               REPORTED

 IN THE COURT OF SPECIAL APPEALS

             OF MARYLAND

                  No. 126

          September Term, 2015

______________________________________

 KURT KRATZ, BY AND THROUGH HIS
 GUARDIAN, CAROLE KRATZ-SPERA

                     v.

 MEDSOURCE COMMUNITY SERVICES,
                 INC.
______________________________________

     Krauser, C.J.,
     Berger,
     Sharer, J. Frederick
            (Retired, Specially Assigned),

                  JJ.
______________________________________

          Opinion by Sharer, J.
______________________________________

     Filed: June 29, 2016
       Presented in this appeal is the question of whether the appointment of a guardian of

the person of a mentally incompetent person removes the disability of that person for

purposes of application of the statute of limitations. The Circuit Court for Prince George’s

County (Hon. Albert Northrop, J.) ruled that the guardian of the person is not excused from

the operation of the statute of limitations.

       The Circuit Court for Prince George’s County found that appellant, Kurt Kratz, an

adult, lacks the capacity to make responsible decisions concerning his person due to a mental

disability or disease,1 and appointed his mother, Carole Kratz-Spera, and his sister, Heather

Lamont, guardians of his person, on July 18, 2008. On June 18, 2013, and June 6, 2014,

Kratz, by his guardian, Kratz-Spera, filed complaints in the Circuit Court for Prince George’s

County against appellee, MedSource Community Services (“MedSource”).

       Kurt Kratz was a resident of a group home operated by MedSource in Laurel, Prince

George’s County when two incidents occurred, both resulting in injury to him, from which

the complaints in this case arose. On March 22, 2006, he gained improper access to a bottle

of chloral hydrate and ingested a quantity of the contents. On November 24, 2009, he was

injured when his hand was submerged into a pot of boiling water. Both complaints alleged

medical negligence resulting in injury.

       MedSource moved to dismiss the initial complaint for failure to arbitrate pursuant to

the Maryland Health Care Malpractice Claims Act. The motion was denied and a stay was

ordered to allow for proceedings in the Health Care Alternate Dispute Resolution Office.


       1
           Kurt Kratz suffers from autism and intellectual disability.
After there was no resolution through arbitration, Kratz-Spera filed the second complaint,

again alleging medical negligence as a result of both the 2006 and 2009 incidents. Kratz-

Spera’s motion to lift the stay in the first case and consolidate the complaints was granted by

the circuit court.

       On February 26, 2015, the circuit court granted MedSource’s motion to dismiss, as

to all counts in both complaints. Kratz-Spera thereafter noted this timely appeal, raising the

following issue:

               Whether the Circuit Court erred in granting the motion to
               dismiss and finding that the appointment of a guardian of the
               person “removes the disability” of a mentally incompetent
               individual for purposes of the Maryland tolling statute.

       We shall affirm the judgment of the circuit court. The tolling exception addresses a

disability that is not a procedural one; rather it is a disability that prevents one from

understanding the existence of a cause of action. The statute of limitations begins to run after

the knowledge has been gained, which occurs when a guardian learns of the facts giving rise

to the cause of action.

                                     BACKGROUND

       Kurt Kratz is an adult who suffers from severe autism and intellectual disability. On

July 18, 2008, the circuit court appointed his mother, Carole Kratz-Spera, and his sister,

Heather Lamont, as guardians of his person after finding that he “lacks sufficient

understanding or capacity to make or communicate responsible decisions concerning his

person, including provisions for health care, food, clothing, or shelter.” The order granted

                                             -2-
the guardians “all the rights, duties and powers as set forth in Estates and Trusts Article,

Section 13-708 ... with the general discretion of the guardian concerning living arrangement

within this State, non life threatening medical care and procedures, clothing and food.” Kratz

at all relevant times lived in a group home operated by MedSource.

       On March 22, 2006, Kurt Kratz gained access to a bottle containing chloral hydrate,

a sedative, and ingested a large quantity of the substance. Coincidentally, Kratz-Spera

arrived at the MedSource group home to visit her son at that time, and found him asleep and

“foaming at the mouth and breathing erratically.” Kratz-Spera instructed MedSource

employees to call an ambulance, which transported Kratz to a hospital, where he remained

in a coma for approximately 60 days.

       On November 24, 2009, Kratz suffered second degree burns when his hand was

submerged into a pot of boiling water at the MedSource group home. A Medsource

employee reported to police during an investigation, in conjunction with Adult Protective

Services, that he observed another MedSource employee hold Kratz’s hand momentarily in

the hot water. Kratz-Spera was notified of this incident the following morning.

       On June 18, 2013, Kratz, by his guardian Kratz-Spera, filed a complaint in the Circuit

Court for Prince George’s County against MedSource, alleging liability on three different

theories for negligence related to the second incident.2 MedSource moved to dismiss the

       2
         Kratz-Spera had previously filed a complaint on behalf of Kratz concerning both
incidents, on May 12, 2012, but voluntarily dismissed it on August 30, 2012. Kratz does not
assert that the 2012 complaint preserves his rights as to the second incident, nor would he be
                                                                                 (continued...)
                                             -3-
complaint on the grounds that the Maryland Health Care Malpractice Claims Act required

arbitration prior to filing an action in court. The circuit court denied the motion to dismiss,

but ordered a stay to allow Kratz to pursue a remedy through the Health Care Alternative

Dispute Resolution Office.

       On June 6, 2014, Kratz, by his guardian Kratz-Spera, and Kratz-Spera, individually,

filed a complaint asserting liability on three different theories for both incidents, as well as

claims for medical and related expenses and loss of income and wage earning capacity

incurred by Kratz-Spera. Kratz’s counsel conceded that the new complaint was a redundancy

to ensure the first case, previously stayed, was re-opened.

       MedSource moved to dismiss the complaint on limitations grounds, arguing that

Kratz’s disability had been “removed” for limitations purposes upon the appointment of the

guardians. Hence, MedSource asserts, limitations began to run at the time the guardian

gained notice of each incident.

       On February 26, 2015, the circuit court lifted the stay in the first case, consolidated

the two cases, and dismissed all counts. The circuit court ruled:

                      Plaintiff contends that the right of action by a mentally
              incompetent person would never be subject to the statute of
              limitations regardless of appointment of a guardian. This Court

       2
         (...continued)
able to do so under the relation-back doctrine. See, e.g., Wilcox v. Orellano, 217 Md. App.
417 (2014) (precluded from re-filing malpractice action outside limitations period after
stipulating to dismissal of initial action); Bi v. Gibson, 205 Md. App. 263 (2012) (principle
of relation-back did not save negligence action that was voluntarily dismissed and filed again
beyond limitations period).
                                             -4-
              believes that runs against the prevailing policy arguments
              supporting the existence of a statute of limitations as well as the
              statutes and supporting case law on guardianships in Maryland.

                                    Standard of Review

       We review the grant of a motion to dismiss by determining whether the trial court was

legally correct; we must determine whether the complaint, on its face, discloses a legally

sufficient cause of action. Britton v. Meier, 148 Md. App. 419, 425 (2002) (quoting Fioretti

v. Md. State Bd. of Dental Exam'rs, 351 Md. 66, 71-72 (1998)). We presume the truth of all

well-pleaded facts in the complaint, together with any reasonable inferences drawn

therefrom. Id. “Dismissal is proper only if the facts and allegations, so viewed, would

nevertheless fail to afford plaintiff relief if proven.” Id. (quoting Faya v. Almaraz, 329 Md.

435, 443 (1993)).

       Particularly regarding motions to dismiss on limitations grounds, the Court of Appeals

has said:

                     We have held consistently that “the question of accrual
              in § 5-101 is left to judicial determination.” Frederick Rd. Ltd.
              P’ship v. Brown & Sturm, 360 Md. 76, 95 (2000). We review
              the grant of [the] motion in order to “determine whether the
              court was legally correct.” Parks [v. Alpharma, Inc.,] 421 Md.
              [59, 72 (2011).]

Kumar v. Dhanda, 426 Md. 185, 193 (2012).

                                          DISCUSSION

       MedSource maintains that the complaint was legally insufficient because the statute

of limitations began running when Kratz-Spera, as guardian, discovered each of the separate

                                             -5-
incidents, and therefore had run by the time she filed the initial complaint. Kratz-Spera, on

behalf of Kratz, argues that the appointment of a guardian of the person has no effect for

statute of limitations purposes. She contends that, because her son remains under the

disability, the tolling exception in the Courts and Judicial Proceedings Article of the

Maryland Code (“CJP”), section 5-201, continues to apply to his claims. She asserts that

guardians charged with making decisions regarding his person do not have an affirmative

duty to sue on his behalf.

       The general statute of limitations in Maryland for a civil cause of action is three years

and is codified in CJP § 5-101, which provides:

                      A civil action at law shall be filed within three years from
               the date it accrues unless another provision of the Code provides
               a different period of time within which an action shall be
               commenced.

       We explained in Antar v. Mike Egan Insurance Agency that, when considering the

statute of limitations,

               it is appropriate to take note of the fact that we are not dealing
               with a common law of limitations or with some judicial doctrine
               of limitations. We are dealing with the Statute of Limitations.
               As the noun “Statute” expressly states, we are dealing with a
               legislative policy determination to establish a definite and
               certain deadline for the filing of a civil lawsuit, notwithstanding
               the fact that an occasional injustice or hardship might sometimes
               result from such an arbitrary and definite legislative
               pronouncement.

209 Md. App. 336, 341 (2012).



                                              -6-
       We further emphasized that “statutes of limitations are to be strictly construed and

courts will decline to apply strained construction that evades the effect.” Bi v. Gibson, 205

Md. App. 263, 266 (2012) (citing Decker v. Fink, 47 Md. App. 202, 206 (1980)).

       As MedSource is a “health care provider” pursuant to the Maryland Health Care

Malpractice Claims Act, id. § 3-2A-01, the applicable statute of limitations is within the

earlier of five years of the injury or three years of the date the injury was discovered. CJP

§ 5-109(a). Kratz-Spera discovered her son’s injury from the ingestion of choral hydrate on

the day it occurred, March 22, 2006; it was she who alerted MedSource staff to the event.

She was notified of the burn injury the day after it occurred, on November 25, 2009. Her

knowledge operates as discovery under the statute. By any measure, even the earlier of the

two complaints was filed more than three years after knowledge was acquired. The parties

disagree only as to when, and if, the limitations countdown began.

       The tolling exception for filing a civil cause of action provides, “When a cause of

action subject to a limitation under Subtitle 1 ... accrues in favor of a minor or mental

incompetent, that person shall file his action within the lesser of three years or the applicable

period of limitations after the date the disability is removed.” CJP § 5-201(a). MedSource

contends that the appointment of a guardian removes the disability and begins the period of

limitations running.

       Courts have been careful to limit tolling exceptions to their narrowest definitions.

“[W]here the legislature has not expressly provided for an exception in a statute of


                                              -7-
limitations, the court will not allow any implied or equitable exception to be engrafted upon

it.” Booth Glass Co. v. Huntingfield Corp., 304 Md. 615, 623 (1985). See also Garay v.

Overholtzer, 332 Md. 339, 359 (1993) (detailing Court of Appeals’s unwillingness to give

expansive interpretation to, or recognize implied exceptions, in CJP § 5-201). For instance,

the tolling exception was not available to a plaintiff who, though he had been confined to the

Patuxent Institution when the claim accrued, was never adjudicated as mentally incompetent.

McDonald v. Boslow, 363 F. Supp. 493, 496 (D. Md. 1973) (“commitment to Patuxtent is

not, in and of itself, an adjudication of non compos status sufficient to toll the statute”). And,

once the limitations period begins to run, an intervening disability will not interrupt it.

Kluckhuhn v. Ivy Hill Ass’n, 55 Md. App. 41, 48 (1983); Gump v. Sibley, 79 Md. 165, 169

(1894).

       The tolling exceptions stem from the same line of reasoning that developed into the

‘discovery rule’ applicable to all civil litigants. In order to begin the running of the

limitations period, it must be shown that the plaintiff had “actual knowledge – that is, express

cognition, or awareness implied from knowledge of circumstances which ought to have put

a person of ordinary prudence on inquiry.” Poffenberger v. Risser, 290 Md. 631, 637 (1981)

(internal quotations omitted). The rule serves to “distinguish between a ‘blamelessly

ignorant’ plaintiff and one who had acted negligently and ‘slumbered on his rights.’” Doe

v. Maskell, 342 Md. 684, 690 (1996) (quoting Hecht v. Resolution Tr. Corp., 333 Md. 324,

334 (1994)).


                                              -8-
       This concept, as applied to mentally incompetent individuals, serves to protect those

who lack the mental capacity to comprehend and safeguard their legal rights. Buxton v.

Buxton, 363 Md. 634, 646-47 (2001); see also Decker v. Fink, 47 Md. App. at 207, Doe v.

Maskell, 342 Md. at 689-90. The disability of mental incompetence is “not a medical term

but an imprecise legal one,” so it is “the inability of the person, by reason of the

incompetence, to understand that he or she has a cause of action and to take the necessary

steps to file the action” that is the concern. Buxton, 363 Md. at 647-48. The laches defense

raised in Buxton failed because the mentally incompetent plaintiff was without the requisite

knowledge of the wrongs against him to trigger application of the common law defense. Id.

at 648-49; cf. Green v. Lombard, 28 Md. App. 1, 14 (1975) (statute of limitations did not

begin to run for claim against guardian until third party with standing to sue obtained

knowledge of injury over a decade after injury occurred).

       We made the same distinction in O’Hara v. Kovens, 60 Md. App. 619 (1984).3 There,

a mother and her two sons brought a common law fraud action against a group of individuals

who had purchased the stock in a racetrack previously owned by the O’Haras. Id. at 621-22.

Two years prior to bringing the suit, the sons were appointed guardians of their mother’s

property and estate after she was adjudicated mentally incompetent. Id. at 635. The claims

were barred by limitations, but the sons argued that the statute had been tolled as to Mrs.


       3
        The Court of Appeals reversed to the extent it regarded affirming the dismissal of
the sons’ claims on the grounds that discovery of fraud is a factual issue and therefore, the
case could not be decided on summary judgment. O’Hara v. Kovens, 305 Md. 280 (1986).
                                            -9-
O’Hara’s claims, pursuant to CJP § 5-201. Id. at 634-35. We rejected the tolling argument

as a “tangent” and a “red herring,” but ruled that, under the discovery rule, “Mrs. O’Hara was

not capable of having the knowledge or awareness that would trigger the running of the

statute.” Id. at 635-36. Because she was incapable of that knowledge, her claim only

accrued “when guardians capable of being charged with knowledge and notice on her behalf

were appointed.” Id. at 636.

       The only Maryland case presented to us in this appeal dealing directly with the issue

of a guardian triggering the statute of limitations pre-dates the Maryland guardianship statute

by almost 60 years. Funk v. Wingert, 134 Md. 523 (1919). In Funk, the circuit court held

that when a trustee or committee was appointed, there was no longer a disability and the

statute began to run. Id. at 524-25. In reversing the circuit court, the Court of Appeals held

the tolling exception included an individual found to be mentally incompetent for whom a

“committee,” or guardian, had been appointed:

                      Such a suit must still be brought in the name of the non
              compos by another, and he is under no less disability to bring
              suit after the appointment of a committee than he was before,
              the only difference being that before such an appointment the
              suit would be by the lunatic in his own name by his next friend,
              and after the appointment it would be in the name of the lunatic
              by his committee.

Id. at 526.

       The enactment and codification of the guardianship laws and the development of the

discovery rule, subsequent to Funk, have created a substantive difference in the status of a


                                            -10-
mentally incompetent person before and after appointment of a guardian. We conclude that,

in view of the modernization of guardianship proceedings by legislative action to the present

time, the rule of Funk is no longer sustainable.

       Indeed, prior to the appointment of a guardian, any “next friend” can bring suit on

behalf of the individual.4 Under the tolling exception, the next friend can do so at any time

because the mentally incompetent individual would not have, at any point, gained the

knowledge necessary to understand the existence of a cause of action. A guardian though,

granted the “powers necessary to provide for the demonstrated need of the disabled person”

by section 13-708(a)(1) of the Estates and Trusts Article (“ET”), operates as the competent

party responsible for the mentally incompetent adult’s needs, and is subject to the statute of

limitations once knowledge is gained that those needs have been jeopardized by a tortfeasor.

       Kratz-Spera urges us to compare a mentally incompetent adult with a minor, arguing

that the General Assembly, by treating the two types of disabled individuals in the same

limitations statute, indicates “a close link between the two protected classes of people.”

Notably, the guardianship statute also makes a direct comparison between minors and

persons under disability: “The rights, duties, and powers which the court may order include

... [t]he same rights, powers, and duties that a parent has with respect to an unemancipated

minor child ....” ET § 13-708(b)(1).

       4
          A next friend may pursue a cause of action on behalf of an individual by
establishing: (1) an “adequate explanation—such as inaccessibility, mental incompetence,
or other disability” why the individual cannot appear; and (2) that he is “truly dedicated to
the best interests” of the individual. Whitmore v. Arkansas, 495 U.S. 149, 163 (1990).
                                            -11-
       However, there are two significant distinctions between minors and mentally

incompetent individuals that bear on the issue before us. First, unlike mentally incompetent

individuals, the disability of infancy has a finite end date. Mason v. Bd. of Educ. of Balt.

Cty., 143 Md. App. 507, 515 (2002) (disability of infancy is removed the day prior to 18th

anniversary of individual’s birth). Potential defendants are thus aware that, within a

calculable amount of time, they may be subject to suit.

       A second distinction exists in the relationship between those under disability and their

guardians. For a child, the guardian is, by default, the parent, unless other arrangements have

been made and approved by the court. The tolling exception applicable to minors is meant

to protect children from a curtailment of their legal rights should a parent neglect to file suit

within the typical statute of limitations. Piselli v. 75th Street Medical, 371 Md. 188, 216

(2002) (“if the parents’ failure to bring a claim before the expiration of limitations had the

effect of barring the minor child’s claim, the child would be twice victimized — once at the

hands of the tortfeasor, and once by parents who, for whatever reason, failed to timely

prosecute the claims”) (quoting Johns Hopkins Hospital v. Pepper, 346 Md. 679, 695 (1997)

(quotations omitted)). Rather than entrust the right to sue to a parent, who might lack the

knowledge, experience, means, or plain enthusiasm to sue, the exception serves to save the

legal action for the child to pursue, if he so chooses, once majority is gained.

       As to a mentally incompetent adult, on the other hand, the guardian must petition the

court and satisfy the statutory requirements prior to appointment. ET § 13-705(a); Md. Rule


                                             -12-
10-201. See also In re Lee, 132 Md. App. 696 (2000). Therefore, as the guardian of a

mentally incompetent adult actively seeks to be an advocate, the concerns expressed by the

courts in cases involving children and the statute of limitations are not as great where the

guardianship is not imposed by operation of law. Although the guardianship statute allows

the court to grant the guardian “[t]he same rights, powers, and duties that a parent has with

respect to an unemancipated minor child,” ET § 13-708(b)(1), the comparison does not

extend to the application of the statute of limitations. A guardian has a right to bring suit on

behalf of a mentally incompetent individual, as does a parent on behalf of a minor child, but

imposing the statute of limitations on a guardian does not threaten the mentally incompetent

adult’s rights the way it would those of a child.

       In the matter before us, the circuit court opined that a tolling exception for mentally

incompetent persons even where a guardian is appointed “runs against the prevailing policy

arguments supporting the existence of a statute of limitations as well as the statutes and

supporting case law on guardianships in Maryland.” For the reasons we have discussed, we

agree. We cannot imagine a policy requiring a potential defendant to be on notice of future

litigation for years, if not decades, to be a sound public policy.

       The tolling exception preserves the legal rights of a mentally incompetent individual

until a guardian is appointed; once a guardian is appointed, and gains the requisite knowledge

to file a claim on the individual’s behalf, the statute begins to run.5

       5
           Given the distinctions discussed above, our holding in this case does not affect the
                                                                                 (continued...)
                                             -13-
       Kratz-Spera failed to file the complaint in a timely manner. The claims that arose

from the 2006 incident were preserved by the tolling exception until July 18, 2008, when the

co-guardians of the person were appointed, at which point the statute of limitations began to

run, as Kratz-Spera had knowledge of the injury. Likewise, her knowledge of the 2009

incident triggered the statute when it was reported to her the day after it occurred, on

November 25, 2009. Therefore, the statute of limitations on the claims had already run when

Kratz-Spera first filed a complaint on June 18, 2013.



                                            JUDGMENT OF THE CIRCUIT COURT
                                            FOR PRINCE GEORGE’S COUNTY
                                            AFFIRMED;
                                            COSTS ASSESSED TO APPELLANT.




       5
        (...continued)
tolling exception relevant to minor children as discussed in, among others, Piselli v. 75th
Street Medical, 371 Md. at 212, and Mason v. Bd. of Educ. of Balt. Cty., 143 Md. App. at
515.
                                           -14-
