                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-1515


THE CHESAPEAKE BAY FOUNDATION, INCORPORATED; SMITHGROUP,
INCORPORATED,   d/b/a   KCF-SHG    Incorporated;   CLARK
CONSTRUCTION GROUP, LLC, f/k/a The Clark Construction
Group, Inc.,

                Plaintiffs – Appellants,

           v.

WEYERHAEUSER COMPANY, formerly doing business as Trus Joist
MacMillan; WEYERHAEUSER NR COMPANY, formerly doing business
as Trus Joist MacMillan,

                Defendants – Appellees,

           v.

PERMAPOST PRODUCTS CO.,

                Third Party Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:11-cv-00047-AW)


Argued:   January 29, 2014                 Decided:   July 31, 2014


Before MOTZ, KING, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.
ARGUED: Jack McKay, PILLSBURY WINTHROP SHAW PITTMAN LLP,
Washington, D.C., for Appellants.    Tracy Lynn Steedman, NILES,
BARTON & WILMER, LLP, Baltimore, Maryland, for Appellees.     ON
BRIEF: Paul S. Caiola, Ward B. Coe, III, Rebecca C. Salsbury,
GALLAGHER EVELIUS & JONES, LLP, Baltimore, Maryland, for
Appellant The Chesapeake Bay Foundation, Incorporated.   Michael
Evan Jaffe, Glenn C. Kennett, Cynthia Cook Robertson, PILLSBURY
WINTHROP SHAW PITTMAN LLP, Washington, D.C., for Appellant Clark
Construction Group, LLC.    Kevin J. Gleeson, Maria L. Meldrum,
SULLIVAN, WARD, ASHER & PATTON, P.C., Southfield, Missouri;
Laurence Schor, Susan L. Schor, ASMAR, SCHOR & MCKENNA, PLLC,
Washington,   D.C.,  for   Appellant   SmithGroup, Incorporated.
Robert P. O'Brien, NILES, BARTON & WILMER, LLP, Baltimore,
Maryland, for Appellees Weyerhaeuser Company and Weyerhaeuser NR
Company.   Matthew T. Angotti, Cullen B. Casey, ANDERSON, COE &
KING, LLP, Baltimore, Maryland, for Appellee Permapost Products
Co.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

       The       three    plaintiffs      in       this    diversity        action     —     The

Chesapeake           Bay       Foundation,            Incorporated,             SmithGroup,

Incorporated,         and    Clark    Construction           Group,      LLC   (separately,

“CBF,”          “SmithGroup,”      and    “Clark,”           and      collectively,          the

“plaintiffs”)         —     appeal    from     the        district       court’s     award    of

summary          judgment     to     defendants           Weyerhaeuser         Company       and

Weyerhaeuser NR Company (together, “Weyerhaeuser”) on the ground

that the plaintiffs’ various state law claims are time-barred.

See Chesapeake Bay Found., Inc. v. Weyerhaeuser Co., No. 8:11-

cv-00047 (D. Md. Mar. 23, 2012) (the “Opinion”), ECF No. 109. 1

As     explained          below,     we   vacate          and      remand      for    further

proceedings.



                                               I.

                                               A.

       This litigation arose from the construction in 1999 and

2000       of     CBF’s     headquarters        facility,          the     Philip     Merrill

Environmental Center (the “Merrill Center”), on the Chesapeake




       1
       The district court’s Opinion is published at 848 F. Supp.
2d 570 and also found at J.A. 868-94.      (Citations herein to
“J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.)



                                               3
Bay in Annapolis, Maryland. 2               SmithGroup designed the Merrill

Center,    and    Clark    oversaw      its      construction.            SmithGroup’s

“green”    design     called    for     exposed      structural          wood       members

outside the envelope of the Merrill Center, including some that

penetrated      the   building’s      façade.           Under    a     March       3,   2000

purchase order that it entered into with Clark, Weyerhaeuser

agreed to provide Parallam PSL columns and beams (“Parallams”)

for use as the exposed wood members.

      Parallams,      which     have        a    rough-hewn          appearance,          are

manufactured     by   bonding       together      strips    of    wood.         The      wood

strips’ lack of uniformity creates channels, or “avenues,” that

run   longitudinally       through     the       Parallams.           Thus,     water     is

expected   to    infiltrate     Parallams        used    outdoors.            To    protect

against    rotting,    Parallams       are      pressure-treated         with       a   wood

preservative     intended      to    fully      penetrate       the    avenues.          Its

contract with Clark required Weyerhaeuser to treat the Merrill

Center’s     Parallams      with      the       preservative          PolyClear         2000.

Weyerhaeuser     engaged    third     party      defendant       Permapost         Products

Co. (“Permapost”) to apply the PolyClear 2000 treatment to a

specified retention level, and Permapost provided certificates


      2
       For purposes of our review of the district court’s summary
judgment award, we recite the facts in the light most favorable
to the plaintiffs, as the nonmoving parties.       See Durham v.
Horner, 690 F.3d 183, 185 n.3 (4th Cir. 2012).



                                            4
to     Weyerhaeuser      —     later     shared       by     Weyerhaeuser      with     the

plaintiffs    —     verifying       that    such       retention      level    had     been

reached.

       Following completion of the Merrill Center in late December

2000, water began leaking through Parallams into the building.

In 2001 and 2002, the leakage was investigated by two outside

consultants      hired    by    Clark;     the    first      of     those   consultants,

Wiss, Janney, Elstner Associates, Inc., issued a report on May

8, 2001 (the “2001 Report”), and the second, Vaughn Woodwork

Consultants,      released      a   report       on    May    24,    2002    (the     “2002

Report”).     The focus of the 2001 and 2002 Reports was on the

cause of the leakage into the Merrill Center:                         water travelling

from the exterior to the interior of the building through the

avenues in the Parallams.

       The 2001 Report also mentioned that such water could cause

deterioration or rot in the Parallams themselves if they were

not properly treated with a wood preservative.                              Although the

2002    Report    could      have   been     read       to    similarly      warn     about

Parallam deterioration, its author had not considered such a

possibility      because       he   believed          that    the    Merrill    Center’s

Parallams     had     been     properly         treated      with     PolyClear       2000.

Indeed, three days before issuing the 2002 Report, he told the

plaintiffs that Parallams were a “good durable product” and “as

good as a [railroad] tie,” and that their “pressure treating

                                            5
[was] good,” so they would “not rot for a long period of time.”

J.A.    671.       Meanwhile,        the    plaintiffs          worked      closely     with

Weyerhaeuser on the leakage problem and shared with it the 2001

and    2002    Reports.         In       response,      Weyerhaeuser          assured       the

plaintiffs that the Merrill Center’s Parallams had been properly

treated with PolyClear 2000 and were not at risk of premature

deterioration.             Moreover,         at        least     three        Weyerhaeuser

representatives examined the Parallams and failed to note the

presence of rotting.

       After    the   leaking    was       stopped      in     2004   with    the     use    of

sealants, the plaintiffs anticipated no further problems with

the    Parallams.       During       a    routine       inspection       in    July     2009,

however,       Parallams     were        found    to     be     deteriorating.              The

plaintiffs subsequently learned that the Parallams had not been

treated with PolyClear 2000 as certified, that PolyClear 2000

was not in any event well-suited to the job of preserving the

Parallams,      and   that     Weyerhaeuser            had    knowingly       given     false

assurances to the contrary.

                                            B.

       The plaintiffs initiated this action in the Circuit Court

for    Montgomery     County    on       December      3,     2010,   and     Weyerhaeuser

filed a notice of removal in the District of Maryland on January

6, 2011.        The complaint focused on the deterioration of the

Merrill Center’s Parallams and sought damages for, inter alia,

                                             6
the costs of investigating and implementing remedial measures.

According to the complaint, Weyerhaeuser breached its contract

with Clark (Count I), owed common law indemnity (Count II) and

contribution (Count III) to SmithGroup and Clark, and was liable

to CBF and SmithGroup for negligent misrepresentation (Count IV)

and negligence (Count V).

     On January 20, 2011, Weyerhaeuser answered the complaint,

asserted    counterclaims          against       the    plaintiffs,       and     filed     its

third party complaint against Permapost.                          Following extensive

discovery,       Weyerhaeuser           sought         summary        judgment       on     the

plaintiffs’       claims,         invoking        the        applicable        statute       of

limitations.          Weyerhaeuser        and     Permapost       also     made      separate

summary judgment motions with respect to Weyerhaeuser’s various

cross- and counterclaims.                 By its Opinion and an accompanying

Order     of    March       23,     2012,        the         district     court       granted

Weyerhaeuser’s motion for summary judgment as to the plaintiffs’

claims    and   thus       denied    as    moot        all    other     summary      judgment

motions.        The   plaintiffs        timely         noted    this     appeal,      and    we

possess jurisdiction under 28 U.S.C. § 1291.



                                            II.

     We    review     de    novo    a     district       court’s       award    of   summary

judgment,      viewing      the    facts    and        inferences       reasonably        drawn

therefrom in the light most favorable to the nonmoving party.

                                             7
See Core Commc’ns, Inc. v. Verizon Md. LLC, 744 F.3d 310, 320

(4th Cir. 2014).        A summary judgment award is appropriate only

when the record “shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a

matter of law.”        Fed. R. Civ. P. 56(a).         The relevant inquiry is

“whether    the    evidence    presents     a   sufficient     disagreement     to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law.”                 Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986).



                                      III.

     In awarding summary judgment to Weyerhaeuser, the district

court concluded that the plaintiffs’ state law claims are time-

barred. 3   Maryland’s statute of limitations provides that “[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.”       Md. Code Ann., Cts. & Jud. Proc. § 5-101.              Maryland

follows the discovery rule, which provides that “the cause of

action   accrues     when    the   claimant     in   fact   knew   or   reasonably

should have known of the wrong.”                Poffenberger v. Risser, 431

     3
       The district court correctly determined, and the parties
do not dispute, that Maryland law applies to the plaintiffs’
claims. See Opinion 9-11.



                                        8
A.2d 677, 680 (Md. 1981).            Where “the knowledge of a cause of

action is kept from a party by the fraud of an adverse party,

the cause of action shall be deemed to accrue at the time when

the party discovered, or by the exercise of ordinary diligence

should have discovered the fraud.”               Md. Code Ann., Cts. & Jud.

Proc. § 5-203.

      Rejecting the plaintiffs’ contention that their claims did

not accrue until they discovered the deteriorating Parallams in

2009, the district court ruled that the 2001 and 2002 Reports

put the plaintiffs on actual and inquiry notice of their cause

of action.        Premised on those same Reports, the court further

determined that the plaintiffs could not rely on allegations of

fraud      to    toll    the     limitations     period    under     § 5-203   —

particularly      since    the    parties     were   “cosmopolitan    commercial

counterparts.”      See Opinion 25.         The court summarized that it

      agree[d] that a factual dispute exists regarding
      whether the 2001 and 2002 Reports notified Plaintiffs
      that the wood was rotting per se.    All the same, the
      rot is not a standalone injury lacking a meaningful
      tie to the cracks, voids, splits, water penetration,
      and potential for deterioration that the Reports
      discuss.      Rather,   it   is   just   the   ultimate
      manifestation of this constellation of injuries.

Id.   at   21.     The    court    thus   calculated    that   the   plaintiffs’

claims “accrued no later than May 2002 and expired more than

half a decade before they filed suit.”               Id. at 20.




                                          9
       We disagree with the district court.                  The court “confused

one harm — water infiltration through the exterior Parallams

into    the    interior   of   the    Merrill      Center,       that   was    known   to

everyone in 2001 — with another harm — potential wood rot in

the Parallams.”       Br. of Appellants 20.               Additionally, the court

relied on the premise that “[a]ny ordinary person knows that,

all else equal, wet wood rots.”                 See Opinion 16; see also id. at

22 (“To reiterate, just about anyone who has ever stained a deck

knows that cracked, waterlogged wood stands to rot.”).

       Viewing the evidence in the light most favorable to the

plaintiffs, a genuine dispute exists as to whether knowledge of

the    water    infiltration     problem        would     have    put   a     reasonable

person    on     notice   that       the    Parallams       were    susceptible        to

premature deterioration and that their PolyClear 2000 treatment

would not preserve them.             See Bank of N.Y. v. Sheff, 854 A.2d

1269, 1275 (Md. 2004) (“[I]f there is any genuine dispute of

material fact as to when the plaintiffs possessed that degree of

knowledge, the issue is one for the trier of fact to resolve;

summary judgment is inappropriate.”).                   The record is clear that,

when they are used outdoors, Parallams are expected to retain

water.        The record also reflects that sealing a Parallam from

leaks    and    protecting     it    from    rot    are    distinct      enough     that

evidence of water infiltration would not necessarily indicate a

danger of deterioration.              Furthermore, although the 2001 and

                                           10
2002 Reports indicated that Parallams are subject to rot if not

properly treated, the Reports did not expressly assert that the

treatment of the Merrill Center’s Parallams was inadequate.

     To the extent that the 2001 and 2002 Reports nevertheless

may have put the plaintiffs on inquiry notice of the Parallam

deterioration,      there   is    a    genuine       dispute    as    to   whether   the

plaintiffs      conducted    a    reasonably         diligent       investigation    by

seeking   and    receiving       assurances        from   Weyerhaeuser        that   the

Parallams were properly treated.                  See Baysinger v. Schmid Prods.

Co., 514 A.2d 1, 4 (Md. 1986) (“Whether a reasonably prudent

person should then have undertaken a further investigation is a

matter about which reasonable minds could differ, and it was

therefore inappropriate for resolution by summary judgment.”).

Likewise, there is a genuine dispute as to whether Weyerhaeuser,

through fraud or concealment, frustrated the plaintiffs’ ability

to discover their claims.              See Mathews v. Cassidy Turley Md.,

Inc.,   80   A.3d   269,    290       (Md.    2013)    (“Whether       a   plaintiff’s

failure   to    discover    a    cause       of    action     was    attributable     to

fraudulent concealment by the defendant is ordinarily a question

of fact to be determined by the factfinder, typically a jury.”

(citing O’Hara      v.   Kovens,       503    A.2d    1313,    1320    (Md.   1986))).

Finally, while the relative sophistication of the parties may be

considered by the jury, it is a credibility issue that has no



                                             11
place in the summary judgment analysis.   See id. at 289-90 &

n.39.



                             IV.

     Pursuant to the foregoing, we vacate the district court’s

judgment and remand for such other and further proceedings as

may be appropriate.

                                           VACATED AND REMANDED




                              12
