Forrest v. P & L

• Decision Date: 02 October 2000
• Docket Number: No. 2324,2324
• Parties: Brittany FORREST, et al. v. P & L REAL ESTATE INVESTMENT COMPANY et al.
• Court: Court of Special Appeals of Maryland

759 A.2d 1187

134 Md. App. 371

Brittany FORREST, et al. v. P & L REAL ESTATE INVESTMENT COMPANY et al.

No. 2324, Sept. Term, 1999.

Court of Special Appeals of Maryland.

October 2, 2000.

Alan J. Mensh (Saul E. Kerpelman and Saul E. Kerpelman & Associates, P.A., on the brief), Baltimore, for appellants.

Laura Maroldy (Gertrude C. Bartel and Kramon & Graham, P.A., on the brief), Baltimore, for appellees, Poff and P & L Real Estate.

Frank F. Daily (Cynthia Dietz Spirt, on the brief), Hunt Valley, for appellees Frank Murphy, et ux.

Argued before MOYLAN, EYLER and KENNEY, JJ.

EYLER, Judge.

This is an appeal by plaintiffs-appellants from a judgment in favor of defendants-appellees after a trial by jury in the Circuit Court for Baltimore City. Appellants sought compensation for injuries sustained as a result of exposure to lead-based paint. The complaint was filed on December 30, 1997, and the case was tried on September 14 to September 17, 1999. Appellants' claims are on behalf of Brittany and LaTisha Forrest, both minors, and appellees are P & L Real Estate, Leslie Poff, Ruth Murphy, and Frank Murphy. Appellants claimed exposure to lead-based paint at premises located at 2507 Madison Avenue owned by P & L Real Estate and Leslie Poff and at premises located at 2501 Madison Avenue owned by the Murphys. The causes of action against P & L Real Estate and Poff were violation of the Consumer Protection Act ("CPA"), Md.Code (1975, 1990 Repl.Vol.) Title 13 of the Commercial Law Article, and negligence, and the cause of action against the Murphys was negligence.

Appellants raise three issues, all of which are related to the conduct of the trial. Consequently, there is no need for us to elaborate on the procedural history of the parties and the claims.

Facts

Brittany Forrest, born on April 17, 1990, and LaTisha Forrest, born on July 22, 1991, claim damages for injuries sustained as a result of exposure to lead paint in 1992 and 1993. The minors' parents are Stacie Brown and Robert Forrest.

The parents and Brittany began residing at 2507 Madison Avenue, Apt. 2B, in November, 1990. The property was owned by P & L Real Estate, a Maryland partnership. Leslie Poff was a general partner in P & L Real Estate and responsible for repair and maintenance of the building at 2507 Madison Avenue.¹ At the time of LaTisha's birth on July 22, 1991, the family moved to Apt. 3A, a larger apartment in the same building. There was testimony that Mr. Poff and Ernest Young, P & L's maintenance man, showed Apt. 3A to Mr. Forrest. Mr. Poff and Mr. Forrest both testified that Apt. 3A was rented in "as is" condition. Mr. Forrest testified that there were areas of peeling and chipping paint at the inception of the lease, specifically around the windows. Stacie Brown's testimony was consistent with that of Mr. Forrest. The tenants and Mr. Poff agreed that the apartment would be rented "as is" and that Mr. Poff would supply paint to Mr. Forrest to paint the apartment and reduce the monthly rent. Mr. Poff did supply paint and reduced the monthly rent by $15, but Mr. Forrest, who testified that he was not aware that peeling paint was anything other than an esthetic issue, only painted certain walls.

The only complaint during the tenancy with respect to Apt. 3A was a complaint of a hole in the wall, and it was repaired. There was some dispute with respect to the frequency with which Mr. Poff visited Apt. 3A, but there was evidence that he was in the apartment prior to the lease and in the apartment once or twice during the tenancy. Mr. Poff testified that he went through the apartment before it was rented and that is how he knew it needed work, but stated that he did not see any deteriorated paint.

In May, 1992, the Baltimore City Department of Housing and Community Development inspected the apartment and noted (1) a defective smoke detector, (2) a defective wall in the living room, and (3) "missing or defective" plaster in the front bedroom. On February 4, 1993, the property was inspected by the Baltimore City Health Department, which identified 28 surfaces that tested positive for lead, including certain windows, doors, walls, and baseboards. The Health Department provided an abatement plan that provided for removal of loose materials in most of the areas, to "encapsulate or strip and restore" the exterior of middle room windows and front room windows, and to "restore or replace" middle room windows and front room windows, presumably interior.

Appellants also claim exposure to lead-based paint at 2501 Madison Avenue. Specifically, Ms. Brown testified that appellants visited their aunt and uncle, Clinton and Heidi Elliott, at 2501 Madison Avenue, Apt. 2-R, three or four times a week from March, 1992, to June, 1993. The property at 2501 Madison Avenue was owned by Frank and Ruth Murphy. The Elliotts had two children who were close in age to appellants. The Elliotts testified that they complained to the Murphys on multiple occasions with respect to peeling and chipping paint, which was denied by the Murphys. The Department of Housing & Community Development inspected the apartment on May 5, 1992, but did not note deteriorated paint. The Baltimore City Health Department inspected the apartment on March 23, 1993, and identified 63 surfaces in the apartment and the common areas for abatement.

Brittany was first diagnosed with an elevated lead level on April 7, 1992, and LaTisha was first diagnosed with an elevated lead level on December 4, 1992.

Questions Presented

I. Did the trial court err as a matter of law in refusing to admit in evidence the deposition testimony of an unavailable witness?

II. Did the trial court err in instructing the jury that the tenant's agreement to paint an apartment precludes liability of the landlord under the Maryland Consumer Protection Act in a lead paint poisoning action?

III. Did the trial court err in declining to instruct the jury regarding constructive/alternative methods of notice, and stating that actual notice is required?

Discussion

I.

Prior to the filing of this suit, the Elliotts, on behalf of their children, filed suit seeking compensation for injuries sustained as the result of exposure to lead-based paint at the same two properties involved in the case before us. On March 10, 1997, before the complaint was filed in this case, Mr. Elliott was deposed. The deposition was noted by counsel for the Murphys and was attended by counsel for the Elliotts and counsel for the third-party defendant, P & L Real Estate.

Mr. Elliott was deceased at the time of the trial in this case. Appellants attempted to introduce the deposition of Mr. Elliott, but an objection was sustained. Appellants argue that portions of the deposition were relevant, specifically, Mr. Elliott's testimony that appellants in this case visited the Elliotts in their apartment at 2501 Madison Avenue, his testimony that there was deteriorated paint in the Elliotts' apartment, and his testimony that notice had been given to the Murphys. Appellants argue that the deposition testimony added "new and more specific facts to the case" and "would have provided the jury with evidence against which to gauge the other testimony in this case."

We note that this issue relates to the liability of the Murphys only, who argue that when the Elliott deposition was taken, the visitation of appellants to the Elliott apartment was not an issue. Consequently, according to the Murphys, this does not involve the same subject matter under Rule 2-419, and there was no motive to cross-examine Mr. Elliott with respect to that visitation issue under Rule 5-804. Additionally, with respect to the evidence relating to notice of defects, the Murphys argue that it was cumulative because Ms. Elliott testified with respect to the presence of deteriorated paint in their apartment and that notice was given to the Murphys. Therefore, if exclusion of the testimony was error, the Murphys argue it was not prejudicial or reversible error.

It is undisputed that the witness was not available because he was deceased. See Rule 2-419(a)(3)(a). Rule 2-419(c) provides:

A deposition lawfully taken in another action may be used like any other deposition if the other action was brought in any court of this state, of any other state, or of the United States, involved the same subject matter, and was brought between the same parties or their representatives or predecessors in interest.

The Court of Appeals, in Huffington v. State, 304 Md. 559, 569-74, 500 A.2d 272 (1985), endorsed the substance of Federal Rule of Evidence 5-804(b)(1) as the test for the admissibility of former testimony under the common law exception to the hearsay rule. In Owens-Illinois, Inc. v. Zenobia, 325 Md. 420, 439-41, 601 A.2d 633 (1992), the Court confirmed that the test for admissibility is whether a party had a motive to develop the testimony about the same matters in the action in which the deposition was taken as the present party would have in the action in which the deposition is being admitted. These actions predated adoption of the Maryland Rules of Evidence, which apply to trials commencing after July 1, 1994. In U.S. Gypsum Co. v. Mayor & City Council of Baltimore, 336 Md. 145, 647 A.2d 405 (1994), the Court stated that Rule 5-804(b)(1),² applicable to trials commencing after July 1, 1994, mirrors the language of the federal rule and, thus, codifies the motive test adopted in Zenobia. 336 Md. at 180 n. 14, 647 A.2d 405.

In the case before us, the deposition was being offered as evidence that appellants visited 2501 Madison Avenue. We agree with the Murphys that this was not an issue in the case in which the deposition was taken and, in fact, was not an issue at all because appellants' complaint had not been filed at that time. Consequently, it was not error to refuse to admit that portion of the deposition.

We reach a different conclusion with respect to the portion of the deposition relating...