Carven v. Hickman12/22/2000
REPORTED
Opinion by Krauser, J.
The issue presented by this case is whether the statute of repose, Courts and Judicial Proceedings § 5-108 of the Maryland Code Annotated (1973, 1998 Repl. Vol.), bars a claim against an owner developer who, after allegedly removing the headstones from his family graveyard, sold it, as part of a residential lot, without notifying the purchasers of its existence or removing the graves or their occupants. The ultimate and unwitting purchasers of that lot were appellants, Thomas and Deborah Carven.
In 1986, appellants built their home on the lot in question, and in 1995 they discovered that they were not the only ones who occupied it. In approving the plans for appellants' home in accordance with the property's restrictive covenants, the owner developer, Louis J. Hickman, and his wife and alleged partner, Vivian M. Hickman, had failed to mention the graveyard or that Mr. Hickman had left no headstone unturned in preparing their property for sale. In 1997, Mr. Hickman passed away.
On December 16, 1997, appellants filed suit in the Circuit Court for Worcester County against Vivian M. Hickman, individually and as personal representative of the estate of her deceased husband, Louis J. Hickman, appellees, for deceit, breach of covenant of special warranties, and negligence. In response, appellees filed an answer and later an amended answer and a motion for summary judgment. From the granting of that motion, appellants appeal.
BACKGROUND
On February 29, 1944, Louis J. Hickman acquired the "Warrington Farm", a 200-acre farm near Bishopville, Maryland. From that raw parcel of farmland, Hickman and his wife and alleged partner, Vivian M. Hickman, developed a 200-acre residential subdivision with over 150 lots now known as Holiday Harbor. Pursuant to a development plan, the Hickmans dug canals, built roads, installed underground electric service, granted rights of way for utilities and roads, and subdivided the property through a series of plats to create lots that could be conveyed separately. Those plats were recorded among the land records of Worcester County.
Restrictive covenants were placed on the lots of the development by deed. One such covenant prohibited a "graveyard" from being "erected, permitted, maintained or operated" upon any portion of the subdivision. Another required that the Hickmans first approve the construction plans of a lot owner before he or she could proceed with construction. In 1964, appellants claim, Mr. Hickman "removed the tombstones, markers, and other surface evidence of the graveyard with the use of a bulldozer, while leaving the graves underground."
On June 30, 1964, Plat No. 2 was recorded among the land records of Worcester County. That plat created Lot No. 96, but gave no indication of the presence of a graveyard on that property. Moreover, the Hickmans, according to appellants, failed to advise the county of its existence when they sought county approval of their plat.
The Hickmans later conveyed Lot No. 96 to Preston L. Tubbs, Louis P. Tubbs, and Louise T. Lynch by deed dated August 25, 1975. They, in turn, conveyed it by deed dated June 11, 1984 to Edward J. Bryant and Betty B. Bryant, who thereafter conveyed it to their son-in-law and daughter, Thomas and Deborah Carven ("Carvens"), by deed dated April 2, 1986.
The Hickmans had had no contact with the Bryants or the Carvens before the Carvens acquired title to Lot No. 96. After acquiring title to that lot, however, the Carvens met with the Hickmans to obtain the Hickmans' approval of their home construction plans as they were required to do by the covenants. At that m
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