Butler v. S & S Partnership
80 A.3d 298
Md.2013Background
- Plaintiff Hector Butler, Jr. filed suit alleging childhood lead-paint exposure at 2238 Linden Ave and 2308 Bryant Ave in Baltimore City against multiple current and former owners/managers.
- A standardized Baltimore City Lead Paint Scheduling Order required inspections for properties "Defendants who still own a subject property" and stated "The defendants shall be permitted to attend the lead test accompanied by a consultant(s) or expert(s)."
- Arc Environmental conducted non-destructive exterior lead testing on both properties 16 days before discovery closed; no notice was given and no defendant attended.
- Plaintiff identified numerous experts including Dr. Klein; Plaintiff supplemented interrogatory responses but produced Dr. Klein’s affidavit for the first time when opposing motions, shortly before the discovery deadline.
- The trial court excluded the Arc Report and Dr. Klein’s affidavit for alleged discovery/scheduling-order violations and granted summary judgment on the CPA claim; the Court of Special Appeals affirmed in part. The Maryland Court of Appeals reviewed three issues on certiorari.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Scheduling Order required notice/opportunity to attend for all defendants when testing occurred | Butler: Section 2(c) limits notice to defendants who still own the subject property at time of testing; non-owners need not be notified | Respondents: "the defendants" in sentence 2 is unqualified and should include all defendants | Court: Section 2(c) applies only to defendants who own the property at the time of testing; non-owner defendants have no scheduling-order right to attend |
| Whether trial court could impose discovery sanction (exclude evidence) sua sponte without a motion to compel or sanctions | Butler: Respondents waived discovery challenge by not moving; court lacked authority to impose Rule 2-432/2-433 sanctions sua sponte; exclusion was excessive | Respondents: Court may enforce its orders sua sponte and fashion remedies for violations | Court: Trial judge abused discretion by excluding Dr. Klein’s affidavit on discovery grounds where no party moved for sanctions; discovery challenge was waived and proper procedure was not followed |
| Whether exclusion of Arc Report for scheduling-order violation was proper | Butler: Report was disclosed before discovery cutoff; failure to give notice was technical and cure (continuance) was available; exclusion was too draconian | Respondents: Late disclosure and failure to allow attendance prejudiced them; exclusion was an appropriate remedy | Court: Although scheduling-order violation existed, exclusion of Arc Report was an abuse of discretion under Taliaferro factors given ambiguity, timely disclosure, and lack of egregious conduct; Arc Report should not have been excluded |
| Whether plaintiff must prove chipping/peeling/flaking paint at lease inception to state CPA claim | Butler: A concealed defect (e.g., painted-over flaking paint) could support a CPA claim; not limited to visible chipping at lease start | Respondents: No peeling/flaking at lease inception per tenant testimony; thus no CPA violation | Court: To state CPA claim based on housing-code violations, plaintiff must show chipping/peeling/flaking paint at lease inception (or active concealment with admissible facts); here no admissible factual dispute existed, so summary judgment on CPA was proper |
Key Cases Cited
- Walter v. Gunter, 367 Md. 386 (interpretation of orders reviewed for legal correctness)
- State v. Williams, 392 Md. 194 (use canons of statutory construction to interpret procedural rules)
- Dorsey v. Nold, 362 Md. 241 (scheduling orders facilitate discovery but do not expand its scope)
- Admiral Mortgage, Inc. v. Cooper, 357 Md. 533 (draconian discovery sanctions reserved for persistent, deliberate violations)
- Taliaferro v. State, 295 Md. 376 (factors to weigh before excluding evidence for disclosure violations)
- Manzano v. Southern Md. Hospital, 347 Md. 17 (case-ending sanctions require egregious misconduct)
- Broadwater v. Arch, 267 Md. 329 (trial court may address discovery compliance at summary-judgment stage but proper procedure is required)
- Richwind Joint Venture 4 v. Brunson, 335 Md. 661 (CPA protects tenants from deceptive practices; nexus to implied warranty of habitability)
- Benik v. Hatcher, 358 Md. 507 (relationship between housing-code standards and CPA liability)