Stokes v. WASHINGTON STREET, LLC

• Decision Date: 07 November 2001
• Docket Number: No. 1082,1082
• Citation: 784 A.2d 1142,141 Md. App. 214
• Parties: Charles STOKES, a minor, etc., et al., v. 835 N. WASHINGTON STREET, LLC.
• Court: Court of Special Appeals of Maryland

784 A.2d 1142

141 Md. App. 214

Charles STOKES, a minor, etc., et al., v. 835 N. WASHINGTON STREET, LLC.

No. 1082, Sept. Term, 2000.

Court of Special Appeals of Maryland.

November 7, 2001.

Suzanne C. Shapiro (Saul E. Kerpelman & Associates, P.A., on the brief), Baltimore, for appellants.

David L. Jacobson (Blades & Rosenfeld, P.A., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ROBERT F. FISCHER (Retired, specially assigned), and RAYMOND G. THIEME, Jr. (Retired, specially assigned), JJ.

MURPHY, Chief Judge.

In the Circuit Court for Baltimore City, a lead poisoning action was filed against the former owner of 835 N. Washington Street, on behalf of Charles Stokes ("Stokes"), a minor,¹ who formerly lived at that address. The current owner of that property, 835 Washington Street, LLC, appellee, refused appellants' request for access to the property in order to conduct a test for the presence of lead-based paint. Appellants filed an action against appellee, seeking an order for entry upon the property to conduct a "noninvasive and nondestructive test." The circuit court denied that motion and this appeal followed, in which appellants present a single question for our review:

Does the Circuit Court have power under the Maryland Rules of Civil Procedure or by common law to order a property owner to allow a nondestructive lead test of the owner's vacant property when the presence of lead in that property is relevant and material to another pending action involving the poisoning of a child?

For the reasons that follow, we shall answer "yes" to that question, vacate the judgment of the circuit court, and remand for further proceedings not inconsistent with this opinion.

Factual Background

In the underlying action against the former owner of 835 N. Washington Street, appellants must prove that Stokes suffered lead poisoning while residing at that property. Appellee is not involved in the underlying action. When appellee refused their request to test the property, appellants filed the action at issue, a Motion to Perpetuate Evidence, requesting that the circuit court exercise its subpoena power to order appellee to cease withholding evidence relevant to a matter pending before the court. Asserting that the presence or absence of lead-based paint in the dwelling "will be most relevant in the child's action against the former owners of 835 N. Washington Street," appellants argue that they are entitled to an order of court granting them the right to enter the property in order to conduct "a noninvasive and nondestructive test" that would determine lead-based paint therein.

Appellee responded to appellants' motion, arguing that (1) such relief is not provided for in the Maryland Rules, (2) the relief sought has been expressly rejected in a case that confirmed the clear meaning of the Rules, and (3) appellee was entitled to counsel fees incurred in this case because appellants' counsel had specific knowledge that appellants were not entitled to the relief sought.² The circuit court denied appellants' motion, stating:

Plaintiff was a minor who, according to the allegations, suffered lead poisoning while residing at 835 N. Washington Street before it was owned by the defendant here. It is argued that the presence of lead paint in the dwelling will be relevant to an action against the former owners of 835 N. Washington Street in the matter captioned as Carl Stokes, et al. v. Avid Enterprises 1, Inc., Case No. 24-C-99-004264. Clearly the LLC is not a party in connection with that matter.

The Court has reviewed plaintiff's motion as well as defendant's response, which provides that, in fact, the Court has no authority in connection with the first rule of discovery, that is 2-422, which [appellants' counsel] has conceded because that only provides documents and entry onto a property by a party to another party clearly not satisfied here.

The plaintiffs relies [sic] on Maryland Rule 2-404 here, captioned Perpetuation of Evidence which the Court has reviewed. I have also reviewed the case relied upon by the defendant, that is Allen v. Allen at 105 Md.App. 359 [659 A.2d 411 (1995)], which provides that the rule was not intended to serve as a discovery device to provide prospective plaintiffs with an opportunity to secure information in order to frame a complaint. Indication of Rule 2-404 is therefore reserved for that category of situations in which it is necessary to prevent testimony from being lost or destroyed before a party is able to pursue discovery in the ordinary course of action.

While, I am compelled that plaintiffs have presented that the property is vacant and compelling equitable circumstances that could require a court to issue an order perpetuating evidence, I don't believe that Maryland Rule 2-404 permits the type of relief that the plaintiff is suggesting here based on the limited authority, which really is Allen as well as the other two cases cited in the annotations, I don't believe it would be proper.

And accordingly, I do believe that this is a matter more appropriately reserved for the legislature to take up if, in fact, the members of that branch believe that this Court should perpetuate such evidence in certain situations. So I don't believe that the motion that has been raised is without merit. And so accordingly I am going to deny defendant's request for fees. I do believe that it is a novel issue, again, that I don't believe is appropriate for this court of general jurisdiction to resolve without any authority, which has not been provided to this Court to date.

So accordingly, I will pass an order denying the plaintiffs' motion to perpetuate evidence for the reasons stated on the record, and respectfully deny the defendant's claim for fees pursuant to Maryland Rule 1-341.

This appeal followed.

Discussion

Rule 34 of the Federal Rules of Civil Procedure (FRCP 34) expressly authorizes a party in a lawsuit to enter upon the land of a non-party for the limited purpose of inspecting and testing the land for evidence that would be of consequence to a pending court action.³ Only Maryland and Connecticut have no state provision allowing for non-party production/inspection.⁴ Hence, this appeal. Appellants argue that the purpose of Md. Rule 2-404 is to preserve evidence that might become unavailable,⁵ and that Md. Rule 2-402 makes clear that the scope of allowable discovery is broad.⁶ Appellee counters that, under the applicable Maryland Rules and judicial interpretation of those terms, discovery of documents and property may only be obtained from a "party" to a suit. Because the Maryland Rules do not preclude circuit courts from exercising their inherent equitable powers, we are persuaded that the circuit court has jurisdiction to permit appellants entry into appellee's property through an equitable bill of discovery.

In Webb v. Joyce Real Estate, Inc., 108 Md.App. 512, 672 A.2d 660 (1996), this Court concluded that, because "nonparties may not be compelled to submit to an inspection of their property" under Rule 2-422,⁷ that rule did not authorize entry onto property owned by a nonparty. Webb did not hold that the Maryland Rules precluded a party from seeking entry onto a non-party's land. That case simply held that Md. Rule 2-422 does not authorize the circuit court to grant such relief. Subsequent to our decision in Webb, the Court of Appeals rejected a proposal that would have permitted the relief that appellant is seeking in this case.⁸ We are persuaded, however, that the absence of a rule expressly authorizing an inspection does not preclude the circuit court from granting that relief when it is in the interest of justice to do so. We therefore hold that the circuit courts have the power to order inspection of a non-party's property on a case-by-case basis through the equitable bill of discovery.

Prior to the enactment of FRCP 34, courts were presented with the issue of whether a party had a right to file a separate action against a non-party to enter the non-party's property in order to obtain needed discovery.⁹ The cases are collected in Rupert F. Barron, Existence and Nature of Cause of Action for Equitable Bill of Discovery, 37 ALR 5th 645 (1996). A review of those cases makes it clear that the circuit court has the authority to issue an equitable bill of discovery in this case.

In Shorey v. Lincoln Pulp & Paper Company, Inc., 511 A.2d 1076 (Maine 1986), the Supreme Judicial Court of Maine was presented with a situation similar to the instant case. The plaintiff-appellant was completely disabled while operating a machine at the factory where he was employed. He asked his employer for permission to inspect the machine to see if it had any manufacturing flaws.¹⁰ His employer denied that request. The plaintiff filed a lawsuit seeking access to the factory in order to inspect the machine. Id. at 1077. The Supreme Judicial Court noted that, as the applicable Maine Rule¹¹ neither provided for nor prohibited the relief being sought, the trial court had the authority to grant the plaintiff a right to enter the factory and inspect the machine. The case was therefore remanded to the trial court for a determination of whether the plaintiff was entitled to the relief sought. The Shorey Court explained:

Although modern discovery rules and liberal pleading requirements virtually eliminate the need to resort to an independent action in the form of an equitable bill of discovery, they do not totally displace the traditional equitable jurisdiction of the Superior Court to issue appropriate orders for independent discovery when effective discovery cannot otherwise be obtained and the ends of justice are served.

Id. at 1078.

Several other state courts have held that, in the absence of a statute or rule prohibiting entry upon the property of a nonparty, the equitable bill of discovery is available to the party who needs the court's permission to gain entry to a nonparty's...