Benik v. Hatcher

CATHELL, Judge,

dissenting.

I respectfully dissent.

I.

In my view, the majority has misconstrued its holding in Golt v. Phillips, 308 Md. 1, 517 A.2d 328 (1986). Richwind Joint Venture 4 v. Brunson, 335 Md. 661, 645 A.2d 114(1994), and Scroggins v. Dahne, 335 Md. 688, 645 A.2d. 1160 (1994)concerned whether a landlord had knowledge of the fact that a dangerous condition had come into being in the leased premises after the commencement of the leased term.1 Golt imposed strict liability on landlords to know what the statutory law was, i.e., that a license was required to operate a rental unit. Golt did not create strict liability in respect to the factual requirements of negligence actions or actions under the Consumer Protection Act (CPA). We merely noted in Golt that: “Ignorance of the law ... is no defense.” 308 Md. at 10, 517 A.2d at 332.

The instant case does not involve ignorance of the law. It involves knowledge of a fact. It is clearly distinguishable. CitaraManis v. Hallowell, 328 Md. 142, 613 A.2d 964 (1992), and Galola v. Snyder, 328 Md. 182, 613 A.2d 983 (1992), relevant portions of which were cited in Richwind as support for the Court’s interpretation of Golt, were, like Richwind, cases generally involving the CPA. But the portions of Citara-Manis and Galola cited by the Court in Richwind and Scrog-gins to support the decisions therein dealt with the holding in *539Golt that a landlord is charged under the CPA with knowledge of the law at the inception of the lease. Richwind, Scroggins, and Golt, in my view, should not be interpreted as holding that landlords are charged with knowledge of facts. Golt, Citara-Manis, Galola, Richwind and Scroggins do not support the majority’s creation of strict liability,2 in respect to knowledge of facts, in CPA cases based on alleged violations of the Baltimore City Housing Code or similar provisions.3 Landlords are presumed to know the law, but are not charged with automatic knowledge of the existence of facts that, if actually known, would constitute violations of the law.

Moreover, neither Golt, CitaraManis nor Galola involved actions for alleged negligent conduct. All three cases arose out of a rental contract, alleging actions for restitution or for rent, in circumstances in which there was no dispute that the landlord had failed to obtain the required licenses. Citara-Manis presented two issues: (1) whether a tenant was entitled under the CPA to restitution for rent paid during a period when the leased premises were unlicensed; and (2) whether a tenant is entitled to restitution of voluntary rental payments made on an unenforceable lease. Accordingly, CitaraManis was a restitution case. Similarly, Galola involved rental units for which the required license had not been obtained. The tenant, after being sued for possession and back rent, counter-sued for restitution of all the rent he had paid during the term that the premises had been unlicensed. Galola was also resolved on restitution issues. As I perceive the cases, neither Golt, CitaraManis nor Galola have anything to do with the case at bar. The comment in Richwind that “[t]o date, this Court has only applied the CPA in landlord/tenant cases where the unfair or deceptive practice occurred during the *540establishment of the landlord/tenant relationship between the parties,” 335 Md. at 683, 645 A.2d at 1157 (citing Golt, 308 Md. at 11, 517 A.2d at 333; CitaraManis, 328 Md. at 149 n. 3, 613 A.2d at 967 n. 3; Galola, 328 Md. at 185, 613 A.2d at 985), is, as I perceive it, being interpreted much too broadly. The crucial determinant in those cases was that they both involved the inception of the leases and premises that were unlicensed. The landlords were thus held to have knowledge that the law required them to have licenses. See Golt, 308 Md. at 10, 517 A.2d at 332 (“Ignorance of the law ... is no defense.”). Under the common law applicable to this case, ignorance of facts can be a defense. There is nothing in any of the cases, except the overly-broad language in Richwind, that indicates otherwise.

If the holdings of Golt and its progeny are considered in light of the narrowness in which the Court framed those opinions, there is nothing in those cases supporting the creation of strict liability, even under the CPA, for landlords in negligence cases brought against them by their tenants. The prior cases of this Court have held that a landlord is liable only if he knows, or has reason to know, of the defective condition or should realize the risk involved. See Hayes v. Hambruch, No. 94-1271, 1995 WL 479892 (4th Cir. Aug.15, 1995) (citing Richwind, 335 Md. 661, 645 A.2d 1147; Bartholomee v. Casey, 103 Md.App. 34, 651 A.2d 908 (1994)), aff'g, 841 F.Supp. 706 (D.Md.1994).

The United States District Court for Maryland noted in Hayes, 841 F.Supp. at 713, that this Court had observed in Golt that “ignorance of the law ... is no defense. A landlord must be held to be aware of all laws concerning the validity of leasing its premises.” The District Court continued: “It is thus apparent that the Court of Appeals in essence imputed knowledge to the landlord of the fact that the premises were unlicensed.” Hayes, 841 F.Supp. at 713. That court proceeded to discuss the issue of knowledge of the law as if it was knowledge of a fact. In that discussion, the District Court mistakenly interpreted Golt as distinguishing between the type of facts which a landlord would be more likely than the *541tenant to know, i.e., whether the premises were licensed. See id. at 713-14.

In its affirmance of Hayes,4 the United States Court of Appeals for the Fourth Circuit modified the District Court’s findings, stating:

Hayes cites Golt, in which the Court of Appeals of Maryland found a CPA violation where a landlord rented premises without first having a license to do so. When the defendant claimed that it did not know that the dwelling unit was not properly licensed, the court replied,
[ijgnorance of the law, however, is no defense. A landlord must be held to be aware of all laws concerning the validity of leasing its premises.... In other words, § 13-301(1), (2), and (3) does not require scienter on the part of the landlord; the subsections require only a false or deceptive statement that has the capacity to mislead the consumer tenant.
In essence, the court held the defendant liable because the landlord should have known of the relevant law.
The instant case differs somewhat from Golt, because Hambruch claims that she was unaware of the existence of a factual matter, not of the law. However, under the reasoning of Golt, we find, that a landlord must have reason to know of the material facts underlying an allegedly false or misleading representation before he or she can be held liable for a violation of the Maryland CPA. As we pointed out above, Hayes has failed to produce any evidence tending to show that Hambruch had reason to know of the dangerous condition in the residence on North Caroline Street. She thus cannot sustain a claim under the Maryland CPA.
*542Our conclusion ... is bolstered by the Maryland Court of Appeals’ reluctance to impose a standard of strict liability on landlords. As the Court of Appeals has stated, “the CPA does not create a new remedy in strict liability for lead paint poisoning cases.” Scroggins, 335 Md. at 694 n. 2, 645 A.2d at 1163 n. 2.

Id. at *4 (some citations omitted) (emphasis added). The majority is no longer reluctant.

II.

Additionally, I believe that the majority is expanding the language of Golt beyond what was being considered in that case. Contrasting sections 13-301(1), (2), and (3) of the CPA with section 13-301(9), the case before us more appropriately falls under subsection (9), which requires a “knowing concealment [of facts] ... with the intent that a consumer rely on the same----” Initially, I note that, if subsections (1), (2), and (3) are as broad as the dicta in Golt and Richwind seem to indicate and as broad as the majority in this case indicates, the quoted language from subsection (9) would be surplusage. There is no factual situation I can conceive of which involves alleged negligent acts by landlords that would not be covered by the majority’s broad interpretation of Golt and subsections (1), (2), and (3) of section 13-301.

Golt was a limited holding in respect to the general assumption that a landlord is presumed to know the law, an issue not in controversy in the instant case. By overstating the reach of Golt in Richwind, the Court set the stage for the position it now takes. In doing so, however, it renders subsection (9) meaningless.

We said in Prince George’s County v. White, 275 Md. 314, 319, 340 A.2d 236, 239-40 (1975):

To sustain the contention advanced by the county would necessarily lead to one of two possible consequences, both of which are regarded with disfavor by this Court. To ignore subsection (r) entirely would either mean its repeal by implication, a construction which should be avoided, see Bd. *543of Fire Comm’rs v. Potter, supra[ 268 Md. 285, 300 A.2d 680 (1973)]; Planning Comm. v. Silkor Corp., 246 Md. 516, 524-25, 229 A.2d 135 (1967); Kirkwood v. Provident Savings Bank, 205 Md. 48, 55-56, 106 A.2d 103 (1954); or that it be regarded as superfluous. Absent a clear indication to the contrary, a statute, if reasonably possible, is to be read so that no word, clause, sentence or phrase, let alone an entire subsection, shall be rendered surplusage, superfluous, meaningless or nugatory. St. Paul Fire & Marine Ins. Co. v. Insurance Commissioner, 275 Md. 130, 339 A.2d 291 (1975); A.H. Smith Sand & Gravel v. Dep’t, supra, 270 Md. at 659 [, 313 A.2d 820]; Baltimore City v. United Stores, 250 Md. 361, 368-69, 243 A.2d 521 (1968).

See also Tracey v. Tracey, 328 Md. 380, 387-89, 614 A.2d 590, 594-95 (1992).Subsequent Injury Fund v. Teneyck, 317 Md. 626, 632, 566 A.2d 94, 97 (1989); Brodsky v. Brodsky, 319 Md. 92, 98, 570 A.2d 1235, 1237 (1990) (“[W]e look first to its language, ... we assume that the words of the statute are intended to have their natural, ordinary and generally understood meaning in the absence of evidence to the contrary.”) I have found no indication in the finite legislative history of the CPA that it was intended to supplant, in its entirety, the long-established common law relating to negligence actions brought by tenants against landlords. It is, I respectfully suggest, the better view that section 13-301(9) codified, as a statutory violation, what was already part of the common law relating to negligence actions between tenants and landlords. In that respect, the common law requirement that, in order to be liable, a landlord had to have knowledge of the defect or should have had such knowledge is preserved by the subsection (9) requirement that the concealment must be knowing.

The majority’s position, and its interpretation of Golt (and Richwind’s interpretation of Golt) are contrary to the long-established common law relating to tenant/landlord negligence actions. We noted a firmly-established principle in Bradshaw v. Prince George’s County, 284 Md. 294, 302, 396 A.2d 255, 260 (1979), overruled in part by James v. Prince George’s County, 288 Md. 315, 418 A.2d 1173 (1980), and Cox v. Prince George’s *544County, 296 Md. 162, 460 A.2d 1038 (1983), when we said: “It is presumed that the legislative body did not intend to make any alteration of the common law other than what is plainly stated.” See also Hardy v. State, 301 Md. 124, 131, 482 A.2d 474, 478 (1984); Lutz v. State, 167 Md. 12, 15, 172 A. 354, 355-56 (1934).

There is no plainly-stated intention expressed anywhere in the CPA that the common law principles applicable to actions such as the instant case are to be repealed and substituted with the strict liability cause of action the majority now bootstraps onto Golt, a decision that merely held that a landlord is presumed to know the law. To now hold that it makes no difference whether a landlord actually knows the facts, or should know the facts, because the CPA and Golt’s holding as to presumptions of law have turned tenant actions into strict liability offenses, stretches Richwind’s misinterpretation of Golt to completely abrogate the common law. I see nothing in the statute, or its legislative history, supporting such a drastic change in Maryland law. Given the inclusion of subsection (9) in section 13-301 specifically to create the offense of “knowing concealment,” such an intent, in my view, cannot be implied from the general language of the statute.

Judges RODOWSKY and RAKER have authorized me to state that they join in Part I of the dissent.

. Richwind and Scroggins, though not companion cases, involved the same legal issue, and both opinions were filed on the same day.

. The majority holds that "[a]s the owner of the premises and the landlord ... the law imputes the requisite knowledge to the petitioner.” In my view, the majority, by its use of such language, imposes “strict liability” on a landlord under the CPA.

. The Court in Scroggins, 335 Md. at 694 n. 2, 645 A.2d at 1163 n. 2, expressly noted: "As set out in Richwind ... the CPA does not create a new remedy in strict liability for lead paint poisoning cases.”

. Richwind was decided after the District Court's decision in Hayes, but prior to the Fourth Circuit's review of Hayes. The Fourth Circuit's affirmance was by way of an unpublished opinion. Because I believe that the appellate court's affirmance modified the language of the District Court's opinion, and because the District Court’s opinion is cited by the majority in this case, I have included portions of the Fourth Circuit's opinion in this dissent.