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Heavenly Days Crematorium, LLC v. Harris, Smariga & Associates, Inc.

Court of Appeals of Maryland

August 15, 2013

Heavenly Days Crematorium, LLC
Harris, Smariga and Associates, Inc.

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald [*] Bell, JJ.


McDonald, J.

Each of us has a duty to act with reasonable care to avoid acts or omissions that one may reasonably foresee will injure another.[1] Tort law as explicated by the courts in the common law of negligence, and as modified from time to time by the Legislature, provides a remedy for a violation of that duty. In some circumstances, an employer may be liable for the negligence of an employee – a principle that has come to be known by the Latin phrase respondeat superior.[2]

Those who belong to certain professions are often said to "practice" the particular profession. They enter into special relationships with their clients or customers and assume enhanced duties of care. They are expected to act in accordance with the "standard of care" for their profession. A negligent failure to satisfy the "standard of care" is often referred to as "malpractice." The doctrine of respondeat superior can also apply.

When professional malpractice is alleged, it is often thought that factfinders who are not members of the particular profession may have difficulty understanding the standard of care against which the defendant's actions are to be measured without the assistance of expert opinion. Accordingly, it is also thought that a prospective plaintiff should obtain a favorable expert opinion at the outset as a prerequisite to prosecuting a malpractice action.

Professional engineers are one such profession. The General Assembly has determined that, before one may prosecute a suit alleging a breach of the standard of care owed by a professional engineer to a client, the plaintiff ordinarily must obtain and file a "certificate of a qualified expert" attesting that the engineer failed to satisfy that standard. Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §3-2C-01 et seq. The Legislature has allowed for cases in which an expert certificate should not be a prerequisite to suit by granting courts discretion to waive or modify the certificate requirement on motion of the plaintiff – a motion that tolls the deadline for filing a certificate.

In this case, Petitioner Heavenly Days Crematorium, LLC ("Heavenly Days"), which operates an animal crematory in Urbana, Maryland, filed a complaint in the Circuit Court for Frederick County against Respondent Harris, Smariga & Associates, Inc. ("HSA"), a Frederick planning and engineering firm, alleging breach of contract and "professional negligence." The complaint did not ascribe HSA's alleged failings to a licensed engineer and was not accompanied by a certificate of a qualified expert. Upon motion of HSA, the Circuit Court dismissed the complaint for failure to file a certificate within the requisite time period – a decision that was affirmed by the Court of Special Appeals.

We reverse. The certificate requirement applies only to a cause of action based on a "licensed [engineer]'s negligent act or omission in rendering [engineering] services within the scope of the [engineer]'s license." It may be that the alleged deficiencies in HSA's services are ultimately to be laid at the doorstep at one of its licensed engineers and, if true, would be a deviation from the standard of care required of such a professional. But in the context of a motion to dismiss, when the allegations of the complaint are to be accepted as true and viewed in the light most favorable to the plaintiff and those allegations do not fault a licensed engineer, it is premature to conclude that an expert certificate was required.


The following facts are alleged in Heavenly Days' First Amended Complaint.

New Animal Crematorium in Frederick County

During August 2004, Heavenly Days, which was operating a pet crematorium in Rockville, decided to relocate its operations to Greenbriar Veterinary Hospital and Kennels ("Greenbriar") in Urbana in Frederick County. Greenbriar had previously obtained approval from the County for a 40' by 80' concrete slab on which a crematorium could be constructed.

Heavenly Days began the application process with the State and Frederick County to obtain permission to build and operate the crematorium on the site. To assist with that process, Heavenly Days hired HSA and the law firm of Miles & Stockbridge. Heavenly Days' primary contact at HSA was Chris Mayo. (The complaint does not specify Ms. Mayo's specific position with HSA). Heavenly Days instructed Ms. Mayo and an attorney from Miles & Stockbridge to seek approval from the Frederick County Planning Commission (the "Planning Commission") for a site plan for a memorial garden/cemetery and crematorium.

Mistake in Proposed Site Plan

During the next few months, the approval process moved forward, but the seeds of later difficulties were sown. The site plan submitted by Ms. Mayo accurately depicted the intended 40' x 80' crematorium building, but the written description on the plan incorrectly stated that the building's dimensions were to be 40' x 30'. When Heavenly Days advised Ms. Mayo of the mistake, she gave assurance that it could be corrected at any time. However, she never corrected this mistake.

On January 19, 2005, the Planning Commission approved the site plan with the mistake, contingent on the satisfaction of seven conditions described in a January 20, 2005, letter to Ms. Mayo. That letter also noted that the plan approval would remain valid so long as construction began within two years of the approval – i.e., by January 19, 2007. It stated that Heavenly Days could seek a one-time six-month extension by making the request in writing at least one month before the deadline.

After receiving the conditional approval, Heavenly Days decided to relocate and expand the size of the planned crematorium. It asked Ms. Mayo to submit a revised site plan indicating a 40' x 100' building (rather than the previous 40' x 80' structure) in a new location on the property. Heavenly Days also asked Ms. Mayo to fix the mistaken written description of the crematorium in the plan. In August 2005, Ms. Mayo submitted a revised site plan to the County Department of Planning and Zoning showing the building's new location. The revised plan did not, however, show the building's 40' x 100' dimensions or correct the mistaken written description in the conditionally approved plan that said the building would be 40' x 30'.

"Consider it approved"

After Ms. Mayo received the County's comments on the revised plan, she wrote to Heavenly Days on September 15, 2005, stating: "I have to address all these comments from the commenting agencies before we receive the signed site plan. As you can see, none of the comments adversely affect the layout of the plan as we prepared it. So consider it approved." The following day, Heavenly Days reminded Ms. Mayo that the dimensions of the planned crematorium were 40' x 100'. On September 23, 2005, she submitted another revised site plan to the County showing the correct size of the building.

Construction Begins

Even though the County had not yet approved the revised plan, Heavenly Days began preparing the Urbana site. On July 3, 2006, Heavenly Days applied for, and received, a building permit from the County for a "40 x 100 Crem[a]torium Building." Construction began, but less than two weeks later, Heavenly Days was advised by the County of design deficiencies in the plans for the crematorium.

Construction Halted

In an October 31, 2006, meeting with the County Department of Permits and Inspection, Heavenly Days' builder was informed that the crematorium had not yet been approved. In a later discussion with the Planning and Zoning Department, the builder was told that approval had been given for a 40' x 30' crematorium and not the intended 40' x 100' structure. Ms. Mayo told the builder that there was no problem with approval of the site and that "everything would be taken care of." On November 16, 2006, Ms. Mayo sent an e-mail to a County development review technician stating, "It sounds like I need to get the plan in for signature and get a site plan extension." The technician informed Ms. Mayo that, although HSA had received conditional approval, the plan was not approved, and that no extension could be granted.[3]

On January 5, 2007, Ms. Mayo, together with representatives of Heavenly Days, its attorney, and the builder, met with the County Planning and Zoning Department and requested an extension. The County declined because there was insufficient time for a revised site plan to be reviewed before the initial approval expired on January 19. Nonetheless, Ms. Mayo submitted a final revised site plan, correcting mistakes and addressing the County's comments, on January 10, 2007. ...

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