Webb v. Joyce Real Estate, Inc.

672 A.2d 660, 108 Md. App. 512, 1996 Md. App. LEXIS 36
CourtCourt of Special Appeals of Maryland
DecidedMarch 4, 1996
DocketNo. 889
StatusPublished
Cited by11 cases

This text of 672 A.2d 660 (Webb v. Joyce Real Estate, Inc.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webb v. Joyce Real Estate, Inc., 672 A.2d 660, 108 Md. App. 512, 1996 Md. App. LEXIS 36 (Md. Ct. App. 1996).

Opinion

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]*516into 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]*517After 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]*518notice 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]*519The 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].

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In the Matter of Winifred Carpenter
Court of Special Appeals of Maryland, 2024
Howard v. State
Court of Special Appeals of Maryland, 2017
Johnson v. Franklin
115 A.3d 752 (Court of Special Appeals of Maryland, 2015)
Zilichikhis v. Montgomery County
115 A.3d 685 (Court of Special Appeals of Maryland, 2015)
Hamilton v. Kirson Alston v. 2700 Virginia
96 A.3d 714 (Court of Appeals of Maryland, 2014)
Dow v. L & R Properties, Inc.
796 A.2d 139 (Court of Special Appeals of Maryland, 2002)
Stokes v. 835 N. Washington Street, LLC
784 A.2d 1142 (Court of Special Appeals of Maryland, 2001)
Schmerling v. Injured Workers' Insurance Fund
776 A.2d 80 (Court of Special Appeals of Maryland, 2001)
County Commissioners v. J. Roland Dashiell & Sons, Inc.
747 A.2d 600 (Court of Appeals of Maryland, 2000)
Owens Corning v. Walatka
725 A.2d 579 (Court of Special Appeals of Maryland, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
672 A.2d 660, 108 Md. App. 512, 1996 Md. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-joyce-real-estate-inc-mdctspecapp-1996.