E-Alert Case Updates

Certificate of Qualified Expert Not Required unless Professional Services Within Scope of Professional’s License are At Issue

Heavenly Days Crematorium, LLC v. Harris, Smariga and Associates, Inc.
No. 128, September Term 2011 (Maryland Court of Appeals, August 15, 2013)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion by the Court of Appeals, the Court reversed the decision of the Court of Special Appeals, and held that the Plaintiff’s suit against a planning and engineering firm could proceed despite not filing a certificate of a qualified expert along with its Complaint.

In 2004, the Plaintiff, Heavenly Days Crematorium, LLC (“Heavenly Days”), was operating a pet crematorium in Rockville, Maryland, but sought to relocate its operations to a site in Urbana, Maryland in Frederick County. In doing so, it retained the services of Harris, Smariga & Associates, Inc. (“HSA”), a Frederick planning and engineering firm to get State and County approval to construct and operate the facility.

Heavenly Days directed an HSA employee and an attorney to seek approval from the Frederick County Planning Commission for a site plan for their proposed memorial garden/cemetery and crematorium. Early on the process in 2005, Ms. Mayo of HSA submitted a incorrect written description on the site plan, stating that the building’s dimensions were to be 40 feet by 30 feet, as opposed to 40 by 80. Heavenly Days advised Ms. Mayo of the mistake, and she indicated that it could be corrected at any time. The mistake, however, was not corrected. A serious of other issues occurred including relocation of the proposed structure within the site, and a proposed expansion of the building.

Despite not having final approval, HSA indicated to Heavenly Days that it could consider the plan approved, and construction began. Later, however, construction had to be halted as there was not an approved plan, and in 2007 the building was deemed to have been illegally constructed and required a new plan submission. The resubmission was denied based on a zoning issue. Eventually, in October 2009, Heavenly Days obtained the necessary use and occupancy permit for operation.

Heavenly Days filed suit against HSA alleging breach of contract and “professional negligence.” The Plaintiff’s complaint did not assert that HSA’s failings were of a licensed engineer, and the complaint was not accompanied by a certificate of a qualified expert. HSA moved to dismiss the Complaint based on the lack of an expert’s certificate. The Circuit Court for Frederick County granted the motion and the Court of Special Appeals affirmed the dismissal.

Heavenly Days sought review by the Court of Appeals. At the outset of its opinion, the Court of Appeals noted with regard to the certificate requirement: “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.” Heavenly Days at *2.

The Court of Appeals reversed, and determined that the case could not be dismissed at this early state. It stated, “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.’” Heavenly Days at *3. The Court found that because the Complaint did not actually identify a “licensed professional” as the individual responsible for the alleged negligence, it was premature to dismiss the complaint. The Court noted, however, that such a finding might be made once remanded to the Circuit Court.