Berrain v. Katzen

KARWACKI, Judge. 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. ⁶⁹⁵ I. 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 ‘¿-202(h). 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 ⁶⁹⁶ 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: >>: # sfc Hí # # (3) An order ... dismissing the action or any part thereof ⁶⁹⁷ 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 .

II

A. 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 discre ⁶⁹⁸ tion 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-^32 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 ⁶⁹⁹ 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, — U.S. -, 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). B. 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 tortfeasors for and on account of such alleged tort; provided, however, that if the mother, within six months after the ⁷⁰⁰ 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 House Judiciary Committee to House Bill 281, a bill entitled “ ‘Parent and Child’, relating to the natural and testamentary guardianship of minor children and to parental rights in general.” 1927 House Journal at 212. The amendment provided that a mother with sole custody of a tortiously injured child had the exclusive right to ⁷⁰¹ bring an action within three months of the injury. House Journal at 1292. The bill passed the House and was transmitted to the Senate where the Judicial Proceedings Committee expanded the custodial mother’s window of exclusive right to sue from three months to six months, an amendment accepted by the House. 1927 House Journal at 1619.

Former Rule 205d, which we also adopted in 1957, was derived from Md.Code (1951), Art. 16, § 180 which provided: “All infants and other persons under any disability to sue, may sue by their guardian or committee, if any, or by their prochein ami; subject, however, to such orders as the court or judge thereof may direct for the protection of infants and other persons; but before the name of any person shall be used in any suit to be instituted as next friend of any infant or other party, or as relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the bill or other proceeding.” The function of the next friend, or prochein ami 6 ⁸ has its genesis in ancient English statutory’ law. The first statute permitting a next friend to sue on behalf of infants was promulgated by Parliament as 3 Edw. 1 , Cap. 48 (1 Westminster 48) in 1275 and was limited to those cases where the guardian had acted to bar his ward’s cause of action. In 1285, Parliament extended the right of a next friend to sue on behalf of an infant to all actions by 13 Edw. 1 , Cap. 15 (2 Westminster 15). As was explained in J.H. Thomas’s arrangement of Lord Coke’s First Institute: “At common law, infants could neither sue nor defend, except by guardian; by whom was meant, not the guardian ⁷⁰² of the infant’s person and estate, but either one admitted by the court for the particular suit on the infant’s personal appearance, or appointed for suits in general by the king’s letters patent.

But this rule was found inconvenient, it sometimes happening, that an infant was secreted by those having legal custody of him, and so prevented from applying to have a guardian ad litem appointed. Hence was seen the necessity of permitting any persons to litigate for the infant’s benefit, who should be disposed to risk the expense. On this principle the Statute of Westminster the first enables any one to sue as proehein amy for an infant in an assize, where the infant himself is essoigned by his guardian, or otherwise disturbed from suing the assize. The statute of Westminster the second extended this provision, by permitting the Proehein amy to sue in all actions; and though in this statute, as well as in the former, eloignment of the infant was mentioned, yet by construction it is not deemed necessary, but the proehein amy may sue, whether that circumstance occurs or not, it being considered merely as an instance of the necessity of the case, and as such only taken notice of by those who framed the statute.” J.H. Thomas, Lord Coke’s First Institute of the Laws of England 199 n. 29 (1827). 13 Edw. 1 , Cap. 15 was one of the “statutes found applicable and proper to be incorporated” into the laws of Maryland when the first Maryland Constitution was adopted in 1776.

Art. 5 Declaration of Rights (1776); Kilty’s English Statutes To Be In Effect In Maryland 212 (1811). See also 1 John P. Poe, Pleading and Practice in Courts of Common Law, § 313 (Herbert T. Tiffany ed., 5th ed.1925); Ward B. Coe, Alexander’s British Statutes in Force in Maryland, 158-61 (2d ed.1912). Pursuant to section 18 of Article IV of the Maryland Constitution permitting this Court to promulgate rules of procedure in equity cases, 7 General Equity Rule 10 was pro ⁷⁰³ mulgated in 1883 providing that “all infants and other persons under any disability to sue may sue by their guardian or committee, if any, or by their prochein ami; subject, however, to such orders as the court or judge thereof may direct for the protection of infants and other persons.” In re Paca, 140 Md. 45 , 116 A. 847 (1922). The provision was subsequently adopted as Md.Code (1888), Art. 16, § 125.

The provision appeared in the same form continuously until it was repealed by ch. 399, § 1, of the Acts of 1957. The provision was incorporated into the Maryland Rules of Procedure as Md. Rule 205d the same year. We have had the opportunity to discuss the role of the next friend representing a minor in Maryland. In Deford v. State, Use of Keyser, 30 Md. 179 (1869), we said: “The prochein ami is, in contemplation of law, admitted by the court to prosecute for the infant; though, according to the practice of our courts, never by any actual order passed for that purpose.

He becomes an officer of the court, and subject to its orders and direction; and whether there be a guardian or not, appointment by a different authority, makes no difference, and does not affect the authority of the prochein ami to prosecute for the infant. He stands very much in the relation of an attorney to the case, and as it is supposed that he is appointed by the court, it is competent at any time for the court to revoke his authority and remove him, and if it be necessary, to appoint another in his place.” Id. at 199 (citation omitted). See also Reichard v. Izer; 95 Md. 451 , 52 A. 592 (1902); Trahern v. Colburn, 63 Md. 99 (1885); B. & O. R.R. Co. v. Fitzpatrick, 36 Md. 619 (1872). ⁷⁰⁴ In one of the earliest reported American cases interpreting 13 Edw. 1 , Cap. 15, the Connecticut Supreme Court’s decision in Apthorp v. Backus, 1 Kirby 407 (1788) reflects the longstanding view regarding the duty of the next friend and the court in overseeing the exercise of that duty. There a suit was brought on behalf of Henrietta Apthorp, a minor, by her next Mend and guardian, Perez Martin, an attorney, to recover land purchased by her father, Stephen, since deceased, in Chelsea in 1768.

The case was heard by a jury which returned a verdict for the plaintiff. The defendant appealed, challenging the appointment of the next Mend. The court stated: “If, however, the suit and appearance are considered as by prochien amy, because the term next friend is also used in the declaration, and may denote the special kind of guardianship intended, still they are good: For though we have no statute, as there was originally in England, authorizing suits by prochein amy, yet long practice, and the reason of the case, are sufficient. It is for the benefit of infants who have no guardians, or such as from particular circumstances cannot or will not sue for them, as the case may require, to admit their suits by prochein amy, whose power and responsibility relative thereto, are the same as guardians: And there can be no danger to the infant from such practice; for the court under whose inspection the suit is prosecuted, is bound to take care for the infant; and if the prochein amy is not a responsible and proper person, or misconducts the suit, or institutes one not apparently for the benefit of the infant, will displace him, and, if need be, appoint another. “It is, indeed, the duty of Judges of Probate to see that infants who need guardians have them; but, through want of information, or for other reasons; they frequently fail to do it.

Their neglect should not prejudice the infant, or deprive him of the benefit of a Mend, who may be willing to step in and protect him in a particular suit; and- if the infant does not happen to live or reside within any of their respective districts, as is the case here, they are not autho ⁷⁰⁵ rized by statute to appoint a guardian for him. If the infant in this case had a guardian by whom she might have sued, and has not, it must have been taken in abatement, if at all.” Id. at 410 . We have been unable to find any prior decision of this Court discussing the appropriate sanction to apply in the case of a next friend who neglects his or her duties to prosecute a suit on behalf of a minor. In the case of In re Paca, supra, however, we considered the issue of the removal of a committee to a non compos mentis where the committee had a conflict of interest in litigation arising from a will in which the non compos had a competing interest.

There the Court applied Md.Code (1888), Art. 16, § 125 8 , holding: “One of the principal