3919 NEH, LLC v. Salinas,
No. 0284, Sept. Term, 2024. Opinion by Reed, J.
Appellee home buyer (Buyer) filed action against Seller, 3919 NEH, LLC, for breach of contract, intentional and negligent misrepresentation and violation of the Maryland Consumer Protection Act for damages arising out of Seller’s failure to disclose presence of animal waste and infestation in attic, and whether those issues had been remediated prior to settlement.
Seller completed the Real Property Disclosure Statement a few months prior to the sale, as required by Section 10-702 of the Real Property Article. Md. Code (1996, 2023 Repl. Vol., 2025 Supp.) § 10-702 of the Real Property Article. (Disclosure Statement). The Disclosure Statement provided that seller had no actual knowledge of any latent defects in the property. When the Buyer obtained a home inspection before settlement, that inspector reported the presence of animal waste in the attic. Buyer informed the Seller prior to settlement about the infestation, and Seller hired a contractor to conduct a remediation. Shortly after taking possession, Buyer noticed effects and/or presence of animal activity in the attic. Buyer hired an exterminator, which sent a technician to examine the attic. The technician observed a relatively minimal amount of animal waste. Buyer and his family left for a vacation, and on their return detected a significant odor and possible activity in the attic. The pest control technician returned, and discovered extensive amounts of animal waste and observed that a screen intended to prevent entry by wildlife into the attic was insufficient. The jury found that the contractor who was responsible for the repair and remediation was the Seller’s agent and that the contractor’s knowledge of any latent defects, viz effects of animal infestation and resulting damage, was imputed to the Seller, thus finding that the Seller had actual knowledge. Seller argued that it had fulfilled its disclosure obligations under Section 10-702, and should not have been liable for the contractor’s knowledge. Its focus in its Motion for Judgment NOV and on appeal was that its disclosure obligation was limited by its representation on the Residential Disclosure form. It asserted that the trial court misrepresented the disclosure law. The Maryland Association of Realtors filed an amicus brief, arguing that the jury’s verdict ran counter to the law and warning that the trial court’s error places a burden on sellers not contemplated by the General Assembly and that the protections of the Disclosure Statute will be lost. The court disagreed, and upheld the jury’s finding that the contractor’s knowledge would be imputed to the Seller-principal. During the litigation, Seller sought the oral deposition testimony of Buyer’s spouse, who claimed that she was unable to be present for this testimony because of mental health issues. Following extensive litigation of this issue, the circuit court issued a protective order initially excusing the spouse from providing oral deposition testimony based on letters from health care professionals.
At trial, the Seller argued that the pest control technician should not have been accepted as an expert. She had earlier testified at deposition that she was not an expert. The trial court accepted her as an expert, citing her extensive experience and credentials, but limited her testimony, as urged by Seller’s counsel, to the contents of her report.
Seller also raised the issue of spoliation of evidence. The trial court permitted the pest control technician to testify about the extent of animal waste that had been removed from the attic and then discarded. Spoliation was not established, given that the waste had been discarded over a year prior to the commencement of this action. Further, Seller did not raise this issue until filing its Motion for Judgment.
Both sides were awarded attorney’s fees. Buyer’s counsel received a greater proportion of the total fees awarded. Although Maryland follows the American Rule, which provides that parties bear their own counsel fees regardless of the outcome of litigation, fees recovered here were based in part on the fee shifting provision of the Maryland Consumer Protection Act and the real estate sales contract.
Held. The Appellate Court affirmed the judgment on the jury’s findings on the merits. The Court upheld the finding that the contractor’s knowledge was imputed to the Seller, such that the Seller knew of the continuing presence of the animal infestation and the effects thereof. The Court pointed out in a footnote that contractors can in many instances be agents, and further noted authority that a contractor may not constitute an agent in some circumstances. Although Seller argued that the construction company contractor was not an agent, its focus was on its disclosure obligations under Section 10-702 of the Real Property Article and it did not adequately brief this argument before the Appellate Court. The Appellate Court also found that the circuit court did not abuse its discretion in issuing a protective order so that Buyer’s spouse would not be compelled to appear for an oral deposition.
The Appellate Court ruled that the trial court did not abuse its discretion by accepting the pest control technician as an expert. The trial court cited the technician’s extensive experience and training in so ruling, and limited her testimony essentially to the four corners of her written report.
The Appellate Court rejected Seller’s argument that the trial court erred by admitting the pest control technician’s report based in part on evidence of animal waste that the technician’s company had discarded. The Panel noted that the issue was not raised until Seller’s Motion for Judgment. Further, the Court pointed out that the waste had been discarded over one year prior to the lawsuit.
Finally, the Court vacated the attorney’s fee award and remanded to the trial court to consider in detail the factors set forth in Md. Rule 2-703(f)(3).
STANDARD OF REVIEW – SUMMARY JUDGMENT
Appellate review of the grant of a motion for summary judgment is common. An appellate court has plenary review of a lower court’s ruling. Less common is appellate review of a denial of a motion seeking summary judgment. That standard is an abuse of discretion, as the Court concluded.
AGENCY – IMPUTED KNOWLEDGE.
The Court reiterates that “[o]ne of the general principles of an agency relationship is that the knowledge of the agent is knowledge of the principal.” Anderson v. General Casualty Ins. Co., 402 Md. 236, 248 (2007). Even an independent contractor can be considered an agent in the appropriate circumstance. The jury found that knowledge held by the contractor in this instance was imputed to the Seller, and thus found both intentional and negligent misrepresentation about the condition of the property. As to the nature of the agency relationship, the Court concluded that Seller failed adequately to argue in its brief whether the contractor, Distinct Construction, was an agent. The Court emphasizes that “arguments not presented in a brief or not presented with particularity will not be considered on appeal.” Bert v. Comptroller of the Treasury, 215 Md. App. 244, 269 n. 15 (2013). In this instance, Seller’s argument was focused on the Disclosure statute and its supposed limitations on a Seller’s obligations.
REAL PROPERTY – DISCLOSURE – COMMON LAW REMEDIES –
MARYLAND CONSUMER PROTECTION ACT.
The residential disclosure provisions of Section 10-702 of the Real Property Article continue to be viable and the Court’s decision leaves that provision in place. The Court emphasizes that common law and statutory consumer protections are available to a buyer in the appropriate case. Specifically, causes of action for intentional and negligent misrepresentation have not been displaced by Section 10-702. Further, relief under the Maryland Consumer Protection Act remains available in an appropriate case such as that present here.
DISCOVERY - PROTECTIVE ORDER – ORAL DEPOSITION
The Court upheld the circuit court’s issuance of a protective order excusing Buyer’s spouse from sitting for an oral deposition. The lower court accepted representations from two mental health professional’s that requiring the spouse to testify at an oral deposition would be harmful. Seller insisted that the justification was inadequate. Although the spouse answered written questions and was later ordered to testify at trial, and refused to appear, there was no abuse of discretion in the issuance of the circuit court’s earlier protective order.
PERSUASIVE AUTHORITY – FEDERAL INTERPRETATIONS OF CIVIL
RULES
The Court rejected Buyer’s complaint that Seller cited only federal cases as authority for its discovery argument. The Court emphasizes that while “federal cases are not controlling,” Maryland Courts may “look for guidance to federal decisions construing the corresponding federal rule[.]” See Tanis v. Crocker, 110 Md. App. 559, 574 (1996). See also Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, 472 (6th ed. 2024).
ATTORNEY’S FEES
The Court vacates the trial court’s award of attorney’s fees and remands for a detailed consideration of the factors set forth in Md. Rule 2-703(f)(3). The entitlement to fees is based on the contractual provisions and the Maryland Consumer Protection Act. Circuit Court for Howard County
Case No.: C-13-CV-21-000596
REPORTED
IN THE APPELLATE COURT
OF MARYLAND
No. 0284
September Term, 2024
3919 NEH, LLC
v.
ERICK GALBAN SALINAS
Reed,
Tang,
Wright, Alexander, Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Reed, J.
Filed: October 5, 2026
* Judge Anne Albright did not participate in the
Court’s decision to designate this opinion for
publication pursuant to Maryland Rule 8-605.1.
Pursuant to the Maryland Uniform Electronic Legal
Materials Act (§§ 10-1601 et seq. of the State
Government Article) this document is authentic.
2026.10.05
15:41:00 -04'00'
Gregory Hilton, Clerk
This is an appeal by a real estate seller, 3919 NEH, LLC (“NEH”), from a judgment
entered after a jury trial awarding damages and attorneys’ fees to the home purchaser, Erick
Galban Salinas (Salinas). A jury in the Circuit Court for Howard County returned verdicts
finding NEH liable for intentional misrepresentation, negligent misrepresentation, and
violations of the Maryland Consumer Protection Act, related to alleged misrepresentations
of the presence of latent defects in the property and whether they were remedied prior to
settlement. NEH seeks appellate review of the judgment, adverse rulings by the circuit
court on various motions, and the attorneys’ fees awards. For the reasons set forth below,
we shall affirm in part, vacate in part, and remand.
BACKGROUND
Factual Background
NEH is described as a “Maryland corporation … which is in the business of home
renovation and resale[.]” John Matthew Burgess, a member of NEH, described the entity
as a “consultant company that helps people buy and sell real estate or … invest in real
estate.”1 In August 2018, NEH acquired a single-family house on Canvasback Drive in
1
We have considered portions of the trial transcripts that are not included in the record extract. Maryland Rule 8-501(c) provides in part that the “record extract shall contain all parts of the record that are reasonably necessary for the determination of the questions presented[.]” Although the rule does not preclude our consideration of a part of the record that is not included in the record extract, see Rule 8-501(c), “[w]e cannot be expected to delve through the record to unearth factual support favorable to [the] appellant.” Rollins v. Capital Plaza Associates, L.P., 181 Md. App. 188, 201 (2008) (quotation marks and citation omitted). Notwithstanding, we consider it necessary to set forth additional portions from the record to provide a helpful timeline and clearer picture of events.
Columbia (“property”), and hired Fred Berger, a contractor and owner of Distinct
Construction Services, LLC, to renovate the property by removing all the interior contents
and fixtures; a second contractor removed and disposed of the prior occupant’s belongings.2
Berger had worked with NEH before and produced excellent results in renovating
properties. On this occasion, his company’s proposal was also “competitive” and his
availability was timely.
After completing the renovations, NEH listed the property for sale. On April 10,
2019, Ernest Steven Loffler, another member of NEH, completed a “Maryland Residential
Property Disclosure and Disclaimer Statement” (“Disclosure Statement”) for the property.3
By signing the Disclosure Statement, he represented that there were no “material defects,
including latent defects, affecting the physical condition of the property” that were known
to him.
On July 1, Salinas made an offer to NEH for the purchase of the property.4 The
Disclosure Statement was delivered to Salinas at that time. There is no indication that he
requested an updated Disclosure Statement. The Contract for Sale provided that the
property was sold “as is.” Loffler accepted the contract on July 2 on behalf of NEH, and
settlement was completed on July 29.
2
In its brief to this Court, NEH represents that the house was “gutted.”
3
See Md. Code (1996, 2023 Repl. Vol., 2025 Supp.) § 10-702 of the Real Property Article. (Disclosure Statement).
4
Salinas testified at his November 28, 2022 deposition that while his spouse, Freyja Rose Galban, was also on the deed, he was “the only one on the mortgage.”
2
Prior to settlement, the property was inspected by Salinas’ mortgage lender, which
appraised the property for purposes of evaluating the value for his VA loan. The VA loan
inspector did not report the presence of any defects. A termite inspection was conducted on
July 16, and this inspection reported no issues with the attic.
Salinas also had an inspection conducted at his expense and enlisted Highland Home
Inspections Inc. (Highland) to complete this task. A Highland inspector, accompanied by
Salinas, surveyed the property on July 10. They went up into the attic and Salinas was with
the Highland inspector when he saw animal feces. Highland Inspections submitted a
detailed report that day. They discovered the presence of animal feces in the attic
underneath insulation. The inspector pulled up insulation at an area above where he had
seen staining in the ceiling; he did not pull up insulation from other locations in the attic.5
When this came to light, Salinas contacted his real estate agent, Ashley Migliore, who then
informed NEH by an email dated July 11.6 He expected NEH to address the condition of
5
The Highland inspector reported his observations and provided an urgent
recommendation:
Condition: • Evidence of active moisture presence was noted at the time of
the inspection, visually and as determined by using a moisture meter. Above
the stained area, within the attic, was a large amount of feces under the
insulation and between the joists; more than likely left by a rac[c]oon (photo
is only example). I believe the stain in the closet is from urine and
decomposed feces. Animal urine and feces can lead to major health concerns.
I recommend that all feces be removed immediately and affected ceiling
drywall be replaced.
6
The agent sent an email to Salinas confirming that NEH would address this issue. She wrote: “The home inspection went well and the seller agreed to make the requested repairs even though it was an AS IS sale. That’s amazing.”
3
the attic. He also testified that he would have terminated the contract if NEH “had not
agreed to make these repairs.” He proceeded with the sale, however, because he was
assured that the repairs were made. He testified that he “got the actual document at closing
that everything that we had requested was repaired.”
Salinas and his agent returned to the property on Friday, July 26, three days prior to
settlement, to “make sure” that repairs had been completed. He testified that “not
everything had been fixed and we also weren’t able to get into the attic.”7 NEH arranged
for this inspection, and Salinas was not prevented or restricted from accessing any part of
the property. He thought that he could see the property on the morning of the closing, July
29, but he could not enter the house because the lockbox had been removed.
At closing on July 29, Salinas “was provided with a document that listed the items
that were repaired[.]” That document, the July 22 invoice from Distinct Construction, LLC,
was admitted as Plaintiff’s Exhibit 4, and stated that the “Animal feces found inside attic
and in the insulation and staining on closet ceiling from animal feces repaired.” Salinas
understood from this that all the items that needed to be addressed “were repaired or
remediated.” Salinas and his family started moving in after closing on July 29. During this
process, they were aware of an odor in the house. He recounted:
[Salinas’ Counsel]: Okay, and during the move-in process … did you notice
anything about the home?
A: Yes. We noticed that there was a smell in the house, like a foul smell
that we couldn’t place where it was coming from. And so we tried to clean
as much as we could, especially because we had our infant son so we wanted
7
The attic would have been accessible, if Salinas had brought a ladder to reach that part of the property.
4
to make sure just we weren’t exposing him to something that we’re just not
aware of. And then also, we noticed some noises coming from the attic as
well.
Salinas called an exterminator, Orkin Residential Services, and a representative
responded that same day. The Orkin specialist “went into the attic just to see what they
could find and they were able to find some animal waste in the attic.” Salinas testified that
“[a]fter that … we reached out again to our real estate agent and asked her to reach out to
the sellers.”8
At this point, Salinas and his family had planned on visiting his family in Puerto
Rico for a vacation, and they left the house “shortly after that.” From there, they attempted
without success to contact their agent so she could raise this issue with the sellers.9 The
transcript reflects the following:
Q: Okay, and while you were in Puerto Rico, what did you do if anything
about what Orkin found in your home?
A: We attempted to contact the real estate agent several times just hoping
that she would be able to contact and speak to the sellers to see about
addressing the situation because it was supposed to have been addressed and
we just never heard back.
8
It is unclear from Salinas’ testimony whether the agent contacted NEH. That agent, Ms. Migliore, had passed away in 2019.
9
Salinas recalled that “[w]e attempted to contact the real estate agent several times just hoping that she would be able to contact and speak to the sellers to see about addressing the situation because it was supposed to have been addressed and we just never heard back.” Plaintiff’s expert, Ms. Celeste Holman-Curlee, testified that Salinas’ wife, Ms. Galban, who had tried to reach their agent without success, complained that “they’d actually blocked [Galban’s] number.”
5
The Salinas family returned from Puerto Rico on August 22 and noticed that the
odor had worsened. They tried cleaning the house again and contacted Orkin, which
scheduled a “full-on inspection.” That inspection revealed “a lot of stuff in the attic,
different animal waste, feces, urine[,] vomit.” The inspector also noted that the “gable vents
themselves were not screened.” Salinas explained: “That’s how the animals were getting
in. And [there were] other points of ingress into the house.” Following this, Salinas and
family went to a hotel. During this time, Orkin personnel took about “5, 6 days” to clean
the attic and seal any entry points, allowing the Salinas family to return. Orkin prepared a
report on August 29. After completing the repairs and removing the soiled materials, Orkin
employees discarded those items.
On cross-examination, Salinas acknowledged that he did not know the condition of
the property on April 10, 2019, when the Disclosure Statement had been completed. Nor
did he know whether Loffler, or anyone else at NEH, knew about the animals in the attic,
or any undisclosed latent defect, as of April 10. Nor was Salinas aware that he could have
requested an updated Disclosure Statement. Salinas also acknowledged that the mortgage
lender’s VA appraisal inspector discovered no animal activity in the attic. Nor did a termite
inspection reveal any animal activity or presence in the attic. 10 The cross-examination
10
In its brief, NEH emphasizes that “[Salinas] was not informed of any animal activity in the attic after the termite inspection or the inspection to appraise the Property’s value in connection with his mortgage loan application.” While it is not clear whether the VA appraiser was able to access the attic, the [termite] inspector who prepared the “Wood Destroying Insect Inspection Report” indicated that there was “No access or entry” to the attic when he reported that certain areas “were obstructed or inaccessible.”
6
turned to the July 10 home inspection that had been arranged by Salinas, as well as his
opportunities to inspect the property in the days before closing.
Salinas didn’t know how many animals had entered the attic, when they deposited
their excrement, especially when his family was in Puerto Rico, and whether the animals
had burrowed under the insulation. He testified, however, that “there was stuff found before
I went on vacation[.]” He also acknowledged that he did not know whether any member of
NEH, or their contractor, had actual knowledge of the animal waste. He insisted, however,
that “they [the conditions] were concealed.”
Loffler, a member of NEH, described the process of buying this property and
removing all the house’s contents. NEH hired Berger’s company, Distinct Construction, to
complete the renovation of the house, and another contractor to do the “cleanout, which is
take all the junk out and fill up the dumpsters and so on.” Loffler would periodically visit
the property to observe Berger’s work. He emphasized that Berger had done “great work”;
Berger had worked on several projects for NEH with good results.
Loffler recalled that the property was listed for sale shortly after the Disclosure
Statement had been signed. He testified that during the period when it was vacant, he would
check on the property “[w]eekly, at least” by conducting a “[t]op to bottom inspection of
just a visual walkthrough.” He had never gone into the attic. During open-house events, no
person had complained to Loffler about any smells or odors coming out of the attic. He
emphasized that “[a]t no time was there any smell nor sounds. No sounds, no smell,
nothing.”
7
Loffler recounted that the property had been “inspected by Howard County, top to
bottom.” He testified that Salinas had arranged for a home inspection on July 10, 2019,
after which his real estate agent, Ashley Migliore, sent an email to John Burgess with a list
of items that needed attention, including “[a]nimal activity in attic, feces found inside attic
and in the insulation and staining on closet ceiling from animal feces.” Based on these
revelations, NEH engaged Distinct Construction to address this issue. When asked whether
the contractor had any “specialized training in animal waste removal or remediation[,]”
Loffler responded: “There was nothing needed in this particular situation. It was just some
waste in some insulation that needed to be replaced.” Before Berger started the repairs,
NEH contacted John Adcock, owner of Adcock’s Trapping Service, who sent a
representative to inspect the attic. The results of this inspection were “very minor.” It was,
according to Loffler, “not a major project.”
Loffler relied on Berger’s representation that the work had been done and did not
personally check on the work “[b]ecause he has done other projects for us, and did good
work and we’d never had a problem.” No one at NEH inspected Berger’s work “[b]ecause
we never follow up on a -- once we give him a punch list, it’s taken care of.” Loffler did
not know of any undisclosed latent defect in the house prior to the settlement date. Nor did
he have any knowledge of existing defects in the attic after receiving Berger’s invoice that
stated that all issues have been addressed; he “heard nothing more about that.”
John Burgess recalled that the previous owner of the house was a “hoarder,” that the
house “was worn” and required a contractor to remove all the building’s contents for
renovation. To accomplish this, NEH contracted with Berger of Distinct Construction
8
Services to “tak[e] care of … all of the rehab.” He emphasized that during all the open
house events, no one reported animal activity in the attic or a bad smell.
Burgess described the actions NEH took after receiving the Highland inspection
report:
Once we got the home inspection -- or not the home inspection, the additional
punch list of items, I told Steve to please call Adcock right away. We had
used them over the years. They have been very good at what they’ve done.
And we called them right away to get in there to see if there was any --because she said animal activity, our concern was that there were live animals
up there, which we didn’t know about. So we called them right away to get
up there ASAP, as soon as possible to take a look at that.
***
[T]hey did the inspection and they informed us that it was free and clear.
There were no animals up there. And he noticed two spots of fecal matter, as
Ashley had reported to us. But it was free and clear and there were no animals
in the attic.
***
[T]here was some feces … droppings in the attic and no active entry points
found along the roof line.
Salinas and his realtor, Ashley Migliore, conducted a “final walkthrough” on the
Friday before closing. Ms. Migliore contacted Burgess and reported that “the purchasers
9
wanted some more items taken care of.” He assured her that NEH would take care of these
items, notwithstanding the fact that this sale involved an “as-is situation.”11
Burgess insisted that he did not know of any latent defects in the house prior to the
closing date. He had “first learn[ed] about animal activity in the attic” after Ms. Migliore
called him “[a]fter the [July 10] home inspection.” On cross-examination, Burgess
acknowledged that NEH had filed a lawsuit against Fred Berger and Adcock claiming that
any damages incurred by Salinas were attributable to those contractors. Eventually, NEH
and those contractors entered into a settlement agreement.
Fred Berger has been a general contractor since 1986. He emphasized that he is not
an employee of NEH, but serves as a contractor. He operates his business in Washington,
D.C. and was licensed in Maryland as a home improvement contractor. He acknowledged
that, at the time of the events of this matter, his Maryland contractor’s license was inactive;
it had been forfeited. On cross-examination, Berger also acknowledged that his company’s
LLC had been forfeited in the State of Maryland at the time his contract with NEH had
been signed.
Berger was contracted to renovate the property in early 2019. He detected no signs
of any animal activity during his process. He stressed that should any of the workers find
signs of animal activity or some other pre-existing problems with the house, they would
identify the problem and inform Berger, who would then report to Burgess or Loffler.
11
“In the case of an ‘as is’ sale, the purchaser bears considerably greater risk, and generally has no remedy for later-discovered damage to, or defects on the property, unless there is a showing that the seller committed fraud or otherwise acted in bad faith.” Wonder City, LLC v. Dipietro, 268 Md. App. 218, 229 (2025) (citation omitted).
10
Berger emphasized that he saw no signs of anything when he had the attic insulation
installed. Asked about the two times that his workers went to the house to address issues in
the attic, Berger testified:
[NEH Counsel]: … And do you recall doing work regarding the …
attic?
***
A: Yes, we were given a picture of some stuff. I sent the guys back up to
remove it, put it into the trash bag and put it out to the front where the
dumpster was.
Q: Okay. And was the insulation replaced?
A: Yes, sir.
Q: There was also I guess staining of the ceiling below that area. Do you
recall that?
A: I think there was something there and I think we spot primed it with
KILZ and then we just touched up. We did a lot of touchups and house.
Q: Okay, did you know about any animal activity in attic before that time
when you were asked to address that?
A: No, sir.
Q: And did you provide a document to Loffler stating that you performed
the work?
A Yes, sir. … [W]e document to the owners indicating this was done,
this was done and this was done.
11
Berger’s workers last went to the property on the weekend before closing to address three
items that had been noted by Ms. Migliore. He said that “[i]t was very minor.”
John Adcock testified for the plaintiff. He “ran a company [Adcock’s Trapping
Service] that removes nuisance wildlife from people’s homes.” One of the services
provided by Adcock Trapping is home inspections. He recalled that an Adcock technician,
Mr. Gann, inspected the property on July 16. A “proposal” form addressed to Loffler was
created based on this inspection. The technician observed “Raccoon[] feces in the attic
(very old droppings). No active entry points found along the roof line.” He recommended
the following action: “Removing fascia under front gable vent and around attic access
panel. Deodorize and replace approx. (1) piece of R30 insulation under gable vent.”
Mr. Adcock’s company was not hired to complete the tasks recommended in its
proposal. On cross-examination, Adcock was asked whether the issue described in the
proposal was a “difficult issue, a serious issue for [the] trapping service to provide[.]” He
testified that “[f]rom the evidence that this reads, apparently did not appear to be any big
deal.”
Celeste Holman-Curlee is a regional field-trainer for “Orkin Pest Control under
Rollins Brands.”12 She has also been a certified home inspector and branch manager for
Orkin. In her current position, she “train[s] new inspectors for signs and things of what’s
going on in the home, what are the symptoms of bigger problems and issues, moisture, the
types of droppings, type of scat, what pests leave them and how to remediate them.” Her
12
We will refer to Ms. Holman-Curlee as Ms. Curlee, which is how her name appears in the transcript.
12
current level of experience in this field was gained through “training and through
experience[.]”
Based on her responses, Ms. Curlee was proffered over objection as an expert in the
field of pest control. A bench conference ensued and the transcript reflects the following
exchange:
[NEH Counsel]: Your Honor, I specifically asked her during her deposition
if she has any expert opinions. She said, “No, I’m not an expert.”
[Salinas’ Counsel]: Your Honor, she’s testified to her experience, to her level
of training, to being in over 15,000 attics, to doing this work over a decade,
the specific training that she has animal scat.
I understand what Mr. Golding is saying, but I believe we’ve met the
qualifications for designation as an expert under the law.
THE COURT: Looking at that, although individuals don’t necessarily
identify themselves as experts, sometimes they are, even just like that. She
has described the level of experience that I think goes beyond the common
person in this area. And I believe that she may be helpful to the jurors who
might not also have that level of experiences.
I will, over objection, identify her as an expert.
***
She’s limited as to what is reported in the general topics that are in her report.
She can’t go beyond her report.
Ms. Curlee first responded to the property in early August, before the Salinas family
went on vacation to Puerto Rico. She went into the attic, walked through the attic quickly,
“saw a small area of daylight down at the end and saw some squirrel droppings.” As a
result, she recommended that Salinas contact their agent or their home inspector.
13
After the Salinas family returned from Puerto Rico, they contacted Ms. Curlee again
because it “smelled like something [had] died in the house.” She returned to the house, and
again ascended to the attic and “started pulling up the insulation, the newer bat[ted] …
insulation[]” and “found mouse droppings, raccoon scat, squirrel droppings[.]” She
described it as the “worst contamination [she had] seen in an attic.”
She had prepared an inspection report for Orkin Pest Control, and was asked to
comment on portions of the report, which contained photographs and video recordings.
When asked about the screens that should cover the gable vents for ventilation, she
testified:
A: They’re the gable vents for ventilation in an attic. They show that the
lower portion of those gable vents have been rescreened, but not the upper
portion. It was only a partial screening. They used a window screen as well,
like for just a regular, traditional window, not like for wildlife, or hardware
cloth, or anything like that.
Q: Okay, and is there a specific type of screening used for wildlife?
A: Yes, hardware cloth. Some people call it chicken wire, but yeah.
Q: Would an animal be able to force its way through regular screening?
A: Yes, absolutely.
***
Q: So what you found – you’re saying there was, based on your findings,
a layer of old insulation, then all of the animal waste, and then new insulation
on top of that?
A: Correct.
14
***
You can see the new insulation laid on top of the old, contaminated
insulation. And so you can see the staining on the wood and everything from
the urine and the feces.
On cross-examination, Ms. Curlee explained that she did not notice an odor in the
attic when she first went up there because she was wearing a full respirator. She was asked
about her deposition testimony, in which she described the squirrel droppings on top of the
new insulation as “no big deal.” She explained: “I viewed that as not a big deal because
they just had a home inspection and they had just purchased the home. The squirrel
droppings I saw were on top of the new insulation. ... The amount of contamination I saw
on top of the newer insulation was very recent and very minimal.”
15
Circuit Court Litigation
On September 1, 2021, Salinas and his spouse Freyja Rose Galban filed suit against
NEH seeking damages in excess of $75,000 for breach of contract, intentional
misrepresentation, and negligent misrepresentation.13 NEH filed a counterclaim on January
10, 2022, asserting that Salinas did not attempt to mediate the claims in his complaint, and
sought attorneys’ fees.14 On June 8, 2022, Salinas filed his “First Amended Complaint” that
repeated the original counts and added a count alleging a violation of the Maryland
Consumer Protection Act.15
This matter would go before a circuit court jury, but not until NEH filed a “Motion
for Summary Judgment” and a “Motion to Compel,” which were denied on April 5.16 A
four-day trial commenced on April 22, 2024. After the plaintiff rested, NEH moved for
judgment. Counsel for NEH asserted that the plaintiff failed to adduce any evidence that
13
The Amended Complaint also alleged that NEH breached the contract for failing to reply to Salinas’ “requests to begin the mediation process[]” as provided in the contract. In addition, Salinas complained about defects in the chimneys and basement fireplace. The chimneys and fireplace issues are not implicated in this appeal, although they are relevant to attorneys’ fees. NEH did not respond to the mediation request because “there was no factual merit to Salinas’ accusations and … the Request for Mediation was made more than a year after” the transfer of property.
14
The counterclaimant NEH also filed a “Third Party Complaint” against Distinct Construction Services and Adcock’s Enterprises. This matter was resolved and does not affect this appeal.
15
Freyja Rose Galban had originally joined this action as a plaintiff, but was subsequently dismissed from this case.
The circuit court also denied motions for summary judgment filed by Fred Berger and 16
Adcock Enterprise (third-party defendants).
16
NEH or any associate had “actual knowledge of a latent defect in the house when the house
was sold … or when [the] [D]isclosure [S]tatement was made[.]” Counsel pointed out that
there was no testimony as to “when the attic contamination got in there … when that
happened, how many animals” there were or whether the infestation occurred when the
Salinas family was in Puerto Rico. With respect to discovery of some contamination after
the home inspection report in mid-July 2019, Counsel averred that “[a]t that point, it’s not
a latent defect[,] … [i]t’s an exposed defect.” Because the contamination had been exposed,
“it turned from a latent defect to an open defect. There was no disclosure requirement.”
The trial court denied the motion. NEH renewed the motion at the close of evidence, and
the trial court denied it in part.17
The jury reached a verdict, finding that NEH had actual or imputed knowledge of
the presence of the animal waste in the attic; that NEH or any of its independent contractors
intentionally concealed that fact; that NEH or any of its independent contractors
negligently misrepresented that fact; and that NEH or any of its independent contractors
violated the Maryland Consumer Protection Act. The jury also found that NEH had not
breached its contract with Salinas. The jury also found for NEH on counts alleging
misrepresentations with respect to latent defects in the chimneys and fireplace. On April
26, 2024, judgment was entered on the verdict in the sum of $15,579.02. NEH filed a timely
“Motion for Judgment Notwithstanding the Verdict and/or Motion to Revise Judgment,”
which the court denied. On June 6, the trial court awarded attorney’s fees to both counsel:
17
The trial court granted the motion with regards to “Count 2, the breach of contract for failing to engage in mediation.”
17
$20,000 to NEH’s counsel and $74,000 to Salinas’ lawyer. The court reduced the awards
to judgment in the amount of $54,000 in favor of Salinas by offsetting the award to his
attorney by that granted to NEH’s counsel.
Appeal to this Court
On appeal, NEH presents the following questions, which we have recast as
follows:18
1. Did the trial court err in not entering judgment in favor of NEH?
2. Did the trial court abuse its discretion in prohibiting NEH from
conducting an oral deposition of Ms. Galban and in not instructing the jury
to consider her refusal to respond to written deposition questions and appear
at trial as ordered?
3. Did the trial court abuse its discretion by denying NEH’s motion to
exclude expert opinions from Appellee’s expert?
4. Did the trial court err in awarding attorneys’ fees to appellee?
18
NEH specifically frames the Questions Presented as follows:
1. Whether the trial court erred by failing to enter judgment in NEH’s
favor in the absence of any admissible evidence of NEH having actual
knowledge of an undisclosed latent defect and by rendering NEH liable for
the alleged knowledge of NEH’s independent contractors regarding latent
defects in the Property[.]
2. Whether the trial court erred by prohibiting NEH from conducting the
in-person oral deposition of Ms. Galban and denying NEH’s request for a
special jury instruction after Ms. Galban refused to answer written deposition
questions and defied a trial subpoena commanding her to appear at trial[.]
3. Whether the trial court erred by denying NEH’s motion in limine to
exclude expert opinions from Salinas’ designated expert witnesses and
allowing Salinas to present expert opinions to the jury that were not disclosed
during discovery and were based on destroyed evidence[.]
4. Whether the trial court erred by awarding attorneys’ fees to Salinas[.]
18
The Maryland Association of Realtors®, Inc. (“MAR”) has filed an Amicus Brief
in support of NEH.19
STANDARDS OF REVIEW
The resolution of this appeal requires us to apply several standards of review. We
review the circuit court’s denial of a motion for summary judgment for an abuse of
discretion. Metropolitan Mtg. Fund, Inc. v. Basiliko, 288 Md. 25, 28-29 (1980) (collecting
cases). “Motions for judgment under Md. Rule 2-519 and motions for judgment
notwithstanding the verdict under Md. Rule 2-532 test the sufficiency of the evidence at
trial.” Matter of City of Hagerstown, 265 Md. App. 581, 608, cert. denied sub nom. City of
Hagerstown v. Johnson, 492 Md. 402 (2025). We
review a grant or denial of a motion for judgment notwithstanding the verdict
for legal correctness, by viewing the evidence and the reasonable inferences
to be drawn from it in the light most favorable to the non-moving party and
determining whether the facts and circumstances only permit one inference
with regard to the issue presented.
Mayor & City Council of Baltimore v. Varghese, 493 Md. 1, 11 (2025) (cleaned up). The
standard of review of a court’s denial of a motion for JNOV is the same as
the standard of review of a court’s denial of a motion for judgment at the
close of the evidence, i.e., whether on the evidence presented a reasonable
fact-finder could find the elements of the cause of action by a preponderance
of the evidence.
19
On December 20, 2024, the Chief Judge of this Court entered an Order granting the “Motion of the Maryland Association of Realtors, Inc. for Leave to File Amicus Curiae Brief,” and granting appellee leave to file a reply to the Amicus brief. “Amicus briefs are allowed for the purpose of supporting or opposing the issues presented by the parties in the appellate process. Amici are not allowed to raise other issues.” Poku v. Friedman, 403 Md. 47, 54 n.8 (2008).
19
University of Maryland Med. Sys. Corp. v. Gholston, 203 Md. App. 321, 329, cert. denied,
427 Md. 65 (2012). We “will find error in a denial of a motion for judgment or JNOV if
the evidence does not rise above speculation, hypothesis, and conjecture, and does not lead
to the jury’s conclusion with reasonable certainty.” Scapa Dryer Fabrics, Inc. v. Saville,
418 Md. 496, 503 (2011) (cleaned up). We review the trial court’s decision “without
deference.” Osiris Holding of Maryland, LLC v. Daniels, 264 Md. App. 337, 359 (2025)
(cleaned up).
We review the trial court’s decisions regarding discovery for an abuse of discretion.
Adventist Healthcare, Inc. v. Mattingly, 244 Md. App. 259, 273 (2020). An award of
attorney’s fees is ordinarily reviewed for abuse of discretion. SunTrust Bank v. Goldman,
201 Md. App. 390, 397 (2011). See also, Monmouth Meadows Homeowners Ass’n., Inc. v.
Hamilton, 416 Md. 325, 332 (2010). We review a trial court’s decision to admit or exclude
expert testimony only for an abuse of discretion. Rochkind v. Stevenson, 454 Md. 277, 285
(2017). “[I]n actions under fee-shifting statutes [such as the Maryland Consumer Protection
Act] the lodestar approach is ordinarily the appropriate one to use in determining a
reasonable counsel fee.” Friolo v. Frankel, 373 Md. 501, 504-05 (2003). The decision
whether to allow any fee is discretionary. Id. at 512.
DISCUSSION
I
Denial of Judgment in Favor of NEH
NEH maintains that the trial court “misapplied the law governing the disclosure
obligations of a seller of residential real property,” when it denied NEH’s pre-trial motion
20
for summary judgment, its motion for judgment, and its motion for judgment NOV. It
emphasizes that Section 10-702 of the Real Property Article limits the disclosure obligation
to reveal any defect of which it has “actual knowledge.” 20 This argument tracks the
language of the statute, which, according to NEH, sets the upper limit of a property seller’s
disclosure obligation.21
NEH insists that not only was it not obligated to go beyond the requirements of the
Disclosure Statute, contrary to the trial court’s rulings, but that it had no duty to investigate
the condition of the attic. Nor was it required to ask its contractor, Fred Berger, whether he
had any knowledge of undisclosed latent defects.
NEH also emphasizes that the contractor’s knowledge should not be imputed to
NEH. It maintains that because NEH and its members were unaware of any defects and
thus had no actual knowledge, it fulfilled its disclosure obligations. It complains that
“imputing” the contractor’s knowledge to NEH “created an impossible obligation” for
other “similarly situated” real estate vendors.
NEH further portrays the verdicts as inconsistent, arguing that the jury findings of
negligence and misrepresentation cannot be reconciled with the finding that it did not
breach its contract with the buyers.
20
Md. Code (2023 Repl. Vol., 2025 Supp.), § 10-702 of the Real Property Article (“RP”).
21
NEH’s “Statement of the Case” provides that “[t]his case primarily concerns whether an independent contractor’s alleged knowledge of undisclosed latent defects in a single-family house can be imputed to the seller who did not have actual knowledge of a latent defect.”
21
In its Amicus brief, MAR takes a similar approach. MAR claims that the “main
purpose of RP § 10-702 [the Disclosure Statement] is to provide purchasers with
information that permits them to make an informed decision whether to submit an offer to
purchase … or rescind.” MAR further cautions that “sellers arguably will be saddled with
the burden of conducting multiple inspections and analyses of residential property prior to
marketing it in order that they may attempt to limit the scope of liability which may be
imposed upon them via amorphous ‘imputed knowledge’ of others.”
Salinas of course takes a different view of the trial court’s actions. He supports the
trial court’s application of the law of agency in denying NEH’s motions and in agreeing
with the jury’s verdicts. While NEH’s “recitation of the [Disclosure Statute] is accurate,”
Salinas avers, NEH’s argument ignores the existence of common-law remedies in the
context of real estate transactions. Both the disclosure obligations of RP § 10-702 and
appropriate common law remedies can co-exist. Salinas stresses this point in his reply to
the Amicus Brief filed by MAR. He avers that the Disclosure Statute is “not even
implicated here” because the evidence at trial “centered around statements made by NEH
and its contractor[.]”
The gravamen of Salinas’ argument is that the knowledge obtained by
Berger/Distinct Construction should be imputed to NEH, the contractor’s principal. He
maintains that this is derived from the principal-agent relationship that was created between
NEH and Berger/Distinct Construction.
In his brief, Salinas points out that “NEH never argued or alleged that Berger was
not its agent or independent contractor[.]” This is somewhat inaccurate. We construe the
22
tenor of NEH’s arguments to be that Berger was an independent contractor, the assumption
being that neither Berger nor Distinct Construction was an “agent.” Berger testified that
his company is a “contractor” and that Distinct Construction “ha[d] crews and
subcontractors, independent contractors.” 22 While it is apparent that NEH denies that
Berger was acting as an agent, we discern no adequately developed argument that addresses
this threshold legal issue. “[A]rguments not presented in a brief or not presented with
particularity will not be considered on appeal.” Bert v. Comptroller of the Treasury, 215
Md. App. 244, 269 n. 15 (2013).
22
Our Supreme Court has observed:
It can be assumed - there is no necessity to decide and we do not - that the
Smith Company in the execution of its obligations under the contract with
the Co-operative was generally an independent contractor. ... Yet, in the
broadest sense, when one accomplishes a given result through the efforts of
another, there is an agency. The rules which govern the relations of principal
and agent, of employer and employee, and of employer or owner and
independent contractor, are often distinct but may be identical so that one
statement will suffice for all and illustrations may be drawn from all fields.
... An agent who is not a servant is, therefore, an independent contractor when
he contracts to act on account of the principal[.]
Ivy H. Smith Co. v. Warffemius, 201 Md. 367, 374 (1953) (cleaned up). The Court, however, cautioned that “[w]hile an agent who contracts to act and who is not a servant is therefore an independent contractor, not all independent contractors are agents. Generally, an independent contractor who is not an agent must have contracted to do a specific work and have the right to control the mode and manner of doing it.” Id. (cleaned up). Nonetheless, “[a]n independent contractor … may be an agent under Maryland law[.]” Spencer v. Henderson-Webb, Inc., 81 F. Supp. 2d 582, 596 (D. Md. 1999) (citing Candlewood Obstetric-Gynecologic Associates v. Signet Bank/Maryland, 805 F. Supp. 328, 331 (D.Md.1992) (in turn citing Ivy H. Smith Co. v. Warffemius)).
23
Given the assumed principal-agent relationship, the focus would turn to the
knowledge attributable to NEH as a result. Salinas emphasizes, correctly, that there is a
solid legal basis for imputing Berger’s knowledge to NEH.
MAR, in its Amicus brief, denigrates imputed knowledge as “amorphous.” We shall
assume from this description that MAR effectively dismisses the efficacy and validity of
imputed knowledge, especially under the circumstances found here.
Regardless, “[o]ne of the general principles of an agency relationship is that the
knowledge of the agent is knowledge of the principal.” Anderson v. General Casualty Ins.
Co., 402 Md. 236, 248 (2007) (cleaned up). See also, Durst v. Durst, 225 Md. 175, 180
(1961) (“It is axiomatic that knowledge acquired by an agent in the course of his agency is
imputed to his principal.”). “Generally, notice of a fact that an agent knows or has reason
to know is imputed to the principal if knowledge of the fact is material to the agent’s duties
to the principal, unless the agent acts adversely to the principal or has a duty to not disclose
the fact to the principal.” US Wind Inc. v. InterMoor, Inc., 640 F. Supp. 3d 390, 401-02 (D.
Md. 2022) (cleaned up).
This concept is consistent with § 5.01 of the Restatement (Third) of Agency, which
provides:
§ 5.01 Notifications and Notice-In General
(1) A notification is a manifestation that is made in the form required by
agreement among parties or by applicable law, or in a reasonable manner in
the absence of an agreement or an applicable law, with the intention of
affecting the legal rights and duties of the notifier in relation to rights and
duties of persons to whom the notification is given.
24
(2) A notification given to or by an agent is effective as notification to or by
the principal as stated in § 5.02.
(3) A person has notice of a fact if the person knows the fact, has reason to
know the fact, has received an effective notification of the fact, or should
know the fact to fulfill a duty owed to another person.
(4) Notice of a fact that an agent knows or has reason to know is imputed to
the principal as stated in §§ 5.03 and 5.04.
Section 5.03 of the Restatement (Third) of Agency provides:
§ 5.03 Imputation of Notice of Fact to Principal
For purposes of determining a principal’s legal relations with a third party,
notice of a fact that an agent knows or has reason to know is imputed to the
principal if knowledge of the fact is material to the agent’s duties to the
principal, unless the agent
(a) acts adversely to the principal as stated in § 5.04, or
(b) is subject to a duty to another not to disclose the fact to the principal.
To be sure, as one commentator has noted:
Imputation also requires a counter-intuitive willingness to assume that one
person’s knowledge, without more, is known by another person. These
difficulties are worth confronting, though, because imputation is central to
the bases on which agency ascribes responsibility for one person’s actions to
another person and thus to agency doctrine as a whole.
Deborah A. DeMott, When is a Principal charged with an Agent's Knowledge?, 13 Duke
J. of Comp. & Int’l Law 291 (2003). The fact that “a principal may be deemed to have
legally received certain knowledge or notice that has, in fact, been received only by the
agent … resides at the very heart of agency law[.]” Marin Roger Scordato, Evidentiary
Surrogacy and Risk Allocation: Understanding Imputed Knowledge and Notice in Modern
25
Agency Law, 10 Ford. J. Corp. & Fin. L. 129 (2004) (footnotes omitted). Professor Scordato
continues:
Generally known as the “imputed knowledge rule” this aspect of agency law
legally charges the principal with information obtained by the agent within
the scope of the agent’s service for the principal. The law will treat the
principal as having actually received the information in question, even if it is
clear from the facts of the case that the agent failed to transmit the
information to the principal, and therefore clear that the principal never
actually possessed it.
Id. at 131-32 (footnotes omitted).
We conclude, based on the record before us, that any knowledge acquired by Mr.
Becker/Distinct Construction during its relationship with NEH with respect to this property
is imputed to NEH. This includes not only the knowledge of the presence of any animals
and animal waste, issues with the chimneys and fireplace, but also any knowledge that the
screening installed on the gable vent was ineffective at resisting any animal incursion, and
whether these defects were remediated.
Although we concur with Salinas that RP § 10-702 does not dictate the result in this
case, we briefly address the Disclosure Statement signed by Loffler on April 10, 2019. A
seller’s Disclosure Statement is required by Md. Code (2023 Repl. Vol., 2025 Supp.), § 10-702 of the Real Property Article (“RP”). RP § 10-702 was added to the Code, 1993
Maryland Laws ch. 640.
Section 10-702 essentially requires the seller of certain real property to provide a
“written residential property condition [D]isclosure [S]tatement” which shall:
26
(1) Disclose any latent defects of which the vendor has actual knowledge
that a purchaser would not reasonably be expected to ascertain by a careful
visual inspection and that would pose a direct threat to the health or safety of
the purchaser or an occupant; and
(2) State that:
(i) Except for latent defects disclosed under item (1) of this subsection,
the vendor makes no representations or warranties as to the condition of the
real property or any improvements on the real property; and
(ii) The purchaser will be receiving the real property “as is”, with all
defects, including latent defects, that may exist, except as otherwise provided
in the contract of sale of the real property.
RP § 10-702(c)(1)(i), (d). RP § 10-702(i) provides
(2) A vendor is not liable for an error, inaccuracy, or omission in a
[D]isclosure [S]tatement made under this section if the error, inaccuracy, or
omission was based upon information that was:
(i) Not within the actual knowledge of the vendor; [or]
***
(iii) Provided to the vendor by a report or opinion prepared by a licensed
engineer, land surveyor, geologist, wood-destroying insect control expert,
contractor, or other home inspection expert, dealing with matters within the
scope of the professional’s license or expertise.
“The seller’s disclosure is based on the seller’s actual knowledge at the time” the
Disclosure Statement is signed. 79 Op. Att’y General 402, 404 (1994). In short, we agree
with all the parties that RP § 10-702(i)(2) means what it says and sets forth the criteria as
to when a “vendor is not liable for an error, inaccuracy, or omission in a [D]isclosure
27
[S]tatement[.]” Indeed, Salinas has no quarrel with the statute, or with the concern raised
by MAR that a seller’s duty to disclose should not be expanded.
What NEH and the MAR effectively overlook or ignore, however, is that a buyer of
real property, such as Salinas, has available common law remedies that have not been
abrogated by RP § 10-702 and which formed the basis of the jury’s misrepresentation
verdicts. Similarly, the Consumer Protection Act claim was a viable cause of action.
Arguments that are mired in interpretations of RP § 10-702 fail to address the common law
remedies available to a victim of either intentional misrepresentation or negligent
misrepresentation. 23 Indeed, commentators have observed that “statutory disclosure
requirements are in addition to any other disclosure obligations required by the common
law.” Katherine A. Pancaka, Thomas J. Micelib and C.F. Sirmans, Residential Disclosure
Laws: The Further Demise of Caveat Emptor, 24 Real Est. L. J. 291, 310 (1996). These
commentators further noted:
Although recent legislation may have halted the universal imposition on
brokers of a duty to inspect, brokers can still be found liable to a purchaser
23
MAR warns that the “error by the trial court, if allowed to stand, places the burden on sellers of residential property not contemplated by the Maryland Legislature when § 10-702 was enacted or since that time.” They also complain that the “protection [of RP § 10-702(m)(3)] will be lost if Maryland real estate licensees have imposed upon them an obligation to inform buyers and sellers of residential real estate of the nature, scope and effect of knowledge that may or may not be imputed to sellers.” We disagree. The fact that the licensee is required to inform buyers of their rights and obligations is not unduly burdensome. According to the Bill Analysis for House Bill (HB) 1210, which was enacted as RP § 10-702: “Informing a seller or buyer of the seller’s and buyer’s ‘rights and obligations’ constitute the ‘sole duties owed by the licensee to the parties to a residential real estate transaction under this bill.’” Senate Judicial Proceedings Committee, Department of Legislative Reference, 1993 General Assembly of Maryland, Floor Report for House Bill 1210. The statute does not cabin the common law remedies available to a buyer.
28
under the traditional common-law theories of intentional misrepresentation,
intentional concealment, and negligent misrepresentation. All information
that a broker provides to a purchaser must be accurate. A broker is still
required to use due care in obtaining information used in representations
made about the property in its marketing effort and/or in response to
questions from buyers. Additionally, a broker may not withhold material
information; a broker, in short, is not permitted to conceal information from
a potential purchaser.
Id. at 311.
The jury found in favor of Salinas on four questions on the verdict sheet.
The jury returned the following verdicts:
1. Do you find that 3919 NEH, LLC had actual knowledge, or imputed
knowledge through any of its independent contractors, that there was
animal waste in the attic on the date the property was sold to Plaintiff?
Yes
6. Do you find by clear and convincing evidence that 3919 NEH, LLC,
or any of its independent contractors, intentionally concealed the
existence of the animal waste in the attic of the home it sold to Erick
Galban Salinas?
Yes
8. Do you find by a preponderance of the evidence that 3919 NEH, LLC,
or any of its independent contractors, negligently misrepresented the
existence of the latent defects in the home it sold to Erick Galban
Salinas?
Yes
9. Do you find by a preponderance of the evidence that 3919 NEH, LLC,
or any of its independent contractors, violated the Maryland
Consumer Protection Act and engaged in unfair, abusive, and/or
29
deceptive trade practices by making false or misleading statements or
representations in the contract for the sale of the home sold to Erick
Galban Salinas?
Yes
NEH insists that the trial court misapplied the law in its rulings on NEH’s motions
for summary judgment, motions for judgment, and motion for judgment NOV by
concluding that NEH was obligated to investigate or inspect the attic and that any
knowledge acquired by its contractors, Distinct Construction and Adcock, would be
imputed to NEH. We disagree and explain.
Intentional Misrepresentation. We conclude that there was sufficient evidence
from which the jury could have found NEH liable for intentional misrepresentation. With
respect to intentional misrepresentation, or fraud, our Supreme Court has noted that:
[i]n order to recover damages in an action for fraud or deceit [a plaintiff is
required to] prove (1) that the defendant made a false representation to the
plaintiff, (2) that its falsity was either known to the defendant or that the
representation was made with reckless indifference as to its truth, (3) that the
misrepresentation was made for the purpose of defrauding the plaintiff, (4)
that the plaintiff relied on the misrepresentation and had the right to rely on
it, and (5) that the plaintiff suffered compensable injury resulting from the
misrepresentation.
Moscarillo v. Professional Risk Management Servs., Inc., 398 Md. 529, 544 (2007)
(cleaned up) (collecting cases); Gross v. Sussex, 332 Md. 247, 257 (1993); Gittings v. Von
Dorn, 136 Md. 10, 15-16 (1920). See P.T. Gilbert, Maryland Tort Law Handbook, § 17.1
(4th ed. 2020). The critical element of the tort of deceit that distinguishes it from others
30
arising from false representation is scienter on the part of the defendant - intent to deceive
the other party. Martens Chevrolet, Inc. v. Seney, 292 Md. 328, 333 (1982).
Our review of the record convinces us that Salinas has established the requisite
elements for intentional misrepresentation.
First, NEH represented through Berger’s invoice that the waste and effects of the
animal activity in the attic had been addressed and remediated, when in fact there was
considerable animal waste that remained in that location to an extent unknown to Salinas.
Salinas testified that as he and his family were moving in on the afternoon of closing, he
could hear noises from the attic and they detected an odor which prompted them to attempt
to clean the entire house. The representation that remediation had been successfully
completed and that there existed no animal waste in the attic was false.
Second, NEH had imputed knowledge of the extent of the animal waste in the attic
through the actual knowledge of Berger/Distinct Construction. In the alternative, the
representation was made to Salinas by NEH with reckless indifference as to its truth. Even
though the house had been “gutted,” as represented by NEH in its brief, assuming therefore
that all contents, including old insulation, had been removed and discarded, the buyer’s
home inspection detected a level of animal waste that alarmed the Highland inspector.24
24
NEH insists that it was not required to investigate the condition of the attic. Regardless of the limits of any duty NEH thought it had, the fact remains that Berger/Distinct Construction had been to the attic, and its knowledge was imputed to NEH.
31
Third, the misrepresentation was made for the purpose of completing the sale of the
property. It was, as noted, communicated to Salinas through his agent and at closing when
he received the Distinct Construction invoice.
Fourth, Salinas could reasonably, and did rely upon, the representation. He
understood “that the items listed here were repaired or remediated.”
Fifth, Salinas suffered damage in the form of expenses for remediation and
temporary hotel lodgings.
Even if NEH did not have actual knowledge of the animal waste and the effects of
the infestation, the jury could find that it acted with a reckless indifference that satisfies the
scienter requirement for fraudulent misrepresentation. See Estate of Adams v. Continental
Insurance Co., 233 Md. App. 1, 28-29, cert. denied, 456 Md. 62 (2017).
Negligent Misrepresentation. The critical element of the tort of deceit that
distinguishes it from others arising from false representation is scienter on the part of the
defendant — intent to deceive the other party. Martens Chevrolet, supra. The Court in
Martens Chevrolet reaffirmed the principle that negligent representation may also provide
a basis for recovery. The Court pointed out:
Realizing the inequities stemming from the strictures imposed for recovery
in a deceit action, and being cognizant of the development of this area of the
law in our sister jurisdictions, this Court in 1938 recognized for the first time
the existence in this State of an action for negligent misrepresentation.
Martens Chevrolet, 292 Md. at 334 (citing Virginia Dare Stores v. Schuman, 175 Md. 287,
291-92 (1938)). “Negligent misrepresentation … only requires conduct which falls below
32
the standard of care the maker of the statement owes to the person to whom it is made.”
Gross v. Sussex, 332 Md. 247, 260 (1993).
We summarize and clarify. The principal elements of the tort of negligent
misrepresentation, as formulated in Virginia Dare Stores, supra, and subsequent cases
decided by Maryland appellate courts, may be outlined as follows:
(1) the defendant, owing a duty of care to the plaintiff, negligently asserts
a false statement;
(2) the defendant intends that his statement will be acted upon by the
plaintiff;
(3) the defendant has knowledge that the plaintiff will probably rely on
the statement, which, if erroneous, will cause loss or injury;
(4) the plaintiff, justifiably, takes action in reliance on the statement; and
(5) the plaintiff suffers damage proximately caused by the defendant’s
negligence.
Martens Chevrolet, 292 Md. at 336-37 (citing Virginia Dare Stores, 175 Md. at 291-92).
The evidence adduced at trial allowed the jury to find the following:
NEH owed a duty of care to Salinas to ensure that, once it undertook to repair the
effects of the infestation, the remediation was successful and completed. By representing
that fact, NEH negligently asserted a false statement.
NEH intended that its representation would be acted upon by Salinas, who, indeed,
proceeded to settlement and the purchase. Although NEH stresses the lack of a written
statement from Salinas to the effect that a failure to repair or remediate the effects of the
infestation would lead him to reject the deal, the jury credited his testimony that he “would
have terminated the contract” if the seller had not agreed to make the repairs.
33
NEH expected that Salinas would so rely on its representation, which, being
erroneous, caused economic damage.
Salinas, relying on the notice that repairs had been completed, justifiably relied on
it to proceed with the purchase.
Salinas’ economic loss, the hotel stay, and the complete Orkin remediation were
proximately caused by NEH’s negligence.
Maryland Consumer Protection Act. Md. Code (1975, 2025 Repl. Vol.), Title 13
of the Commercial Law Article (“CL”). The MCPA expressly prohibits “unfair, abusive,
or deceptive trade practice . . . in . . . [t]he offer for sale, lease, rental, loan, or bailment of
consumer goods, consumer realty, or consumer services[.]” CL § 13-303(2).
The MCPA “provides a nonexclusive list of unfair and deceptive trade practices.”
Washington Home Remodelers, Inc. v. State, Off. of Att’y Gen., Consumer Prot. Div., 426
Md. 613, 628 (2012) (cleaned up). The Act “constitutes remedial legislation that is intended
to be construed liberally in order to promote its purpose of providing a modicum of
protection for the State’s consumers.” Id. at 630. A “private consumer bringing an action
under the [MCPA] must show actual injury or loss sustained as a result of a practice
prohibited under the [MCPA].” Legg v. Castruccio, 100 Md. App. 748, 757 (1994).
The MCPA includes the following “non-exclusive” list of unfair or deceptive trade
practices:
(1) False, falsely disparaging, or misleading oral or written statement,
visual description, or other representation of any kind which has the
capacity, tendency, or effect of deceiving or misleading consumers;
34
(2) Representation that:
(i) Consumer goods, consumer realty, or consumer services have a
sponsorship, approval, accessory, characteristic, ingredient, use,
benefit, or quantity which they do not have;
***
(iv) Consumer goods, consumer realty, or consumer services are of a
particular standard, quality, grade, style, or model which they are not;
(3) Failure to state a material fact if the failure deceives or tends to
deceive;
***
(9) Deception, fraud, false pretense, false premise, misrepresentation, or
knowing concealment, suppression, or omission of any material fact
with the intent that a consumer rely on the same in connection with:
(i) The promotion or sale of any consumer goods, consumer realty, or
consumer service;
CL § 13-301.
NEH’s actions as set forth with respect to intentional and negligent
misrepresentation are also embraced by the provisions of the MCPA. Specifically, the
misrepresentation that the infestation had been remedied and its effects removed. It did not
matter to the jury that Loffler answered “no” to being aware of latent defects when he
signed the Disclosure Statement on April 10, 2019; nor would the panel have been swayed
by the fact that Salinas had inspected the attic and was aware of the infestation before
35
closing. This is so because the presence of animal waste continued after the buyer’s
inspection and NEH’s attempts through Berger to remediate.
In the final analysis, the evidence was more than sufficient for the jury to find that
NEH intentionally and negligently misrepresented to Salinas that the issues resulting from
the infestation had been “remediated” and that, as a result, NEH also violated the Maryland
Consumer Protection Act.
II
A. Protective Order
NEH asserts that the trial court erred by prohibiting it from conducting an “in-person
oral deposition of Ms. Galban and denying NEH’s requested special jury instruction
regarding [her] actions.” NEH maintains that Ms. Galban was an adverse, even hostile,
witness whose presence at “relevant activities” was an important factor in seeking her oral
testimony. NEH emphasizes that Ms. Galban “demonstrated her ability to recall and recite
her version of the relevant facts and her hostility toward NEH by describing the parties’
dispute on social media.”
The attempts to secure the in-person testimony of Ms. Galban have prompted
considerable litigation. On November 7, 2022, Counsel for third-party defendant Fred
Berger issued an amended notice to conduct the deposition of Ms. Galban. On January 10,
2023, NEH filed a “Motion to Compel Plaintiffs to Produce Discovery Responses and for
Plaintiff Freyja Galban to appear for Deposition.” NEH recited that although the deposition
was originally scheduled for September 12, 2022, Ms. Galban was unable to appear
because of a medical condition. No further explanation was provided, and NEH’s counsel
36
later requested more detail, such as “Ms. Galban’s symptoms, the diagnosis of her
condition and an explanation for her inability to appear for deposition.” NEH moved for
an order to compel Ms. Galban to “either appear for deposition or provide one or more
documents authored by a health care provider” that would give a more detailed explanation
for her inability to provide in-person oral deposition testimony. NEH filed a “Supplement
to Defendant’s Motion to Compel” on July 20, 2023.
On August 16, 2023, the circuit court granted NEH’s motion to compel, and ordered
“Freyja Rose Galban” to appear for deposition within 30 days of the entry of the court’s
Order. On September 18, NEH filed a “Motion for Sanctions for Failure to Comply with
Order Compelling Discovery.” The Motion provided, inter alia, that “As of the filing of
this motion, Ms. Galban has not appeared for her deposition, has not provided alternate
dates for her deposition, has not obtained a protective order regarding her obligation to
appear for her deposition by September 15, 2023, and has not filed a motion requesting
relief from the Order.”
On October 19, Ms. Galban’s counsel filed a “Motion for a Protective Order.” A
hearing on this Motion and related motions to seal and for sanctions was conducted on
November 16, 2023. On November 17, the circuit court issued an “Omnibus Order
Regarding Discovery Motions” that granted in part the Motion for a Protective Order
barring in-person and remote oral deposition, ordering that she would be deposed via
written questions, and granting leave for a party to conduct the in-person or remote oral
37
deposition after the deposition via written questions would have concluded.25 A ruling on
the Motion for Sanctions was held in abeyance.
After this, on December 15, NEH filed a “Motion for Leave to Conduct the InPerson Oral Deposition of Freyja Rose Galban.” The Motion takes issue with the circuit
court’s ruling, asserting that the court’s Order “did not comply” with Maryland Rule 2-417,
and that Ms. Galban failed to show “good cause” for a protective order. A hearing on the
motion was conducted on February 14, 2024. Counsel for NEH pointed out various
deficiencies in Ms. Galban’s written responses, such as numerous failures to recall and the
invocation of “spousal privilege,” which could have been clarified and addressed through
oral testimony. The court stated that its previous rulings “still stand” and allowed NEH to
25
The court’s Order reads in pertinent part:
ORDERED, that Freyja Rose Galban’s October 19, 2023 Motion for
Protective Order is hereby GRANTED in part; and it is further
ORDERED that a Protective Order is hereby entered barring the in-person
and/or remote oral deposition of Freyja Rose Galban; and it is hereby further
ORDERED that Freyja Rose Galban will be deposed via written questions,
and that questions for direct examination are to be submitted to counsel for
Freyja Rose Galban within ten (10) days of the date of this Order, written
answers to these questions are to be submitted under oath by Freyja Rose
Galban within fifteen (15) days of the date of receipt of the written questions;
and it is further
ORDERED, that a party may file a motion for leave to conduct the in-person
or remote oral deposition of Freyja Rose Galban after the deposition via
written questions has concluded; ...
38
submit follow-up questions if necessary.26 The court also indicated that Ms. Galban could
still be subpoenaed to offer testimony at trial.
NEH challenges the trial court’s “Omnibus Order Regarding Discovery Motions”
as well as the court’s order that her previous rulings “still stand.” It complains that Ms.
Galban failed to demonstrate good cause for her refusal to appear for an in-person
deposition. NEH emphasizes that Ms. Galban has “demonstrated her ability to recall and
recite her version of the relevant facts and her hostility toward NEH by describing the
parties’ dispute on social media.”27 Quoting from numerous federal cases, NEH avers that
the alternative discovery, deposition by written questions, “is not suitable for a situation
where … the witness is hostile[.]”28
26
On March 19, 2024, Ms. Galban’s counsel filed a “Renewed Motion for Protective Order,” which was denied on March 31.
27
In its “Reply to Opposition to Defendant’s Motion for Sanctions for Failure to Comply with Order Compelling Discovery,” NEH highlights Ms. Galban’s hostility and the relevance of her testimony:
Ms. Galban’s Facebook post proves she has discoverable information
regarding the claims asserted in this lawsuit. She has personal knowledge of
the facts that form the basis of her husband’s claims against NEH. She has
been discussing the facts of this case with her Facebook friends while
evading her discovery obligations during the time she was a party to this
lawsuit and after she voluntarily dismissed her claims.
28 Before the circuit court and on appeal, NEH cites exclusively to federal cases that address discovery and protective orders. We are not persuaded by Salinas’ complaint and advice that we should ignore this authority. Although federal cases are not controlling, we are mindful that Md. Rule 2-403 relating to protective orders “is derived, with minor changes, from the 1980 version of Fed. R. Civ. P. 26(c), and cases decided under that rule may be helpful in interpreting this rule.” Paul V. Niemeyer & Linda M. Schuett, Maryland Rules Commentary, 472 (6th ed. 2024). Indeed, we have noted that “when interpreting a
39
NEH further contends that Ms. Galban failed to make a “sufficient factual showing
that conducting her in-person oral deposition would endanger her health.” It asserts that
the letter from health care providers “exemplify speculative and conclusory statements”
that are insufficient to meet the “heavy burden” to justify a protective order in this instance.
NEH also argues that the trial court’s order “did not implement the procedure set forth in
Rule 2-417” relating to written depositions, and that the written responses could have been
improperly influenced by counsel, her spouse, “or other sources.” We see no basis for relief.
This Court has pointed out that:
Maryland Rule 2-403 provides the circuit court with authority to issue an
order that will protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense of discovery. The person seeking a
protective order has the burden of making a particular and specific
demonstration of fact, as distinguished from general, conclusory statements,
revealing some injustice, prejudice, or consequential harm that will result if
protection is denied. Even if the court agrees that some protection is
necessary, a protective order is not a blanket authorization for the court to
prohibit disclosure of information whenever it deems it advisable to do so,
but is rather a grant of power to impose conditions on discovery in order to
prevent injury, harassment, or abuse of the court’s processes.
Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 170 Md. App. 520, 530-31 (2006)
(cleaned up). A court’s decision to grant or deny a motion for protective order is reviewed
for abuse of discretion. Maryland - National Capital Park and Plan. Comm’n v.
Maryland Rule that is similar to a Federal Rule of Civil Procedure this Court may look for guidance to federal decisions construing the corresponding federal rule[.] [Accordingly] we may examine the interpretation federal courts have lent to F.R.C.P. 26(c) when we consider Md. Rule 2-403(a).” Tanis v. Crocker, 110 Md. App. 559, 574 (1996) (cleaned up). We have reviewed this authority, in particular federal district court rulings on the efficacy of letters from medical providers.
40
Mardirossian, 184 Md. App. 207, 217 (2009). “A trial judge abuses his or her discretion
where no reasonable person would take the view adopted by the [trial] court.” Id. (cleaned
up). We have emphasized that a trial court “did not abuse its discretion when it granted
appellee’s motion as long as good cause was shown and the order was issued to protect
appellee from annoyance, embarrassment, oppression, or undue burden or expense.” Tanis
v. Crocker, 110 Md. App. 559, 574 (1996). To be sure, the party seeking a protective order
“has the burden of making a particular and specific demonstration of fact, as distinguished
from general, conclusory statements, revealing some injustice, prejudice, or consequential
harm that will result if protection is denied.” Id. (cleaned up).
Based on our review of the record and relevant cases, we conclude that the trial
court did not abuse its discretion in issuing its protective order prohibiting the in-person
oral deposition of Ms. Galban. In his “Renewed Motion for a Protective Order,” Salinas
submitted two letters dated February 20, 2024 from Dr. Misty Borst and a licensed Mental
Health Therapist. Dr. Borst provided a diagnosis under seal, recommended that Ms. Galban
“begin … treatments as soon as possible[, and opined that] it is in her best interest to not
be subject to any additional or unnecessary stress.” In the second letter dated the same day,
a Mental Health Therapist, whose identity is likewise undisclosed, recited Ms. Galban had
been a patient at her facility “since March 2023,” that she is “currently receiving psychiatric
services at this clinic[,]” that “[h]er treatment is ongoing and end date is pending.” The
therapist provided a diagnosis (under seal) and recommended that Ms. Galban “should be
dismissed from deposing due to the undue negative impact being deposed would have on
41
her mental health.” The therapist noted that Ms. Galban “is experiencing issues with
concentration and memory that interfere with her every day decision making skills.”
Although NEH asserts that neither letter is sufficient to satisfy the standard for
issuing a protective order, we conclude that, on this record, the circuit court did not abuse
its discretion in prohibiting NEH from conducting an in-person oral deposition of Ms.
Galban.
B. Jury Instruction
NEH also takes issue with the trial court’s denial of its requested jury instruction.
NEH insists that “Ms. Galban’s refusal to respond to NEH’s second set of written
deposition questions and refusal to obey the subpoena commanding her to appear at trial
warranted that instruction.” NEH insists that the jury could have no basis for considering
whether Ms. Galban’s testimony “would have been important and non-cumulative”
because she refused to fulfill her discovery obligations. In NEH’s view, the trial judge’s
ruling “nullified” any adverse consequences.
We disagree with NEH that the trial court abused its discretion in this regard. “When
we review a trial court’s grant or denial of a requested jury instruction, we apply the highly
deferential abuse of discretion standard.” Woolridge v. Abrishami, 233 Md. App. 278, 305
(cleaned up), cert. denied, 456 Md. 96 (2017). “In assessing an instruction given by a trial
court, a reviewing court must determine if the instruction at issue was a correct exposition
of law and whether it was applicable to the case at hand.” Armacost v. Davis, 462 Md. 504,
523 (2019). A trial court must give a requested jury instruction where “(1) the instruction
is a correct statement of law; (2) the instruction is applicable to the facts of the case; and
42
(3) the content of the instruction was not fairly covered elsewhere in instructions actually
given.” Cost v. State, 417 Md. 360, 368-69 (2010) (cleaned up). We review a trial court’s
decision whether to grant a jury instruction under an abuse of discretion standard. Id.
Moreover, we are required to determine whether any error in instructing the jury is
harmless. “In a civil case, a legal error in a jury instruction does not necessarily mandate
reversal. To overturn a jury verdict, a jury instruction must not only be incorrect legally,
but also prejudicial.” Armacost, 462 Md. at 524. In a civil case such as this one, the
complaining party must demonstrate “that prejudice was not just possible, but probable, in
the context of the particular case.” Id.
On the third day of trial, the parties took up the issue of jury instructions. NEH
provided a missing witness instruction that included the following: “Because Ms. Galban
has not answered the second set of written questions, and because Ms. Galban has not
appeared at this trial to provide oral testimony, the Court is instructing you that you are to
infer that Ms. Galban’s testimony would be unfavorable to the plaintiff’s claims in this
lawsuit.”
Instead, the court charged the jury as follows:
During this trial, you have heard references to the Plaintiff’s wife
Freya Rose Galban formerly known as Stacy Michelle Galban McCurdy.
Before this trial began, Ms. Galban was required to provide written answers
to a first set of questions, which she answered. Afterwards, she was required
to answer a second set of questions, which she never answered.
Ms. Galban received a subpoena commanding her to appear at this
trial to provide oral testimony but she has refused to appear. If you find that
43
her testimony would have been important and noncumulative, you may infer
that Ms. Galban’s testimony would have been unfavorable to the Plaintiff.
NEH complains of the trial court’s charge that the jury “may infer,” rather than “you
are to infer that Ms. Galban’s testimony would be unfavorable[.]” We disagree with NEH
and conclude that the trial court adequately instructed the jury. Our Supreme Court has
noted:
Where a party raises the missing witness rule during closing argument, its
use is just that – an argument. Trial judges typically instruct the jury ... that
the parties’ arguments do not constitute evidence. Furthermore, the opposing
side also has an opportunity to refute the argument and counter with reasons
why the inference is inappropriate.
In contrast to the argument context is the trial judge’s instruction to the jury.
In the latter case, the inference is communicated to the jury as part of the
judge’s binding jury instructions, creating the danger that the jury may give
the inference undue weight. At the very least, a trial judge’s jury instruction
on the missing witness inference may have the effect of overemphasizing just
one of the many proper inferences that a jury may draw. As a result, where
the jury instruction is the vehicle by which the missing witness inference is
brought to the jury’s attention, the trial court should be especially cautious[.]
... A trial judge has discretion to deny a missing witness instruction, leaving
the matter to closing arguments, even when the facts would support the
inference.
Webb v. Giant of Maryland, LLC, 477 Md. 121, 144 (2021) (citation omitted). The trial
court’s instruction is consistent with the “missing witness” instruction in criminal trials.29
29
Maryland Pattern Jury Instructions – Criminal MPJI-Cr. 3:29:
You have heard testimony about [witness], who was not called as a witness
in this case. If a witness could have given important testimony on an issue in
this case and if the witness was peculiarly within the power of the [Plaintiff]
44
We discern no misstep in the trial judge’s jury instructions.
III
Expert Testimony/Spoliation of Evidence
We turn to NEH’s complaint that the trial court “erred by allowing Ms. Curlee to
state expert opinions at trial that were not disclosed during discovery and were based on
destroyed evidence.” We see no basis for relief and explain.
Ms. Curlee was proffered over objection as an expert in the field of pest control. A
bench conference ensued and the transcript reflects the following exchange:
[NEH Counsel]: Your Honor, I specifically asked her during her deposition
if she has any expert opinions. She said, “No, I’m not an expert.”
[Salinas’ Counsel]: Your Honor, she’s testified to her experience, to her level
of training, to being in over 15,000 attics, to doing this work over a decade,
the specific training that she has animal scat.
I understand what Mr. Golding is saying, but I believe we’ve met the
qualifications for designation as an expert under the law.
THE COURT: Looking at that, although individuals don’t necessarily
identify themselves as experts, sometimes they are, even just like that. She
has described the level of experience that I think goes beyond the common
person in this area. And I believe that she may be helpful to the jurors who
might not also have that level of experiences.
I will, over objection, identify her as an expert.
to produce, but was not called as a witness by the [Plaintiff] and the absence
of that witness was not sufficiently accounted for or explained, then you may
decide that the testimony of that witness would have been unfavorable to the
[Plaintiff].
45
[NEH’s Counsel]: Your Honor, may I just have her expertise limited to what’s
in the report?
***
[NEH’s Counsel]: I’m concerned about her going beyond – she stated in her
deposition that she can testify about what she did and what she saw and that’s
in her report.
THE COURT: She’s limited as to what is reported in the general topics that
are in her report. She can’t go beyond her report.
[NEH’s Counsel]: That’s my -- thank you.
[SALINAS COUNSEL]: Understood, Your Honor.
THE COURT: Okay.
On appeal, NEH asserts that the trial court “agreed that Ms. Curlee’s testimony
would be limited to what she did and saw when she inspected the property.” As pointed out
by Salinas’ counsel, the trial court, as noted above, stated that Ms. Curlee’s testimony
would be “limited as to what is reported in the general topics that are in her report. She
can’t go beyond her report.”
“Maryland Rule 5-702 governs expert testimony, and provides in relevant part:
‘Expert testimony may be admitted, in the form of an opinion or otherwise, if the court
determines that the testimony will assist the trier of fact to understand the evidence or to
determine a fact in issue.’” Wilder v. State, 191 Md. App. 319, 361, cert. denied, 415 Md.
43 (2010) (quoting Md. Rule 5-702). “[E]xpert testimony must be sufficiently definite and
certain to be admissible, for neither the Courts nor the juries are justified in inferring from
46
mere possibilities the existence of facts, and they cannot make mere conjecture or
speculation the foundation of their verdicts.” Basso v. Campos, 233 Md. App. 461, 477
(2017) (cleaned up).
It is long established in Maryland that “Appellate courts review a trial court’s
decision concerning the admissibility of expert testimony under Maryland Rule 5-702 for
abuse of discretion.” Katz, Abosch, Windesheim, Gershman & Freedman, P.A. v. Parkway
Neuroscience & Spine Inst., LLC, 485 Md. 335, 360-61 (2023). Our Supreme Court “has
described an abuse of discretion as occurring where no reasonable person would take the
view adopted by the trial court, or when the decision under consideration is well removed
from any center mark imagined by the reviewing court and beyond the fringe of what that
court deems minimally acceptable[.]” Oglesby v. Baltimore Sch. Assocs., 484 Md. 296, 327
(2023) (cleaned up).
We have emphasized that “courts are reluctant to set aside verdicts based on
evidentiary rulings unless they cause substantial injustice.” Xu v. Mayor of Baltimore, 254
Md. App. 205, 219 (cleaned up), cert. denied, 479 Md. 467 (2022). Our Supreme Court has
pointed out:
Questions within the discretion of the trial court are much better decided by
the trial judges than by appellate courts, and the decisions of such judges
should only be disturbed where it is apparent that some serious error or abuse
of discretion or autocratic action has occurred. In sum, to be reversed the
decision under consideration has to be well removed from any center mark
imagined by the reviewing court and beyond the fringe of what that court
deems minimally acceptable.
Wilson v. John Crane, Inc., 385 Md. 185, 198-99 (2005) (cleaned up).
47
On the record before us, and given that Ms. Curlee’s testimony was largely tied to
the observations which were based on her report as directed by the trial court, we discern
no abuse of discretion in permitting her to testify as an expert. Moreover, it is clear from
the record that any conceivable misstep by the trial judge is harmless. Recall that Salinas,
before leaving town to visit Puerto Rico and just entering the house following closing,
detected an odor and heard noises.30 This testimony alone is sufficient to establish that the
defects observed prior to the settlement were not, in fact, remediated. Given the
observations of the Highland inspector and Salinas, any statement from Ms. Curlee that
exceeded her remit was not prejudicial.
NEH also raises the issue of spoliation of evidence, specifically evidence of animal
waste that had been discovered in the attic by Ms. Curlee and the Orkin technicians. NEH
complains that the trial court abused its discretion by permitting Ms. Curlee to testify about
the material that was removed from the attic as part of the Orkin remediation.
Ms. Curlee and her associates removed the animal waste when they cleared out the
attic and then discarded and destroyed this waste. NEH complains that it did not have the
opportunity to test this waste to determine whether it was deposited after closing and
confined to the time when Salinas was in Puerto Rico. We see no basis for relief.
30
We repeat, for emphasis, Salinas’ testimony:
We noticed that there was a smell in the house, like a foul smell that we
couldn’t place where it was coming from. And so we tried to clean as much
as we could, especially because we had our infant son so we wanted to make
sure just we weren’t exposing him to something that we’re just not aware of.
And then also, we noticed some noises coming from the attic as well.
48
We are mindful that “[s]poliation is a doctrine grounded in fairness and symmetry.”
Adventist Healthcare, Inc. v. Mattingly, 244 Md. App. 259, 274 (2020) (cleaned up). We
further noted that “[w]hen determining whether spoliation has occurred, a court considers
whether there has been an act of destruction, whether the destroyed evidence was
discoverable, whether there was an intent to destroy the evidence, and whether the
destruction occurred at a time after suit has been filed, or, if before, at a time when the
filing was fairly perceived as imminent.” Id. See Cumberland Ins. Group v. Delmarva
Power, 226 Md. App. 691, 701-02, cert. denied, 447 Md. 298 (2016). In Cumberland Ins.
Group, we noted that “bad faith need not be present, and that even when conduct is less
culpable, dismissal may be necessary if the prejudice to the defendant is extraordinary,
denying it the ability to adequately defend its case.” 226 Md. App. at 702-03 (cleaned up).
NEH never challenged Ms. Curlee’s testimony, and did not object to the admission
of her report based on spoliation. Only after her testimony did NEH raise this issue in its
motion for judgment. As pointed out by Salinas, NEH did not provide its own expert to
counter the testimony of Ms. Curlee. Further, the animal waste was not discarded in an
attempt at deception; Salinas would not file this action until September 1, 2021, well over
a year after the Orkin remediation.
Accordingly, we uphold the trial court’s ruling on this issue, and see no merit in
NEH’s argument before us.
49
IV
Attorneys’ Fees
NEH questions the trial court’s award of attorneys’ fees. NEH asserts that it is the
prevailing party and points out that the jury found for it on five of the nine counts. Salinas,
however, avers that he is the prevailing party because the claims on which he prevailed are
“of greater significance and more important than the claims upon which [NEH] prevailed.”
It is well-established that “Maryland generally adheres to the common law or
American rule, that each party to a case is responsible for the fees of its own attorneys,
regardless of the outcome.” Royal Investment Group, LLC v. Wang, 183 Md. App. 406, 456
(2008) (cleaned up). We continued in Wang that “[a] trial court may award attorney’s fees
if (1) the parties to a contract have an agreement to that effect, (2) there is a statute that
allows the imposition of such fees[.]” Id. (cleaned up).
The trial court was authorized to award attorneys’ fees to Salinas pursuant to the
Maryland Consumer Protection Act (MCPA). See CL § 13-408(b) of the Commercial Law
Article (“CL”). “Where an award of attorney’s fees is called for by the contract in question,
the trial court will examine the fee request for reasonableness, even in the absence of a
contractual term specifying that the fees be reasonable.” Wang, 183 Md. App. at 457
(cleaned up).
Evaluation of the request for fees pursuant to the MCPA is conducted pursuant to
Md. Rule 2-703, which “applies to claims for attorneys’ fees allowable by law to a party in
an action in a circuit court.” Md. Rule 2-703(a). In addition, the trial court was authorized
to award attorneys’ fees to NEH pursuant to Paragraph 36 of the “Residential Contract of
50
Sale,” which provided for the recovery of “Attorney’s Fees” in “any action” based on
performance or non-performance of the contract and other theories of recovery. An
application for fees pursuant to contract is evaluated under Md. Rule 2-705.
When reviewing a circuit court’s award of attorneys’ fees, this Court applies an
abuse of discretion standard of review. Steele v. Diamond Farm Homes Corp., 464 Md.
364, 375-76 (2019). Abuse of discretion may occur when a ruling is “clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just result[.]” North v.
North, 102 Md. App. 1, 13 (1994) (cleaned up). We apply the non-deferential de novo
standard of review when determining whether the circuit court’s decision to award
attorney’s fees was legally appropriate. See, e.g., Breslin v. Powell, 421 Md. 266, 277
(2011).
We conclude that, under the circumstances of this case, both Salinas and NEH were
“prevailing parties.” Salinas obtained favorable verdicts on the misrepresentation and
consumer protection counts with respect to the attic, and one count alleging negligent
misrepresentation of the existence of “latent defects in the home.” Moreover, his recovery
pursuant to the MCPA furthers the intent of the MCPA, which “constitutes remedial
legislation that is intended to be construed liberally in order to promote its purpose of
providing a modicum of protection for the State’s consumers.” Washington Home
Remodelers, Inc. v. State, Off. of Att’y Gen., Consumer Prot. Div., 426 Md. at 630. For its
part, NEH successfully defended against separate and distinct claims of breach of contract
and actual knowledge and intentional misrepresentation of latent defects in the chimneys
51
and fireplace. Moreover, NEH spent a considerable effort in attempting to obtain discovery
from a reluctant Ms. Galban.
NEH complains that Salinas’ fee application is deficient, and does not “address the
factors set forth in Rule 2-703(f)(3)[.]” We see no basis in that argument to upset the fee
award. Upon review of Salinas’ fee application, we are satisfied that it adequately sets forth
sufficient information to justify a fee award.
Nevertheless, we are unable to conclude that the trial court did not abuse its
discretion in fashioning the attorneys’ fee awards for both parties in this case. Md. Rule 2-703 governs “Attorneys’ fees allowed by law,” in this instance the provisions of the
Maryland Consumer Protection Act. See Md. Code (1975, 2025 Repl. Vol.) § 13-408(b) of
the Commercial Law Article. Md. Rule 2-703(f)(2) provides in part that “[i]f the court
determines that a permitted award should be made or that under applicable law an award
is required, the court shall apply the standards set forth in subsection (f)(3) of this Rule and
determine the amount of the award.” Md. Rule 2-705 addresses “Attorneys’ fees to a
prevailing party pursuant to contract” and dictates that the “Factors to be considered” are
those “factors set forth in Rule 2-703(f)(3) and the principal amount in dispute in the
litigation[.]”31 Md. Rule 2-705(f)(1). The factors/standards set forth in Rule 2-703(f)(3)
include:
31
Md. Rule 2-704 “applies to a claim for attorneys’ fees in an action in a circuit court that are allowed by a contract as an element of damages for breach of that contract. It does not apply to a claim for an award of attorneys’ fees to the prevailing party pursuant to a feeshifting provision in a contract.” Md. Rule 2-704(a). Paragraph 36 of the Residential Contract of Sale provides for an award of attorneys’ fees “[i]n any action or proceeding
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(A) the time and labor required;
(B) the novelty and difficulty of the questions;
(C) the skill required to perform the legal service properly;
(D) whether acceptance of the case precluded other employment by the
attorney;
(E) the customary fee for similar legal services;
(F) whether the fee is fixed or contingent;
(G) any time limitations imposed by the client or the circumstances;
(H) the amount involved and the results obtained;
(I) the experience, reputation, and ability of the attorneys;
(J) the undesirability of the case;
(K) the nature and length of the professional relationship with the client;
and
(L) awards in similar cases.
See Diamond Farm Homes Corp., 464 Md. at 385.
We are mindful that the trial court ably handled a complex and difficult civil action.
Nevertheless, we shall vacate the attorneys’ fees judgments and remand to the circuit court
for a thorough review of the fee applications, supporting reasons, and for that court to
articulate findings of fact and conclusions of law in awarding counsel fees in this instance.
Conclusion
We affirm the entry of judgment in favor of Salinas in the amount of $15,579.02.
Although Salinas prevailed on common law theories of intentional misrepresentation and
negligent misrepresentation, he is entitled to a single recovery because the amount
recovered is derived from the same factual basis as that recovered pursuant to the Maryland
Consumer Protection Act. In so doing, we affirm the trial court’s denials of NEH’s Motions
between Buyer and Seller” and further adds that the “prevailing party in such action or proceeding shall be entitled to receive reasonable attorney’s fees from the other party[.]”
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for Judgment and Motion for Judgment Notwithstanding the Verdict. We affirm the trial
court’s discovery ruling and its ruling to permit the testimony of Salinas’ expert witness.
We vacate the trial court’s judgments for attorneys’ fees, and remand for further
proceedings not inconsistent with this opinion. Judgments affirmed in all other respects.
JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED IN
PART, AND VACATED AND REMANDED
IN PART, AS FOLLOWS.
JUDGMENT ON THE MERITS IN FAVOR
OF APPELLEE SALINAS AFFIRMED.
JUDGMENTS AWARDING ATTORNEYS’ FEES
VACATED AND REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT WITH
THIS OPINION.
COSTS TO BE PAID BYAPPELLANT.
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