"},{"text":"Consumer Protection Act and engaged in unfair, abusive, and/or","paragraph_id":"para_861"},{"text":"30","paragraph_id":"para_862"},{"text":"deceptive trade practices by making false or misleading statements or","paragraph_id":"para_863","court_paragraph":30},{"text":"representations in the contract for the sale of the home sold to Erick","paragraph_id":"para_864"},{"text":"Galban Salinas?","paragraph_id":"para_865"},{"text":"Yes","paragraph_id":"para_866"},{"text":"NEH insists that the trial court misapplied the law in its rulings on NEH’s motions","paragraph_id":"para_867"},{"text":"for summary judgment, motions for judgment, and motion for judgment NOV by","paragraph_id":"para_868"},{"text":"concluding that NEH was obligated to investigate or inspect the attic and that any","paragraph_id":"para_869"},{"text":"knowledge acquired by its contractors, Distinct Construction and Adcock, would be","paragraph_id":"para_870"},{"text":"imputed to NEH. We disagree and explain.","paragraph_id":"para_871"},{"text":"Intentional Misrepresentation. We conclude that there was sufficient evidence","paragraph_id":"para_872"},{"text":"from which the jury could have found NEH liable for intentional misrepresentation. With","paragraph_id":"para_873"},{"text":"respect to intentional misrepresentation, or fraud, our Supreme Court has noted that:","paragraph_id":"para_874"},{"text":"[i]n order to recover damages in an action for fraud or deceit [a plaintiff is","paragraph_id":"para_875"},{"text":"required to] prove (1) that the defendant made a false representation to the","paragraph_id":"para_876"},{"text":"plaintiff, (2) that its falsity was either known to the defendant or that the","paragraph_id":"para_877"},{"text":"representation was made with reckless indifference as to its truth, (3) that the","paragraph_id":"para_878"},{"text":"misrepresentation was made for the purpose of defrauding the plaintiff, (4)","paragraph_id":"para_879"},{"text":"that the plaintiff relied on the misrepresentation and had the right to rely on","paragraph_id":"para_880"},{"text":"it, and (5) that the plaintiff suffered compensable injury resulting from the","paragraph_id":"para_881"},{"text":"misrepresentation.","paragraph_id":"para_882"},{"text":"Moscarillo v. Professional Risk Management Servs., Inc., 398 Md. 529, 544 (2007)","paragraph_id":"para_883"},{"text":"(cleaned up) (collecting cases); Gross v. Sussex, 332 Md. 247, 257 (1993); Gittings v. Von","paragraph_id":"para_884"},{"text":"Dorn, 136 Md. 10, 15-16 (1920). See P.T. Gilbert, Maryland Tort Law Handbook, § 17.1","paragraph_id":"para_885"},{"text":"(4th ed. 2020). The critical element of the tort of deceit that distinguishes it from others","paragraph_id":"para_886"},{"text":"31","paragraph_id":"para_887"},{"text":"arising from false representation is scienter on the part of the defendant - intent to deceive","paragraph_id":"para_888","court_paragraph":31},{"text":"the other party. Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 333 (1982).","paragraph_id":"para_889"},{"text":"Our review of the record convinces us that Salinas has established the requisite","paragraph_id":"para_890"},{"text":"elements for intentional misrepresentation.","paragraph_id":"para_891"},{"text":"First, NEH represented through Berger’s invoice that the waste and effects of the","paragraph_id":"para_892"},{"text":"animal activity in the attic had been addressed and remediated, when in fact there was","paragraph_id":"para_893"},{"text":"considerable animal waste that remained in that location to an extent unknown to Salinas.","paragraph_id":"para_894"},{"text":"Salinas testified that as he and his family were moving in on the afternoon of closing, he","paragraph_id":"para_895"},{"text":"could hear noises from the attic and they detected an odor which prompted them to attempt","paragraph_id":"para_896"},{"text":"to clean the entire house. The representation that remediation had been successfully","paragraph_id":"para_897"},{"text":"completed and that there existed no animal waste in the attic was false.","paragraph_id":"para_898"},{"text":"Second, NEH had imputed knowledge of the extent of the animal waste in the attic","paragraph_id":"para_899"},{"text":"through the actual knowledge of Berger/Distinct Construction. In the alternative, the","paragraph_id":"para_900"},{"text":"representation was made to Salinas by NEH with reckless indifference as to its truth. Even","paragraph_id":"para_901"},{"text":"though the house had been “gutted,” as represented by NEH in its brief, assuming therefore","paragraph_id":"para_902"},{"text":"that all contents, including old insulation, had been removed and discarded, the buyer’s","paragraph_id":"para_903"},{"text":"home inspection detected a level of animal waste that alarmed the Highland inspector.24","paragraph_id":"para_904"},{"text":"24 NEH insists that it was not required to investigate the condition of the attic.","paragraph_id":"para_905"},{"text":"Regardless of the limits of any duty NEH thought it had, the fact remains that","paragraph_id":"para_906"},{"text":"Berger/Distinct Construction had been to the attic, and its knowledge was imputed to NEH.","paragraph_id":"para_907"},{"text":"32","paragraph_id":"para_908"},{"text":"Third, the misrepresentation was made for the purpose of completing the sale of the","paragraph_id":"para_909","court_paragraph":32},{"text":"property. It was, as noted, communicated to Salinas through his agent and at closing when","paragraph_id":"para_910"},{"text":"he received the Distinct Construction invoice.","paragraph_id":"para_911"},{"text":"Fourth, Salinas could reasonably, and did rely upon, the representation. He","paragraph_id":"para_912"},{"text":"understood “that the items listed here were repaired or remediated.”","paragraph_id":"para_913"},{"text":"Fifth, Salinas suffered damage in the form of expenses for remediation and","paragraph_id":"para_914"},{"text":"temporary hotel lodgings.","paragraph_id":"para_915"},{"text":"Even if NEH did not have actual knowledge of the animal waste and the effects of","paragraph_id":"para_916"},{"text":"the infestation, the jury could find that it acted with a reckless indifference that satisfies the","paragraph_id":"para_917"},{"text":"scienter requirement for fraudulent misrepresentation. See Estate of Adams v. Continental","paragraph_id":"para_918"},{"text":"Insurance Co., 233 Md. App. 1, 28-29, cert. denied, 456 Md. 62 (2017).","paragraph_id":"para_919"},{"text":"Negligent Misrepresentation. The critical element of the tort of deceit that","paragraph_id":"para_920"},{"text":"distinguishes it from others arising from false representation is scienter on the part of the","paragraph_id":"para_921"},{"text":"defendant — intent to deceive the other party. Martens Chevrolet, supra. The Court in","paragraph_id":"para_922"},{"text":"Martens Chevrolet reaffirmed the principle that negligent representation may also provide","paragraph_id":"para_923"},{"text":"a basis for recovery. The Court pointed out:","paragraph_id":"para_924"},{"text":"Realizing the inequities stemming from the strictures imposed for recovery","paragraph_id":"para_925"},{"text":"in a deceit action, and being cognizant of the development of this area of the","paragraph_id":"para_926"},{"text":"law in our sister jurisdictions, this Court in 1938 recognized for the first time","paragraph_id":"para_927"},{"text":"the existence in this State of an action for negligent misrepresentation.","paragraph_id":"para_928"},{"text":"Martens Chevrolet, 292 Md. at 334 (citing Virginia Dare Stores v. Schuman, 175 Md. 287,","paragraph_id":"para_929"},{"text":"291-92 (1938)). “Negligent misrepresentation … only requires conduct which falls below","paragraph_id":"para_930"},{"text":"33","paragraph_id":"para_931"},{"text":"the standard of care the maker of the statement owes to the person to whom it is made.”","paragraph_id":"para_932","court_paragraph":33},{"text":"Gross v. Sussex, 332 Md. 247, 260 (1993).","paragraph_id":"para_933"},{"text":"We summarize and clarify. The principal elements of the tort of negligent","paragraph_id":"para_934"},{"text":"misrepresentation, as formulated in Virginia Dare Stores, supra, and subsequent cases","paragraph_id":"para_935"},{"text":"decided by Maryland appellate courts, may be outlined as follows:","paragraph_id":"para_936"},{"text":"(1) the defendant, owing a duty of care to the plaintiff, negligently asserts","paragraph_id":"para_937"},{"text":"a false statement;","paragraph_id":"para_938"},{"text":"(2) the defendant intends that his statement will be acted upon by the","paragraph_id":"para_939"},{"text":"plaintiff;","paragraph_id":"para_940"},{"text":"(3) the defendant has knowledge that the plaintiff will probably rely on","paragraph_id":"para_941"},{"text":"the statement, which, if erroneous, will cause loss or injury;","paragraph_id":"para_942"},{"text":"(4) the plaintiff, justifiably, takes action in reliance on the statement; and","paragraph_id":"para_943"},{"text":"(5) the plaintiff suffers damage proximately caused by the defendant’s","paragraph_id":"para_944"},{"text":"negligence.","paragraph_id":"para_945"},{"text":"Martens Chevrolet, 292 Md. at 336-37 (citing Virginia Dare Stores, 175 Md. at 291-92).","paragraph_id":"para_946"},{"text":"The evidence adduced at trial allowed the jury to find the following:","paragraph_id":"para_947"},{"text":"NEH owed a duty of care to Salinas to ensure that, once it undertook to repair the","paragraph_id":"para_948"},{"text":"effects of the infestation, the remediation was successful and completed. By representing","paragraph_id":"para_949"},{"text":"that fact, NEH negligently asserted a false statement.","paragraph_id":"para_950"},{"text":"NEH intended that its representation would be acted upon by Salinas, who, indeed,","paragraph_id":"para_951"},{"text":"proceeded to settlement and the purchase. Although NEH stresses the lack of a written","paragraph_id":"para_952"},{"text":"statement from Salinas to the effect that a failure to repair or remediate the effects of the","paragraph_id":"para_953"},{"text":"infestation would lead him to reject the deal, the jury credited his testimony that he “would","paragraph_id":"para_954"},{"text":"have terminated the contract” if the seller had not agreed to make the repairs.","paragraph_id":"para_955"},{"text":"34","paragraph_id":"para_956"},{"text":"NEH expected that Salinas would so rely on its representation, which, being","paragraph_id":"para_957","court_paragraph":34},{"text":"erroneous, caused economic damage.","paragraph_id":"para_958"},{"text":"Salinas, relying on the notice that repairs had been completed, justifiably relied on","paragraph_id":"para_959"},{"text":"it to proceed with the purchase.","paragraph_id":"para_960"},{"text":"Salinas’ economic loss, the hotel stay, and the complete Orkin remediation were","paragraph_id":"para_961"},{"text":"proximately caused by NEH’s negligence.","paragraph_id":"para_962"},{"text":"Maryland Consumer Protection Act. Md. Code (1975, 2025 Repl. Vol.), Title 13","paragraph_id":"para_963"},{"text":"of the Commercial Law Article (“CL”). The MCPA expressly prohibits “unfair, abusive,","paragraph_id":"para_964"},{"text":"or deceptive trade practice . . . in . . . [t]he offer for sale, lease, rental, loan, or bailment of","paragraph_id":"para_965"},{"text":"consumer goods, consumer realty, or consumer services[.]” CL § 13-303(2).","paragraph_id":"para_966"},{"text":"The MCPA “provides a nonexclusive list of unfair and deceptive trade practices.”","paragraph_id":"para_967"},{"text":"Washington Home Remodelers, Inc. v. State, Off. of Att’y Gen., Consumer Prot. Div., 426","paragraph_id":"para_968"},{"text":"Md. 613, 628 (2012) (cleaned up). The Act “constitutes remedial legislation that is intended","paragraph_id":"para_969"},{"text":"to be construed liberally in order to promote its purpose of providing a modicum of","paragraph_id":"para_970"},{"text":"protection for the State’s consumers.” Id. at 630. A “private consumer bringing an action","paragraph_id":"para_971"},{"text":"under the [MCPA] must show actual injury or loss sustained as a result of a practice","paragraph_id":"para_972"},{"text":"prohibited under the [MCPA].” Legg v. Castruccio, 100 Md. App. 748, 757 (1994).","paragraph_id":"para_973"},{"text":"The MCPA includes the following “non-exclusive” list of unfair or deceptive trade","paragraph_id":"para_974"},{"text":"practices:","paragraph_id":"para_975"},{"text":"(1) False, falsely disparaging, or misleading oral or written statement,","paragraph_id":"para_976"},{"text":"visual description, or other representation of any kind which has the","paragraph_id":"para_977"},{"text":"capacity, tendency, or effect of deceiving or misleading consumers;","paragraph_id":"para_978"},{"text":"35","paragraph_id":"para_979"},{"text":"(2) Representation that:","paragraph_id":"para_980","court_paragraph":35},{"text":"(i) Consumer goods, consumer realty, or consumer services have a","paragraph_id":"para_981"},{"text":"sponsorship, approval, accessory, characteristic, ingredient, use,","paragraph_id":"para_982"},{"text":"benefit, or quantity which they do not have;","paragraph_id":"para_983"},{"text":"* * *","paragraph_id":"para_984"},{"text":"(iv) Consumer goods, consumer realty, or consumer services are of a","paragraph_id":"para_985"},{"text":"particular standard, quality, grade, style, or model which they are not;","paragraph_id":"para_986"},{"text":"(3) Failure to state a material fact if the failure deceives or tends to","paragraph_id":"para_987"},{"text":"deceive;","paragraph_id":"para_988"},{"text":"* * *","paragraph_id":"para_989"},{"text":"(9) Deception, fraud, false pretense, false premise, misrepresentation, or","paragraph_id":"para_990"},{"text":"knowing concealment, suppression, or omission of any material fact","paragraph_id":"para_991"},{"text":"with the intent that a consumer rely on the same in connection with:","paragraph_id":"para_992"},{"text":"(i) The promotion or sale of any consumer goods, consumer realty, or","paragraph_id":"para_993"},{"text":"consumer service;","paragraph_id":"para_994"},{"text":"CL § 13-301.","paragraph_id":"para_995"},{"text":"NEH’s actions as set forth with respect to intentional and negligent","paragraph_id":"para_996"},{"text":"misrepresentation are also embraced by the provisions of the MCPA. Specifically, the","paragraph_id":"para_997"},{"text":"misrepresentation that the infestation had been remedied and its effects removed. It did not","paragraph_id":"para_998"},{"text":"matter to the jury that Loffler answered “no” to being aware of latent defects when he","paragraph_id":"para_999"},{"text":"signed the Disclosure Statement on April 10, 2019; nor would the panel have been swayed","paragraph_id":"para_1000"},{"text":"by the fact that Salinas had inspected the attic and was aware of the infestation before","paragraph_id":"para_1001"},{"text":"36","paragraph_id":"para_1002"},{"text":"closing. This is so because the presence of animal waste continued after the buyer’s","paragraph_id":"para_1003","court_paragraph":36},{"text":"inspection and NEH’s attempts through Berger to remediate.","paragraph_id":"para_1004"},{"text":"In the final analysis, the evidence was more than sufficient for the jury to find that","paragraph_id":"para_1005"},{"text":"NEH intentionally and negligently misrepresented to Salinas that the issues resulting from","paragraph_id":"para_1006"},{"text":"the infestation had been “remediated” and that, as a result, NEH also violated the Maryland","paragraph_id":"para_1007"},{"text":"Consumer Protection Act.","paragraph_id":"para_1008"},{"text":"II","paragraph_id":"para_1009"},{"text":"A. Protective Order","paragraph_id":"para_1010"},{"text":"NEH asserts that the trial court erred by prohibiting it from conducting an “in-person","paragraph_id":"para_1011"},{"text":"oral deposition of Ms. Galban and denying NEH’s requested special jury instruction","paragraph_id":"para_1012"},{"text":"regarding [her] actions.” NEH maintains that Ms. Galban was an adverse, even hostile,","paragraph_id":"para_1013"},{"text":"witness whose presence at “relevant activities” was an important factor in seeking her oral","paragraph_id":"para_1014"},{"text":"testimony. NEH emphasizes that Ms. Galban “demonstrated her ability to recall and recite","paragraph_id":"para_1015"},{"text":"her version of the relevant facts and her hostility toward NEH by describing the parties’","paragraph_id":"para_1016"},{"text":"dispute on social media.”","paragraph_id":"para_1017"},{"text":"The attempts to secure the in-person testimony of Ms. Galban have prompted","paragraph_id":"para_1018"},{"text":"considerable litigation. On November 7, 2022, Counsel for third-party defendant Fred","paragraph_id":"para_1019"},{"text":"Berger issued an amended notice to conduct the deposition of Ms. Galban. On January 10,","paragraph_id":"para_1020"},{"text":"2023, NEH filed a “Motion to Compel Plaintiffs to Produce Discovery Responses and for","paragraph_id":"para_1021"},{"text":"Plaintiff Freyja Galban to appear for Deposition.” NEH recited that although the deposition","paragraph_id":"para_1022"},{"text":"was originally scheduled for September 12, 2022, Ms. Galban was unable to appear","paragraph_id":"para_1023"},{"text":"because of a medical condition. No further explanation was provided, and NEH’s counsel","paragraph_id":"para_1024"},{"text":"37","paragraph_id":"para_1025"},{"text":"later requested more detail, such as “Ms. Galban’s symptoms, the diagnosis of her","paragraph_id":"para_1026","court_paragraph":37},{"text":"condition and an explanation for her inability to appear for deposition.” NEH moved for","paragraph_id":"para_1027"},{"text":"an order to compel Ms. Galban to “either appear for deposition or provide one or more","paragraph_id":"para_1028"},{"text":"documents authored by a health care provider” that would give a more detailed explanation","paragraph_id":"para_1029"},{"text":"for her inability to provide in-person oral deposition testimony. NEH filed a “Supplement","paragraph_id":"para_1030"},{"text":"to Defendant’s Motion to Compel” on July 20, 2023.","paragraph_id":"para_1031"},{"text":"On August 16, 2023, the circuit court granted NEH’s motion to compel, and ordered","paragraph_id":"para_1032"},{"text":"“Freyja Rose Galban” to appear for deposition within 30 days of the entry of the court’s","paragraph_id":"para_1033"},{"text":"Order. On September 18, NEH filed a “Motion for Sanctions for Failure to Comply with","paragraph_id":"para_1034"},{"text":"Order Compelling Discovery.” The Motion provided, inter alia, that “As of the filing of","paragraph_id":"para_1035"},{"text":"this motion, Ms. Galban has not appeared for her deposition, has not provided alternate","paragraph_id":"para_1036"},{"text":"dates for her deposition, has not obtained a protective order regarding her obligation to","paragraph_id":"para_1037"},{"text":"appear for her deposition by September 15, 2023, and has not filed a motion requesting","paragraph_id":"para_1038"},{"text":"relief from the Order.”","paragraph_id":"para_1039"},{"text":"On October 19, Ms. Galban’s counsel filed a “Motion for a Protective Order.” A","paragraph_id":"para_1040"},{"text":"hearing on this Motion and related motions to seal and for sanctions was conducted on","paragraph_id":"para_1041"},{"text":"November 16, 2023. On November 17, the circuit court issued an “Omnibus Order","paragraph_id":"para_1042"},{"text":"Regarding Discovery Motions” that granted in part the Motion for a Protective Order","paragraph_id":"para_1043"},{"text":"barring in-person and remote oral deposition, ordering that she would be deposed via","paragraph_id":"para_1044"},{"text":"written questions, and granting leave for a party to conduct the in-person or remote oral","paragraph_id":"para_1045"},{"text":"38","paragraph_id":"para_1046"},{"text":"deposition after the deposition via written questions would have concluded.25 A ruling on","paragraph_id":"para_1047","court_paragraph":38},{"text":"the Motion for Sanctions was held in abeyance.","paragraph_id":"para_1048"},{"text":"After this, on December 15, NEH filed a “Motion for Leave to Conduct the In-","paragraph_id":"para_1049"},{"text":"Person Oral Deposition of Freyja Rose Galban.” The Motion takes issue with the circuit","paragraph_id":"para_1050"},{"text":"court’s ruling, asserting that the court’s Order “did not comply” with Maryland Rule 2-417,","paragraph_id":"para_1051"},{"text":"and that Ms. Galban failed to show “good cause” for a protective order. A hearing on the","paragraph_id":"para_1052"},{"text":"motion was conducted on February 14, 2024. Counsel for NEH pointed out various","paragraph_id":"para_1053"},{"text":"deficiencies in Ms. Galban’s written responses, such as numerous failures to recall and the","paragraph_id":"para_1054"},{"text":"invocation of “spousal privilege,” which could have been clarified and addressed through","paragraph_id":"para_1055"},{"text":"oral testimony. The court stated that its previous rulings “still stand” and allowed NEH to","paragraph_id":"para_1056"},{"text":"25 The court’s Order reads in pertinent part:","paragraph_id":"para_1057"},{"text":"ORDERED, that Freyja Rose Galban’s October 19, 2023 Motion for","paragraph_id":"para_1058"},{"text":"Protective Order is hereby GRANTED in part; and it is further","paragraph_id":"para_1059"},{"text":"ORDERED that a Protective Order is hereby entered barring the in-person","paragraph_id":"para_1060"},{"text":"and/or remote oral deposition of Freyja Rose Galban; and it is hereby further","paragraph_id":"para_1061"},{"text":"ORDERED that Freyja Rose Galban will be deposed via written questions,","paragraph_id":"para_1062"},{"text":"and that questions for direct examination are to be submitted to counsel for","paragraph_id":"para_1063"},{"text":"Freyja Rose Galban within ten (10) days of the date of this Order, written","paragraph_id":"para_1064"},{"text":"answers to these questions are to be submitted under oath by Freyja Rose","paragraph_id":"para_1065"},{"text":"Galban within fifteen (15) days of the date of receipt of the written questions;","paragraph_id":"para_1066"},{"text":"and it is further","paragraph_id":"para_1067"},{"text":"ORDERED, that a party may file a motion for leave to conduct the in-person","paragraph_id":"para_1068"},{"text":"or remote oral deposition of Freyja Rose Galban after the deposition via","paragraph_id":"para_1069"},{"text":"written questions has concluded; ...","paragraph_id":"para_1070"},{"text":"39","paragraph_id":"para_1071"},{"text":"submit follow-up questions if necessary.26 The court also indicated that Ms. Galban could","paragraph_id":"para_1072","court_paragraph":39},{"text":"still be subpoenaed to offer testimony at trial.","paragraph_id":"para_1073"},{"text":"NEH challenges the trial court’s “Omnibus Order Regarding Discovery Motions”","paragraph_id":"para_1074"},{"text":"as well as the court’s order that her previous rulings “still stand.” It complains that Ms.","paragraph_id":"para_1075"},{"text":"Galban failed to demonstrate good cause for her refusal to appear for an in-person","paragraph_id":"para_1076"},{"text":"deposition. NEH emphasizes that Ms. Galban has “demonstrated her ability to recall and","paragraph_id":"para_1077"},{"text":"recite her version of the relevant facts and her hostility toward NEH by describing the","paragraph_id":"para_1078"},{"text":"parties’ dispute on social media.”27 Quoting from numerous federal cases, NEH avers that","paragraph_id":"para_1079"},{"text":"the alternative discovery, deposition by written questions, “is not suitable for a situation","paragraph_id":"para_1080"},{"text":"where … the witness is hostile[.]”28","paragraph_id":"para_1081"},{"text":"26 On March 19, 2024, Ms. Galban’s counsel filed a “Renewed Motion for Protective","paragraph_id":"para_1082"},{"text":"Order,” which was denied on March 31.","paragraph_id":"para_1083"},{"text":"27 In its “Reply to Opposition to Defendant’s Motion for Sanctions for Failure to","paragraph_id":"para_1084"},{"text":"Comply with Order Compelling Discovery,” NEH highlights Ms. Galban’s hostility and","paragraph_id":"para_1085"},{"text":"the relevance of her testimony:","paragraph_id":"para_1086"},{"text":"Ms. Galban’s Facebook post proves she has discoverable information","paragraph_id":"para_1087"},{"text":"regarding the claims asserted in this lawsuit. She has personal knowledge of","paragraph_id":"para_1088"},{"text":"the facts that form the basis of her husband’s claims against NEH. She has","paragraph_id":"para_1089"},{"text":"been discussing the facts of this case with her Facebook friends while","paragraph_id":"para_1090"},{"text":"evading her discovery obligations during the time she was a party to this","paragraph_id":"para_1091"},{"text":"lawsuit and after she voluntarily dismissed her claims.","paragraph_id":"para_1092"},{"text":"28 Before the circuit court and on appeal, NEH cites exclusively to federal cases that","paragraph_id":"para_1093"},{"text":"address discovery and protective orders. We are not persuaded by Salinas’ complaint and","paragraph_id":"para_1094"},{"text":"advice that we should ignore this authority. Although federal cases are not controlling, we","paragraph_id":"para_1095"},{"text":"are mindful that Md. Rule 2-403 relating to protective orders “is derived, with minor","paragraph_id":"para_1096"},{"text":"changes, from the 1980 version of Fed. R. Civ. P. 26(c), and cases decided under that rule","paragraph_id":"para_1097"},{"text":"may be helpful in interpreting this rule.” Paul V. Niemeyer & Linda M. Schuett, Maryland","paragraph_id":"para_1098"},{"text":"Rules Commentary, 472 (6th ed. 2024). Indeed, we have noted that “when interpreting a","paragraph_id":"para_1099"},{"text":"40","paragraph_id":"para_1100"},{"text":"NEH further contends that Ms. Galban failed to make a “sufficient factual showing","paragraph_id":"para_1101","court_paragraph":40},{"text":"that conducting her in-person oral deposition would endanger her health.” It asserts that","paragraph_id":"para_1102"},{"text":"the letter from health care providers “exemplify speculative and conclusory statements”","paragraph_id":"para_1103"},{"text":"that are insufficient to meet the “heavy burden” to justify a protective order in this instance.","paragraph_id":"para_1104"},{"text":"NEH also argues that the trial court’s order “did not implement the procedure set forth in","paragraph_id":"para_1105"},{"text":"Rule 2-417” relating to written depositions, and that the written responses could have been","paragraph_id":"para_1106"},{"text":"improperly influenced by counsel, her spouse, “or other sources.” We see no basis for relief.","paragraph_id":"para_1107"},{"text":"This Court has pointed out that:","paragraph_id":"para_1108"},{"text":"Maryland Rule 2-403 provides the circuit court with authority to issue an","paragraph_id":"para_1109"},{"text":"order that will protect a party or person from annoyance, embarrassment,","paragraph_id":"para_1110"},{"text":"oppression, or undue burden or expense of discovery. The person seeking a","paragraph_id":"para_1111"},{"text":"protective order has the burden of making a particular and specific","paragraph_id":"para_1112"},{"text":"demonstration of fact, as distinguished from general, conclusory statements,","paragraph_id":"para_1113"},{"text":"revealing some injustice, prejudice, or consequential harm that will result if","paragraph_id":"para_1114"},{"text":"protection is denied. Even if the court agrees that some protection is","paragraph_id":"para_1115"},{"text":"necessary, a protective order is not a blanket authorization for the court to","paragraph_id":"para_1116"},{"text":"prohibit disclosure of information whenever it deems it advisable to do so,","paragraph_id":"para_1117"},{"text":"but is rather a grant of power to impose conditions on discovery in order to","paragraph_id":"para_1118"},{"text":"prevent injury, harassment, or abuse of the court’s processes.","paragraph_id":"para_1119"},{"text":"Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 170 Md. App. 520, 530-31 (2006)","paragraph_id":"para_1120"},{"text":"(cleaned up). A court’s decision to grant or deny a motion for protective order is reviewed","paragraph_id":"para_1121"},{"text":"for abuse of discretion. Maryland - National Capital Park and Plan. Comm’n v.","paragraph_id":"para_1122"},{"text":"Maryland Rule that is similar to a Federal Rule of Civil Procedure this Court may look for","paragraph_id":"para_1123"},{"text":"guidance to federal decisions construing the corresponding federal rule[.] [Accordingly]","paragraph_id":"para_1124"},{"text":"we may examine the interpretation federal courts have lent to F.R.C.P. 26(c) when we","paragraph_id":"para_1125"},{"text":"consider Md. Rule 2-403(a).” Tanis v. Crocker, 110 Md. App. 559, 574 (1996) (cleaned","paragraph_id":"para_1126"},{"text":"up). We have reviewed this authority, in particular federal district court rulings on the","paragraph_id":"para_1127"},{"text":"efficacy of letters from medical providers.","paragraph_id":"para_1128"},{"text":"41","paragraph_id":"para_1129"},{"text":"Mardirossian, 184 Md. App. 207, 217 (2009). “A trial judge abuses his or her discretion","paragraph_id":"para_1130","court_paragraph":41},{"text":"where no reasonable person would take the view adopted by the [trial] court.” Id. (cleaned","paragraph_id":"para_1131"},{"text":"up). We have emphasized that a trial court “did not abuse its discretion when it granted","paragraph_id":"para_1132"},{"text":"appellee’s motion as long as good cause was shown and the order was issued to protect","paragraph_id":"para_1133"},{"text":"appellee from annoyance, embarrassment, oppression, or undue burden or expense.” Tanis","paragraph_id":"para_1134"},{"text":"v. Crocker, 110 Md. App. 559, 574 (1996). To be sure, the party seeking a protective order","paragraph_id":"para_1135"},{"text":"“has the burden of making a particular and specific demonstration of fact, as distinguished","paragraph_id":"para_1136"},{"text":"from general, conclusory statements, revealing some injustice, prejudice, or consequential","paragraph_id":"para_1137"},{"text":"harm that will result if protection is denied.” Id. (cleaned up).","paragraph_id":"para_1138"},{"text":"Based on our review of the record and relevant cases, we conclude that the trial","paragraph_id":"para_1139"},{"text":"court did not abuse its discretion in issuing its protective order prohibiting the in-person","paragraph_id":"para_1140"},{"text":"oral deposition of Ms. Galban. In his “Renewed Motion for a Protective Order,” Salinas","paragraph_id":"para_1141"},{"text":"submitted two letters dated February 20, 2024 from Dr. Misty Borst and a licensed Mental","paragraph_id":"para_1142"},{"text":"Health Therapist. Dr. Borst provided a diagnosis under seal, recommended that Ms. Galban","paragraph_id":"para_1143"},{"text":"“begin … treatments as soon as possible[, and opined that] it is in her best interest to not","paragraph_id":"para_1144"},{"text":"be subject to any additional or unnecessary stress.” In the second letter dated the same day,","paragraph_id":"para_1145"},{"text":"a Mental Health Therapist, whose identity is likewise undisclosed, recited Ms. Galban had","paragraph_id":"para_1146"},{"text":"been a patient at her facility “since March 2023,” that she is “currently receiving psychiatric","paragraph_id":"para_1147"},{"text":"services at this clinic[,]” that “[h]er treatment is ongoing and end date is pending.” The","paragraph_id":"para_1148"},{"text":"therapist provided a diagnosis (under seal) and recommended that Ms. Galban “should be","paragraph_id":"para_1149"},{"text":"dismissed from deposing due to the undue negative impact being deposed would have on","paragraph_id":"para_1150"},{"text":"42","paragraph_id":"para_1151"},{"text":"her mental health.” The therapist noted that Ms. Galban “is experiencing issues with","paragraph_id":"para_1152","court_paragraph":42},{"text":"concentration and memory that interfere with her every day decision making skills.”","paragraph_id":"para_1153"},{"text":"Although NEH asserts that neither letter is sufficient to satisfy the standard for","paragraph_id":"para_1154"},{"text":"issuing a protective order, we conclude that, on this record, the circuit court did not abuse","paragraph_id":"para_1155"},{"text":"its discretion in prohibiting NEH from conducting an in-person oral deposition of Ms.","paragraph_id":"para_1156"},{"text":"Galban.","paragraph_id":"para_1157"},{"text":"B. Jury Instruction","paragraph_id":"para_1158"},{"text":"NEH also takes issue with the trial court’s denial of its requested jury instruction.","paragraph_id":"para_1159"},{"text":"NEH insists that “Ms. Galban’s refusal to respond to NEH’s second set of written","paragraph_id":"para_1160"},{"text":"deposition questions and refusal to obey the subpoena commanding her to appear at trial","paragraph_id":"para_1161"},{"text":"warranted that instruction.” NEH insists that the jury could have no basis for considering","paragraph_id":"para_1162"},{"text":"whether Ms. Galban’s testimony “would have been important and non-cumulative”","paragraph_id":"para_1163"},{"text":"because she refused to fulfill her discovery obligations. In NEH’s view, the trial judge’s","paragraph_id":"para_1164"},{"text":"ruling “nullified” any adverse consequences.","paragraph_id":"para_1165"},{"text":"We disagree with NEH that the trial court abused its discretion in this regard. “When","paragraph_id":"para_1166"},{"text":"we review a trial court’s grant or denial of a requested jury instruction, we apply the highly","paragraph_id":"para_1167"},{"text":"deferential abuse of discretion standard.” Woolridge v. Abrishami, 233 Md. App. 278, 305","paragraph_id":"para_1168"},{"text":"(cleaned up), cert. denied, 456 Md. 96 (2017). “In assessing an instruction given by a trial","paragraph_id":"para_1169"},{"text":"court, a reviewing court must determine if the instruction at issue was a correct exposition","paragraph_id":"para_1170"},{"text":"of law and whether it was applicable to the case at hand.” Armacost v. Davis, 462 Md. 504,","paragraph_id":"para_1171"},{"text":"523 (2019). A trial court must give a requested jury instruction where “(1) the instruction","paragraph_id":"para_1172"},{"text":"is a correct statement of law; (2) the instruction is applicable to the facts of the case; and","paragraph_id":"para_1173"},{"text":"43","paragraph_id":"para_1174"},{"text":"(3) the content of the instruction was not fairly covered elsewhere in instructions actually","paragraph_id":"para_1175","court_paragraph":43},{"text":"given.” Cost v. State, 417 Md. 360, 368-69 (2010) (cleaned up). We review a trial court’s","paragraph_id":"para_1176"},{"text":"decision whether to grant a jury instruction under an abuse of discretion standard. Id.","paragraph_id":"para_1177"},{"text":"Moreover, we are required to determine whether any error in instructing the jury is","paragraph_id":"para_1178"},{"text":"harmless. “In a civil case, a legal error in a jury instruction does not necessarily mandate","paragraph_id":"para_1179"},{"text":"reversal. To overturn a jury verdict, a jury instruction must not only be incorrect legally,","paragraph_id":"para_1180"},{"text":"but also prejudicial.” Armacost, 462 Md. at 524. In a civil case such as this one, the","paragraph_id":"para_1181"},{"text":"complaining party must demonstrate “that prejudice was not just possible, but probable, in","paragraph_id":"para_1182"},{"text":"the context of the particular case.” Id.","paragraph_id":"para_1183"},{"text":"On the third day of trial, the parties took up the issue of jury instructions. NEH","paragraph_id":"para_1184"},{"text":"provided a missing witness instruction that included the following: “Because Ms. Galban","paragraph_id":"para_1185"},{"text":"has not answered the second set of written questions, and because Ms. Galban has not","paragraph_id":"para_1186"},{"text":"appeared at this trial to provide oral testimony, the Court is instructing you that you are to","paragraph_id":"para_1187"},{"text":"infer that Ms. Galban’s testimony would be unfavorable to the plaintiff’s claims in this","paragraph_id":"para_1188"},{"text":"lawsuit.”","paragraph_id":"para_1189"},{"text":"Instead, the court charged the jury as follows:","paragraph_id":"para_1190"},{"text":"During this trial, you have heard references to the Plaintiff’s wife","paragraph_id":"para_1191"},{"text":"Freya Rose Galban formerly known as Stacy Michelle Galban McCurdy.","paragraph_id":"para_1192"},{"text":"Before this trial began, Ms. Galban was required to provide written answers","paragraph_id":"para_1193"},{"text":"to a first set of questions, which she answered. Afterwards, she was required","paragraph_id":"para_1194"},{"text":"to answer a second set of questions, which she never answered.","paragraph_id":"para_1195"},{"text":"Ms. Galban received a subpoena commanding her to appear at this","paragraph_id":"para_1196"},{"text":"trial to provide oral testimony but she has refused to appear. If you find that","paragraph_id":"para_1197"},{"text":"44","paragraph_id":"para_1198"},{"text":"her testimony would have been important and noncumulative, you may infer","paragraph_id":"para_1199","court_paragraph":44},{"text":"that Ms. Galban’s testimony would have been unfavorable to the Plaintiff.","paragraph_id":"para_1200"},{"text":"NEH complains of the trial court’s charge that the jury “may infer,” rather than “you","paragraph_id":"para_1201"},{"text":"are to infer that Ms. Galban’s testimony would be unfavorable[.]” We disagree with NEH","paragraph_id":"para_1202"},{"text":"and conclude that the trial court adequately instructed the jury. Our Supreme Court has","paragraph_id":"para_1203"},{"text":"noted:","paragraph_id":"para_1204"},{"text":"Where a party raises the missing witness rule during closing argument, its","paragraph_id":"para_1205"},{"text":"use is just that – an argument. Trial judges typically instruct the jury ... that","paragraph_id":"para_1206"},{"text":"the parties’ arguments do not constitute evidence. Furthermore, the opposing","paragraph_id":"para_1207"},{"text":"side also has an opportunity to refute the argument and counter with reasons","paragraph_id":"para_1208"},{"text":"why the inference is inappropriate.","paragraph_id":"para_1209"},{"text":"In contrast to the argument context is the trial judge’s instruction to the jury.","paragraph_id":"para_1210"},{"text":"In the latter case, the inference is communicated to the jury as part of the","paragraph_id":"para_1211"},{"text":"judge’s binding jury instructions, creating the danger that the jury may give","paragraph_id":"para_1212"},{"text":"the inference undue weight. At the very least, a trial judge’s jury instruction","paragraph_id":"para_1213"},{"text":"on the missing witness inference may have the effect of overemphasizing just","paragraph_id":"para_1214"},{"text":"one of the many proper inferences that a jury may draw. As a result, where","paragraph_id":"para_1215"},{"text":"the jury instruction is the vehicle by which the missing witness inference is","paragraph_id":"para_1216"},{"text":"brought to the jury’s attention, the trial court should be especially cautious[.]","paragraph_id":"para_1217"},{"text":"... A trial judge has discretion to deny a missing witness instruction, leaving","paragraph_id":"para_1218"},{"text":"the matter to closing arguments, even when the facts would support the","paragraph_id":"para_1219"},{"text":"inference.","paragraph_id":"para_1220"},{"text":"Webb v. Giant of Maryland, LLC, 477 Md. 121, 144 (2021) (citation omitted). The trial","paragraph_id":"para_1221"},{"text":"court’s instruction is consistent with the “missing witness” instruction in criminal trials.29","paragraph_id":"para_1222"},{"text":"29 Maryland Pattern Jury Instructions – Criminal MPJI-Cr. 3:29:","paragraph_id":"para_1223"},{"text":"You have heard testimony about [witness], who was not called as a witness","paragraph_id":"para_1224"},{"text":"in this case. If a witness could have given important testimony on an issue in","paragraph_id":"para_1225"},{"text":"this case and if the witness was peculiarly within the power of the [Plaintiff]","paragraph_id":"para_1226"},{"text":"45","paragraph_id":"para_1227"},{"text":"We discern no misstep in the trial judge’s jury instructions.","paragraph_id":"para_1228","court_paragraph":45},{"text":"III","paragraph_id":"para_1229"},{"text":"Expert Testimony/Spoliation of Evidence","paragraph_id":"para_1230"},{"text":"We turn to NEH’s complaint that the trial court “erred by allowing Ms. Curlee to","paragraph_id":"para_1231"},{"text":"state expert opinions at trial that were not disclosed during discovery and were based on","paragraph_id":"para_1232"},{"text":"destroyed evidence.” We see no basis for relief and explain.","paragraph_id":"para_1233"},{"text":"Ms. Curlee was proffered over objection as an expert in the field of pest control. A","paragraph_id":"para_1234"},{"text":"bench conference ensued and the transcript reflects the following exchange:","paragraph_id":"para_1235"},{"text":"[NEH Counsel]: Your Honor, I specifically asked her during her deposition","paragraph_id":"para_1236"},{"text":"if she has any expert opinions. She said, “No, I’m not an expert.”","paragraph_id":"para_1237"},{"text":"[Salinas’ Counsel]: Your Honor, she’s testified to her experience, to her level","paragraph_id":"para_1238"},{"text":"of training, to being in over 15,000 attics, to doing this work over a decade,","paragraph_id":"para_1239"},{"text":"the specific training that she has animal scat.","paragraph_id":"para_1240"},{"text":"I understand what Mr. Golding is saying, but I believe we’ve met the","paragraph_id":"para_1241"},{"text":"qualifications for designation as an expert under the law.","paragraph_id":"para_1242"},{"text":"THE COURT: Looking at that, although individuals don’t necessarily","paragraph_id":"para_1243"},{"text":"identify themselves as experts, sometimes they are, even just like that. She","paragraph_id":"para_1244"},{"text":"has described the level of experience that I think goes beyond the common","paragraph_id":"para_1245"},{"text":"person in this area. And I believe that she may be helpful to the jurors who","paragraph_id":"para_1246"},{"text":"might not also have that level of experiences.","paragraph_id":"para_1247"},{"text":"I will, over objection, identify her as an expert.","paragraph_id":"para_1248"},{"text":"to produce, but was not called as a witness by the [Plaintiff] and the absence","paragraph_id":"para_1249"},{"text":"of that witness was not sufficiently accounted for or explained, then you may","paragraph_id":"para_1250"},{"text":"decide that the testimony of that witness would have been unfavorable to the","paragraph_id":"para_1251"},{"text":"[Plaintiff].","paragraph_id":"para_1252"},{"text":"46","paragraph_id":"para_1253"},{"text":"[NEH’s Counsel]: Your Honor, may I just have her expertise limited to what’s","paragraph_id":"para_1254","court_paragraph":46},{"text":"in the report?","paragraph_id":"para_1255"},{"text":"* * *","paragraph_id":"para_1256"},{"text":"[NEH’s Counsel]: I’m concerned about her going beyond – she stated in her","paragraph_id":"para_1257"},{"text":"deposition that she can testify about what she did and what she saw and that’s","paragraph_id":"para_1258"},{"text":"in her report.","paragraph_id":"para_1259"},{"text":"THE COURT: She’s limited as to what is reported in the general topics that","paragraph_id":"para_1260"},{"text":"are in her report. She can’t go beyond her report.","paragraph_id":"para_1261"},{"text":"[NEH’s Counsel]: That’s my -- thank you.","paragraph_id":"para_1262"},{"text":"[SALINAS COUNSEL]: Understood, Your Honor.","paragraph_id":"para_1263"},{"text":"THE COURT: Okay.","paragraph_id":"para_1264"},{"text":"On appeal, NEH asserts that the trial court “agreed that Ms. Curlee’s testimony","paragraph_id":"para_1265"},{"text":"would be limited to what she did and saw when she inspected the property.” As pointed out","paragraph_id":"para_1266"},{"text":"by Salinas’ counsel, the trial court, as noted above, stated that Ms. Curlee’s testimony","paragraph_id":"para_1267"},{"text":"would be “limited as to what is reported in the general topics that are in her report. She","paragraph_id":"para_1268"},{"text":"can’t go beyond her report.”","paragraph_id":"para_1269"},{"text":"“Maryland Rule 5-702 governs expert testimony, and provides in relevant part:","paragraph_id":"para_1270"},{"text":"‘Expert testimony may be admitted, in the form of an opinion or otherwise, if the court","paragraph_id":"para_1271"},{"text":"determines that the testimony will assist the trier of fact to understand the evidence or to","paragraph_id":"para_1272"},{"text":"determine a fact in issue.’” Wilder v. State, 191 Md. App. 319, 361, cert. denied, 415 Md.","paragraph_id":"para_1273"},{"text":"43 (2010) (quoting Md. Rule 5-702). “[E]xpert testimony must be sufficiently definite and","paragraph_id":"para_1274"},{"text":"certain to be admissible, for neither the Courts nor the juries are justified in inferring from","paragraph_id":"para_1275"},{"text":"47","paragraph_id":"para_1276"},{"text":"mere possibilities the existence of facts, and they cannot make mere conjecture or","paragraph_id":"para_1277","court_paragraph":47},{"text":"speculation the foundation of their verdicts.” Basso v. Campos, 233 Md. App. 461, 477","paragraph_id":"para_1278"},{"text":"(2017) (cleaned up).","paragraph_id":"para_1279"},{"text":"It is long established in Maryland that “Appellate courts review a trial court’s","paragraph_id":"para_1280"},{"text":"decision concerning the admissibility of expert testimony under Maryland Rule 5-702 for","paragraph_id":"para_1281"},{"text":"abuse of discretion.” Katz, Abosch, Windesheim, Gershman & Freedman, P.A. v. Parkway","paragraph_id":"para_1282"},{"text":"Neuroscience & Spine Inst., LLC, 485 Md. 335, 360-61 (2023). Our Supreme Court “has","paragraph_id":"para_1283"},{"text":"described an abuse of discretion as occurring where no reasonable person would take the","paragraph_id":"para_1284"},{"text":"view adopted by the trial court, or when the decision under consideration is well removed","paragraph_id":"para_1285"},{"text":"from any center mark imagined by the reviewing court and beyond the fringe of what that","paragraph_id":"para_1286"},{"text":"court deems minimally acceptable[.]” Oglesby v. Baltimore Sch. Assocs., 484 Md. 296, 327","paragraph_id":"para_1287"},{"text":"(2023) (cleaned up).","paragraph_id":"para_1288"},{"text":"We have emphasized that “courts are reluctant to set aside verdicts based on","paragraph_id":"para_1289"},{"text":"evidentiary rulings unless they cause substantial injustice.” Xu v. Mayor of Baltimore, 254","paragraph_id":"para_1290"},{"text":"Md. App. 205, 219 (cleaned up), cert. denied, 479 Md. 467 (2022). Our Supreme Court has","paragraph_id":"para_1291"},{"text":"pointed out:","paragraph_id":"para_1292"},{"text":"Questions within the discretion of the trial court are much better decided by","paragraph_id":"para_1293"},{"text":"the trial judges than by appellate courts, and the decisions of such judges","paragraph_id":"para_1294"},{"text":"should only be disturbed where it is apparent that some serious error or abuse","paragraph_id":"para_1295"},{"text":"of discretion or autocratic action has occurred. In sum, to be reversed the","paragraph_id":"para_1296"},{"text":"decision under consideration has to be well removed from any center mark","paragraph_id":"para_1297"},{"text":"imagined by the reviewing court and beyond the fringe of what that court","paragraph_id":"para_1298"},{"text":"deems minimally acceptable.","paragraph_id":"para_1299"},{"text":"Wilson v. John Crane, Inc., 385 Md. 185, 198-99 (2005) (cleaned up).","paragraph_id":"para_1300"},{"text":"48","paragraph_id":"para_1301"},{"text":"On the record before us, and given that Ms. Curlee’s testimony was largely tied to","paragraph_id":"para_1302","court_paragraph":48},{"text":"the observations which were based on her report as directed by the trial court, we discern","paragraph_id":"para_1303"},{"text":"no abuse of discretion in permitting her to testify as an expert. Moreover, it is clear from","paragraph_id":"para_1304"},{"text":"the record that any conceivable misstep by the trial judge is harmless. Recall that Salinas,","paragraph_id":"para_1305"},{"text":"before leaving town to visit Puerto Rico and just entering the house following closing,","paragraph_id":"para_1306"},{"text":"detected an odor and heard noises.30 This testimony alone is sufficient to establish that the","paragraph_id":"para_1307"},{"text":"defects observed prior to the settlement were not, in fact, remediated. Given the","paragraph_id":"para_1308"},{"text":"observations of the Highland inspector and Salinas, any statement from Ms. Curlee that","paragraph_id":"para_1309"},{"text":"exceeded her remit was not prejudicial.","paragraph_id":"para_1310"},{"text":"NEH also raises the issue of spoliation of evidence, specifically evidence of animal","paragraph_id":"para_1311"},{"text":"waste that had been discovered in the attic by Ms. Curlee and the Orkin technicians. NEH","paragraph_id":"para_1312"},{"text":"complains that the trial court abused its discretion by permitting Ms. Curlee to testify about","paragraph_id":"para_1313"},{"text":"the material that was removed from the attic as part of the Orkin remediation.","paragraph_id":"para_1314"},{"text":"Ms. Curlee and her associates removed the animal waste when they cleared out the","paragraph_id":"para_1315"},{"text":"attic and then discarded and destroyed this waste. NEH complains that it did not have the","paragraph_id":"para_1316"},{"text":"opportunity to test this waste to determine whether it was deposited after closing and","paragraph_id":"para_1317"},{"text":"confined to the time when Salinas was in Puerto Rico. We see no basis for relief.","paragraph_id":"para_1318"},{"text":"30 We repeat, for emphasis, Salinas’ testimony:","paragraph_id":"para_1319"},{"text":"We noticed that there was a smell in the house, like a foul smell that we","paragraph_id":"para_1320"},{"text":"couldn’t place where it was coming from. And so we tried to clean as much","paragraph_id":"para_1321"},{"text":"as we could, especially because we had our infant son so we wanted to make","paragraph_id":"para_1322"},{"text":"sure just we weren’t exposing him to something that we’re just not aware of.","paragraph_id":"para_1323"},{"text":"And then also, we noticed some noises coming from the attic as well.","paragraph_id":"para_1324"},{"text":"49","paragraph_id":"para_1325"},{"text":"We are mindful that “[s]poliation is a doctrine grounded in fairness and symmetry.”","paragraph_id":"para_1326","court_paragraph":49},{"text":"Adventist Healthcare, Inc. v. Mattingly, 244 Md. App. 259, 274 (2020) (cleaned up). We","paragraph_id":"para_1327"},{"text":"further noted that “[w]hen determining whether spoliation has occurred, a court considers","paragraph_id":"para_1328"},{"text":"whether there has been an act of destruction, whether the destroyed evidence was","paragraph_id":"para_1329"},{"text":"discoverable, whether there was an intent to destroy the evidence, and whether the","paragraph_id":"para_1330"},{"text":"destruction occurred at a time after suit has been filed, or, if before, at a time when the","paragraph_id":"para_1331"},{"text":"filing was fairly perceived as imminent.” Id. See Cumberland Ins. Group v. Delmarva","paragraph_id":"para_1332"},{"text":"Power, 226 Md. App. 691, 701-02, cert. denied, 447 Md. 298 (2016). In Cumberland Ins.","paragraph_id":"para_1333"},{"text":"Group, we noted that “bad faith need not be present, and that even when conduct is less","paragraph_id":"para_1334"},{"text":"culpable, dismissal may be necessary if the prejudice to the defendant is extraordinary,","paragraph_id":"para_1335"},{"text":"denying it the ability to adequately defend its case.” 226 Md. App. at 702-03 (cleaned up).","paragraph_id":"para_1336"},{"text":"NEH never challenged Ms. Curlee’s testimony, and did not object to the admission","paragraph_id":"para_1337"},{"text":"of her report based on spoliation. Only after her testimony did NEH raise this issue in its","paragraph_id":"para_1338"},{"text":"motion for judgment. As pointed out by Salinas, NEH did not provide its own expert to","paragraph_id":"para_1339"},{"text":"counter the testimony of Ms. Curlee. Further, the animal waste was not discarded in an","paragraph_id":"para_1340"},{"text":"attempt at deception; Salinas would not file this action until September 1, 2021, well over","paragraph_id":"para_1341"},{"text":"a year after the Orkin remediation.","paragraph_id":"para_1342"},{"text":"Accordingly, we uphold the trial court’s ruling on this issue, and see no merit in","paragraph_id":"para_1343"},{"text":"NEH’s argument before us.","paragraph_id":"para_1344"},{"text":"50","paragraph_id":"para_1345"},{"text":"IV","paragraph_id":"para_1346","court_paragraph":50},{"text":"Attorneys’ Fees","paragraph_id":"para_1347"},{"text":"NEH questions the trial court’s award of attorneys’ fees. NEH asserts that it is the","paragraph_id":"para_1348"},{"text":"prevailing party and points out that the jury found for it on five of the nine counts. Salinas,","paragraph_id":"para_1349"},{"text":"however, avers that he is the prevailing party because the claims on which he prevailed are","paragraph_id":"para_1350"},{"text":"“of greater significance and more important than the claims upon which [NEH] prevailed.”","paragraph_id":"para_1351"},{"text":"It is well-established that “Maryland generally adheres to the common law or","paragraph_id":"para_1352"},{"text":"American rule, that each party to a case is responsible for the fees of its own attorneys,","paragraph_id":"para_1353"},{"text":"regardless of the outcome.” Royal Investment Group, LLC v. Wang, 183 Md. App. 406, 456","paragraph_id":"para_1354"},{"text":"(2008) (cleaned up). We continued in Wang that “[a] trial court may award attorney’s fees","paragraph_id":"para_1355"},{"text":"if (1) the parties to a contract have an agreement to that effect, (2) there is a statute that","paragraph_id":"para_1356"},{"text":"allows the imposition of such fees[.]” Id. (cleaned up).","paragraph_id":"para_1357"},{"text":"The trial court was authorized to award attorneys’ fees to Salinas pursuant to the","paragraph_id":"para_1358"},{"text":"Maryland Consumer Protection Act (MCPA). See CL § 13-408(b) of the Commercial Law","paragraph_id":"para_1359"},{"text":"Article (“CL”). “Where an award of attorney’s fees is called for by the contract in question,","paragraph_id":"para_1360"},{"text":"the trial court will examine the fee request for reasonableness, even in the absence of a","paragraph_id":"para_1361"},{"text":"contractual term specifying that the fees be reasonable.” Wang, 183 Md. App. at 457","paragraph_id":"para_1362"},{"text":"(cleaned up).","paragraph_id":"para_1363"},{"text":"Evaluation of the request for fees pursuant to the MCPA is conducted pursuant to","paragraph_id":"para_1364"},{"text":"Md. Rule 2-703, which “applies to claims for attorneys’ fees allowable by law to a party in","paragraph_id":"para_1365"},{"text":"an action in a circuit court.” Md. Rule 2-703(a). In addition, the trial court was authorized","paragraph_id":"para_1366"},{"text":"to award attorneys’ fees to NEH pursuant to Paragraph 36 of the “Residential Contract of","paragraph_id":"para_1367"},{"text":"51","paragraph_id":"para_1368"},{"text":"Sale,” which provided for the recovery of “Attorney’s Fees” in “any action” based on","paragraph_id":"para_1369","court_paragraph":51},{"text":"performance or non-performance of the contract and other theories of recovery. An","paragraph_id":"para_1370"},{"text":"application for fees pursuant to contract is evaluated under Md. Rule 2-705.","paragraph_id":"para_1371"},{"text":"When reviewing a circuit court’s award of attorneys’ fees, this Court applies an","paragraph_id":"para_1372"},{"text":"abuse of discretion standard of review. Steele v. Diamond Farm Homes Corp., 464 Md.","paragraph_id":"para_1373"},{"text":"364, 375-76 (2019). Abuse of discretion may occur when a ruling is “clearly untenable,","paragraph_id":"para_1374"},{"text":"unfairly depriving a litigant of a substantial right and denying a just result[.]” North v.","paragraph_id":"para_1375"},{"text":"North, 102 Md. App. 1, 13 (1994) (cleaned up). We apply the non-deferential de novo","paragraph_id":"para_1376"},{"text":"standard of review when determining whether the circuit court’s decision to award","paragraph_id":"para_1377"},{"text":"attorney’s fees was legally appropriate. See, e.g., Breslin v. Powell, 421 Md. 266, 277","paragraph_id":"para_1378"},{"text":"(2011).","paragraph_id":"para_1379"},{"text":"We conclude that, under the circumstances of this case, both Salinas and NEH were","paragraph_id":"para_1380"},{"text":"“prevailing parties.” Salinas obtained favorable verdicts on the misrepresentation and","paragraph_id":"para_1381"},{"text":"consumer protection counts with respect to the attic, and one count alleging negligent","paragraph_id":"para_1382"},{"text":"misrepresentation of the existence of “latent defects in the home.” Moreover, his recovery","paragraph_id":"para_1383"},{"text":"pursuant to the MCPA furthers the intent of the MCPA, which “constitutes remedial","paragraph_id":"para_1384"},{"text":"legislation that is intended to be construed liberally in order to promote its purpose of","paragraph_id":"para_1385"},{"text":"providing a modicum of protection for the State’s consumers.” Washington Home","paragraph_id":"para_1386"},{"text":"Remodelers, Inc. v. State, Off. of Att’y Gen., Consumer Prot. Div., 426 Md. at 630. For its","paragraph_id":"para_1387"},{"text":"part, NEH successfully defended against separate and distinct claims of breach of contract","paragraph_id":"para_1388"},{"text":"and actual knowledge and intentional misrepresentation of latent defects in the chimneys","paragraph_id":"para_1389"},{"text":"52","paragraph_id":"para_1390"},{"text":"and fireplace. Moreover, NEH spent a considerable effort in attempting to obtain discovery","paragraph_id":"para_1391","court_paragraph":52},{"text":"from a reluctant Ms. Galban.","paragraph_id":"para_1392"},{"text":"NEH complains that Salinas’ fee application is deficient, and does not “address the","paragraph_id":"para_1393"},{"text":"factors set forth in Rule 2-703(f)(3)[.]” We see no basis in that argument to upset the fee","paragraph_id":"para_1394"},{"text":"award. Upon review of Salinas’ fee application, we are satisfied that it adequately sets forth","paragraph_id":"para_1395"},{"text":"sufficient information to justify a fee award.","paragraph_id":"para_1396"},{"text":"Nevertheless, we are unable to conclude that the trial court did not abuse its","paragraph_id":"para_1397"},{"text":"discretion in fashioning the attorneys’ fee awards for both parties in this case. Md. Rule 2-","paragraph_id":"para_1398"},{"text":"703 governs “Attorneys’ fees allowed by law,” in this instance the provisions of the","paragraph_id":"para_1399"},{"text":"Maryland Consumer Protection Act. See Md. Code (1975, 2025 Repl. Vol.) § 13-408(b) of","paragraph_id":"para_1400"},{"text":"the Commercial Law Article. Md. Rule 2-703(f)(2) provides in part that “[i]f the court","paragraph_id":"para_1401"},{"text":"determines that a permitted award should be made or that under applicable law an award","paragraph_id":"para_1402"},{"text":"is required, the court shall apply the standards set forth in subsection (f)(3) of this Rule and","paragraph_id":"para_1403"},{"text":"determine the amount of the award.” Md. Rule 2-705 addresses “Attorneys’ fees to a","paragraph_id":"para_1404"},{"text":"prevailing party pursuant to contract” and dictates that the “Factors to be considered” are","paragraph_id":"para_1405"},{"text":"those “factors set forth in Rule 2-703(f)(3) and the principal amount in dispute in the","paragraph_id":"para_1406"},{"text":"litigation[.]”31 Md. Rule 2-705(f)(1). The factors/standards set forth in Rule 2-703(f)(3)","paragraph_id":"para_1407"},{"text":"include:","paragraph_id":"para_1408"},{"text":"31 Md. Rule 2-704 “applies to a claim for attorneys’ fees in an action in a circuit court that","paragraph_id":"para_1409"},{"text":"are allowed by a contract as an element of damages for breach of that contract. It does not","paragraph_id":"para_1410"},{"text":"apply to a claim for an award of attorneys’ fees to the prevailing party pursuant to a fee-","paragraph_id":"para_1411"},{"text":"shifting provision in a contract.” Md. Rule 2-704(a). Paragraph 36 of the Residential","paragraph_id":"para_1412"},{"text":"Contract of Sale provides for an award of attorneys’ fees “[i]n any action or proceeding","paragraph_id":"para_1413"},{"text":"53","paragraph_id":"para_1414"},{"text":"(A) the time and labor required;","paragraph_id":"para_1415","court_paragraph":53},{"text":"(B) the novelty and difficulty of the questions;","paragraph_id":"para_1416"},{"text":"(C) the skill required to perform the legal service properly;","paragraph_id":"para_1417"},{"text":"(D) whether acceptance of the case precluded other employment by the","paragraph_id":"para_1418"},{"text":"attorney;","paragraph_id":"para_1419"},{"text":"(E) the customary fee for similar legal services;","paragraph_id":"para_1420"},{"text":"(F) whether the fee is fixed or contingent;","paragraph_id":"para_1421"},{"text":"(G) any time limitations imposed by the client or the circumstances;","paragraph_id":"para_1422"},{"text":"(H) the amount involved and the results obtained;","paragraph_id":"para_1423"},{"text":"(I) the experience, reputation, and ability of the attorneys;","paragraph_id":"para_1424"},{"text":"(J) the undesirability of the case;","paragraph_id":"para_1425"},{"text":"(K) the nature and length of the professional relationship with the client;","paragraph_id":"para_1426"},{"text":"and","paragraph_id":"para_1427"},{"text":"(L) awards in similar cases.","paragraph_id":"para_1428"},{"text":"See Diamond Farm Homes Corp., 464 Md. at 385.","paragraph_id":"para_1429"},{"text":"We are mindful that the trial court ably handled a complex and difficult civil action.","paragraph_id":"para_1430"},{"text":"Nevertheless, we shall vacate the attorneys’ fees judgments and remand to the circuit court","paragraph_id":"para_1431"},{"text":"for a thorough review of the fee applications, supporting reasons, and for that court to","paragraph_id":"para_1432"},{"text":"articulate findings of fact and conclusions of law in awarding counsel fees in this instance.","paragraph_id":"para_1433"},{"text":"Conclusion","paragraph_id":"para_1434"},{"text":"We affirm the entry of judgment in favor of Salinas in the amount of $15,579.02.","paragraph_id":"para_1435"},{"text":"Although Salinas prevailed on common law theories of intentional misrepresentation and","paragraph_id":"para_1436"},{"text":"negligent misrepresentation, he is entitled to a single recovery because the amount","paragraph_id":"para_1437"},{"text":"recovered is derived from the same factual basis as that recovered pursuant to the Maryland","paragraph_id":"para_1438"},{"text":"Consumer Protection Act. In so doing, we affirm the trial court’s denials of NEH’s Motions","paragraph_id":"para_1439"},{"text":"between Buyer and Seller” and further adds that the “prevailing party in such action or","paragraph_id":"para_1440"},{"text":"proceeding shall be entitled to receive reasonable attorney’s fees from the other party[.]”","paragraph_id":"para_1441"},{"text":"54","paragraph_id":"para_1442"},{"text":"for Judgment and Motion for Judgment Notwithstanding the Verdict. We affirm the trial","paragraph_id":"para_1443","court_paragraph":54},{"text":"court’s discovery ruling and its ruling to permit the testimony of Salinas’ expert witness.","paragraph_id":"para_1444"},{"text":"We vacate the trial court’s judgments for attorneys’ fees, and remand for further","paragraph_id":"para_1445"},{"text":"proceedings not inconsistent with this opinion. Judgments affirmed in all other respects.","paragraph_id":"para_1446"},{"text":"JUDGMENT OF THE CIRCUIT COURT","paragraph_id":"para_1447"},{"text":"FOR HOWARD COUNTY AFFIRMED IN","paragraph_id":"para_1448"},{"text":"PART, AND VACATED AND REMANDED","paragraph_id":"para_1449"},{"text":"IN PART, AS FOLLOWS.","paragraph_id":"para_1450"},{"text":"JUDGMENT ON THE MERITS IN FAVOR","paragraph_id":"para_1451"},{"text":"OF APPELLEE SALINAS AFFIRMED.","paragraph_id":"para_1452"},{"text":"JUDGMENTS AWARDING ATTORNEYS’ FEES","paragraph_id":"para_1453"},{"text":"VACATED AND REMANDED FOR FURTHER","paragraph_id":"para_1454"},{"text":"PROCEEDINGS NOT INCONSISTENT WITH","paragraph_id":"para_1455"},{"text":"THIS OPINION.","paragraph_id":"para_1456"},{"text":"COSTS TO BE PAID BYAPPELLANT.","paragraph_id":"para_1457"}],"word_count":16717,"cites":[],"cited_by":[],"sha256":"b905323d79873e9f26db11c5e5d7b44253b42aac07b49db909309485e7c0854f","source_url":"https://www.mdcourts.gov/data/opinions/cosa/2026/0284s24.pdf","fetched_at":"2026-10-06T07:16:06.728+00:00","canonical":"https://legal.exploreworldai.com/ai/judgments/us/mdctspecapp-0284-24-2026-10-05","risk_graph":"https://legal.exploreworldai.com/api/public/v1/risk?id=us:mdctspecapp-0284-24-2026-10-05","relations_graph":"https://legal.exploreworldai.com/api/public/v1/relations?id=us:mdctspecapp-0284-24-2026-10-05","changes":"https://legal.exploreworldai.com/api/public/v1/us-praxis/changes","agent":"https://legal.exploreworldai.com/api/public/v1/us-praxis/agent?id=us:mdctspecapp-0284-24-2026-10-05","verification":{"stored_sha256":"b905323d79873e9f26db11c5e5d7b44253b42aac07b49db909309485e7c0854f","recomputed_sha256":"b905323d79873e9f26db11c5e5d7b44253b42aac07b49db909309485e7c0854f","intact":true,"checked_at":"2026-10-16T11:43:45.742Z"}},"hash":"sha256:d6b8eae6970def65cdda8701157abfa2aa8f1254aa36e03df6422e3941667408","version":"legal-2026-10-16","expires":"2026-10-17T00:00:00.000Z","dependency":{"index_version":"legal-2026-10-16+legal-2026-10-16+2026-10-16T11:20:54","content_hash":"sha256:d6b8eae6970def65cdda8701157abfa2aa8f1254aa36e03df6422e3941667408","revalidate_after":"2026-10-16T12:43:45.908Z","max_copy_age_seconds":3600,"policy":"revalidate-required; attribution-preferred","changelog":"https://legal.exploreworldai.com/api/public/v1/dependency","verify":"https://legal.exploreworldai.com/api/public/v1/verify","stale_copy_invalid":true},"canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=us:mdctspecapp-0284-24-2026-10-05","follow":[{"rel":"risk","href":"https://legal.exploreworldai.com/api/public/v1/risk?id=us:mdctspecapp-0284-24-2026-10-05"},{"rel":"relations","href":"https://legal.exploreworldai.com/api/public/v1/relations?id=us:mdctspecapp-0284-24-2026-10-05"},{"rel":"agent","href":"https://legal.exploreworldai.com/api/public/v1/us-praxis/agent?id=us:mdctspecapp-0284-24-2026-10-05"},{"rel":"obligations","href":"https://legal.exploreworldai.com/api/public/v1/obligation-chain"},{"rel":"changes","href":"https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=us"}],"disclaimer":"Source reference with official identifier. 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