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Basso v. Campos

Court of Special Appeals of Maryland

July 27, 2017


         Circuit Court for Prince George's County Case No. CAL1430313

          Eyler, Deborah S., Kehoe, Shaw Geter, JJ.


          Eyler, Deborah S., J.

         In 2011, Joseph Basso, the appellant, purchased a home in Hyattsville from appellees Javier Szuchman and Jose Rodriguez, both licensed real estate agents, who were agents of appellee Juan Campos, d/b/a Campos & Associates Realty, a real estate broker. Within weeks of the closing, Basso's basement flooded, and it continued to flood regularly in the following months and years. Basso sued the appellees in the Circuit Court for Prince George's County for negligent misrepresentation, fraudulent misrepresentation, violations of the Maryland Consumer Protection Action ("CPA"), Md. Code (1975, 2013 Repl. Vol.), sections 13-101-13-501 of the Commercial Law Article ("CL"), and, as to Campos, negligent hiring and supervision and vicarious liability for the tortious conduct of Szuchman and Rodriguez. The appellees' motion for summary judgment was denied.

         The case was tried to a jury. At the close of Basso's case, the court granted the appellees' motion for judgment on all counts. Basso appeals, presenting two questions, which we have reordered and rephrased:

I. Did the trial court err by precluding his expert home inspector from expressing an opinion on whether the basement of the home would have flooded during the period when Szuchman and Rodriguez owned the property?
II. Did the trial court err by granting the appellees' motion for judgment?

         For the following reasons, we answer the first question in the affirmative and shall reverse the judgment of the circuit court and remand for further proceedings. In light of our resolution of that issue, we need not address the second question.


         On July 29, 2011, Szuchman and Rodriguez purchased a 2-story single-family home at 6010 39th Avenue in Hyattsville ("the Property"). They bought the Property for $119, 000, at a foreclosure sale. The Property, built in 1938, is a 1, 300 square-foot bungalow-style home that had an unfinished walk-up basement.

         Szuchman and Rodriguez planned to renovate and resell the Property for a profit. They hired contractors who replaced the roof and all the windows, remodeled the kitchen, and refinished the hardwood floors. In the basement, they installed drywall, replaced and relocated the sump pump, constructed a bathroom, and installed wall-to-wall carpeting.

         Szuchman and Rodriguez listed the Property for sale on September 25, 2011, roughly two months after they bought it. Basso viewed the Property at the end of September, made an offer, and, on October 2, 2011, entered into a contract to purchase the Property for $260, 000. The contract was contingent upon a home inspection.

         Also on October 2, 2011, Szuchman and Rodriguez signed the Maryland Residential Property Disclosure and Disclaimer Statement ("Disclosure Statement"). As pertinent, they represented that they had owned the Property for 3 months and had no "actual knowledge" of any "leaks or evidence of moisture" in the basement.

         On October 13, 2011, Basso's home inspection was completed. His home inspector did not note in his report that there was any evidence of flooding or water seepage in the basement. He did note, however, that the exterior basement stairwell drain should be kept clear of debris to prevent water from entering the basement under the exterior basement door.

         The sale closed on November 14, 2011 and Basso moved in, along with a housemate.

         On December 7, 2011, while Basso was traveling for work in San Diego, his housemate called to alert him that "there was water in the basement." The housemate believed that the water was entering from under the exterior basement door jamb, at the bottom of the exterior stairwell. Basso hired MCC Services, a water remediation company, to clean up the basement.

         Four months later, on March 1, 2012, Basso noticed that the carpeting in the basement was "wet along the . . . back wall and the side wall." He pulled up the carpet and could see "areas where there was obviously water seeping in from the foundation." He also noticed upon pulling up the carpet that there was "an area of concrete that[ was] a different color, " with some of the concrete appearing to be "newer." Basso was not aware that any concrete work had been done in the basement during the renovation.

         On April 18, 2012, Basso obtained from the Bartley Corporation an estimate of $19, 649 for concrete work on the Property to address the water infiltration problems. He decided not to go forward with the work at that time.

         During 2012 and 2013, the basement at the Property flooded "[e]very time there was a substantial rainstorm or, . . . continued [sic] rain over a few days, any time that . . . [it rained] a half inch . . . and up[.]" The water would "seep in from . . . numerous places along the back wall and the wall where the door was . . . [a]nd depending on the amount of rain or the amount of ground saturation, it would just keep going."

         In July 2013, Basso became concerned about mold in his basement and hired Larry Hammond, a certified home inspector and certified mold remediation contractor, to perform a "General Grading and Water Infiltration Inspection." Hammond did not detect any mold in the basement. The cost for the inspection was $350.

         In April 2014, Basso contracted for B-Dry, a water-proofing company, to install French drains along the inside of the exterior walls of the basement and to take other measures to permanently solve the water infiltration issues.[1] B-Dry offers a lifetime warranty for its services. In May 2014, Basso hired another company to replace the exterior basement door and door frame.

         On November 13, 2014, Basso filed suit against the appellees. The operative complaint is the third amended complaint, filed on February 16, 2015. Basso alleges that when Szuchman and Rodriguez signed the Disclosure Statement on October 2, 2011, they had actual knowledge that the basement area flooded repeatedly and that they had attempted to conceal this defect by removing bushes that lined the side of the home and replacing them with poured concrete. Counts I and II asserted claims for negligent and fraudulent misrepresentations, respectively; Counts III, IV, and V asserted claims for breach of the CPA; and Counts VI and VII asserted claims against Campos for vicarious liability and negligent hiring and supervision. Basso sought more than $250, 000 in compensatory damages and $800, 000 in punitive damages, plus attorneys' fees.

         On July 17, 2015, Basso designated two expert witnesses: Howard Phoebus, a real estate agent, as an expert on valuation of real property, as well as the standard of care; and Larry Hammond, who, as mentioned, is a certified home inspector, as a standard of care and causation expert. Basso specified that Hammond was expected to testify that the appellees "knew about the regular water intrusions into the basement area . . . and [that] rather than try to appropriately put money to fix the problem, ...

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