Webb v. Joyce Real Estate, Inc.

DAVIS, Judge. This is an appeal from the grant of a motion for summary judgment in favor of appellees, Joyce Real Estate and Lee Barnstein, by the Circuit Court For Baltimore City (Ward, J.) on April 25, 1995. Appellants, Donnell Webb, Jr. and James Scott, filed a multi-count complaint against appellees, alleging that they were liable for lead poisoning suffered by appellants. After considering the parties’ legal memoranda, and hearing oral argument on the matter on April 25, 1995, the trial court granted appellees’ motion for summary judgment as to all counts.

It is from this decision that appellants now appeal, presenting the following issues for our review: I. Did the motions judge err in granting summary judgment when the facts viewed in the light most favorable to appellants demonstrate that the property contained chipping and flaking paint at the inception of the lease and appellees had actual notice of the defective condition?

II

Do appellants have a valid claim under the Maryland Consumer Protection Act, considering that evidence exists in the record establishing that appellees leased a rental premises to appellants which contained chipping, peeling and flaking paint at the inception of the lease?

III

Did the motions judge err in denying appellants’ motion for entry upon land pursuant to Md.Rule 2-422, in that the information sought is relevant and Md.Rule 2-422 should provide for the entry upon land of a non-party? FACTS Appellants, with their mother, Areathea Amos, lived at 3622 W. Belvedere Avenue from approximately July, 1991 through January, 1992. At that time, Joyce Realty, Inc. owned the property. Ernestine Thomas, Amos’s sister-in-law, moved ⁵¹⁶ into the property in March, 1991, three months before appellants and Amos.

In May, 1994, Thomas purchased the property. It is appellants’ contention that, during the six months in which they lived at 3622 W. Belvedere Avenue, they ingested lead paint and as a result suffered varying degrees of brain damage. Several weeks after appellants moved out of the house, they received medical examinations and were found to have elevated levels of lead in their blood. Amos stated in an affidavit that there were several areas in the house where paint was obviously peeling from the walls at the time she and appellants moved into the house.

Amos’s affidavit stated: At that time the house was not in good shape and was very dirty and dusty. [It] clearly had not been freshly painted when [Thomas] first moved in as there were old, dirty, loose paint chips and flakes on several of the windows. The house had not been renovated before [Thomas] moved in. There was loose, flaking paint that was obviously old in and around the windows in the upstairs back bedroom where [Amos] slept. There was loose, flaking paint, again obviously old, in and around the kitchen window.

The basement had flaking and chipping paint all over it. It had obviously ■ been years since that basement was painted. Because we did not recognize it as a danger my kids and I spent alot [sic] of time there. In contrast to Amos’s statement, appellees presented Thomas’s deposition in which she said that the house was in good condition at the time she moved in, as well as when appellants and Amos moved in a few months later.

Appellants, though, relying on Amos’s affidavit, claim that appellees had knowledge of the conditions that existed at the house just prior to appellants moving in sometime during July, 1991. As a result, appellants and Amos filed a complaint alleging negligence; Amos filed a claim for deprivation of her sons’ services during their minority, for violation of the consumer protection laws, for strict liability, and for punitive damages. ⁵¹⁷ After conducting discovery, appellees filed a motion for summary judgment on March 23, 1995, as to all of appellants’ claims. In order to uncover evidence of lead paint in the subject property, appellants sought to compel Thomas to allow them to test her house for lead paint. 1 To that end, on March 24,1995, pursuant to Md.Rule 2-422(a)(2), they filed a request for entry upon land. The trial court denied appellants’ motion on April 11, 1995 and, after a hearing on the matter, granted appellees’ motion for summary judgment as to all counts on April 25, 1995.

It is from these rulings that appellants now appeal. I Appellants initially contend that the trial court erred when it granted appellees’ motion for summary judgment because it held that appellants had not met their burden of producing the prima facie elements of their claim. Specifically, the court found that appellants could not demonstrate that appellees had notice of the defect. 2 Appellants contend that Amos’s affidavit provided the court with enough evidence to establish a genuine issue of material fact surrounding the question of ⁵¹⁸ notice and thereby defeat appellees’ motion for summary judgment. The trial court stated, and appellants do not dispute, that “[t]he issue is whether or not there [was] flaking or chipping paint at the time that the tenant moved into the house.” The court and both parties understood this to mean that the paint had to have been peeling and chipping at a time when simultaneously both the house was in appellees’ control and Thomas occupied the house.

In that regard, at the hearing, the trial court told appellants, “That’s where you don’t have any evidence____” Appellants responded that Amos’s affidavit provided enough evidence that one could rationally infer that paint was chipping at the time Thomas moved into it. Appellants stated: [Amos] testified that when she moved in there, ... there [was] chipping paint in several locations, old, dirty, loose paint chips and flakes on several of the windows. The trial court, though, rejected appellants’ argument that Amos’s affidavit could dispute appellees’ claim that when they rented the house to Thomas, it was in good condition. The court stated: Well, how does that [Amos’s affidavit] create a dispute?

It doesn’t give evidence as to what—not whether the paint was freshly painted or not but whether or not there was chipping and flaking paint anywhere at the time that [Thomas] moved into the property. * * * * * * So the landlord rents to Mrs. Thomas. $$$$$$ At that time he in effect is charged with the knowledge of the condition of the property. * % * * # # Then we have Ms. Amos ... [who’s] entitled to believe that the property that she’s moving into is also free of defects under the law---- ⁵¹⁹ The only question is, is there a dispute of fact enough to take to a jury. I don’t think so because of the fact that her testimony is three months out of date and the testimony as of what was present at that time is definite [Thomas’s statement that the house was in good condition and Barn-stein’s affidavit supporting the summary judgment motion, stating the same]. [Amos] doesn’t know what the condition was then [when Thomas moved in]. She only knows what the condition was when she moved in and we have definite testimony as to what that condition was at that time. In other words, the trial court held that the evidence showed that, at the time Thomas moved into the house, it was in good condition.

Amos’s affidavit concerning the condition of the house when she moved in, some three months later, did not dispute this adequately. Rather, because the house was rented to Thomas, the trial court found that three months after the house was no longer in appellees’ control there existed a dispute as to its condition. Hence, the trial court granted appellees’ motion for summary judgment. Appellants maintain on appeal essentially the same argument they presented to the trial court.

They concede that Thomas’s deposition established that the house was in good condition when she moved into it in March, 1991. It is their contention, however, that Amos’s affidavit presented the trial court with evidence that the house had chipping and peeling paint, which contradicts Thomas’s deposition statement and creates a genuine dispute of material fact—whether the house was in good condition when originally leased to Thomas. Appellants also assert that appellees’ motion for summary judgment was supported by a defective affidavit and that, consequently, their motion lacked the necessary evidentiary support. Appellants note that appellees’ motion for summary judgment was supported by the affidavit of Lee Barnstein which was sworn to as follows: “under the penalties of perjury, that ⁵²⁰ the foregoing Affidavit is true and correct to the best of my knowledge, information and belief.” After stating the rule that an affidavit supporting a summary judgment motion must be made upon personal knowledge, Md.Rule 2-501(c), appellants cite Weaver v. Realty Growth Investors, 38 Md.App. 78 , 379 A.2d 193 (1977), in support of their assertion that Barn-stein’s assertedly defective affidavit should not have been considered by the trial court.

Maryland Rule 2-501(c) requires an affidavit supporting a motion for summary judgment, inter alia, to be made upon personal knowledge. The Court of Appeals “has long held that to be sufficient to sustain a motion for summary judgment, an affidavit must contain language that it is made on personal knowledge, and that the affiant is competent to testify to the matters stated therein.” A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 263 , 634 A.2d 1330 (1994) (citations omitted) (emphasis added). See also Nixon v. State, 96 Md.App. 485, 500 , 625 A.2d 404 , cert. denied, 332 Md. 454 , 632 A.2d 151 (1993).

Where an affiant states that the information contained in the affidavit is true and correct' “to the best of his knowledge, information and belief,” Rule 2-501(c) has not been satisfied and the affidavit must be disregarded. Williams v. Anne Arundel County, 334 Md. 109, 127 , 638 A.2d 74 (1994); Mercier v. O’Neill Assoc., 249 Md. 286, 287 , 239 A.2d 564 (1968); Fletcher v. Flournoy, 198 Md. 53, 58 , 81 A.2d 232 (1951); Cottman v. Cottman, 56 Md.App. 413, 429-30 , 468 A.2d 131 (1983). Hence, it is arguable that, because of the confusing affirmation basis, Barnstein’s affidavit is defective and should not have been considered by the trial court as it reached its decision regarding appellees’ motion for summary judgment. Even if we deemed this affidavit as defective, the trial court’s consideration of it is not necessarily reversible error.

Treating the motion as though the contents of the affidavit were not before the court, there nevertheless remains no genuine dispute of material fact and appellees are entitled to judgment as a matter of law. When this is the case, a trial ⁵²¹ court’s decision may be upheld. See Preissman v. Harmatz, 264 Md. 715, 721 , 288 A.2d 180 (1972); Myers v. Montgomery Ward & Co., 253 Md. 282, 290 , 252 A.2d 855 (1969). Consequently, because the trial court had before it testimony and other evidence furnished by appellants and appellees in various depositions, interrogatories, 3 and affidavits that confirm the information contained in Barnstein’s affidavit, this Court may affirm the trial court’s holding.

When considering the evidence, we must view all facts and the reasonable inferences to be drawn therefrom in the light most favorable to appellants as the non-moving party. See Delia v. Berkey, 41 Md.App. 47, 51 , 395 A.2d 1189 , aff'd, 287 Md. 302 , 413 A.2d 170 (1980). Furthermore, because the summary judgment procedure may be used only to determine whether there exists a factual dispute requiring a trial, Foy v. Prudential Ins. Co. of America, 316 Md. 418, 422 , 559 A.2d 371 (1989), the trial court may not resolve any factual issues and the standard for appellate review is whether its decision was legally correct.

A.J. Decoster, 333 Md. at 261 , 634 A.2d 1330 ; Nixon, 96 Md.App. at 500 , 625 A.2d 404 . In the case sub judice, the motion for summary judgment survives the determination that the supporting affidavit is defective. As the landlord’s knowledge of lead paint is central to appellants’ claim, See Richwind v. Brunson, 335 Md. 661, 673-74 , 645 A.2d 1147 (1994); Bartholomee v. Casey, 103 Md.App. 34, 53 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995), any motion