Allen v. Dackman

Dissenting Opinion by HARRELL, Judge, which ADKINS, J., joins.

I dissent respectfully from the conclusion reached in the Majority Opinion, namely, that Respondent, Jay Daekman, may be held liable personally to Petitioners as “owner” of the property involved in the present case. Although I agree with the Majority Opinion that the correct determination as to whether Respondent qualifies as an “owner” under § 310(a) of the Baltimore City Housing Code depends necessarily upon whether Respondent had “an ability to change or affect” the title to the property, I maintain that, because Respondent did *161not have, in his individual capacity, “an ability to change or affect” the title to the property, he was not an “owner” of the property. As such, I would affirm the judgment of the Court of Special Appeals.

In reaching its conclusion that Respondent may be held liable personally to Petitioners as an “owner” of the subject property, the Majority Opinion states:

The parties agree that Respondent did not own or hold the title to the property, so we therefore determine whether he controlled the title to the property. We have never defined the term “control” as it was used in the Housing Code, but we agree with the Court of Special Appeals that it “carries with it a requirement that the entity in question have an ability to change or affect the” interest being controlled. Dyer v. Criegler, 142 Md.App. at 117, 788 A.2d at 232. This definition is consistent with the common definition of the term “control.” Black’s Law Dictionary 353 (8th Ed. 2004) (defining “control” as having the ability to “exercise power or influence over” property). The Housing Code’s definition of the term “owner” states that one category of owner is an individual who “controls the ... title to any dwelling or dwelling unit,” Balt. City Code, Art. 13, § 105(jj), so the relevant determination under the Code is whether Respondent had “an ability to change or affect the” title to the property at issue in this case.
We recognize a number of ways in which a reasonable trier of fact could determine that Respondent had the “ability to change or affect” the title to the property. Respondent stated in his deposition that he was responsible for running the day-to-day affairs of Hard Assets during the time period when Hard Assets both acquired and sold 3143 Elmora Avenue. Respondent also executed the deed certification when Hard Assets acquired the property, signed the complaint seeking to remove Petitioners from the property, and signed the deed when Hard Assets sold the property. These facts are sufficient evidence for a jury to find that Respondent may have changed or affected the title.

*162Allen v. Dackman, No. 46, Sept. Term 2009, op. at 149, 991 A.2d at 1226. The Majority Opinion, however, ignores the fact that any ability possessed by Respondent to “change or affect” the title to the property came solely by virtue of his position as a member of Hard Assets, LLC. Similarly, any actions undertaken by Respondent regarding the title to the subject property were undertaken solely in his capacity as a member of Hard Assets. Despite the Majority Opinion’s reasoning to the contrary, Respondent possessed no ability to “change or affect” the title to the property in his individual capacity.

It is undisputed that Hard Assets, LLC, acquired, held, and sold the title to the subject property. In doing so, although Hard Assets acted, of necessity, through one of its individual members, namely, Respondent, Hard Assets nevertheless was the entity that maintained the “ability to change or affect” the title to the property. See Bob Holding Corp. v. Normal Realty Corp., 228 Md. 260, 266, 164 A.2d 457, 460 (1960) (noting that a corporation is able to act only through individuals). On the other hand, there is no suggestion in the record that Respondent, in his individual capacity, possessed the legal “ability to change or affect” the title to the property. The actions undertaken by Respondent on behalf of Hard Assets, such as executing the deed certification when Hard Assets acquired the property or signing the deed when Hard Assets sold it, cannot form the basis for the conclusion that Respondent, in his individual capacity, possessed the “ability to change or affect” the title to the property. As such, Hard Assets, LLC, and not Respondent, was the sole party with the “ability to change or affect” the title to the property, the sole party with “control” over the title to the property, and, thus, the sole “owner” of the property. Therefore, Respondent may not be held liable personally to Petitioners because he does not qualify, in his individual capacity, as an “owner” within the meaning of § 310(a) of the Baltimore City Housing Code. As such, I would affirm the judgment of the Court of Special Appeals.

Judge ADKINS authorizes me to state that she joins in this dissenting opinion.