Jones v. MID-ATLANTIC FUNDING

• Decision Date: 27 April 2000
• Docket Number: No. 6766,6766
• Citation: 131 Md. App. 614,750 A.2d 638
• Parties: Antonio JONES, et al. v. MID-ATLANTIC FUNDING COMPANY, et al.
• Court: Court of Special Appeals of Maryland

750 A.2d 638

131 Md. App. 614

Antonio JONES, et al. v. MID-ATLANTIC FUNDING COMPANY, et al.

No. 6766, Sept. Term, 1998.

Court of Special Appeals of Maryland.

April 27, 2000.

Alan J. Mensh (Saul E. Kerpelman, on the brief), Baltimore, for appellants.

Angus R. Everton, Hunt Valley, for appellee, Consumer Management Corp.

Una M. Perez (David A. Carter and Meyers, Billingsley, Rodbell & Rosenbaum, P.A., on the brief), Annapolis, for appellees, Peter and Julia Ben Erza.

Natalie C. Magdeburger (Whiteford, Taylor & Preston, LLP, on the brief), Towson, for appellee, Hanson.

Argued before SALMON, THIEME and THEODORE G. BLOOM (Ret., Specially Assigned), JJ.

SALMON, Judge.

This is a lead paint poisoning negligence action instituted by Carrie Holmes on her own behalf and on behalf of her two children, Antonio Jones, born August 1, 1983, and Erica Jones, born November 1, 1985. Ms. Holmes contends that her children contracted lead poisoning as a result of living at 1229 North Central Avenue, Baltimore City, Maryland (the "Premises"). Ms. Holmes rented the Premises commencing in May 1984 and lived there with her children until 1990.

Ms. Holmes's landlords between May 1984 and March 1, 1987, were Peter and Julia Ben Ezra ("the Ben Ezras"). From March 1987 until she vacated the Premises in 1990, her landlord was Phillip Hanson ("Hanson"). Consumer Management Corporation managed the Premises for both the Ben Ezras and Hanson at all times here relevant.¹ On May 5, 1994, Carrie Holmes filed a complaint in the Circuit Court for Baltimore City against Hanson and others, alleging, inter alia, that the defendants had been negligent in the upkeep of the Premises, causing injuries to Erica and Antonio.² Subsequently the complaint was amended to allege negligence against the Ben Ezras and Consumer Management Corporation.

After engaging in substantial discovery, Hanson, the Ben Ezras, and Consumer Management Corporation each filed a motion for summary judgment. The motion filed by Consumer Management Corporation was initially denied; however, Consumer Management subsequently filed a motion to alter or amend judgment. In October of 1997, Baltimore City Circuit Court Judge John Carroll Byrnes granted the motion for summary judgment filed by Hanson and the Ben Ezras. Shortly thereafter, he granted Consumer Management's motion to alter or amend judgment and granted summary judgment in its favor. Plaintiffs then filed their own motion to alter or amend judgment, which was denied. The plaintiffs next dismissed a party who had been named as a defendant and served. After the dismissal, the plaintiffs noted this timely appeal and present us with two questions:

1. Did the trial court err in granting the motions for summary judgment filed by Consumer Management Corporation, Hanson, and Ben Ezras?

2. Did the trial court err in denying a motion to alter or amend judgment filed by the appellants?

Although appellants raised two issues, they present argument in their brief only as to the first. Therefore, the second issue shall be deemed waived. See Beck v. Mangels, 100 Md.App. 144, 149, 640 A.2d 236 (1994); Md. Rule 8-504(a)(5) ("[A] brief shall contain ... [a]rgument in support of the party's position.").

I. BACKGROUND FACTS

The facts that are necessary to dispose of this case all concern the issue of whether the appellees ever received notice that the leased Premises contained deteriorated (i.e., cracking, loose, peeling, or flaking) paint. As will be shown infra, if they received no such notice, all of the appellees were entitled to a grant of summary judgment in their favor. In regard to the notice issue, appellants relied in the trial court primarily on the deposition testimony of Carrie Holmes and her brother, Harry Holmes.

A. DEPOSITION TESTIMONY OF CARRIE HOLMES

Ms. Holmes testified that, in addition to her two children, her brother, Harry Holmes, came to live with her at the subject property for approximately two years. Although she was not sure of the exact dates, she believed that he commenced his residency with her in 1984, shortly after he received his discharge from the U.S. Army, and stayed until sometime in 1986.

Before she moved into the Premises, Ms. Holmes inspected the home and found it to be in "fair" condition with "no chipped paint, no nothing."³ In her words, the house "was already painted nice and clean all the way through."

The Premises consisted of a two-story, three-bedroom row house located on the east side of Baltimore. During her tenancy, Ms. Holmes "put all [of her] children in the middle room, because somebody kept breaking [into her] house, and [she] got scared."

Ms. Holmes did not notice any problem with defective paint until one month before her children were diagnosed with having elevated lead levels; that diagnosis was made on October 17, 1986.⁴ She admitted that she never reported to her landlords or to their agents that there was loose, chipping, flaking, or peeling paint on the Premises. Specifically, she testified as follows:

Q: Did you ever tell anyone at your land-lord's about the problems with the paint?

A: No.

Q: I am asking at any time?

A: No.

Sometime in September 1996, Ms. Holmes contacted Consumer Management Corporation to ask for paint. She did not say why she wanted the paint. On that occasion, Ms. Holmes talked to a secretary at the management company who said that they "don't give out paint." The secretary did not promise to send someone to paint the house, nor did Ms. Holmes ever paint the house on her own.

Shortly after she was notified that her children were diagnosed as having lead paint poisoning, Ms. Holmes talked to "a lady," otherwise unidentified, at the management company's office. Ms. Holmes's deposition testimony in regard to this conversation was as follows:

Q: After the children were tested for lead paint poisoning for the first time in `86, that is when you called the landlord, correct?

A: Yes.

Q: What did you say to the landlord?

A: That my clinic found, the doctor just found out my children had lead. He said he don't know how they got it. I called the Health Department.

Q: Do you remember who you talked to?

A: Somebody on the phone.

Q: Do you know if it was the middle-aged man that you talked to before?

A: They say that he had been deceased.

Q: Was it a man or a woman that you spoke to?

A: I think it was a lady.

Q: Do you remember her name?

A: No.

Q: Did you speak to anyone else other than her?

A: No, ma'am.

Q: Did you speak to anyone, or did you speak to her other than that one time, or was it just that once?

A: Just that one time.

Q: What did she say to you?

A: When I called for, I told her my children had lead. She said she don't know how the children got it. I said they get tested at the clinic. That is how I knew my children have it. That is when I called the health department.

Q: Did you say anything else to the lady at that time?

A: No.

Ms. Holmes called the Baltimore City Health Department (the "Health Department") to complain about the Premises. The exact date she did this is not shown in the record. The record does show that on June 24, 1987, H.L. Burley of the Health Department inspected the Premises and found thirty-three areas that tested positive for lead-based paint. Mr. Burley also noted that some of these areas contained flaking or chipping paint. Ms. Holmes was given an information sheet by Mr. Burley that set forth his findings. The following day, she took the information sheet to her attorney, Saul Kerpelman, and asked him to send it to the landlord.

B. DEPOSITION TESTIMONY OF HARRY HOLMES

Harry Holmes ("Holmes") could not recall the exact dates when he resided at the Premises. Nevertheless, he remembered that he lived with Ms. Holmes and her children "off and on [for] ... four or five years maybe." When questioned further, Holmes stated: "In the Eighties, that is all that I know, but the specific time and date I don't know.... Maybe it was `86, `87, in the Eighties."

Holmes testified that when he first moved into the subject property, the window sills had peeling paint and, overall, the Premises looked to him like a "shack." The house, which was cold, contained holes in the walls, required stucco, sanding, and new doors and windows. The windows needed caulking and there was a "plumbing problem in the bathroom."

Holmes recalled that about one year after he moved into the Premises, a stranger came to the row house and said he was there "to paint." The man did not tell Holmes his name or provide any identification. In Holmes's words, "[he] just said that he was from maintenance, that is all. He was going to paint." The stranger looked to Holmes like a "five and dime drunk off the street" and he "looked and smelled like a drunk." Holmes further described the man as looking "like a street person, corner guy, like the landlords know him, like somebody on the corner."

This inebriated stranger never actually did any painting; instead he merely scraped the walls in the kitchen and left after approximately one hour. The man never returned to paint. Holmes did not check with anyone to verify that the man was in fact sent by the landlord.

Holmes further testified at his deposition that he overheard Ms. Holmes contact the landlord on about six different occasions while he resided with her. His testimony concerning these calls was as follows:

Q: Do you know if any of the problems with the plumbing, or the windows, or the door were reported to the landlord?

A: Yes.

Q: How do you know they were reported?

A: Because she reported it, I believe.

Q: How do you know?

A: I believe, when we were sitting there, she called, I know she called from my mother's house, I know she called from her house.

I know that she called from the corner store. You go across the street from the corner store, and you call. That is where you make your calls from.

...

Q: So there were three occasions that you heard your sister report problems to

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