Parker v. Hamilton

Cassandra Parker, et al. v. William Hamilton, et al., No. 78, September Term, 2016.
Opinion by Hotten, J.

WRONGFUL DEATH — COMPUTATION OF PERIOD OF LIMITATION: The
Court of Appeals determined that the General Assembly’s 1997 amendment to Maryland
Code § 5-201 of the Courts & Judicial Proceedings Article (“Cts. & Jud. Proc.”) addressed
the Court’s holding in Waddell v. Kirkpatrick, 331 Md. 52, 626 A.2d 353 (1993) that
wrongful death claims brought by minor plaintiffs were not tolled during the period of
minority. The Court thus held that Cts. & Jud. Proc. § 5-201 in its current form provides a
tolling provision for wrongful death actions that accrue in favor of a minor plaintiff during
the period of minority. Accordingly, under the version of Cts. & Jud. Proc. § 5-201 in
effect here, the minor plaintiff’s wrongful death claims were tolled during the period of his
minority.

WRONGFUL DEATH — COMPUTATION OF PERIOD OF LIMITATION: The
Court of Appeals determined that the circuit court erred in dismissing Appellants’ wrongful
death causes of action. The circuit court failed to consider that the time limitation to file a
wrongful death action is tolled when the defendant engages in fraudulent conduct that
prevents the plaintiffs from bringing a wrongful death action within three years from the
date of death, pursuant to Cts. & Jud. Proc. § 5-203. The Court determined that Appellants’
amended complaint sufficiently pled facts indicating Appellee’s fraudulent conduct, as
well as facts from which Appellee’s fraud can necessarily be implied. Thus, the allegations
in Appellants’ amended complaint were sufficient to invoke Cts. & Jud. Proc. § 5-203.
Circuit Court for Dorchester County
Case No. C15-022407
Argued: February 2, 2017

IN THE COURT OF APPEALS

OF MARYLAND

No. 78

September Term, 2016

______________________________________

CASSANDRA PARKER, ET AL.

v.

WILLIAM HAMILTON, ET AL.
______________________________________

Barbera, C.J.,
Greene,
McDonald,
Watts,
Hotten,
Getty,
Rodowsky, Lawrence F.
(Senior Judge, Specially Assigned)

JJ.
______________________________________

Opinion by Hotten, J.
______________________________________

Filed: May 22, 2017
 On June 9, 2015, Appellant Cassandra Parker (acting individually and as the

Personal Representative of the Estate of her son, Craig Junior Parker), and her grandchild,

Appellant Z. (Mr. Parker’s son, who, by that time was five years old), filed survival and

wrongful death actions against Appellee William Stevens Hamilton, arising out of the death

of Craig Junior Parker. The wrongful death claims were dismissed by the circuit court as

time-barred under Maryland Code, § 3-904 of the Courts & Judicial Proceedings Article

(“Cts. & Jud. Proc.”).1 Whether the claims were timely depends on the applicability of two

provisions—Cts. & Jud. Proc. § 5-201,2 which provides that the time period for bringing a

wrongful death action that accrues in favor of a minor plaintiff is tolled during the period

of minority, and Cts. & Jud. Proc. § 5-203, which reads:

If the knowledge of a cause of action is kept from a party by the fraud of an
adverse party, the cause of action shall be deemed to accrue at the time when
the party discovered, or by the exercise of ordinary diligence should have
discovered the fraud.

1
Cts. & Jud. Proc. § 3-904 provides in relevant part:

Limitations

(g)(1) Except as provided in paragraph (2) or (3) of this subsection, an action
under this subtitle shall be filed within three years after the death of the
injured person.
2
Cts. & Jud. Proc. § 5-201 provides in relevant part:

Accruals which favor minors or mentally incompetent persons

(a) When a cause of action subject to a limitation under Subtitle 1 of this title
or Title 3, Subtitle 9 of this article accrues in favor of a minor or mental
incompetent, that person shall file his action within the lesser of three years
or the applicable period of limitations after the date the disability is removed.
We shall hold that both provisions apply. Cts. & Jud. Proc. § 5-201 operates to toll a minor

plaintiff’s wrongful death claims during the period of his or her minority. Thus, the circuit

court erred in dismissing the minor Appellant’s wrongful death claims as untimely.

Furthermore, the circuit court erred in failing to consider that the time limitation to file a

wrongful death action is tolled when the defendant engages in fraudulent conduct that

prevents the plaintiffs from bringing a wrongful death action within three years from the

date of death, pursuant to Cts. & Jud. Proc. § 5-203. Appellants’ amended complaint

sufficiently pled fraud in order to invoke Cts. & Jud. Proc. § 5-203.

I. BACKGROUND

The following facts are alleged in Appellants’ Amended Complaint.

On or about August 22, 2009, Mr. Hamilton shot and killed Mr. Parker. At the time,

Mr. Parker was thirty-eight years old, and worked as a farmhand for Mr. Hamilton. Mr.

Parker was survived by his mother, Cassandra Parker and his son, Z., born on November

17, 2009—Appellants in this matter. Appellants allege that Mr. Hamilton buried Mr.

Parker’s remains in order to conceal his wrongdoing.

On June 9, 2015, Cassandra Parker (acting individually and as the Personal

Representative of the Estate of her son, Mr. Parker) and her minor grandchild, Z. (Mr.

Parker’s son), filed a complaint in the Circuit Court for Dorchester County against Mr.

Hamilton arising out of the wrongful death of Mr. Parker. Appellants thereafter filed an

amended complaint in which they added William Vogel, Jr.3 as a defendant. The amended

3
Appellants allege fraudulent conveyance in Count 7 of their amended complaint.
(continued . . .)
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complaint included counts of: (1) wrongful death based on negligence, (2) a survival action

based on negligence, (3) wrongful death based on gross negligence, (4) a survival action

based on gross negligence, (5) wrongful death based on battery, (6) a survival action based

on battery, and (7) fraudulent conveyance.

Mr. Hamilton filed a motion to dismiss with prejudice, or in the alternative, motion

for summary judgment. The circuit court held a motions hearing, after which it issued a

written opinion granting the motion to dismiss as to the wrongful death claims, and denying

the motion as to the survival claims of Mr. Parker’s estate.

Appellants filed a motion for reconsideration, which was denied without a hearing.

Appellants filed a timely appeal to the Court of Special Appeals. This Court granted

certiorari before the Court of Special Appeals’ consideration of the direct appeal. Parker

v. Hamilton, 450 Md. 664, 150 A.3d 819 (2016). Appellants’ brief4 presents three

questions for review:

(. . . continued)
Appellants specifically allege that Mr. Hamilton gave Mr. Vogel, Jr. an undivided one-half
interest in a farm owned by Mr. Hamilton, by deed dated May 29, 2015. Appellants further
allege that Mr. Vogel, Jr. gave no consideration in exchange for the one-half interest in
the farm.
4
Appellants’ Petition for Writ of Certiorari in this Court did not present Question
III for review. When we assume jurisdiction over an appeal pending, but undecided, before
the Court of Special Appeals, we “consider those issues that would have been cognizable
by the Court of Special Appeals.” Md. Rule 8-131(b)(2). In such cases, “we rely on the
question or questions in both the appellants’ brief and the appellee’s brief to present the
issue or issues we consider.” City Of Frederick v. Pickett, 392 Md. 411, 423 n. 7, 897 A.2d
228, 235 n. 7 (2006). Here, Question III would have been cognizable by the Court the
Special Appeals, and Appellants’ brief presented Question III. Thus, we consider Question
III.

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 I. Did the trial court improperly ignore Md. Code, Cts. & Jud. Proc. § 5-
201 when it determined that the wrongful death claims of the minor
plaintiff were not tolled until the age of majority?

II. Does the trial court’s decision that the minor plaintiff’s wrongful
death claims were not tolled during his minority violate Article 19 of
the Maryland Declaration of Rights?

III. Did the trial court err when it determined that the defendant’s
fraudulent concealment of a murder failed to toll the plaintiffs’
wrongful death claims under Md. Code, Cts. & Jud. [Proc.] § 5-203?

II. STANDARD OF REVIEW

The parties contest the appropriate standard of review. Mr. Hamilton argues that

the circuit court granted a motion to dismiss, not a motion for summary judgment—and

therefore, this Court should not consider evidence outside of the pleadings. In response,

Appellants argue that while the circuit court’s order was not clear as to whether it granted

a motion to dismiss or a motion for summary judgment, the circuit court referred

throughout the opinion to evidence and testimony received at the motions hearing, which

was beyond the four corners of the complaint. Appellants assert that by considering

evidence outside of the scope of the pleadings in rendering its ruling, the motion to dismiss

was converted to one for summary judgment pursuant to Maryland Rule 2-322(c). During

oral argument before this Court, counsel for Mr. Hamilton contended that the circuit court

conducted a discrete review of the wrongful death actions, as a motion to dismiss, and only

considered evidence outside of the pleadings as it pertained to the remaining causes of

action.

In the section of the circuit court’s opinion entitled “Wrongful Death Claims—

Condition Precedent[,]” the circuit court concluded, “Because the Complaint was not filed
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until June 9, 2014, long after the three-year time deadline of August 22, 2012, the wrongful

death claims, Counts 1, 3, and 5, must be dismissed.” The dismissal of the wrongful death

claims was grounded in (1) the application of the time limitation in the wrongful death

statute as a condition precedent and (2) the rejection of Appellants’ argument regarding the

retroactivity of Cts. & Jud. Proc. § 3-904(g), which creates an exception to the condition

for wrongful death actions based on criminal homicides. Based on these grounds for

dismissal, we determine the review of the wrongful death causes of action was limited to

the pleadings.

We have outlined the applicable standard of review pertaining to dismissals for

failure to state a claim upon which relief can be granted as follows:

In considering a motion to dismiss for failure to state a cause of action
pursuant to Maryland Rule 2-322(b)(2), a trial court must assume the truth
of all well-pleaded relevant and material facts in the complaint, as well as all
inferences that reasonably can be drawn therefrom. Stone v. Chicago Title
Ins. Co., 330 Md. 329, 333, 624 A.2d 496, 498 (1993); Odyniec v.
Schneider, 322 Md. 520, 525, 588 A.2d 786, 788 (1991). To this end, the
facts comprising the cause of action must be pleaded with sufficient
specificity. Bald assertions and conclusory statements by the pleader will
not suffice. [Cont’l] Masonry Co. v. Verdel Constr. Co., 279 Md. 476, 481,
369 A.2d 566, 569 (1977). Further, while the words of a pleading will be
given reasonable construction, when a pleading is doubtful and ambiguous,
it will be construed most strongly against the pleader in determining its
sufficiency. Hixon v. Buchberger, 306 Md. 72, 75, 507 A.2d 607, 608
(1986); Read Drug & Chem. Co. v. Colwill Constr. Co., 250 Md. 406, 416,
243 A.2d 548, 555 (1968). Dismissal is proper only if the alleged facts and
permissible inferences, so viewed, would, if proven, nonetheless fail to
afford relief to the plaintiff. Morris v. Osmose Wood Preserving, 340 Md.
519, 531, 667 A.2d 624, 630 (1995). On appeal, a reviewing court must
determine whether the trial court was legally correct, examining solely the
sufficiency of the pleading.

Bobo v. State, 346 Md. 706, 708–09, 697 A.2d 1371, 1372–73 (1997).

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 III. DISCUSSION

Appellants argue that Cts. & Jud. Proc. § 5-201 was enacted more than 20 years ago

in response to this Court’s decision in Waddell v. Kirkpatrick, 331 Md. 52, 626 A.2d 353

(1993), and that Cts. & Jud. Proc. § 5-201 clearly provides for tolling in a wrongful death

case during the period of minority. Appellants further aver that not allowing the action to

be tolled until the age of majority would violate Article 19 of the Maryland Declaration of

Rights, as held by this Court in Piselli v. 75th St. Med., 371 Md. 188, 808 A.2d 508 (2002).

Lastly, Appellants argue that they properly invoked Cts. & Jud. Proc. §5-203, which tolls

the time limit for bringing a wrongful death action when the defendant fraudulently

conceals his or her wrongful conduct.

In response, Mr. Hamilton argues that the circuit court properly construed Cts. &

Jud. Proc. § 5-201 as inapplicable to wrongful death claims. Mr. Hamilton relies on our

ruling in Waddell v. Kirkpatrick, 331 Md. 52, 626 A.2d 353 (1993), where we determined

the time limit contained in Cts. & Jud. Proc. § 3-904(g) was a condition precedent to

maintaining an action, as opposed to a statute of limitations. Mr. Hamilton opposes

Appellants’ proffered interpretation of the Maryland Declaration of Rights as applied to

the minor plaintiff. Lastly, Mr. Hamilton proposes that the Appellants did not specifically

plead fraud within their complaint, and thus, their wrongful death claims could not be

tolled.

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A. Cts. & Jud. Proc. § 5-201 in its current form provides for tolling of wrongful death
claims during the period of minority.

Cts. & Jud. Proc. § 5-201 states that the time period for bringing a wrongful death

action that accrues on behalf of a minor plaintiff is tolled during the period of minority.

Subsection (a) of Cts. & Jud. Proc. § 5-201 provides:

(a) When a cause of action subject to a limitation under Subtitle 1 of this title
or Title 3, Subtitle 9 of this article accrues in favor of a minor or mental
incompetent, that person shall file his action within the lesser of three years
or the applicable period of limitations after the date the disability is removed.

(emphasis added). The history leading up to the current section provides context for the

statute’s establishment of a tolling provision for minor wrongful death beneficiaries.

1. A brief history of wrongful death limitations

At common law, a tort victim’s dependents were not entitled to pursue an action for

wrongful death. See Walker v. Essex, 318 Md. 516, 522, 569 A.2d 645, 648 (1990) (citing

W. Page Keeton, et al., Prosser and Keeton on Torts § 127, at 945 (5th ed. 1984)). “The

common law not only denied a tort recovery for injury once the tort victim had died it also

refused to recognize any new and independent cause of action in the victim’s dependents

or heirs for their own loss at his death.” Walker, 318 Md. at 522, 569 A.2d at 648 (internal

quotation marks omitted). To remedy this, the English Parliament enacted the Fatal

Accidents Act of 1846, otherwise known as Lord Campbell’s Act. Id. Every state has

since adopted its own version of a wrongful death statute, Maryland in 1852. Id.

A wrongful death action is brought for the benefit of the surviving family members,

to compensate for the losses occasioned by their family member’s death:

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 The purpose of the Wrongful Death Act is “to compensate the families of
persons killed by the wrongful act, neglect or default of another person.” It
gives to the family a “new cause of action for something for which the
deceased person never had, and never could have had the right to sue — that
is to say, the injury resulting from his death.”

Binnix v. Johns-Manville Prod. Corp., 593 F. Supp. 1180, 1182 (D. Md. 1984) (emphasis

omitted) (quoting Stewart v. United Elec. Light & Power Corp., 104 Md. 332, 341, 343,

65 A. 49, 53 (1906)).

Originally, the statute required suit to “be commenced within 12 calendar months

after the death of the deceased person.” Waddell, 331 Md. at 56 n. 4, 626 A.2d at 355 n.4

(quoting 1852 Md. Laws Ch. 299). This time limitation, which was eventually codified in

Cts. & Jud. Proc. § 3-904, was later extended to eighteen months, then in 1959 to two years.

Id.

In 1971, the General Assembly again amended the statute, extending the time period

from two to three years from the date of the decedent’s death. In making this change, the

General Assembly stated its intent to treat the time period to file a wrongful death action

the same as the time limitations applicable in negligence actions. In the Preamble to the

legislation approving the extension of time from two to three years, it stated:

WHEREAS, the General Assembly desires to bring the statute of limitations
for wrongful death actions in uniformity with that of other negligence
actions.

WHEREAS, there is no logical reason for the variance between the time
limits for commencement of actions.

WHEREAS, citizens may be misled to their detriment by the variance
between the respective statutes of limitations resulting in an undue forfeiture
of rights.

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Waddell, 331 Md. at 56, 626 A.2d at 355 (quoting 1971 Md. Laws Ch. 784).

2. This Court’s decision in Waddell v. Kirkpatrick

In 1993, a case came before this Court in which the plaintiff, who was only three

years old at the time of her father’s death, waited until she was twenty years old to file her

wrongful death claim. Waddell v. Kirkpatrick, 331 Md. 52, 626 A.2d 353 (1993). She

argued that her claim was timely even though it was filed more than three years after her

father’s death because, pursuant to Cts. & Jud. Proc. § 5-201 (which, at the time, did not

refer to Title 3, Subtitle 9 of the Courts & Judicial Proceedings Article),5 the time limit for

bringing her claim was tolled during her minority. Id. at 56, 626 A.2d at 355.

We discussed the distinction between a statute of limitations and a condition

precedent—as a statute of limitations affects only the remedy, not the cause of action. Id.

at 59, 626 A.2d at 356. Conversely, we looked to our jurisprudence analyzing the effect

of a time requirement then prescribed within the wrongful death statute:

The [statute] create[s] a new legal liability, with the right to suit for its
enforcement, provided the suit is brought within twelve months, and not
otherwise. The time within which the suit must be brought operates as a
limitation of the liability itself as created, and not of the remedy alone. It is
a condition attached to the right to sue at all. . . . Time has been made of the

5
The version of the statute interpreted in Waddell was Md. Code (1989 Repl. Vol.)
Cts. & Jud. Proc. § 5-201, which provided, in pertinent part:

(a) Extension of time.—When a cause of action subject to a limitation of
Subtitle 1 of this title accrues in favor of a minor or mental incompetent, that
person shall file his action within the lesser of three years or the applicable
period of limitations after the date the disability is removed.

Waddell, 331 Md. at 53 n. 1, 626 A.2d at 353 n. 1.

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 essence of the right and the right is lost if the time is disregarded. The
liability and the remedy are created by the same statutes, and the limitations
of the remedy are, therefore, to be treated as limitations of the right.

Id. at 59, 626 A.2d at 356 (quoting State v. Parks, 148 Md. 477, 129 A. 793, 794 (1925)).

We thus held that the time period for commencing actions prescribed in the wrongful death

statute is a condition precedent, operating as a limitation of both liability and remedy:

Once it has been established that section 3-904(g) is a condition precedent,
as opposed to a statute of limitations, it follows inexorably that it does not fit
within the prescription of section 5-101. Consequently, section 5-201 does
not save a cause of action for wrongful death notwithstanding the disability
of the plaintiff at the time the action accrued.

Waddell, 331 Md. at 60, 626 A.2d at 356.

3. The General Assembly’s amendment of Cts. & Jud. Proc. § 5-201 in
response to Waddell

Following this Court’s decision in Waddell, in 1997, the General Assembly added

language to Cts. & Jud. Proc. § 5-201 that specifically referenced its application to

wrongful death actions:

(a) When a cause of action subject to a limitation under Subtitle 1 of this title
OR TITLE 3, SUBTITLE 9 OF THIS ARTICLE accrues in favor of a
minor or mental incompetent, that person shall file his action within the lesser
of three years or the applicable period of limitations after the date the
disability is removed.

1997 Md. Laws Ch. 318 (emphasis added). By specifically referencing the wrongful death

statute within the new version of Cts. & Jud. Proc. § 5-201, the General Assembly amended

the statute to provide that the time period to file a wrongful death cause of action is tolled

during a plaintiff’s minority.

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 This intent is supported by the legislative history contained in the bill file. The

Bill Analysis generated by the General Assembly for the Bill states:

Additionally, the bill establishes that when the time period to file wrongful
death action accrues in favor of a minor or mental incompetent, that person
must file the action within the lesser of three years or the applicable period
of limitations after the date the disability is removed.

***

[C]urrent law provides that when a cause of action subject to a statute of
limitations accrues in favor of a minor or mental incompetent, that person
has three years after the disability is removed to file the action. Courts have
interpreted the time period to file a wrongful death action as a condition
precedent and not a statute of limitations. The bill provides the same
extension of time to wrongful death actions that is currently provided to
other actions with a statute of limitations.

Bill Analysis of H.B. 770 (1997) (emphasis added).

The legislative history of the General Assembly’s 1997 amendment to Cts. & Jud.

Proc. § 5-201 demonstrates that the amendment was intended to address our determination

in Waddell that there was no tolling for minor plaintiffs in wrongful death actions. Thus,

we hold that Cts. & Jud. Proc. § 5-201 in its current form provides for tolling during the

period of minority. Accordingly, under the version of Cts. & Jud. Proc. § 5-201 in effect

here, the minor plaintiff Z.’s wrongful death claims were tolled during the period of his

minority.

Appellants further argue that not allowing for tolling until the age of majority would

violate Article 19 of the Maryland Declaration of Rights, as held by this Court in Piselli v.

75th St. Med., 371 Md. 188, 808 A.2d 508 (2002). Because we determined that the plain

language of Cts. & Jud. Proc. § 5-201 in its current form provides for tolling of a wrongful

- 11 -
death claim during a period of minority, it is not necessary for us to reach the constitutional

issue. See, e.g., Mercy Hospital v. Jackson, 306 Md. 556, 565, 510 A.2d 562, 566 (1986)

(stating that “this Court’s established policy is to decide constitutional issues only when

necessary.”).

B. Appellants’ amended complaint sufficiently pled fraud in order to invoke Cts. &
Jud. Proc. § 5-203.

Appellants further argue that the circuit court erred in dismissing their causes of

action by failing to consider that the time limitation to file a wrongful death action is tolled

when the defendant engages in fraudulent conduct that prevents the plaintiff from bringing

a wrongful death claim within three years from the date of death. We agree.

Appellants aver that our decision in Geisz v. Greater Balt. Med. Ctr., 313 Md. 301,

545 A.2d 658 (1988) controls this issue and supports the determination that their claims

should be tolled. Geisz was a medical negligence case in which the plaintiffs—a wife and

son—brought a wrongful death action ten years after the death of a husband and father

from cancer. They argued, pursuant to Cts. & Jud. Proc. § 5-203, that their cause of action

was tolled by the defendant physician’s fraudulent conduct in continuing to assure them

that he was receiving the best possible care with the most up-to-date technologies. See id.

at 309, 321–25, 545 A.2d at 662, 667–70. They claimed that it was not until years later

that they discovered the physician’s department was understaffed, underequipped, and

failed to properly verify that the radiation treatment he was rendering was working. Id. at

312–13, 545 A.2d. at 663–64. In addressing the threshold issue of first impression, this

- 12 -
Court held that Cts. & Jud. Proc. § 5-203 applied to wrongful death actions. Id. at 324–25,

545 A.2d at 669.

Mr. Hamilton argues that the Appellants did not sufficiently plead fraud within their

complaint in order to invoke Cts. & Jud. Proc. § 5-203. We disagree. In the amended

complaint, Appellants pled that (1) on or about August 22, 2009, Mr. Hamilton shot and

killed Mr. Parker and (2) Mr. Hamilton buried Mr. Parker’s remains in order to conceal his

wrongdoing. We determine that these allegations were sufficient to reflect Mr. Hamilton’s

fraudulent conduct, and facts from which Mr. Hamilton’s fraud can necessarily be implied.

See Antigua Condo. Ass’n v. Melba Inv’rs Atl., Inc., 307 Md. 700, 735, 517 A.2d 75, 93

(1986) (“General or conclusory allegations of fraud are insufficient. A plaintiff must allege

facts which indicate fraud or from which fraud is necessarily implied.”); Parish v. Md. &

Va. Milk Producers Ass’n, 250 Md. 24, 72, 242 A.2d 512, 539 (1968) (“It is equally well-

settled that it is not necessary to charge the defendants specifically with ‘fraud’ or with

‘acting fraudulently’ if the facts alleged indicate fraud or are such that fraud is necessarily

implied from the alleged facts.”). Thus, the circuit court erred in dismissing the wrongful

death counts, as the amended complaint sufficiently pled fraud in order to invoke Cts. &

Jud. Proc. § 5-203.

IV. CONCLUSION

We determined that pursuant to Cts. & Jud. Proc. § 5-201, the minor plaintiff Z.’s

wrongful death claims were tolled during the period of his minority. Furthermore, the

Appellants’ amended complaint sufficiently pled fraud in order to invoke Cts. & Jud. Proc.

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§ 5-203. Thus, the circuit court erred in granting Mr. Hamilton’s motion to dismiss the

wrongful death counts.

JUDGMENT OF THE CIRCUIT
COURT FOR DORCHESTER COUNTY
IS REVERSED. CASE REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
COSTS IN THIS COURT AND THE
COURT OF SPECIAL APPEALS TO BE
PAID BY APPELLEE WILLIAM
HAMILTON.

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