Circuit Court for Prince George’s County
Case No. CAL1430313

                                                          REPORTED

                                             IN THE COURT OF SPECIAL APPEALS

                                                        OF MARYLAND

                                                             No. 364

                                                     September Term, 2016

                                           ______________________________________


                                                        JOSEPH BASSO

                                                                v.

                                                    JUAN CAMPOS, ET AL.

                                           ______________________________________

                                                Eyler, Deborah S.,
                                                Kehoe,
                                                Shaw Geter,

                                                            JJ.
                                           ______________________________________

                                                 Opinion by Eyler, Deborah S., J.
                                           ______________________________________

                                                Filed: July 27, 2017
       In 2011, Joseph Basso, the appellant, purchased a home in Hyattsville from

appellees Javier Szuchman and Jose Rodriguez, both licensed real estate agents, who

were agents of appellee Juan Campos, d/b/a Campos & Associates Realty, a real estate

broker. Within weeks of the closing, Basso’s basement flooded, and it continued to flood

regularly in the following months and years. Basso sued the appellees in the Circuit

Court for Prince George’s County for negligent misrepresentation, fraudulent

misrepresentation, violations of the Maryland Consumer Protection Action (“CPA”), Md.

Code (1975, 2013 Repl. Vol.), sections 13-101–13-501 of the Commercial Law Article

(“CL”), and, as to Campos, negligent hiring and supervision and vicarious liability for the

tortious conduct of Szuchman and Rodriguez.         The appellees’ motion for summary

judgment was denied.

       The case was tried to a jury. At the close of Basso’s case, the court granted the

appellees’ motion for judgment on all counts. Basso appeals, presenting two questions,

which we have reordered and rephrased:

              I. Did the trial court err by precluding his expert home inspector
       from expressing an opinion on whether the basement of the home would
       have flooded during the period when Szuchman and Rodriguez owned the
       property?

             II. Did the trial court err by granting the appellees’ motion for
       judgment?

       For the following reasons, we answer the first question in the affirmative and shall

reverse the judgment of the circuit court and remand for further proceedings. In light of

our resolution of that issue, we need not address the second question.
                            FACTS AND PROCEEDINGS

      On July 29, 2011, Szuchman and Rodriguez purchased a 2-story single-family

home at 6010 39th Avenue in Hyattsville (“the Property”). They bought the Property for

$119,000, at a foreclosure sale. The Property, built in 1938, is a 1,300 square-foot

bungalow-style home that had an unfinished walk-up basement.

        Szuchman and Rodriguez planned to renovate and resell the Property for a profit.

They hired contractors who replaced the roof and all the windows, remodeled the kitchen,

and refinished the hardwood floors. In the basement, they installed drywall, replaced and

relocated the sump pump, constructed a bathroom, and installed wall-to-wall carpeting.

      Szuchman and Rodriguez listed the Property for sale on September 25, 2011,

roughly two months after they bought it. Basso viewed the Property at the end of

September, made an offer, and, on October 2, 2011, entered into a contract to purchase

the Property for $260,000. The contract was contingent upon a home inspection.

      Also on October 2, 2011, Szuchman and Rodriguez signed the Maryland

Residential Property Disclosure and Disclaimer Statement (“Disclosure Statement”). As

pertinent, they represented that they had owned the Property for 3 months and had no

“actual knowledge” of any “leaks or evidence of moisture” in the basement.

      On October 13, 2011, Basso’s home inspection was completed.             His home

inspector did not note in his report that there was any evidence of flooding or water

seepage in the basement. He did note, however, that the exterior basement stairwell drain

should be kept clear of debris to prevent water from entering the basement under the

exterior basement door.


                                           -2-
       The sale closed on November 14, 2011 and Basso moved in, along with a

housemate.

       On December 7, 2011, while Basso was traveling for work in San Diego, his

housemate called to alert him that “there was water in the basement.” The housemate

believed that the water was entering from under the exterior basement door jamb, at the

bottom of the exterior stairwell. Basso hired MCC Services, a water remediation

company, to clean up the basement.

       Four months later, on March 1, 2012, Basso noticed that the carpeting in the

basement was “wet along the . . . back wall and the side wall.” He pulled up the carpet

and could see “areas where there was obviously water seeping in from the foundation.”

He also noticed upon pulling up the carpet that there was “an area of concrete that[ was] a

different color,” with some of the concrete appearing to be “newer.” Basso was not

aware that any concrete work had been done in the basement during the renovation.

       On April 18, 2012, Basso obtained from the Bartley Corporation an estimate of

$19,649 for concrete work on the Property to address the water infiltration problems. He

decided not to go forward with the work at that time.

       During 2012 and 2013, the basement at the Property flooded “[e]very time there

was a substantial rainstorm or, . . . continued [sic] rain over a few days, any time that . . .

[it rained] a half inch . . . and up[.]” The water would “seep in from . . . numerous places

along the back wall and the wall where the door was . . . [a]nd depending on the amount

of rain or the amount of ground saturation, it would just keep going.”




                                             -3-
       In July 2013, Basso became concerned about mold in his basement and hired

Larry Hammond, a certified home inspector and certified mold remediation contractor, to

perform a “General Grading and Water Infiltration Inspection.” Hammond did not detect

any mold in the basement. The cost for the inspection was $350.

       In April 2014, Basso contracted for B-Dry, a water-proofing company, to install

French drains along the inside of the exterior walls of the basement and to take other

measures to permanently solve the water infiltration issues. 1 B-Dry offers a lifetime

warranty for its services. In May 2014, Basso hired another company to replace the

exterior basement door and door frame.

       On November 13, 2014, Basso filed suit against the appellees. The operative

complaint is the third amended complaint, filed on February 16, 2015. Basso alleges that

when Szuchman and Rodriguez signed the Disclosure Statement on October 2, 2011, they

had actual knowledge that the basement area flooded repeatedly and that they had

attempted to conceal this defect by removing bushes that lined the side of the home and

replacing them with poured concrete. Counts I and II asserted claims for negligent and

fraudulent misrepresentations, respectively; Counts III, IV, and V asserted claims for

breach of the CPA; and Counts VI and VII asserted claims against Campos for vicarious

liability and negligent hiring and supervision. Basso sought more than $250,000 in

compensatory damages and $800,000 in punitive damages, plus attorneys’ fees.

       1
         In the context of this case, “French drains” are trenches, which contain gravel or
rocks and a perforated pipe, dug around the inside perimeter of a basement. They are
designed to redirect groundwater to a sump pump after the water has penetrated the
exterior wall.


                                            -4-
       On July 17, 2015, Basso designated two expert witnesses: Howard Phoebus, a real

estate agent, as an expert on valuation of real property, as well as the standard of care;

and Larry Hammond, who, as mentioned, is a certified home inspector, as a standard of

care and causation expert. Basso specified that Hammond was expected to testify that the

appellees “knew about the regular water intrusions into the basement area . . . and [that]

rather than try to appropriately put money to fix the problem, adopted the strategy to

‘temporarily’ conceal the flooding, by pouring concrete around a significant portion of

the stairwell.”

       The appellees moved for summary judgment, arguing that there was “no

admissible competent evidence that either Rodriguez or Szuchman were aware of any

flooding in the [Property] prior to sale.” Basso opposed the motion, attaching, among

other exhibits, excerpts of Rodriguez’s and Szuchman’s depositions, in which they

testified that they were present at the Property every day during the 4-5 week renovation

period, and an affidavit by Hammond, opining that it was “virtually impossible that Mr.

Rodriguez and [Mr.] Szuchman would not have experienced [during that time period] the

same significant level of flooding problems that Mr. Basso first experienced on or about

December 7, 2011, about 3 weeks after the . . . closing took place.” Hammond further

opined that there was no “justified reason” for concrete to have been poured around the

basement stairwell except to “conceal (temporarily and ineffectively) the flooding

problems.” By order entered March 16, 2016, the court denied the motion for summary

judgment, ruling that Szuchman’s and Rodriguez’s deposition testimony that they were

present at the Property nearly every day for a month during the renovation created a


                                           -5-
genuine dispute of material fact about their knowledge of flooding in the basement when

they signed the Disclosure Statement.

       A jury trial commenced on March 28, 2016. Over two days, Basso testified and

called five witnesses: Szuchman, Campos, Phoebus, Hammond, and Daniel Seger, a

neighbor who lived directly across the street. He introduced into evidence certified

records from the Storm Events Database for the National Climatic Data Center

(“NCDC”), a division of the National Centers for Environmental Information at the

United States Department of Commerce. Those records covered storm events in Prince

George’s County and surrounding areas over 184 days between July 1, 2011, and

December 31, 2011. The records reflected that during the period between July 29, 2011,

when Rodriguez and Szuchman purchased the Property, and September 25, 2011, when

the Property was listed for sale, there were multiple storm events involving significant

rainfall. Most notably, on August 27-28, 2011, Hurricane Irene “tracked up the Mid-

Atlantic Coast . . . pass[ing] by just to the east of Ocean City, Maryland,” resulting in

tropical storm conditions throughout Maryland, including in Prince George’s County, and

causing 12 inches of rain to fall in some areas.

       Also, on September 7-8, 2011, “the remnants of Tropical Depression Lee

interacted with a nearly stationary boundary near the Mason-Dixon Line” and resulted in

“[m]ajor flooding and flash flooding” around Maryland. As a result of the “record-

setting rainfall” on those days, the “[g]round across Maryland was saturated” leading to

additional flooding on September 9, 2011, from thunderstorms and showers.




                                             -6-
       No storm events involving heavy rainfall were reported after September 9, 2011,

until December 7, 2011, the day Basso’s basement flooded for the first time after he took

title. On that date, rainfall totals in the area were as high as 4.36 inches.

       Basso testified consistent with the above stated facts. He further testified that he

learned for the first time during Szuchman’s and Rodriguez’s depositions that they had

poured concrete “on the side of the house” during the renovation.

       On cross-examination, Basso was asked whether it was his understanding that

when the basement flooded on December 7, 2011, the water came in under the basement

door. He replied, “On the 7th, yes.” He further testified that he did not recall having

cleared the drain in the exterior basement stairwell between the date he settled on the

house (November 14, 2011) and December 7, 2011. Basso recalled that upon returning

from his business trip in December 2011, he observed “debris in the stairwell.” He

agreed that if the basement drain was clogged, water may have come in through the

basement door as a result.

       Two remediation reports prepared by MCC regarding the December 2011 and

March 2012 flooding incidents were introduced into evidence. The first report specified

that MCC had taken steps to address “loss resulting from the water that was entering the

house from underneath the door jamb at the bottom of the [basement] stairwell where

water was coming through cracks that had formed over the newly repaired and painted

sides of the exterior stairwell.” Even after the rain stopped, MCC had to suspend its

remediation efforts for some time because water still was being “released from the

ground, through the cracks in the sides of exterior[] walls and then coming in underneath


                                              -7-
the doorway into the house.” After the water stopped entering the house, MCC returned

to redo its extraction process and then to dry the basement with heaters and fans. The

total cost for MCC’s services in December 2011 was $4,552.55.

      The second MCC report reflected that it performed remediation services in March

2012 after water “seeped through the wall of the basement underneath the side door of

the house.” The total cost for those services was $1,000.87.

      Szuchman testified that within a few days of purchasing the home, he and

Rodriguez hired three men to begin the renovations. 2 The men began work within “[a]

couple days,” in early August 2011. At his deposition, Szuchman had testified that the

contractors began work within a “week or ten days.” According to Szuchman, the

contractors started with the basement. The entire renovation was complete within four to

five weeks, and the Property was listed for sale “a week or ten days” after completion.

Szuchman and Rodriguez were present at the Property nearly every day during that

renovation period.

      Szuchman testified about concrete being poured around the exterior of the

Property, on the left side if facing it from the street. He explained that there was a

“cracked—cracking walkway [to the left of the house] . . . [a]nd in between the walkway

and the house was a like—two feet of bushes or something like that.” He and Rodriguez

decided to remove the bushes “[t]o make the house look better.”



      2
       The men may have worked for a company called Carlos Construction, but
Szuchman could not recall.


                                           -8-
       After the bushes were removed, a subcontractor poured concrete on the cracked

walkway to repair it. The subcontractor had extra concrete and asked if he should also

pour it in the area where the bushes had been. Szuchman explained that he had noticed

that the water flowed in the direction of the home, so he thought it “was [a] good idea [to]

make [it] level to keep the water coming out the house . . . . [b]ecause . . . if not, in the

future you can have pooling inside the house.” Szuchman believed that the concrete was

poured at the end of August, 2011.

       Szuchman did not recall any major rainstorms during the renovation period, but

was sure it had rained some days. He testified that there was “no flooding” in the

basement while he was present at the Property and that none of the workers ever told him

about flooding in the basement.

       According to Szuchman, he and Rodriguez were working for Campos at the time

of the renovation subject to a flat-fee agreement whereby Campos would receive $500 at

settlement. Campos never came to the Property and knew “nothing about [it],” however.

       Campos testified that he had been a real estate broker since 1998 or 1999.

Szuchman and Rodriguez were real estate agents affiliated with his brokerage company.

He estimated that over the last decade he had received brokerage commissions on more

than 25 homes sold by Szuchman and Rodriguez. He trained all of his agents about latent

defects disclosures that sellers must make under Maryland law. Because in this case

Szuchman and Rodriguez were the agents and the sellers, it was their obligation to

complete the Disclosure Statement.




                                             -9-
       Phoebus was accepted as an expert in the field of real estate ethics. 3 He testified

about the relationship between a real estate broker and real estate agents, and about duties

relative to the latent defects disclosure.

       Seger testified that he had lived in the house across the street from the Property for

16 years. He recalled that five or six years earlier, the Property had been vacant for about

a year. Around the end of August 2011, Seger saw workers “coming up with concrete

out of the basement” and “putting it underneath the front porch.” He assumed that the

basement was being dug out and remodeled. He also observed workers pouring fresh

“concrete[] all around the front porch and down to the basement where it used to be—

flower beds and mulch, from the basement steps all the way around to the front

entrance.”

       Hammond was admitted as an expert in home inspection and water infiltration.

He testified that the bills submitted by the company that replaced the exterior basement

door and by MCC all were fair and reasonable. He testified that the $8,150 bill for the

waterproofing by B-Dry was too high and that a fair and reasonable price for the services

performed would have been $7,200.

       In Hammond’s opinion, the only way to permanently correct the water infiltration

problems at the Property would be to “dig down all the way around it, like four to six

inches below the footings . . . . [and] put a drain pipe,” followed by “re-parg[ing] and re-



       3
         The court precluded Phoebus from testifying about valuation and causation.
That ruling is not challenged in the instant appeal.


                                             -10-
tar[ing] the walls” and covering the tar with plastic sheeting. In addition, he would

recommend “elevat[ing] the grades” to prevent water from “ponding” on the Property.

       Hammond also testified about his observations of the Property in 2013. He had

immediately noticed that the “driveway . . . close[] to the basement areaway was very low

and ponding”; that the downspouts on an adjacent house “discharge[ed] towards [the

Property,]” and that the drain at the bottom of the basement stairwell “did not have the

capacity to carry water away in any large amount.”

       Hammond was asked whether there was a “way . . . to know whether or not [the

Property] flooded” “before Mr. Basso owned [it].” He responded that the best way to

determine that would be to excavate the basement walls and foundation to check for

“calcification” or “water stains.” Barring that, the only information he could rely upon

was “grading.” It did not appear to Hammond that “anybody had been digging around

there to settle the grade” and, in his view, the “grade [wa]s the problem with this house.”

       Hammond opined that pouring concrete in place of mulch or other soft material

can be a way to stop water infiltration. He was shown photographs of the basement floor

taken by Basso that showed a variation in the color of the concrete. Hammond opined

that it looked like “French drains” had been put in and then new concrete had been put on

top.

       As we shall discuss in more detail, infra, Hammond was not permitted to offer an

opinion about whether, based on his observations of the Property in July 2013, the

Property would have had “flooding issues” prior to Basso’s purchasing it and, more

specifically, during the period that Rodriguez and Szuchman owned it.


                                           -11-
      At the close of Basso’s case, the appellees moved for judgment on all counts. On

Counts I through V, defense counsel argued that Basso had not adduced any evidence,

“circumstantial or otherwise, that [on October 2, 2011], [any of the appellees] were aware

of or knew of any issues of flooding with that basement.” The only evidence bearing on

the crucial period of time between July 29, 2011, and October 2, 2011, was that concrete

was poured on the left side of the house and it rained. On Count VI, defense counsel

argued that Campos could not be vicariously liable as a matter of law because Rodriguez

and Szuchman were independent contractors, not employees, and, in any event,

Rodriguez and Szuchman were not liable, and therefore he was not vicariously liable. On

Count VII, negligent hiring and supervision, defense counsel argued that there was no

evidence that Campos had any involvement in supervising Szuchman and Rodriguez in

their capacity as the owners and renovators of the Property.

      The court granted the motion for judgment on all counts. It opined that the

evidence showed that the “first flood” in the basement occurred on December 7, 2011,

and was caused by a “clogged drain.” It ruled that Basso failed to meet his burden to

show that any of the appellees had knowledge of “water or flooding conditions or a wet

basement” during the time in which they held title to the Property. The court described

Basso’s theory of prosecution as a “syllogism”: “because it rained, therefore the

basement flooded, because that is what happened on December 7th after settlement.” The

court rejected the notion that evidence of rainfall amounts during the period when

Szuchman and Rodriguez held title was sufficient to prove knowledge. It noted that

Basso could have produced testimony from a “prior owner,” “[b]anking officials”


                                           -12-
involved in the foreclosure, or “neighbors” with actual knowledge of flooding issues

predating Basso’s ownership of the Property, but did not do so.

       The court entered judgment in favor of the appellees on April 19, 2016. This

timely appeal followed. 4

                                      DISCUSSION

                                                I.

       Basso contends the trial court abused its discretion by precluding Hammond from

expressing an expert opinion about whether the Property would have experienced

flooding during the three month period when Rodriguez and Szuchman held title to it.

The appellees respond that the court correctly precluded Hammond from testifying about

conditions at the Property nearly two years before he inspected it because he lacked an

adequate factual basis to offer that opinion.

       Hammond had been a home improvement contractor since 1959 and had been

licensed since 1965. He began working as a home inspector in 1999; and he became

licensed in 2007, when the State first required licensing. He was certified by the National

Association of Certified Home Inspectors as a water infiltration specialist. He testified

that in assessing a water infiltration issue, he determines whether there were “low and

ponding areas around [a] house [that] [would] allow water to get in around the

foundation.”



       4
        The appellees filed a post-judgment motion for attorneys’ fees pursuant to Rule
1-341. That motion has been stayed pending the resolution of the instant appeal.


                                            -13-
       The court accepted Hammond as an expert in home inspection and water

infiltration for the purpose of testifying with “respect to the bills that have been submitted

in this case, as to whether in his opinion they are fair and reasonable.” Defense counsel

objected to Hammond’s testifying about whether the remediation work reflected in those

bills was necessitated by any misrepresentation or fraud by the appellees. The court ruled

that it would “deal with that as and if it arises.”

       In preparing for his testimony, Hammond reviewed the MCC remediation reports

and other bills and estimates about the water infiltration. He also reviewed the NCDC

records about storm events before and after Basso purchased the Property and

photographs of the Property before and after the bushes were removed.

       Hammond was permitted to testify about his observations of the Property in July

2013, when Basso hired him to complete a grading and water infiltration inspection. He

noted grading issues, particularly near the driveway on the left side of the house. He also

observed that the exterior stairwell drain did not have sufficient “capacity to carry water

away in any large amount.” He further opined that the “grading . . . ha[d] settled

considerably around the back of the house and the right-hand side of the house,” whereas

the left side of the house had had concrete poured in order “to try and head off any water

infiltration.” 5 The “grading” was the major issue with the Property, in Hammond’s view.


       5
        Defense counsel’s objection to Hammond’s testifying about the “motivation” for
the pouring of the concrete was sustained. He did not move to strike Hammond’s
answer, however. In any event, Szuchman already had testified that the concrete was
poured to correct a grading issue and to direct water away from the foundation of the
house.


                                              -14-
       Hammond was asked on direct whether, based upon his inspection of the Property

in 2013, he had an opinion as to whether “this particular house – had flooding or water

intrusion” prior to Basso’s purchasing it.        Defense counsel objected and the court

sustained the objection, noting that Hammond was being asked “if he has an opinion . . .

in 2011 for a house he examined in 201[3].”

       Later, Basso’s counsel asked Hammond to opine, based on his experience and his

review of the records in this case, whether the Property would have “had flooding issues

prior to Mr. Basso’s arrival at the house?” Defense counsel objected, the objection was

sustained, and Basso’s counsel asked for a bench conference. The court remarked that

the question called for “[a]bsolute speculation” because Hammond had “no objective data

as to what occurred in the—about the two months that the Defendants owned this

property[.]” Basso’s counsel countered that there was a factual basis for Hammond to

testify that it was “virtually certain based on the rain amounts [during that two month

period] and the characteristics of [the Property]” that it would have flooded in August and

September 2011. He argued, moreover, that Hammond should be permitted to offer an

opinion about whether a house that flooded during the December 7, 2011 storm event

more likely than not also would have flooded during the August 27-28, 2011 storm

events and the September 7-9, 2011 storm events.           The court interjected that the

December 7, 2011 flooding was caused by the exterior drain being “clogged [because

Basso] had not cleared it, according to his own testimony.” Basso’s counsel disagreed

that that was his testimony.




                                           -15-
       Later in Hammond’s direct examination, Basso’s counsel asked him whether

anything had stood out to him in the NCDC records. He responded that there had been

“four or five big storms . . . some . . . that had ten inches of rain.” He continued that “if

there was a problem in this basement, based on the settled grading around this house—.”

Defense counsel objected and his objection was sustained. Basso’s counsel then asked:

“Well, based on your review and your expert opinion and your experience can you say

whether there would have been water infiltration from these storms?” Defense counsel

objected and the court sustained the objection, remarking, “Just speculation. He has

testified objectively to the things he can testify to. He cannot speculate.”

       Basso’s counsel then asked Hammond about the December 7, 2011 storm and the

resulting water infiltration. He followed up by asking: “Would a house stop—not flood .

. . if facing substantially similar or even worse weather conditions earlier?” An objection

to that question was sustained. He tried rephrasing that question twice, ultimately asking:

“If a house is found to flood on a certain day what factors could possibly affected [sic] it

f[rom] flooding or not flooding in earlier circumstances?” An objection to that question

also was sustained, and the court asked counsel to approach the bench.

       The court advised Basso’s counsel that Hammond had “testified to all the things

he can testify to, fairness to the bills [sic], with respect to mold, water infiltration, how

(Inaudible), how he thinks it should be done. And he cannot suddenly come in here and

start testifying as to conditions that predated whenever he looked at the [P]roperty.”

       Basso’s counsel argued that Hammond was qualified to offer an opinion that “this

house, particularly based on the outside, where there is no evidence that anything had


                                            -16-
changed substantially, would have flooded in earlier circumstances particularly in view of

the significant storms that took place during the three and a half months.” He elaborated,

“you know, a house does not suddenly stop flooding and I think he can explain why a

house does not suddenly stop flooding.”

       The court reiterated that it was sustaining the objection because Hammond’s

opinion about whether the Property would have flooded in August and September 2011

was “nothing but speculation.” Basso’s counsel was directed to “find another field of

inquiry” or the court would “start interrupting [him] and terminate it.”

       Rule 5-702 provides that a trial court may admit expert testimony if it

       determines that the testimony will assist the trier of fact to understand the
       evidence or to determine a fact in issue. In making that determination, the
       court shall determine (1) whether the witness is qualified as an expert by
       knowledge, skill, experience, training, or education, (2) the appropriateness
       of the expert testimony on the particular subject, and (3) whether a
       sufficient factual basis exists to support the expert testimony.

“[E]xpert testimony must be sufficiently definite and certain to be admissible, for neither

the Courts nor the juries are justified in inferring from mere possibilities the existence of

facts, and they cannot make mere conjecture or speculation the foundation of their

verdicts.” Porter Hayden Co. v. Wyche, 128 Md. App. 382, 391 (1999) (citations

omitted). “[T]rial courts have ‘wide latitude in deciding whether to qualify a witness as

an expert or to admit or exclude particular expert testimony,’ and we review the trial

court’s decision for an abuse of discretion.” Lewin Realty III, Inc. v. Brooks, 138 Md.

App. 244, 276 (2001), abrogated on other grounds by Ruffin Hotel Corp. of Md., Inc. v.

Gasper, 418 Md. 594 (2011) (quoting Massie v. State, 349 Md. 834, 850–51 (1998)).



                                            -17-
       In the case at bar, the trial court determined that Hammond was qualified by

“knowledge, skill, experience, training, or education” to testify as an expert in home

inspection generally and water infiltration specifically. The court ruled that Hammond

lacked a sufficient factual basis, however, to testify about whether the Property flooded

(or was likely to have flooded) during storm events that happened when the appellees

held title because that testimony was too speculative, in the court’s view. The court also

did not permit Hammond to opine about any “factors” that might cause the basement of a

house to start flooding, even if it had never flooded previously. We agree with Basso that

the court abused its discretion in so ruling.

       Hammond inspected the Property in July 2013, less than two years after Rodriguez

and Szuchman renovated it. He observed obvious grading problems that would cause

water to pool near the foundation and a drain at the bottom of the exterior stairwell that

had insufficient capacity. There was no evidence that Basso had altered the grading of

the Property in the interim between purchasing it and hiring Hammond. Hammond

reviewed storm event data showing that the area in which the Property was located had

experienced a hurricane and a tropical depression over the two week period at the end of

August 2011 and the beginning of September 2011, prior to the renovation being

completed.

       Hammond was not required to have personally observed the condition of the

Property during the period when Szuchman and Rodriguez held title in order to offer an

opinion about whether a house with grading problems similar to those Hammond

observed in 2013 likely would have flooded during a major storm. See, e.g., Uhlik v.


                                                -18-
Kopec, 20 Md. App. 216, 223 (1974) (“The premises of fact on which [an expert] opinion

is based need not . . . have been derived from personal observation.”). Hammond also

had a sufficient factual basis to opine as to whether a basement that, according to Basso,

flooded every time it rained more than a half an inch from December 2011 forward, also

would have flooded when it rained close to 10 inches in a two day period in August 2011.

The fact that Hammond had not personally observed the condition of the Property in

October 2011 went to the weight, not the admissibility, of his testimony.

      The erroneous exclusion of Hammond’s testimony was prejudicial. Basso sought

to prove by circumstantial evidence that the basement at the Property flooded every time

it rained a half inch or more after he took title that Szuchman and Rodriguez had actual

knowledge of water infiltration in the basement of the Property when they held title to it;

that Szuchman and Rodriguez were present at the Property every day in August and early

September 2011; that it rained extreme amounts during that period of time; and that it

was not plausible that the water infiltration problems began only after Basso took title.

The court granted judgment in favor of the appellees because it concluded that Basso

failed to adduce any evidence that the basement ever flooded while Szuchman and

Rodriguez held title.   Had Hammond been permitted to testify, consistent with his

affidavit in opposition to the motion for summary judgment, that it was “virtually

impossible” that the basement would not have flooded in August and September 2011,

during the time when Szuchman and Rodriguez were present nearly every day, there

clearly would have been sufficient evidence, viewed in a light most favorable to Basso, to




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survive a motion for judgment. 6 In light of this prejudicial error, reversal is required and

we need not consider whether Basso adduced sufficient evidence to overcome a motion

for judgment without the improperly excluded expert testimony.

                                          JUDGMENT    REVERSED.     CASE
                                          REMANDED TO THE CIRCUIT COURT
                                          FOR PRINCE GEORGE’S COUNTY FOR
                                          FURTHER     PROCEEDINGS    NOT
                                          INCONSISTENT WITH THIS OPINION.
                                          COSTS TO BE PAID BY THE
                                          APPELLEES.




       6
         The court also misconstrued Basso’s testimony about the cause of the December
7, 2011 flood at the Property. The court repeatedly stated that Basso acknowledged that
the cause of that flood was a clogged drain. He did not so testify. He acknowledged that
most of the water had come under the basement door, but did not testify that the drain
was clogged or that that was the only source of the flooding on that date. Moreover, the
MCC remediation report made clear that water had continued to flow into the house for
several days after the storm ended, which is inconsistent with a flood caused by a clogged
drain.


                                            -20-
