Jones v. Mid-Atlantic Funding

• Decision Date: 09 February 2001
• Docket Number: No. 59,59
• Citation: 362 Md. 661,766 A.2d 617
• Parties: Antonio JONES, a minor, etc., et al., v. MID-ATLANTIC FUNDING COMPANY et al.
• Court: Maryland Court of Appeals

766 A.2d 617

362 Md. 661

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

No. 59, Sept. Term, 2000.

Court of Appeals of Maryland.

February 9, 2001.

Saul E. Kerpelman (Lisa Smith of Saul E. Kerpelman & Asoc., on brief), Baltimore, for petitioners.

Una M. Perez (David A. Carter of Meyers, Rodbell & Rosenbaum, P.A., on brief), Annapolis, Natalie C. Magdeburger (Raymond L. Marshall of Whiteford, Taylor & Preston L.L.P., on brief), Towson, Angus R. Everton (Morgan, Shelsby, Carlo, Downs & Everton, P.A., on brief), Hunt Valley, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and LAWRENCE F. RODOWSKY, (Retired, specially assigned), JJ.

CATHELL, Judge.

On May 5, 1994, petitioners, Carrie Holmes, individually and on behalf of her minor children, Antonio Jones and Erika Jones, filed an action¹ in the Circuit Court for Baltimore City against Mid-Atlantic Funding Co. (hereinafter Mid-Atlantic Funding), Darius Funding, Inc. (hereinafter Darius Funding), and Philip Hanson. Amendments by Interlineation brought MD-A Funding, Inc. (formerly Mid-Atlantic Funding Co.), Peter and Julie Ben-Ezra (hereinafter the Ben-Ezras), Consumer Management Corporation (hereinafter Consumer Management), and BBG Management into the action.²

Motions for Summary Judgment were filed by Philip Hanson, the Ben-Ezras, and Consumer Management. After two hearings on the Motions for Summary Judgment, the Circuit Court for Baltimore City granted the motions. Petitioners filed a Motion to Alter or Amend Judgment. It was denied by the Circuit Court. Petitioners filed an appeal to the Court of Special Appeals. Because BBG Management had not had a final judgment entered against it, petitioners had to voluntarily dismiss their initial appeal so they could dismiss BBG Management from the suit. Petitioners then filed a new appeal to the Court of Special Appeals.

On April 27, 2000 (in Jones v. Mid-Atlantic Funding Company, 131 Md.App. 614, 750 A.2d 638 (2000)), the Court of Special Appeals affirmed the decision of the Circuit Court for Baltimore City. Petitioners filed a Petition for Writ of Certiorari to this Court. We granted their Petition. Petitioners have presented two questions for our review:

I. Is a landlord's knowledge of lead hazards in a rented premises a jury issue to be decided on the totality of the evidence under this Court's recent ruling in Brown v. Dermer, 357 Md. [344, 744 A.2d 47] (2000), or are trial courts and the Court of Special Appeals to continue weighing, balancing, and resolving evidence of knowledge on a landlord's motion for summary judgment?

II. Does this Court's ruling in Pittman v. Atlantic Realty Co., 359 Md. 513 (2000) mandate a reversal of the Court of Special Appeals' holding herein, based upon Pittman v. Atlantic Realty Co., 127 Md.App. 255 (1999), that whenever there is a conflict between interrogatory answers and deposition testimony, interrogatories may be disregarded and the deposition credited[?]

In response to question I, we hold that a trial court should follow the test enunciated in Brown v. Dermer, 357 Md. 344, 744 A.2d 47 (2000), when ruling on a motion for summary judgment in a lead poisoning case.³ We hold that the trial court improperly granted, and the Court of Special Appeals improperly affirmed, summary judgment in the case sub judice. We shall reverse the decision of the Court of Special Appeals with instructions for that court to reverse the decision of the Circuit Court for Baltimore City and to remand the case to the Circuit Court for further proceedings consistent with this opinion. Since we are reversing the decision of the Circuit Court and the Court of Special Appeals in respect to question I, we need not address question II,⁴ although we do not perceive this to be a Pittman case in the first instance.

Facts

There are genuine disputes as to the material facts of this case. Because we are examining the granting of a motion for summary judgment, we will examine the facts in the light most favorable to the nonmoving party—in the case sub judice, petitioners.

Carrie Holmes and two of her children, Antonio Jones and Erika Jones,⁵ moved to 1229 North Central Avenue, a two-story row house located on the east side of Baltimore City, sometime in 1984-85.⁶ Carrie Holmes signed a written lease with Consumer Management,⁷ which was managing the property for the Ben-Ezras, who had purchased the property in September of 1983.⁸ Ms. Holmes testified that she inspected the property prior to moving in and that the property "was in fair condition. There wasn't no chipped paint, no nothing. It was already painted nice and clean all the way through."⁹ After moving into the row house, however, Ms. Holmes started to notice that the inside paint was peeling.¹⁰ For example, as she would clean the walls, the paint would peel. She noticed problems with peeling paint in the dining room, the bedrooms, and the bathroom.

Harry Holmes, the brother of Carrie Holmes, moved in with Ms. Holmes sometime shortly after she began her tenancy and lived with her for two years from approximately sometime in 1985 to 1987. Mr. Holmes testified that when he moved into 1229 North Central Avenue, there were problems with the row house. He stated that "[i]t's a shack.... It was cold. It was holey, needed stucco, needed sanding, needed painting, needed windows, needed floors, needed doors, needed everything." Mr. Holmes also stated that the window paint was peeling.

Antonio and Erika Jones were diagnosed with lead poisoning during 1986 while residing at 1229 North Central Avenue.¹¹ During a routine checkup on October 17, 1986, Antonio Jones had blood taken and the test results registered a 37 ug/dL.¹² Subsequent blood tests performed on Antonio Jones showed lead levels of 33 ug/dL on December 10, 1986, 34 ug/dL on January 20, 1987, 38 ug/dL on April 2, 1987, 32 ug/dL on March 11, 1988, 62 ug/dL on July 25, 1988, and 41 ug/dL on October 5, 1988. Erika Jones was also originally diagnosed during a routine checkup. Her blood showed lead levels of 25 ug/dL on October 17, 1986, 19 ug/dL on December 10, 1986, 28 ug/dL on April 2, 1987, 44 ug/dL on July 28, 1988, and 27 ug/dL on January 5, 1989.

Carrie Holmes testified that the first time she called Consumer Management was one month before her children were diagnosed with lead poisoning.¹³ She testified that she "called the landlord¹⁴ and told them to send me some paint and I didn't never get no paint." When questioned as to why she requested the paint, Ms. Holmes testified that "I figured that the house needed painting. It had not been painted since I had been there." Ms. Holmes was told that Consumer Management does not give out paint. Once Ms. Holmes learned that her children had been diagnosed with lead poisoning, she once again called Consumer Management. She testified that she spoke to a woman at Consumer Management and she stated that "[w]hen I called her, I told her my children had lead. She said she don't know how the children got it. I said they get tested from the clinic. That is how I knew my children had it. That is when I called the Health Department."

Harry Holmes testified that while he was living at 1229 North Central Avenue, a man, he described as being drunk, came to the row house to paint. Mr. Holmes stated that this occurred in 1986 or 1987. He stated that a man showed up and "[h]e just said that he was from maintenance, that is all. He was going to paint." Mr. Holmes testified that the man entered the house, scraped the walls for about an hour and then left, never to return.

The Baltimore City Health Department first issued an Emergency Violation Notice and Order to Remove Lead Nuisance to Mr. Philip Hanson on February 25, 1988.¹⁵ The notice cited thirty-three lead-based paint hazards both inside the row house and on the exterior. These included violations in the following rooms: second floor bathroom, second floor rear room, second floor middle room, second floor hall, second floor front room, stair treads and posts, kitchen, first floor middle room, first floor front room, and basement. A second code violation was issued for 1229 North Central Avenue in March of 1989 and it included other types of violations such as a defective wall in the kitchen, a defective wall in the stairway, a defective stairway, a defective wall in the bathroom, a floor covering in the bathroom that was not impervious to water, cracked window or glass in the front bedroom, a defective wall in the middle bedroom, and a defective ceiling in the dining room.

Petitioners filed a Complaint in the Circuit Court for Baltimore City on May 5, 1994 against Mid-Atlantic Funding, Darius Funding, and Philip Hanson as the owners of the property at 1229 North Central Avenue. The Complaint set forth thirty counts, which included the same five counts for each minor plaintiff as to every defendant. The five counts alleged in the Complaint for each minor plaintiff were negligence, the mother's claims in her own right for deprivation of her child's services during minority, a Maryland Consumer Protection Act¹⁶ claim, strict liability, and punitive damages. Petitioners filed an Amendment by Interlineation on June 27, 1994, which added counts thirty-one through forty and brought MD-A Funding, formerly Mid-Atlantic Funding, into the action. Petitioners filed a second Amendment by Interlineation on August 30, 1994, that added counts forty-one through fifty and made the same allegations against Peter and Julie Ben-Ezra. A third Amendment by Interlineation was filed on February 28, 1995, that added counts fifty-one through fifty-six and brought Consumer Management into the action. A fourth Amendment by Interlineation was filed on January 14, 1997, that added counts fifty-seven through sixty-two and brought BBG Management into the action.¹⁷

Respondents, the Ben-Ezras, filed a Motion for Partial Dismissal as to counts forty-two, forty-four,...