In the latest development in litigation between residents in Baltimore’s HarborView tower and the property’s condominium association, a city judge has ruled that penthouse owner Paul C. Clark’s fraud lawsuit over mold and leaks in the building should be heard in court, not in arbitration.
Deciding a matter of first impression, Baltimore City Circuit Court Judge John A. Howard ruled the dispute resolution provision of the condo association’s bylaws does not apply to Clark’s claims because his allegations pertain to a resale certification — that averred no building or health code violations — provided to him before the purchase. Howard bought the 27th-floor dwelling for $1.15 million from John Erickson, founder of the retirement communities that bear his name, in October 2009.
Clark, president of a Bethesda computer security company, has alleged the condo association and the property manager, Zalco Realty Inc. of Silver Spring, were well aware of the problems, evidenced in reports going back to June 2008, but didn’t tell him about them. In an interview Wednesday, Clark’s attorney likened the defendants’ conduct to selling as new a car “that’s been in four accidents and you’ve turned the speedometer back to zero.”
Judge Howard’s four-page memorandum opinion came almost seven months after he held a hearing on the defense motion to dismiss or compel arbitration. But Clark’s lawyer, Steven D. Silverman, said it was worth the wait to stay in the city circuit court, where he believes Clark will be awarded the most money. He said the suit, which was filed in October and seeks compensatory and punitive damages totaling $5 million, is “like a slam dunk.”
“I’ve got documentation out the wazoo,” Silverman said. “I don’t even need discovery to prove this case.”
John Cochran, president of the 100 Harborview Drive Council of Unit Owners Board of Directors and a retired construction lawyer, seemed unfazed by the July 6 decision.
“It just means that we’re going to try a lawsuit before a jury instead of before an arbitration panel — same facts, same parties, same evidence,” said Cochran. “Not a big deal.”
Cochran, who admits there is mold in the building but disputes levels are unhealthy, offered some context.
James W. Ancel, a general contractor who owns a double penthouse just above Cochran’s and on the same level as Clark’s, has filed several of his own suits related to the mold, ranging from claims similar to Clark’s to a defamation action against Cochran, according to the condo association president. Those suits are in various stages of litigation, some in arbitration, some in court. Ancel and his attorney declined to comment.
No one else has sued or threatened to sue, Cochran said.
“We’ve got 246 homes here, and I think in this litigious society when you have only 2 out of 246 suing you, that’s a pretty good batting average,” he said.
Clark, who hasn’t been able to live in PH-4A for 17 months but still pays more than $2,000 in condo fees, just wants his home cleaned and fixed so he can live there with his family, Silverman said.
“That’s all he’s ever asked for, and the board, for reasons unbeknownst to anyone, refuses to do so,” he said.