Berrain v. Katzen, 147

Citation629 A.2d 707,331 Md. 693
Decision Date01 September 1992
Docket NumberNo. 147,147
PartiesTonya BERRAIN et al. v. Raymond KATZEN. ,
CourtCourt of Appeals of Maryland

Saul E. Kerpelman, Baltimore, for appellant.

Robert K. Nead (Sandra B. Minton, O'Doherty, Nead, Hoffman, Karey), Baltimore, all on brief, for appellee.



In this appeal we are asked to determine whether the trial court abused its discretion in dismissing with prejudice personal injury actions of minors brought on their behalf by their mother as next friend when their mother failed to respond to interrogatories propounded by the defendant.


Karla Berrain, Karl Berrain, and Tonya Berrain, who are now aged 7, 9 and 11, respectively, allegedly suffered brain damage from lead poisoning. It is claimed that the primary source of their exposure to that toxin was the deteriorating lead based paint the children ingested while living with their mother, Tonia Hanson, at premises she rented from the appellee, Raymond Katzen. A suit seeking damages for that lead paint poisoning was brought in the Circuit Court for Baltimore City in 1987 on behalf of the Berrain children by their mother and custodial parent as next friend pursuant to Maryland Rule 2-202(b). 1 That suit was subsequently dismissed without prejudice on July 17, 1989, for lack of prosecution pursuant to Md.Rule 2-507. 2 A second action was filed in the Circuit Court for Baltimore City in 1991 against Katzen. Again, the suit was filed on behalf of the Berrain children by their mother as next friend pursuant to Md.Rule 2-202(b). On December 2, 1991, defense counsel propounded interrogatories to the plaintiffs through their mother. Md.Rule 2-421(b) requires in part that:

"The party to whom the interrogatories are directed shall serve a response within 30 days after service of the interrogatories ...

After more than seven months of waiting, on July 20, 1992, Katzen moved for sanctions for failure to provide discovery pursuant to Md.Rule 2-432(a). Included in the defendant's motion was a certification of defense counsel's good faith attempts to discuss and resolve the discovery dispute. Those efforts included forwarding a second copy of the interrogatories to plaintiffs' counsel and contacting plaintiffs' counsel by telephone. Md.Rule 2-432(a) provides in part:

"A discovering party may move for sanctions under Rule 2-433(a), without first obtaining an order compelling discovery under section (b) of this Rule, ... if a party fails to serve a response to interrogatories under Rule 2-421 ..."

Among the sanctions sought by the defendant was a judgment of dismissal with prejudice in favor of the defendant against the plaintiffs. Md.Rule 2-433(a) provides in part:

"Upon a motion filed under Rule 2-432(a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including one or more of the following:

* * * * * *

(3) An order ... dismissing the action or any part thereof ..."

The trial court dismissed the action with prejudice and denied the plaintiffs' motion for reconsideration on September 17, 1992. An appeal to the Court of Special Appeals was noted the same day. 3 Prior to argument of the case before the intermediate appellate court, we issued a writ of certiorari on our own motion. 329 Md. 337, 619 A.2d 547.


In Baltimore Transit v. Mezzanotti, 227 Md. 8, 174 A.2d 768 (1961), Judge Prescott, speaking for this Court, explained:

"We do not deem it necessary nor desirable, at this time, to make an extended or elaborate statement concerning our discovery rules. It will suffice to say that it is clear they are broad and comprehensive in scope, and were deliberately designed so to be. One of their fundamental and principal objectives is to require the disclosure of facts by a party litigant to all of his adversaries, and thereby to eliminate, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation. If all of the parties have knowledge of all of the relevant, pertinent and non-privileged facts, or the knowledge of the existence or whereabouts of such facts, the parties should be able properly to prepare their claims and defenses, thereby advancing the sound and expeditious administration of justice. In order to accomplish the above purposes, the discovery rules are to be liberally construed. And the trial judges, who are primarily called upon to administer said rules, are vested with a reasonable, sound discretion in applying them, which discretion will not be disturbed in the absence of a showing of its abuse."

Id. at 13-14, 174 A.2d at 771 (emphasis in original). See also Androutsos v. Fairfax Hospital, 323 Md. 634, 638, 594 A.2d 574, 576 (1991); Public Service Comm'n v. Patuxent Valley Conservation League, 300 Md. 200, 216, 477 A.2d 759, 767 (1984); Kelch v. Mass Transit Administration, 287 Md. 223, 229-30, 411 A.2d 449, 453 (1980); Klein v. Weiss, 284 Md. 36, 55, 395 A.2d 126, 137 (1978); Mason v. Wolfing, 265 Md. 234, 236, 288 A.2d 880, 881 (1972); Williams v. Moran, 248 Md. 279, 291, 236 A.2d 274, 281-82 (1967); Pfeiffer v. State Farm Mut. Auto. Ins. Co., 247 Md. 56, 60-61, 230 A.2d 87, 90 (1967); Caton Ridge, Inc. v. Bonnett, 245 Md. 268, 276, 225 A.2d 853, 857 (1967); Miller v. Talbott, 239 Md. 382, 387-88, 211 A.2d 741, 744-45 (1965); Guerriero v. Friendly Finance Corp., 230 Md. 217, 222-23, 186 A.2d 881, 884 (1962).

One method employed in our rules to promote compliance is the sanctions scheme set forth in Rules 2-432 and 2-433. We have had ample opportunities to underscore the enforcement of the sanctions against errant parties. In Mezzanotti, supra, we rejected the claim that a sanction of default judgment violated due process of law, stating:

"The claim is without merit. Rule 422 c [the precursor of Rule 2-432], as does Rule 37(b)(2) of the Federal Rules of Civil Procedure, empowers the court, among other things, to enter a judgment by default against a party who refuses to answer interrogatories. Such authority, when properly exercised, has been held not to violate due process of law. Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530. If a party can refuse to answer and be defaulted, and still present a 'meritorious' defense when the default judgment is extended, the party has suffered nothing by its refusal to answer, and Rule 422 c is meaningless."

227 Md. at 21, 174 A.2d at 775.

In Lynch v. R.E. Tull & Sons, Inc., 251 Md. 260, 247 A.2d 286 (1968), a plaintiff filed a contract action. The defendant counterclaimed and filed interrogatories. The plaintiff failed to answer the interrogatories and the defendant sought sanctions. The trial court found the plaintiff had flagrantly abused the discovery rules. In affirming the trial court's dismissal of Lynch's claim and entry of judgment of default on Tull's counterclaim, we observed:

"The reasons for Lynch's failure to answer the interrogatories, which Judge Shure said were apparent to him as constituting a 'flagrant abuse' could well have been a deliberate, if not wilful, attempt to hinder or prevent effective presentation of Tull's defenses and counterclaims, or to stall in revealing his own weak claim or defense."

Id. at 262, 247 A.2d at 287.

This Court has consistently held that failure to furnish discovery sought under our Rules can result in the sanction of dismissal of a claim or an order of default. To hold otherwise would undermine the administration of our courts. See also Attorney Grievance Comm'n v. Kerpelman, 323 Md. 136, 148-49, 591 A.2d 516, 523, cert. denied Kerpelman v. Attorney Grievance Comm'n of Maryland, 502 U.S. 939, 112 S.Ct. 374, 116 L.Ed.2d 326 (1991); Attorney Grievance Comm'n v. Pearson, 322 Md. 154, 163, 586 A.2d 25, 29 (1991); Adams v. Mallory, 308 Md. 453, 460-61, 520 A.2d 371, 375 (1987); Glass v. Glass, 284 Md. 169, 170-72, 395 A.2d 485, 486-87 (1978).


The question remains, however, whether such sanctions were appropriate in the instant case where the infant plaintiffs' capacity to sue was subject to the control of a next friend. Md.Rule 2-202(b), which we quoted in footnote 1, supra, is derived from former Md.Rule 205c and d which provided:

c. Infant--Suit by Mother--Tort.

Where a tort shall be alleged to have been committed against any infant, and said infant is in the sole custody of its mother, the mother, in the first instance shall have the right to institute suit against the alleged tort-feasor or tort-feasors for and on account of such alleged tort; provided, however, that if the mother, within six months after the commission of the alleged tort, shall have failed to institute suit as aforesaid, then any person interested in said child, after having first given notice to its mother, by registered mail at her last known address, shall have a right to institute suit as next friend to such infant. 4

d. Plaintiff Under Disability--Guardian--Committee--Next Friend.

A person under disability to sue, may sue by his guardian or committee, or by his next friend, subject, however, to such orders as the court may direct for the protection of infants and other persons; but before the name of any person shall be used in any action to be instituted as next friend of any infant, such person shall sign a written authority to the attorney for that purpose, and such authority shall be attached to the original pleading."

Former Rule 205c, which we promulgated in 1957, substantially adopted the language of Maryland Code (1951), Art. 93, § 163. 5 That statute was originally enacted as Ch. 524 of the Acts of 1927 and then codified as Md.Code (1927), Art. 93, § 153A. The language vesting the exclusive right to sue on behalf of a minor in the hands of the custodial parent was introduced by amendment in the ...

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