Polakoff v. Hampton

Decision Date07 November 2002
Docket NumberNo. 2471 September Term, 2001.,2471 September Term, 2001.
Citation810 A.2d 1029,148 Md. App. 13
PartiesLawrence POLAKOFF, et al. v. Brenda HAMPTON, et al.
CourtCourt of Special Appeals of Maryland

Ira C. Cooke (David A. Lynd and Cooke & Associates Limited, on the brief), Towson, for appellants.

Kevin Urick (Saul E. Kerpelman & Associates, P.A., on the brief), Baltimore, for appellees. Argued before SALMON, DEBORAH S. EYLER, McAULIFFE, JOHN F. (Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

The Circuit Court for Baltimore City granted a motion to dismiss a declaratory judgment action brought by Lawrence Polakoff; CFSP Limited Partnership ("CFSP"); Chase Management, Inc. ("Chase"); Stanley Sugarman, Sugarcorn Realty ("Sugarcorn"); and Homewood Realty, Inc. ("Homewood"), the appellants, against Brenda A. Hampton, individually and as mother and next friend of Brenda Hampton, a minor; Brenda Hampton; Kimberly Robinson, individually and as mother and next friend of Kaletha Leggette; Kaletha Leggette; and Kerpelman & Associates, P.A. ("the Kerpelman firm"), the appellees. Also named as defendants were "[a]ll other similarly situated Litigants, named or unnamed[,] Who may in the future claim Injuries due to alleged lead Exposures in the State of Maryland."

On appeal, the appellants present four questions for review, which we have combined into one:

Did the circuit court err in dismissing the complaint on the ground that the appellants were not entitled to seek declaratory relief?1

The appellees have moved to dismiss the appeal as not having been taken from a final judgment.

For the following reasons, we shall deny the appellees' motion to dismiss the appeal and affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

The appellants alleged the following facts in their complaint for declaratory relief.

Polakoff holds interests in several limited partnerships and other business entities that own or manage numerous residential rental properties in Baltimore City. One such property, 1716 North Washington Street, is owned by CFSP and managed by Chase. Brenda A. Hampton and her minor daughter Brenda Hampton ("the Hampton appellees") live at that address.

On February 2, 2001, CFSP and Chase received from the Baltimore City Health Department an Emergency Violation Notice and Order to Remove Lead Nuisance for 1716 North Washington Street stating, inter alia, that the premises had been inspected for lead on January 29, 2001, and test results revealed the presence of leadbased paint. In connection with the violation notice, CFSP and Chase were informed that Brenda Hampton had been diagnosed with an elevated blood lead level ("EBL") of 22 g/dl, as first documented by test results on June 27, 2000.2 Sugarman also holds interests in several limited partnerships and other business entities that own and/or manage a number of residential rental properties in Baltimore City. One of those properties is 1735 Poplar Grove Street, which is the residence of Kimberly Robinson and her minor daughter Kaletha Leggette ("the Robinson/Leggette appellees"). From January 1986 until March 30, 2000, Sugarcorn owned that property and Homewood managed it.

In July 1999, Homewood was informed that Kaletha Leggette had been diagnosed with an EBL of 17 g/dl, as first documented by test results on July 7, 1999. About a year later, on June 30, 2000, Robinson, as mother and next friend of Leggette, filed a personal injury tort action against Homewood, in the Circuit Court for Baltimore City, alleging that Leggette had sustained personal injuries as a consequence of being exposed to lead paint at the 1735 Poplar Grove Street premises. Robinson and Leggette are represented in that tort action by the Kerpelman firm.

On those facts, the appellants stated one count for declaratory relief, asking the court to interpret Md.Code (1996 Repl. Vol., 2001 Supp.), section 6-828(b) of the Environment Article ("Env."), which is part of the "Lead Poisoning Prevention Program Act" enacted by the General Assembly by Chapter 114, Acts of 1994, codified at Md.Code Env. sections 801 et seq. (1996 Repl.Vol., 2001 Supp.), to "permanently bar" the Hampton appellees "from filing an action against the [appellants], or any related entities dealing with the ownership and/or management" of 1716 North Washington Street "for damages arising from alleged injury or loss caused by the ingestion of lead paint." They likewise sought a declaration that the Robinson/Leggette appellees are "permanently barred from filing an action against [the appellants], or any related entities dealing with the ownership and/or management" of 1735 Poplar Grove Street, "for damages arising from alleged injury or loss caused by the ingestion of lead paint." Finally, they asked the court to declare that "all persons at risk that are first documented by a test for EBL of 24 g/dl or less performed on or after February 24, 1996, or 19 g/dl or less performed on or after February 24, 2001, may not bring an action against an owner of an affected property for damages arising from alleged injury or by the ingestion of lead."

After all the appellees except the Hampton appellees were served, "Saul E. Kerpelman, pro se," filed a motion to dismiss, in which he argued, inter alia, that the complaint did not set forth a controversy that properly could be resolved by declaratory judgment, and even if it did, the court should exercise its discretion to refuse to entertain the action because it would not serve a useful purpose or terminate a controversy. In addition, Kerpelman pointed out that in the pending tort action by the Robinson/Leggette appellees against Homewood, Homewood had moved for summary judgment under Env. section 6-828(b), on the same grounds the appellants were advocating in their declaratory judgment action, and the motion had been denied. Kerpelman argued that the pending tort action is an actual controversy in which the issue raised by the appellants can be decided; and that it is inappropriate for the issue to be raised abstractly and hypothetically in a declaratory judgment action. Kerpelman requested a hearing on the motion to dismiss. The Hampton appellees were served with the complaint after the motion to dismiss was filed. Neither they nor any of the other appellees filed answers, motions to dismiss, or responsive pleadings of any sort.

The appellants filed an opposition to the motion to dismiss, which was followed by a reply memorandum by Kerpelman and a sur-rebuttal memorandum by the appellants.

The hearing on the motion to dismiss took place on December 10, 2001. The court held the matter sub curia and, on January 3, 2002, issued a memorandum opinion and order granting the motion. The court noted that the appellants had conceded at the hearing that the question of whether Env. section 6-828(b) bars certain "persons at risk," as that term is defined by statute,3 from filing lead paint personal injury actions against property owners is being litigated in a number of pending personal injury tort cases, including the Robinson/Leggette appellees' tort action against Homewood. The court concluded that under the circumstances it was not appropriate for it to entertain a declaratory judgment action on the same issue. The court went on to observe that the appellants were attempting to use the declaratory judgment process to sidestep the unfavorable summary judgment ruling against Homewood in the Robinson/Leggette appellees' tort action and, in addition, that no useful purpose would be served by allowing the declaratory judgment action to proceed.

The circuit court's memorandum opinion and order and a separate judgment order were recorded on the docket in an entry that reads: "defts' Motion to Dismiss `GRANTED.'"

The appellants filed a notice of appeal. In this Court, the Kerpelman firm filed a brief on behalf of "the appellees."

DISCUSSION
I

The appellees have moved to dismiss the appeal on the ground that it was not taken from a final judgment and this Court therefore lacks jurisdiction to hear it. See Md.Code (2002 Repl.Vol.), section 12-301 of the Courts and Judicial Proceedings Article ("CJ") (stating that a right of appeal exists from a final judgment). They contend that the claims against the Hampton appellees were not ruled upon, and thus, under Rule 2-602(a), the court's judgment was not final because it did not resolve all claims against all parties. More specifically, the appellees argue that the motion to dismiss was filed only on behalf of the Kerpelman firm and the Robinson/Leggette appellees, the firm's clients in the tort action against Homewood, and not on behalf of the Hampton appellees; and because the motion did not cover the Hampton appellees, the court's order granting it did not dispose of the claims against them.

The appellees are correct that ordinarily, for a judgment to be final and appealable, it must resolve all claims against all parties to the case. See Md. Rule 2-602(a). Our review of the record reveals that, contrary to the appellees' assertion on appeal, however, the parties and the circuit court treated the motion to dismiss filed by "Saul E. Kerpelman, pro se," a non-party, as having been filed on behalf of all the defendants in the case, and the court's granting of the motion as having dismissed all the claims against all the defendants in the case.

At oral argument in this Court, counsel for the appellees took the position that the motion to dismiss in fact was filed by the Kerpelman firm on behalf of itself and the Robinson/Leggette appellees. The contents of the motion belie that assertion, however. As noted above, the motion to dismiss was filed by Kerpelman, the principal lawyer in the Kerpelman firm, who was not a party to the case. The arguments advanced in the motion—that there was no justiciable controversy and, even if there was, the court should exercise its discretion not to entertain the claim for declaratory relief—pertained to all the defendants in the...

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    ...court to ‘refuse a declaratory judgment when it does not serve a useful purpose or terminate controversy.’ " Polakoff v. Hampton, 148 Md.App. 13, 27, 810 A.2d 1029 (2002) (quoting Staley v. Safe Deposit & Trust Co., 189 Md. 447, 457, 56 A.2d 144 (1947) ); see Edwin M. Borchard, The Uniform ......
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