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Butler v. S & S Partnership

Court of Appeals of Maryland

November 26, 2013

HECTOR BUTLER, JR.
v.
S & S PARTNERSHIP, et. al.

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald McAuliffe, John F. (Retired, Specially Assigned), JJ.

OPINION

Greene, J.

This is a lead paint case involving two properties and multiple defendants, including both current and previous property owners and managers. The parties present issues regarding the interpretation of a Lead Paint Scheduling Order[1] ("scheduling order") filed in the Circuit Court for Baltimore City, the court's role in imposing sanctions for discovery violations, and the proof required to establish a prima facie case for violation of the Baltimore City Housing Code under Maryland's Consumer Protection Act ("CPA"), Maryland Code (1975, 2005 Repl. Vol.), § 13-301 of the Commercial Law Article.

PROCEDURAL HISTORY

Petitioner Hector Butler, Jr., filed the instant Complaint on October 9, 2007, alleging negligence and violations of the CPA, for injuries resulting from exposure to lead-based paint during his residence at two properties in Baltimore City, 2238 Linden Avenue and 2308 Bryant Avenue, while Petitioner was an infant. The defendants are: S & S General Partnership ("S & S G.P."), Lee Shpritz ("Shpritz"), Barbara Benjamin ("Benjamin"), [2] S & S Partnership ("S & S"), Stanley and Rhoda Rochkind (the "Rochkinds"), N.B.S., Inc. ("N.B.S."), [3] Dear Management & Construction Co., Inc. ("Dear Management"), and Charles Runkles ("Runkles"). The Court of Special Appeals set forth the facts as to Petitioner's residence at the subject properties and the Respondents' respective interests in those properties as follows:

[Petitioner] was born on October 11, 1986. From approximately August 7, 1987 through May of 1988, appellant resided with [his mother Yvonne] Crosby in a third-floor apartment at [2238] Linden Avenue. During the first twelve days of Crosby and [Petitioner]'s tenancy, S & S G.P. owned the Linden Avenue property. Shpritz was a general partner in S & S G.P. On or about September 18, 1987, S & S G.P. sold the Linden Avenue property to Benjamin.
From approximately May of 1988 to August of 1991, [Petitioner] lived with Crosby in a second-floor apartment at [2308] Bryant Avenue. S & S owned the Bryant Avenue property from 1978 through 2008. The Rochkinds were partners in S & S. N.B.S., an entity related to S & S, did not own the Bryant Avenue property but, at some point, obtained a two million dollar loan secured by an indemnity deed of trust on the property.

Butler v. S & S P'ship, 207 Md.App. 60, 65, 51 A.3d 708, 710-11 (2012). On April 21, 2009, the Circuit Court issued its final scheduling order, applicable at the time of the motions at issue on this appeal. The Order provided in relevant part:

2. (a) All discovery including full resolution of all discovery disputes shall be completed no later than 09/09/09. Expert designations shall include all information specified in Rule 2-402(f)(1)(A) and (B).[4]. . . .
(c) Defendants who still own a subject property shall allow the Plaintiffs to perform a non-destructive lead test upon the premises within 60 days of a written request provided that the request in [sic] made no later than four months prior to the discovery deadline in paragraph 2(a). The defendants shall be permitted to attend the lead test accompanied by a consultant(s) or expert(s).

After the close of discovery, Respondents filed a plethora of dispositive and evidentiary motions.[5] The trial court ultimately granted all of Respondents' motions, and Petitioner appealed to the Court of Special Appeals, which affirmed the Circuit Court's judgment. Butler, 207 Md.App. at 64-65, 51 A.3d at 710. Thereafter, Petitioner filed a petition for certiorari to this Court, which we granted on December 14, 2012. Butler v. S & S P'ship, 429 Md. 528, 56 A.3d 1241 (2012).

The issues before this Court relate to the exclusion of a lead test report prepared by Arc Environmental, Inc. (the "Arc Report"), the exclusion of testimony by Petitioner's medical expert, Dr. Klein ("Dr. Klein's Affidavit"), and the grant of summary judgment as to Petitioner's CPA cause of action. For clarity, we shall separate and address the facts as they relate to each issue below. We have also rephrased the underlying questions posed by the parties as follows:[6]

1.In this lead paint case, did the scheduling order require that these Defendants, who were not owners of the properties at the time Plaintiff conducted the lead tests at the properties, be given notice and an opportunity to attend the testing?
2. Did the trial court err in imposing discovery sanctions on Plaintiff when no discovery motion was made by Defendant, no objection was ever made regarding the discovery violations, and the court itself raised the discovery issues sua sponte?
3.In a lead paint case located in Baltimore City, where the cause of action is based on Maryland's Consumer Protection Act, must Plaintiff prove the existence of chipping, peeling and/or flaking paint at the inception of a lease to establish a prima facie case for a violation of the CPA?

We shall hold that the Court of Special Appeals erred in holding that the trial judge did not abuse her discretion in excluding the Arc Report and Dr. Klein's Affidavit, but was correct in affirming the Circuit Court's grant of summary judgment as to Petitioner's cause of action under the CPA.

DISCUSSION

I. Arc Report

A. Facts

Arc Environmental, Inc. ("Arc") is an environmental testing firm, apparently employed frequently by lead paint plaintiffs' attorneys in Baltimore City. On August 24, 2009, 16 days prior to the close of discovery, Arc conducted lead testing of the exterior of both 2238 Linden Avenue and 2308 Bryant Avenue. On the date of testing, 2238 Linden Avenue was owned by then-Defendant Benjamin. Also on the date of testing, 2308 Bryant Avenue was owned by S & S Business Trust, which was at no time a defendant in this case, and was managed by Respondent Runkles. Prior to and at the time of testing, Petitioner provided no notice of the testing to any party and no defendant was present during the test.

On October 8, 2009, Respondent Runkles, joined by Respondents Rochkinds, S & S, and N.B.S., filed a Motion to Strike the Arc Report relating to 2308 Bryant Avenue, asserting that Petitioner "did not submit any written request to the owner or the manager of the property prior to having Arc Environmental conduct the lead paint survey, " and had "failed in all respects to comply with the requirements of the [s]cheduling [o]rder. Because Petitioner had neither provided notice nor afforded any of the other parties the opportunity to attend the test, Respondents argued, Petitioner did not comply with section 2(c) of the scheduling order and the Arc Report must be excluded. Petitioner responded that he had not violated the scheduling order because section 2(c) only applies to "the rules for filing Motions to Enter Upon Land to defendants who still hold title to a subject property, " and in any event, Petitioner had filed a Request for Entry Upon Land along with the Complaint.[7]

Benjamin also objected to the Arc Report as it related to 2238 Linden Avenue. She asserted in her Motion for Summary Judgment that, as owner of the property, she was entitled to notice and the opportunity to have her own expert attend the test on her behalf. Because the test was completed without such notice or opportunity to attend, in contravention of the scheduling order, she argued, the Arc Report resulting from that inspection could not be used as evidence against her in the case. In response, Petitioner contended that Benjamin had received a Request for Entry Upon Land with the Complaint, but that Benjamin had ignored the request. Furthermore, Petitioner argued, the lead test was completed within the discovery deadline. Benjamin responded that "at no time whatsoever did [Petitioner's counsel] ever contact [Benjamin or Benjamin's counsel] to request property testing, arrange for property testing, or file a certificate of good faith effort to resolve a discovery dispute."

The trial judge heard arguments on these motions at the hearing on November 9, 2009. According to the judge, she excluded the Arc Report because it was disclosed "too late to do anybody any good, reflecting no good faith compliance with the scheduling order; no notice to the defendants to attend, participate, and afford their experts any realistic opportunity to address and respond to the Arc reports." The Court of Special Appeals affirmed, agreeing with the Circuit Court that the scheduling order was "clear enough" and holding that "[t]he court was within its discretion to fashion an appropriate remedy for [Petitioner's] violation." 207 Md.App. at 116, 51 A.3d at 740.

B. Analysis

The first issue raises the question: who may attend a lead paint test? Specifically, we are called to decide whether the trial judge abused her discretion when she excluded the Arc Report based on her conclusion that Petitioner violated the scheduling order by failing to notify and allow all defendants the opportunity to attend the lead test of the subject properties. Our inquiry is twofold: first, whether the trial judge properly interpreted the scheduling order, and second, whether the trial judge abused her discretion by excluding the Arc Report. We shall hold that the scheduling order requires that notice and an opportunity to attend a lead test be given only to defendants who own the property at the time of testing, and that the exclusion of the Arc Report under the circumstances was an abuse of the trial judge's discretion.

1. Interpretation of the Scheduling Order

We review the trial court's interpretation of the scheduling order for legal correctness. See Walter v. Gunter, 367 Md. 386, 392, 788 A.2d 609, 612 (2002) ("[W]here the order involves an interpretation and application of Maryland statutory and case law, [the appellate] [c]ourt must determine whether the lower court's conclusions are legally correct . . . ." (citation and quotation omitted)). The rules of construction for Maryland's Rules of Procedure are well settled. "To interpret rules of procedure, we use the same canons and principles of construction used to interpret statutes." State v. Williams, 392 Md. 194, 206, 896 A.2d 973, 980 (2006) (quoting State ex rel. Lennon v. Strazzella, 331 Md. 270, 274, 627 A.2d 1055, 1057 (1993)). We look first to the plain language of the rule. See Williams, 392 Md. at 207, 896 A.2d at 980 (quoting Strazzella, 331 Md. at 274, 627 A.2d at 1057) ("When the words are clear and unambiguous, ordinarily we need not go any further.").

Section 2(c) of the scheduling order provides:
(c) Defendants who still own a subject property shall allow the Plaintiffs to perform a non-destructive lead test upon the premises within 60 days of a written request provided that the request in [sic] made no later than four months prior to the discovery deadline in paragraph 2(a). The defendants shall be permitted to attend the lead test accompanied by a consultant(s) or expert(s).

This provision is divisible into two parts: Sentence 1 ("Defendants who still own a subject property shall allow . . . .") and Sentence 2 ("The defendants shall be permitted to attend . . . ."). The trial court found that the scheduling order was "clear enough" that Petitioner was required to give notice to all defendants (now Respondents) and provide them with the opportunity to attend the lead test. The Court of Special Appeals agreed.

Petitioner argues that the scheduling order is "plain and unambiguous" in that only defendants who own the subject property are entitled to notice of the lead test of the property, because the reference to "the defendants" in Sentence 2 refers back to the "Defendants who still own the subject property." Respondents, on the other hand, argue that notice and opportunity to attend must be given to all defendants, because unlike Sentence 1, Sentence 2 does not qualify "defendants" as only those who own the property, and therefore Sentence 2 must refer to all defendants generally. Moreover, Respondents contend that the plain language of the scheduling order does not indicate any intention to limit "defendants" to a single defendant with current ownership, and "if that had been the case, such an intention could easily have been conferred by using the term 'owner' instead of 'defendants.'"

Given that reasonable minds may differ as to the meaning of "the defendants" as used in Sentence 2, we disagree that the language is unambiguous, and therefore we look beyond the plain meaning to guide our review. See Williams, 392 Md. at 207, 896 A.2d at 980 ("Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent . . . ."). As we are interpreting a trial court's scheduling order that has no recorded legislative history, we shall look to the context of section 2(c) within the discovery rules.

Section 2(c) relates to the inspection and testing of a property for the presence of lead paint. Md. Rule 2-422(a) governs such testing, and provides in pertinent part, that "[a]ny party may serve one or more requests to any other party . . . (2) to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection, measuring, surveying, photographing, testing, or sampling the property . . . ." Rule 2-422(c) further provides that the responding party may either permit or refuse the request to ...


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