Johnson v. Franklin

WRIGHT, J. On March 4, 2014, appellant, Trashawn Johnson, filed a complaint in the Circuit Court for Baltimore City to perpetuate evidence and request for a hearing seeking an order allowing him to conduct environmental testing on 3811 Reis-terstown Road, Baltimore (“Property”), which is currently owned by appellee, Roberta Franklin. 1 Johnson sought testing of Franklin’s home for evidence of lead paint as a part of his separate lead-paint poisoning action against a prior owner, Riggs Properties. After Franklin failed to respond to Johnson’s discovery requests, Johnson filed a motion for summary judgment on June 13, 2014. At a motion hearing on July 25, 2014, the circuit court denied summary judgment and denied Johnson’s complaint. Johnson appealed on August 18, 2014, and asks: 2 ²⁷⁷ Did the trial court abuse its discretion by denying Johnson’s complaint for a bill of discovery for lead-based paint testing to support a separate lead-paint poisoning suit?

We answer “yes,” vacate the judgment of the circuit court, and remand the case for further proceedings not inconsistent with this opinion. Facts Johnson filed this suit as a companion action to a pending lead-paint poisoning case filed in the Circuit Court for Baltimore City. See Johnson v. Riggs Properties, 24-C-11-007769 (Cir.Ct.Balt.City). In that case, Johnson alleged that “he suffered severe and permanent injuries from exposure and ingestion of lead-based paint and lead-based paint dust at properties including [the Property].” Johnson “anticipate[d] that the presence or absence of lead-based paint in [the Property] will be extremely relevant to his claims” in his case.

On February 19, 2014, Johnson, by letter, contacted Franklin, who is not a party to the companion suit and is the current owner of the Property, to request her permission to conduct “non-invasive environmental testing” of the Property to determine the presence and extent of lead-based paint in the Property. After Franklin failed to respond, Johnson filed a complaint to perpetuate evidence and request for a hearing pursuant to Md. Rule 2-404, on March 6, 2014, in the circuit court. In his complaint, Johnson alleged that “[a]n equitable bill of discovery is the only way for [Johnson] to obtain the information he requires. [Johnson]’s requested relief is specific and adapted to securing the relief sought conveniently, effectively and completely.” (Emphasis in original). Franklin filed an answer pro se on April 11, 2014, requesting that the circuit court deny Johnson’s request.

Franklin denied that Johnson needed a “right of access to the [Property] in this case because the required testing ha[d] already ²⁷⁸ been completed,” and that “[Johnson] ha[d] an adequate alternative remedy for obtaining the evidence [he] claim[ed] [he] need[ed]” because Franklin had already provided Johnson with copies of the results of the prior testing. After Franklin filed her answer, Johnson propounded requests for production of documents, interrogatories, and requests for admission of facts on Franklin on April 23, 2014. Franklin failed to respond to any of Johnson’s discovery requests, and Johnson moved for summary judgment pursuant to Md. Rule 2-501(a) on June 13, 2014. On July 25, 2014, the circuit court held a hearing on Johnson’s motion for summary judgment.

Johnson argued that “all [he] want[ed] is access ... to the actual paint to test the paint.” Johnson cited “one sample in the livingroom [sic] windowsill that did contain a little bit of lead which leads [him] to believe that there may be lead-based paint in the [Property].” Johnson offered to complete the testing “at any time convenient to Ms. Franklin.” In response, Franklin cited the “fact that [she] had the test done and [she] gave them the paperwork showing that the State and the Federal government approved[,]” as why she “didn’t see it necessary for them to come in my home.” She stated that had she “not had the test done [she] wouldn’t have a problem.” Johnson added that she “rehabbed the house.... New sheet rock is up. There is no old paint in the house.” The circuit court framed “the issue the Court has to weigh” as “obviously [Franklin’s] personal privacy and inconvenience.” The court asked Franklin to “tell the Court if you will, how you feel about having someone come into your house and do this test, even though they are saying that it is going to be short and quick.” Franklin said, “there’s no reason,” because of the previous testing, and that she “just d[oes]n’t want them” coming into the Property. The circuit court ruled: In this particular case the Court, one, makes a finding that this type of pleading is not appropriate for Summary Judgment because it would not be a judgment, just sort of a ²⁷⁹ grant or deny of the petition or request.

And so in that sense, there would be no judgment in either way, the Court will either grant or deny the request. The Court will also make a finding in this particular case based on what I’ve heard from Ms. Franklin and what I saw in her response. And also with the pleadings and the case law as well in this particular case, I don’t believe that [Johnson], in this case, [Johnson] has shown that [Franklmfs privacy rights have been outweighed by [Johnsonfs needs to do this additional testing. And so, the motion is denied and the request is denied.

The circuit court’s order of July 25, 2014, stated: FOUND that [Johnson] failed to establish that his right to access the premises outweighs the privacy rights of [Franklin]; and it is further ORDERED that for the reasons stated on the record, [Johnsonfs Motion for Summary Judgment (Docket Entry # 7) is DENIED; and it is further ORDERED that [Johnsonfs Complaint to Perpetuate Evidence (Docket Entry # 1) is DENIED; and it is further ORDERED that the Clerk of Court shall close the case with all costs to be paid by the Plaintiff. Discussion Johnson contends that “the Court decided, sua sponte, that [his] Complaint was actually a ‘request,’ which was legal error.” In tandem with that argument, Johnson argues that summary judgment in his favor was the appropriate disposition of this case. Johnson cites the lack of a genuine dispute of material fact, because Franklin failed to respond to any of his discovery requests, and “therefore, admitted” that there was no genuine dispute of material fact. Johnson argues that, although no evidentiary hearing was held as required by Stokes v. 835 N. Washington Street, LLC, 141 Md.App. 214 , 784 A.2d 1142 (2001), he did prove, through Franklin’s admissions, by a preponderance of the evidence that there is no dispute that “[Johnsonfs right to access the premises out ²⁸⁰ weighed [Franklinj’s privacy interest” and, as a result, summary judgment should have been granted in his favor.

Johnson urges us to accept a de novo standard of review in reviewing whether his complaint was properly denied because it was denied as a part of his motion for summary judgment. Johnson correctly cites Stokes as largely controlling. In Stokes , we considered a similar case, where a minor filed a lead poisoning action against the former owner of a home. Stokes, 141 Md.App. at 216 , 784 A.2d 1142 .

The current property owner refused the minor’s request to access the property to conduct lead paint testing, and the minor filed an action against the current owner seeking an order of entry to conduct noninvasive lead-paint testing. Id. The trial court denied the minor’s request and, on appeal to this Court, we considered whether Md. Rule 2-404 allowed for non-party production. Id. at 218-23 , 784 A.2d 1142 .

In Stokes , we held “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.” Id. at 223 , 784 A.2d 1142 . We recognized that, while the Maryland Rules do not have a specific mechanism allowing for the entry upon land of a non-party for inspection, “[n]o Maryland Rule prohibits” it, either. Id. at 225 , 784 A.2d 1142 . In making our determinations, we noted that “a rule denying a party’s right to seek an equitable bill of discovery may well violate the party’s constitutional right of access to the courts.” Id.

(footnote omitted). Because testing the premises for lead paint contamination is “vital” to a lead poisoning suit, we held that “[a]n equitable bill of discovery is the only way for appellants to obtain the information they need.” Id. at 226 , 784 A.2d 1142 . Although we recognized in Stokes that a trial court may issue a bill of discovery under its inherent equitable power, we did not discuss how to obtain a bill of discovery or how we would review the grant or denial of one, which is the focus of this case. We do so now. ²⁸¹ We begin with a review of what a bill of discovery is.

A bill of discovery “has been a procedural tool in use for centuries” and “is well recognized.” Estate of Bochiccho v. Quinn, 136 Conn.App. 359 , 46 A.3d 239 , 241 n. 2 (2012). It is an equitable remedy that allows a litigant to obtain information that is in the exclusive possession of another person and is necessary to the establishment of the litigant’s case. See Meltzer v. Kushin, 342 Pa. 84 , 20 A.2d 189, 190 (1941). The rationale behind this “remedy, when used as an auxiliary process in aid of trials at law, is simplicity itself.

At times, cases will not be proved, or will be proved clumsily or wastefully, if the litigant is not permitted to gather his evidence in advance____Today the remedy survives, chiefly, if not wholly, to give facility to proof.” Pottetti v. Clifford, 146 Conn. 252 , 150 A.2d 207, 211 (1959) (citations omitted). Historically, a “bill of discovery” could refer to either a “bill of discovery and relief’ or “a pure bill of discovery,” but there is a distinction. Thomas E. Rosensteel, Equity’s Bill of Discovery, A Unique Application in the Field of Products Liability, 49 Chi.-Kent L. Rev. 124 , 125-26 (1972). The distinction is that the former is employed when a party seeks discovery along with some form of relief, while the latter is used purely to discover facts.

Pottetti, 150 A.2d at 210-11 ; see also Carten v. Carten, 153 Conn. 603 , 219 A.2d 711, 715 (1966) (noting that “there is no ad damnum claimed” in pure bills of discovery). Typically, a pure bill of discovery is used “to obtain evidence to be use[d] in some suit other than that in which discovery is sought.” Peyton v. Werhane, 126 Conn. 382 , 11 A.2d 800, 803 (1940). In Maryland, because a bill of discovery stems from the inherent powers of the circuit courts, there is no specific rule governing them. See Stokes, 141 Md.App. at 223-25 , 784 A.2d 1142 . 3 However, a litigant can initiate a bill of discovery ²⁸² by filing a complaint, which seeks relief in the form of discovery, or by filing a request for a bill of discovery in the action for which the discovery is sought.

Daniel Morman, The Complaint for a Pure Bill of Discovery—A Living, Breathing, Modern Day Dinosaur?, 78 Fl. B.J. 50, 50 (2004). Returning to the instant case, Johnson argues that the circuit court wrongly “transform[ed] [Johnson]’s pleadings” into a “ ‘request,’ which was legal error.” He avers that the court could not turn his complaint into something else “in order to justify its intended end result.” 4 We disagree with Johnson and explain. In this case, Johnson filed a “complaint to perpetuate evidence and request for a hearing[.]” As a part of his complaint, Johnson pled, in pertinent part: 3. [Johnson] seeks, through the instant Complaint, to have this Honorable Court exercise its subpoena power to prevent [Franklin] from withholding evidence relevant to Trashawn Johnson, et al. v. Riggs Properties, et al. To that end, [Johnson] seeks to obtain an Order allowing him to conduct non-invasive, non-destructive environmental testing of the interior and exterior of [the Property].

Maryland Rule 2-404 allows this action to perpetuate evidence. The Court of Special Appeals confirmed that this Honorable Court has the power to grant [Johnson]’s requested relief through an equitable bill of discovery. Charles Stokes, a minor, et al. v. 835 N. Washington Street, LLC, 141 Md. App. 214 [ 784 A.2d 1142 ] (2001). ²⁸³ 4. The evidence [Johnson] seeks to discover (the presence or absence of lead-based paint in [the Property]) is material and necessary for [Johnson] to prove his case Trashawn Johnson, et al. v. Riggs Properties, et al. The environmental testing will also assist medical experts in determining the extent to which [Johnson] was exposed to lead-based paint and lead-based paint dust on an ongoing basis. 5. ...

An equitable bill of discovery is the only way for [Johnson] to obtain the information he requires. (Emphasis in original). First, although Johnson cited Md. Rule 2-404 as authority, the rule does not allow this suit to continue and does not provide the requested relief. Md. Rule 2-404 allows for perpetuation of evidence before an action has been filed through deposition under Md. Rule 2-412, production of documents under Md. Rule 2-422, or mental or physical examination under Md. Rule 2-423.

Md. Rule 2-404(a)(2). “Evidence perpetuated in accordance with the requirements of this section may be used in any court in any action involving the same subject matter and against any person served with a notice, request, or motion in the manner provided by ... this Rule.” Md. Rule 2-404(a)(6). We held in Webb v. Joyce Real Estate, Inc., 108 Md.App. 512, 526 , 672 A.2d 660 (1996), that Md. Rule 2-422 does not authorize a circuit court to grant entry onto property owned by a nonparty. Because Md. Rule 2-404 allows perpetuation of evidence by “request for production of documents required by Rule 2-422[,]” Md. Rule 2-404 does