*1 District, proposed County which the adopted changes. without Thus, the Tax properly Court deferred to the determination of County.
Finally, we conclude that Special Appeals Court of distinguished properly Taxpayers’ reliance on Schmitt v. Cape George One, 1, Sewer District No. 61 Wash.App. (1991). P.2d 217 As the intermediate court appellate ex- plained, the government agency in Schmitt excluded unilater- certain ally land from a voluntarily proposed district order to meet the requirement that owners of fifty-one percent of the land sign petition. here, That is not the case where the governmental agency change enacted without pro- what was posed voluntarily the Request.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. TO BE PAID COSTS BY THE PETITION- ERS.
v.
Amafica K. WOODLAND. 18, Sept. Term,
No. 2013. Appeals
Court of Maryland.
March 2014. May
Reconsideration Denied 2014. *6 Moore, J. Marks III and Frank J. Mastro (Stephen S. Semmes, McCloskey, Semmes, Baltimore, MD), Bowen & on brief, for Appellant. Jr., (William Law Offices Beveridge, E. Nevin
Scott IV, Goodman, MD; Amato, Nicholl, Baltimore, John T. Peter MD), brief, LLP, Baltimore, Appel- Enoch, Meagher & lee. HARRELL, BARBERA, C.J.,
Argued before ADKINS, GREENE, McDONALD and BATTAGLIA, WATTS, JJ.
ADKINS, J. purpose the nature and case we examine paint
In this lead require- notice to the written exception cause” “good (“LGTCA”). Act Tort Claims the Local Government ment of Vol.), (1987, § 5-304 of the Courts Repl. Md.Code (“CJP”). in the course do so Proceedings Article We Judicial the case to rulings that allowed a trial court’s reviewing *7 the court trial, objection, because Appellant’s over proceed Appel- cause for the compliance substantial found intent to sue notice of her written provide lee’s failure injury. days of her within PROCEEDINGS AND LEGAL
FACTS (“Woodland”), is Amafica Woodland Although Appellee the mother and exclusively almost to her facts pertain the relevant Dale grandmother, maternal Woodland’s grandmother. (“the (“Williams”) into 127 Albemarle Street moved Williams Residence”) along of record 1987 as the tenant February in mother, Tanderlara Monterio daughter, Appellee’s with her in 1995 (“Monterio”). there from her birth lived Appellee vacated the she, grandmother, mother and with her along until Housing Appellant, of 1997. in November Residence (“HABC”), managed owned and City Baltimore Authority of its demolition in 1957 to from its construction the Residence 2001. during twice her were tested levels blood-lead
Woodland’s 1997, 30, she dem- September Residence. On tenancy at the deciliter micrograms per of 13 level onstrated a blood-lead 8, a blood- 1997 she demonstrated and on October (p,g/dL), test, second Monterio Follоwing jxg'dL. level of lead management visited the office of the Residence and met with (“Mack”) Robin to discuss property manager, Mack1 recent test. learning Woodland’s blood After Woodland’s level, complete question- elevated Mack had Monterio a lead gave copies naire and her of a lead information booklet. Mack in a Following meeting, recorded conversation “Summary Interviews.”2
Following meeting, message Mack sent a to William M. Peach, (“Peach”), III a Management Analyst and Maintenance in HABC’s Central Office. This a modi- message requested Residence, fied risk reduction and lead dust test for the to be in an performed “expeditious manner.” These tests were completed by Engineering Connor Environmental Services & (“Connor”) 16, Assessments In report, October 1997. its Connor that it found explained chipped stucco on the window- room, living sills the kitchen and chipped paint on all three bedroom windowsills and In sum- hallway doorframes. marizing report, Connor recommended that HABC relocate safety tenants. After Mack and an HABC visually officer inspected Residence, HABC decided to family relocate the to a In differеnt unit. November HABC moved Wood- land and family her to a different property. later, years
Almost twelve in April Woodland sued HABC the Circuit Court for Baltimore City, claiming injury 1. property manager, In addition to her role as Mack would visit the time, Residence from grandmother time to and she and Woodland's *8 friendly relationship. had a report 2. The stated: Tanderlara, daughter, Ms. Williams’s report office that her 2- Amafica,
year daughter, questioned old lady has lead. I about the package household, given lead that was to the head of Ms. Dale Williams, reported on and she that her mother did not share 2/27/97 the information with her. Received a medical [dated] statement Physicians stating from Potomac that Amafica's lead level is 10/10/97 11. completed questionnaire give[n] Tanderlara the lead and was regarding two lady information booklets lead. Advised that the arriving days Environmental Team should be within a few and due to lead, [permission the nature of to enter] is enforced in the event no one is home. Residence, assert- and to lead exposure paint from her notice of requirements with the alternatively, compliance ing, (“LGTCA”),3 good and Act Tort Claims the Local Government Before substantially comply. comply failure to or cause for claiming that trial, summary judgment, for HABC moved re- with the LGTCA notice comply failed to Woodland had to waive the notice good not establish cause could quirement, preju- had comply failure to and Woodland’s requirement, adequate on an defense. Wood- ability put HABC’s diced with the substantially complied had responded land that she notice, satisfying thus LGTCA, that HABC was on actual mo- hearing, After a pretrial statutory requirement. motion, genuine “a issue finding HABC’s judge tions denied for lack of formal notice[.]” fact as to cause material judgment at the close renewed motion HABC’s Upon case, and found judge trial denied the motion Appellee’s LGTCA, substantially complied with the had Woodland that, conduct satisfied the alternatively, her not prejudiced. that HABC’s defense was exception, and Woodland, and after HABC’s jury found favor The verdict accordance with the motion to reduce the successful judgment came damages, on non-economic caps relevant to the Court of $690,000. timely appeal noted a certiorari on our own initia- granted and we Special Appeals, by that Court. tive before resolution following appeal:4 questions Appellant presents it denied the HABC’s the Circuit Court err when 1. Did when Woodland summary judgment, motion for pretrial with that she the HABC provided no evidence offered claim for dam- bring intent to a tort written notice of her ages? when he concluded Wood- judge
2. Did the trial err the notice substantially complied requirement land the LGTCA? Explained
3. infra. clarity. brevity questions for rephrased some of these 4. We have *9 425 his when he found judge 8. Did the trial abuse discretion compliance cause to waive with the LGTCA notice good not previ- based on his consideration factors requirement good this Court as relevant to cause? ously recognized permit 4. Did the trial court err when it refused to reasonably by it acted present HABC to evidence of Lead complying requirements with the the Reduction Housing Risk in Act?5 judge hearsay
5. Did the trial err when he admitted issue, Paint” at referring property evidence “Lead at the from where the statements were an unknown declarant and any guarantees lacked circumstantial of trustworthiness? below, explained For the we conclude that reasons judge denying mоtions did not err in HABC’s motion for summary judgment. in Although trial court did err finding substantially complied Woodland had with the LGTCA’s notice requirements, finding its alternate good had for failing comply Woodland cause made this error moot. in considering The trial court erred material part evidence as of its ruling good that Woodland met the exception cause for non-compliance with the LGTCA notice requirement. harmless, fully Yet error was explained no Finally, we see error the two evidentiary issues infra. Appellant raises.
DISCUSSION Summary Judgment Denial Of Appellant argues that the motions court erred in denying its pretrial summary view, motion for In judgment. HABC’s argued because Woodland substantial compliance, rather than cause, motion, in its response written to HABC’s pretrial court’s of consideration cause was improper. although We first observe that Woodland discussed substantial compliance rather than good her written response, (1982, Vol„ Repl. Cum.Supp.), §§ 5. Md.Code 6-801-6-852 (the Act”). of the Environmental Article "Lead motion, “I clearly her counsel said: hearing on HABC’s *10 on acts focusing good the Court appreciate [sic] out that “it was their under- aspect.” pointed Counsel also of thе lead in the standing they were moved because house[,]” good a of facts that highlights group support which cause. following our attention to the state
Appellant draws bench, in ruling pretrial from the made on the motion: ment judgment motion for going deny summary I am to significant circumstances described reflect a because the good dispense cause to with or to find debatable issue about notice compliance requirement. with the substantial rely I am to on and cite here on the record both the going 104, County, 386 Md. 872 A.2d Montgomery Rios [v. (2005) Strader, 258, 761 case and the Heron 361 Md. ] [v. (2000) description A.2d 56 case for its discussion and ] by the circumstances described good cause factors. And enough give I think are more than to us reason [Appellee] motion. deny summary judgment to good finding I that there was cause. I am finding am not an of fact enough presented is for eventual finder there to find cause. Fund, Basiliko, Inc. Mortgage held in v. Metropolitan
As we
(1980),
25, 29,
of a
415 A.2d
the denial
288 Md.
summary judgment
motion for
should be reviewed
pretrial
so in cases that “in-
especially
abuse of discretion. This is
legal
but also an exercise of
only pure
questions
volve[ ]
until
postponed
to
the decision should be
discretion as whether
complete
a
factual
Id.
supported
record[.]”
it can be
that,
with a
motion for
Additionally,
presented
pretrial
we held
“affirmatively
has
to
summary judgment, a court
discretion
request
in favor of a full
deny
summary judgment
...
... a
merits;
though
and this discretion exists even
hearing on the
entry
judgment
for the
of such a
requirements
the technical
Basiliko,
Thus,
610(d)(1)
while Md. Rule
states that when a movant is
entitled to judgment
law,
as a
matter
the court should
judgment forthwith,
render
this does not mean that entry of
judgment may not
delayed
be
until after a trial on the
merits, should,
mind,
in the court’s
promotion
justice
require it.
It
our
is
view
an appellate
court should be
overturn,
loath indeed to
very
procedural
narrow
ground, a
judgment
final
on the merits entered in favor of
motion____Tо
the party resisting the summary judgment
*11
turn the
tables
this manner would be nothing short of
substituting a known unjust
just
result for a known
one.
Basiliko,
28-29,
(footnote
Substantial With The LGTCA The provides, LGTCA in pertinent part: (b) Notice Required. (1) Except provided in subsec- — (d) ... section, tion[ ] of this an action for unliquidated damages may not be brought against government a local or its employees unless the notice of the claim required by this given section is within 180 days after injury. the (2) The notice shall be in writing and time, shall state the place, and cause of the injury.
(c)(1) The required notice under this section shall be given in person or by by certified mail ... the claimant or the representative of the claimant.
v [*] [*] (4) given [T]he notice shall be to the corporate authorities of the defendant government. local (d) Waiver notice requirement. Notwithstanding — other provisions section, of this unless the defendant can
428 has prejudiced that its defense been
affirmatively show notice, motion required upon lack may though the suit shown the court entertain even given. was not required notice §CJP 5-304. strictly not contest that she failed to
Appellee does Yet, if plaintiff even a doеs comply with the LGTCA. if sub strictly may go plaintiff the suit forward comply, Ellis v. stantially requirement. with the notice complied 331, 342-43, Md. 82 City, Baltimore 436 Housing Auth. of (2013). Here, the trial court found substantial A.3d on the and actions of compliance information “based on: the court relied parties.” Specifically, mother, immediately receipt upon combination [T]he to, as physician, the medical information from the delivered understood, imme- manager, to the which was Housing she diately per- to Mr. Peach and appropriate transferred argu- knowledge existing danger sons that have ably injury. trial whether
We review a court’s determination of notice re substantially complied with LGTCA’s plaintiff Ellis, a matter of law. See Md. at quirement as omitted). (citation A.3d at 167 recently explained, plaintiff
As satisfies substan we compliance tial where:
(1) provide requi- makes effort to plaintiff [T]he “some *12 (2) notice”; give “in fact” kind of plaintiff site the does some (3) notice; “provides requisite timely notice ... and the claim”; giving notice of and rise to the facts circumstances (4) fulfills requirement’s and notice the LGTCA notice the which is purpose, at government possible liability of its local apprise [the] could own government]
a local conduct its [the time when i.e., while evidence was fresh investigation, the still was undiminished recollection witnesses time, of character and extent sufficient to ascertain the responsibility^] local injury government’s] [the
429
Ellis,
342-43,
Md. at
at
436
82 A.3d
167
v.
(quoting Faulk
284, 298-99,
(2002)
1262,
371 Md.
A.2d
Ewing,
808
1272-73
In
(ellipsis
original)).
Ellis
held that a threat
to sue
we
it
chipping
satisfy
HABC if
did not fix
did not
paint
substan-
345,
tial
We have
of
of
findings
substantial
compliance
plaintiff
when
of
sent written notice
a claim to
government
time,
a
agency detailing
place,
of
the injury, though failing to follow a
requirement.
technical
v.
Cnty.
See Jackson Bd.
Cnty.,
Comm’rs Anne Arundel
of
164,
(1963)
167-68,
233 Md.
195 A.2d
(holding that
written
sending
notice via
mail
regular
unrestricted
substan-
LGTCA).
tially complied
predecessor
with the
statute to the
Additionally, we held that
a plaintiff
when
sent a letter
an
detailing
injury and an
expectation
type
some
of compen-
sation,
compliance
substantial
met
though
is
even
the letter
was sent to the
statutorily
defendant’s insurer instead of the
Faulk,
307-08,
required person.
Md.
See
at
A.2d
that,
Finally,
1277-78.
recеntly
we
reiterated
the context
case,
paint
a lead
a
complaint
chipping
verbal
paint
coupled with threat to sue if
situation
were not remedied
satisfy
Ellis,
did not
substantial
compliance
its own. See
Here, there explicit implicit action, was no or of legal threat either written or simply oral. Woodland’s mother not did make statement any statutorily specified within the time about an intention to sue HABC. This fails the second we condition Thus, set forth Ellis. we with HABC that agree the trial in concluding court erred substantially had Woodland complied the LGTCA.
Sufficiency Of The To Show Evidence Good Cause
The LGTCA provides plaintiff one last route plaintiff courthouse. Even if a or strictly does substantial- *13 430 may a trial provision, notice court
ly with the LGTCA comply In noncompliance. good if it finds cause for entertain the suit case, good had Appellee the trial court also found provisions. notice the LGTCA noncompliance cause for upon first there no evidence argues was Appellant found cause to excuse good which trial court could have grandmother and to provide of Woodland’s mother the failure merely days. HABC contends that notice within 180 written not consti- injury HABC of an does itself notice to providing sue, comрli- thus does not excuse tute of intent to and notice give if mother was able to ance. that Woodland’s It advances to HABC, give was also able notice injury to she notice of Pressing point, a tort claim. pursue of her intent injury notice of an allowing mere HABC stresses judge-made cause would constitute new good suffice as not contemplated by Legislature. to the exception LGTCA its that the court abused discretion argues next HABC good in its not of part on an exhibit evidence relying of question, ironically, in was analysis. packet The evidence admission, which had earlier offered for documents HABC in from Lead Your Home” Family a “Protect Your contained (“the HABC Rights” and a “Notice Tenants’ document Packet”).6 Packet The had excluded the HABC court earlier Packet The HABC objection by Appellee. an response mother did again, was offered and Woodland’s never or any way it that she reviewed about or indicate testify Nonetheless, court, explaining its it. trial relied on cause, Packet as part mentioned good finding basing that in cause. concludes ruling Appellant its evidence, from cause on material excluded finding the trial court erred. clearly carefully court rejoins that the trial
Woodland in Rios good cause factors announced weighed appropriate (2005) County, 386 Md. A.2d Montgomery v. 6. Discussed infra. *14 (2000).7 Strader,
Heron v. Md. 56 Appellee A.2d explains good further that the trial court considered cause HABC, of interactions with and HABC’s light Monterio’s response the it such to information received. After consider- ation, continues, Woodland the court found that was prejudiced by not with the noncompliance Monterio’s LGTCA. Finally, argues a Appellee reasonably prudent person that would rely government agency complies the fact a with statutory regulatory obligations its and and conducts the relevant tests it is presented when with evidence of lead poisoning. Woodland concludes it that because would be reasonable to so rely, given because HABC was sufficient pursue possible claim, information to further investigation of a the trial court did err in finding good cause.
To arguments, address these we the pertinent start with statute. The Legislature granted authority courts the to paint notice, “entertain” a lead suit even without upon 5-304(d) § showing “good cause.” motion (“[U]pon CJP good and for shown may the court entertain the suit even though required given.”). the notice was not trial The court, discretion, exercising good its found that Woodland had failing comply fully cause for to requirement with the notice In the LGTCA. to order determine whether the court abused discretion, we must first the reasoning examine the court employed in announcing cause. In finding finding, trial explained: the court
In looking Court, at the issues before the the questions become as to good meeting cause for not require- the waiver ments, I mean the It requirements.... brings notice us question then to the what is meant good cause that which is the circumstance before it. The Court asked questions of parties both counsel and both because the Court is particular parties’ interested the to response expectation was, what the reasonably what was understood interpreted the to requirement notice look the 7. Discussed infra. to before it comes comply to or failure
attempt comply to cause. question advise, to points are three Court needs There (a) at. Is that did its review looked upon the Court say responsibility her going I’m simply ignore, Monterio оf the status that necessary give action to notice take being local litigation government lead would Immediately upon receiving the in this case. defendant immedi- from she physician, level notice elevated blood manager. She immediate- took information to ately mother, her which was the ly along with communicated *15 in tenant, property of the of the existence lead named information, Immediately upon seeing re- action. required television, then to her information, by albeit ceiving equivalent took action that would be attorney immediately agency the which is government to the notification to local Authority City. Baltimore Housing of in a for the 180 this same as someone coma While is the in a equal being does not to someone certainly and it days, to indication of the intent meet the coma for it is years, of the statute. requirements ... Housing
It note that the Defendant important is to immediately Connor into Baltimore sent Authority City testimony the persons other based on property. the While property, into the Ms. agency the defendant came from in notably, and did look the property Mack most to view the inside, important thе it is to see the on property, property risk that Mr. Inspection was the assessor note Connor to in of certified risk assessor Moore wishes talk terms the statute. that a doctor has to be clearly disagrees
This Court notwithstanding, is testify. to But certified risk assessor statu[t]e, more importantly on the but existing that based the is that there was operations parties on the based into the inspection property. on, it is as going
Before clear clear can be that as to the Housing Authority Defendant agents, responsible and its agents, is was that there from the from veering away issue paint immediately conclusion, lead upon, this Court’s observing as to the stucco on the first floor in property. However, inspection only does indicate not child was the to found be elevated blood level given and notification Defendant, risk, but the certified risk assessor and the 20, 1997, as report written dated October peeling, indicates flaking paint.
While the says Court throughout property, it does what specification talks in terms at least five areas. There is frames, no stucco on the door there is no stucco on the sills, window and there’s indication that there chipрing, was peeling in a flaking, paint bedroom area frequented by the child that had no stucco in it all. The testimony mother is specifically the main rooms floor the first had stucco. The question specifically as to on the window frames, sills, frames, window door and around the windows bedroom, mother’s bedroom other which the Court will refer one with the three single beds it, not, easily did accessible question. to the child in Therefore, in terms of looking at the facts and circum- stances, points the Court also that there was packet of what to do. That both of parties indicated existed *16 that it, was you delivered to what did receive to show that Housing Authority of City Baltimore delivered this to packet mother. risk program
[The] assessment existing as does not negate the question case, i.e., in negligence of existing, the of existence lead in the property that was known for the of purpose human habitation and more of specifically minor children. Especially following the 1967 Housing Code. important What is that this packet is was to referred with a separate says section in it that things you to to do protect your family. in the packet [Nowhere] does it indi- give cate to HABC, Peach, written notification to Mr. or the persons named in argument referred to as person the 434 It does potential litigation. notice of the written
requiring of, in the to turn the notice you’re supposed that say manager. to the office of information doctor’s notice as being as to it discussed question becomes Therefore do, you’re to what in essence supposed to you’re what is do, you of to do----It required which is to expected reliance on that inappropriate it is argue to reasonable statutory language. of that which is to substitute be the point on that argument Defendant’s recognizes The Court it would and therefore argument point or be an on that to lease, to which was referred housing is a be since this would lead to which is a contract which parties specifically, expectation parties reliance as to the detrimental therefore, compliance situation. And under that parties between the conveyed and understood which was this Court statutory requirement, meeting while not as to to be taken into consideration to reasonable finds be statutory require- with the comply failure good cause ment. failing is for the find that there Court does
[T]he general overall steps or to meet the strictly comply normally compliance would be substantial sense what the written notice. taken that the actions that were does believe
This Court and that if it as such timely response were taken of that detrimental reliance upon it was were such compliance the natural Defendant which obstructed from required. “good to decide review appellate is not our task
It
court
afresh,
rather,
whether
trial
but
decide
cause”
cause determination. See
its
abused
discretion
(“The
Rios,
121,
question
10
of whether
at
The for Legislature provide did not a definition Instead, skill, “good knowledge, term cause.” it on the relied experience judiciary give to substance to this term. cause, As we have trial court’s task was interpreted “ prosecuted to decide ‘whether the claimant claim with [her] degree diligence that ordinarily prudent person an have would exercised under the same or similar circum ” Heron, 271, stances.’ 361 Md. 761 63 (quoting A.2d at Associates Ltd. v. P’ship Washington Suburban Westfarm (4th Comm’n, Cir.1995)). Sanitary 669, 66 F.3d 676-77 The statutory exception “good cause” is intended allow a “ justice court achieve ‘substantial under varying circum ” court, stances’ and is based on the notion trial that a context, knowing is best positioned question. decide the Norouzi, 154, 183, 632, (2002) v. 371 Moore Md. 807 649 A.2d 340, (quoting Madore v. Baltimore Cnty., 34 Md.App. (1976)). one,
A.2d The is not a concept rigid and was not intended rigidly to be applied.
We are persuaded it was not unreasonable for the trial judge to conclude grand that Woodland’s mother degree mother acted with of diligence reasonable under the They circumstances. notified the landlord in person Amafica had two elevated level pursued blood-lead tests and actions consistent some achieving redress of their con Their cerns. actions allowed HABC to investigate its “possi liability ble at a time when it investiga could conduct its own tion, i.e., while evidence was still fresh and the recollection time, was witnesses undiminished ‘sufficient to ascertain the character and extent of the injury ” Moore, responsibility in connection with it.’ at Md. 167-
436 Md.
68, Maynard, v. 359 (quoting A.2d at 640 Williams 807 (2000)). 379, 389-90, 379, 754 A.2d 385 elevat- report after the of Amafica’s transpiring The events mother reasonably could have induced the ed blood-lead level they enough, done to believe that had grandmother and said, only have HABC promptly notice. we did terms of As immediately the but expert inspection property, an of order to a thereafter, family it and her different moved Woodland reasonably justi- could circumstances have residence. These mind, fied, the conclusion that the Wood- judge’s in the trial and curative reasonably prompt relied on HABC’s family land giving in not additional notice. action aby reliance previously have held that reasonable We or government agents with local its claimant on interactions a of within “good can factor in a claim cause” supporting be a Moore, 180, 371 at A.2d §of 5-304. See Md. 807 meaning the (“ his of defendant or ‘When acts conduct 648 of the statute have agents purposes have established that the satisfied, acts and conduct could constitute been these ” estoppel.’ (quoting or create an Delaware waiver of notice (1979))).8 190, Powell, 82, Ind. 192 v. 272 393 N.E.2d Cnty. flaking an who found extensive expert, When HABC secured after, by to a paint, right family was moved HABC residence, person could well believe that different reasonable its for the clearly recognized responsibility has agency so was required. that no further formal documentation injury its opinion explaining the trial court’s oral conclusion Although clarity, judge of cause” not a of the trial “good was model family responding did that Woodland’s was certainly believe events, describing After these the trial court HABC’s actions. that taken said, “This Court does believe that actions were Cook, (Tex.1974) 8. Cas. Co. v. 515 S.W.2d See also Cont’l compensa- (payment compensation or medical bills of benefits claim); may good timely file cause for failure to tion carrier constitute Colorado, 708 P.2d Tucker v. Indus. Comm’n State (Colo.App.1985) (good when failed to work- cause found claimant file by Department of compensation of advice Labor er's claim becausе futile). filing would denied would be his claim be timely response were taken and in (Emphasis as such[.]” added). circumstances, Under these the trial court acted scope within its discretion when it held that Woodland’s family failing fully had cause comply statutory requirement. notice persuaded are more by Appellant’s argument
We the trial court erred when it considered the Packet part analysis, even it though was not earlier, evidence. As we described when HABC offered the prove Act, Packet compliance with the Lead the court on grounds excluded it it jury.9 would confuse the The HABC *19 Packet was again never offered party. either Yet the judge said that he considered it important that in “[nowhere] the Packet does it to give indicate written notification to HABC, Peach, Mr. or the persons named to in referred argument as the person requiring poten the written notice of tial litigation.”10 Clearly, the judge rely cannot on the HABC if Packet it is not in In respect, evidence. this the trial court erred.11 argues
HABC that the appropriate remedy for this error is a new trial. do agree, We because the court’s consideration of the HABC Packet was harmlеss error. It relied on the only HABC Packet as an alternative basis for its good cause finding. The record reveals that the court focused (1) on three factors. These were: Woodland’s mother’s inter
action with HABC after being notified of daughter’s her (2) level; elevated blood-lead HABC’s actions in response to being informed of level; Woodland’s elevated blood-lead 9. We colloquy further address the being that led to the HABC Packet excluded infra. require The Lead Act does not that HABC advise its tenants about 10. 5-304, comply § how to impose CJP and we should not said, requirement judicially. That there could be circumstances where might the HABC evaluating good Packet be relevant in cause. 11. judge's HABC also sees error in the timing consideration of the of the suit in relation to assessing good the statute of limitations in cause. why We see no reason this factor cannot be considered.
(3) provided Packet to Woodland’s content HABC family.12 discussing the interactions between Woodland’s After HABC, concluded family and the court “there [was] or to meet the overall failing strictly comply cause for the normally sense of would be substan- steps general what an for the writtеn notice.” As compliance explanation tial ruling, the court said: This Court does believe taken the actions that were as such and that if timely taken it response were of that it was not such upon were the detrimental reliance natural as compliance from which obstructed the Defendant required. added). portion the trial
(Emphasis We construe both opinion saying court’s that Monterio’s conduct was to allow under the circumstances sufficient reasonable preparation possible an investigation HABC conduct standard, Thus, Heron the trial court litigation. applying the above, factors, found that first two enumerated were Yet, finding to sustain a cause. sufficient on their own two factors guarding against possibility first the court on to offer upon might wanting, relied be found went “if it it finding, an rationale for its were not such alternative Defendant,” of that from upon was the detrimental reliance in the Packet referring to the absence instruction *20 give statutory about the notice. This alternative how flawed, the ultimately but harmless because ground was support court’s reasons were sufficient first two cause finding. sum,
In of waiver of notice purpose rеquirement the justice “to allow the court to achieve ‘substantial provision is Moore, 183, 371 807 varying under Md. at circumstances[.’]” Madore, 344, at at Md.App. A.2d at 649 34 367 A.2d (quoting 57). court further mindful of the breadth of trial We are Rios, 121, at 10- discretion in this arena. 386 Md. 872 A.2d (“ in the only should be found abuse discretion ‘[A]n suit, minority at the time and 12. The court also noted Woodland’s the fact of limitations had not run. that the statute ” case.’ exceptional, egregious (quoting or most extraordinary, 3598, 295, 312-13, No. 347 Md. Adoption/Guardianship In Re (1997))). manifestly It unreason- 701 A.2d 118-19 is able, facts, to conclude that Woodland’s mother given these diligence acted of a reasonable grandmother with on the action person reasonably responsive relied thought they given for the had sufficient notice. fully notice to allow it to investi- given HABC was sufficient any in the Residence and conduct gate presence lead information still fresh in relevant interviews while the was no everyone’s Accordingly, mind. we hold there was abuse of discretion the trial court’s cause determina- tion.
Evidentiary Questions first, In Appellant evidentiary also raises two issues. maintains that the trial court erred when it excluded Appellant testimony intended to demonstrate thаt conduct was HABG’s complied reasonable under the circumstances because it being the Lead Act after informed of elevated Woodland’s blood-lead Appellant repeatedly attempted level. to offer testimony perform that it had Connor a modified risk reduc- part tion as of its adherence to the Act Lead rather than because the In property paint. excluding contained lead evidence, the trial explained compliance court with the Lead Act was irrelevant question negligence, that such information would confuse the issues to the jury. Additionally, the court stated that the Lead Act had been held unconstitutional.13
Appellant offered into evidence sample versions of the docu-
Packet,
ments
the HABC
specifically the “Protect Your
Family From Lead in Your Home” and “Notice of Tenants
Rights.” The following colloquy occurred when Woodland
Appellant
holding
only
is correct that our
in Jackson v. Dackman Co.
13.
immunity provisions
found the
of the Lead Act
invalid.
Md.
(2011).
objected with these documents: Woodland’s mother provided attorney]: Defendant’s Exhibit Mr. Nevin [Woodland’s over the law and then the purposes only goes identification forms, They signed the forms are blank. are not but forms, are what’s the anybody. saying But these [Mack]’s things half the that? She doesn’t remember bas[is] [for] about, that is the form. yet that we ask she remembers I inappropriate. think it’s objection? your
The Court: What’s is is that this is irrelevant. My objection Mr. Nevin: [sic] in fact form she There’s no identification that this was the followed. Anything you?
The Court: from Yes, I attorney]: just Your Honor. Mr. Moore [HABC’s the forms were. I handed it to her. asked what [Mack] it. I’ll this is not the happy stipulate She’s identified be day, that was that that these were— presented one Well, at the moment. doing things The we’re two Court: yesterday. at the bench The slight There was discussion we this at all. inquired why discussing Court as to were at all. why And I don’t understand it’s relevant to this case Honor, relevant, Moore: The reason it’s Your is be- Mr. case, argument of our in this as I stated on part that the with the opening complied statement was applicable law. objection is to be sustained as to it’s going
The Court: The to the case and not material to the lawsuit. The irrelevant you’re The law that show- negligence. lawsuit is based was found to be unconstitutional ing you сomplied and no exists and therefore that in the circumstances longer bring is not to even into this case. proper Honor, Well, I think respect, Moore: Your with all due Mr. the law Appeals part what the Court of held was housing operator or owner the benefit gave $17,000 liability limitation of was declared unconstitutional. But it clear that the landlord still had to the case made *22 still had to and landlords the law—owners comply with That’s what the respects. in all other with the law comply case said. Well, This Court your argument. I appreciate
The Court: with the compliance in ruling question, is is that the items pres- suit negligence to the items in is irrelevant question secondly [is that] And then ently before this Court. put highly prejudicial it would be ruling that] Court’s [is it raises and confuses the negligence case of it negligence. as to And so allegation as to the question objection. sustaining therefore is I am indicating that Thus, testimony court excluded the trial having of modified risk reduction after undertaking HABC’s a blood-lead level was made aware of Woodland’s elevated been with the Lead Act. comply done order to error, lead contends that because
Claiming Appellant standard, it nеgligence was analyzed cases are under paint it allowed to demonstrate essential to HABC’s defense that be It main reasonably that it acted under the circumstances. Act, with the Lead both before compliance tains level, after notified of Woodland’s elevated blood-lead being Thus, avers, it to the reasonableness of its conduct. speaks deprived the court’s exclusion of this evidence conduct jury to demonstrate to the that its was opportunity also Appellant argues reasonable the circumstances. under jury to hear the term “modified risk reduc allowing tion,” that there explanation, impression without created the any in the without direct paint property, was indeed lead presented evidence this issue. subject are paint
It is settled law that lead cases v. Maryland. to the standard in See Brooks Lewin negligence 616, III, Inc., 624 n. 5 378 Md. 85 n. 835 A.2d Realty (2003). is negligence by A case of established prima facie designed protect of a statute class showing violation injury and an caused persons plaintiff that includes the Then, whether Id. “the fact-finder must determine violation. reasonably landlord acted under all the circumstances.” Id.
Nonetheless, Appellant’s argument is The unavailing. ex- pertained cluded evidence to HABC’s conduct having after been notified that Woodland had an elevated blood-lead level.14 Its subsequent conduct is not relevant to question of its negligence causing this elevated blood-lead level to occur. Appellant prevented was not from putting on evidence of its conduct pertinent to the Residence before Woodland’s elevat- ed blood-lead prevented test. Nor was it from addressing the *23 conduct that to presence led of lead in paint the Resi- court, discretion, dence. The trial its using ruled that evi- dence of subsequent remedial measures confused the issue of negligence.
The court allowed Appellant to ask Mack questions about specific mother, notifications she had given Woodland’s as well as to describe the various inspections, actions, maintenance and tenant interactions that in were listed family’s Woodland’s tenant file. The court also allowed Appellant’s expert state that, in his opinion, there were no reports or records of lead- based paint Court, hоwever, hazards at the Residence. The drew the line at testimony characterizing HABC’s steps as having been done in compliance with the Lead Act. It excluded this evidence because the issue trial negligence, was proffered conduct, evidence pertained post-injury and the court considered mention of compliance with the Lead might Act confuse jury. the issue before the Appellant’s supposed compliance with the statute does not seeks, it provide safe harbor because it speak does not whether in negligent HABC was allowing Woodland to be exposed paint to lead in place. the first The specific statutory Although Appellant 14. prevented putting claims that it was also from on Act, pre-notification compliance evidence of its with the Lead it does any not direct speaks pre-notification us to excluded evidence that to its Thus, actions undertaken to maintain the Residence free from lead. we only proffered regarding post-notification address HABC’s evidence conduct. proffered by did not compliance any address affirma- actions paint tive undertaken tо detect and remove lead from reasons, the Residence. For these we hold that there was no error the trial court’s decision to exclude this evidence as irrelevant.
Appellant’s evidentiary argument second concerns the trial judge admitting at the putative hearsay evidence trial. The is the alleged hearsay phrase paint” handwritten “lead found (“Notice”) on forms entitled “Notice Intent To Vacate” For “Application (“Application”). Transfer Residence” The potential Notice enumerated six reasons for moving, and form, someone had written “Lead Paint” next option to the detail).” stating (explain “Other The Application has the words “lead paint” written a box entitled “Tenant Reason Request.” Both documents were dated November signed by grandmother. Woodland’s The Application also signed was by employees. two HABC The documents were offered Woodland to show HABC had notice Woodland’s lead paint claim. HABC objected on grounds that the words “lead paint” hearsay. were Woodland responded that these documents fell within the business exception record to hearsay, they were mаintained *24 by the regular HABC the of course business. trial The agreed. court quarrels HABC ruling, with that that insisting without evidence as to the identity provenance scrivener, the words “lead paint” cannot be admitted under the exception. business record
The business hearsay record exception states: Records of regularly conducted business A activity. memo- randum, record, report, acts, events, or data of compilation conditions, (A) opinions, or if diagnoses it was made or act, event, condition, near the time of the or or the rendition (B) of the diagnosis, it was aby person made with knowl- or edge from information by transmitted a person vrith (C) knowledge, it was made and in the kept course of a (D) regularly activity, conducted business regular the practice of that business was to make and keep the memo- A
randum, compilation. or data record record report, if source of information or the may kind be excluded the this of the record preparation or circumstances of the method in the record lacks trustworthi- that the information indicate ness. 5-803(b)(6). (B), the argues that clause
Md. Rule one was violated because no knowledge requirеment, personal the words “lead as the reason identify paint” could who wrote transfer, handwriting was not and Monterio testified trial court persuaded her mother’s. We are erred.15 record “is exception
The of the business purpose knowledge require exception personal out an to carve rec admissibility business greater ment order to allow Sys. Med. 398 Md. Maryland Corp., Hall v. ords.” Univ. of (2007). 67, 88, underlying The rationale 919 A.2d premise on the because exception is “based ... of a business enough running for the records are reliable trial. This is true to be admissible at they enough are reliable record actually who did the regardless person whether the recorded.” knowledge ing personal has information (italics Hall, original). A.2d at 1190 398 Md. at standing proposition no case for the cites Appellant record, one maintained especially undisputed that an business admission, by and dated signed by party opposing records, authority to make such unquestioned with the people simply from consideration entry should have an excluded of the words. The identify no one can the writer because “I don’t that this is dispute for HABC conceded: attorney At trial Housing Authority.” rеgularly kept record assumption theory HABC's rests on the 15. We also observe that prove paint. lead the existence of these documents were admitted the documents reveals instead that Woodland offered The record injury, paint which prove gave to HABC of her lead that she notice they hearsay paint” were not because mean the words "lead would *25 was prove the of her assertion that she were not offered to truth Residence, only paint but HABC’s awareness of exposed to lead at the her claim. of the dispute validity authenticity there was no as to the or document, of the HABC signatures employees. or “lead paint”
Absent some evidence words were fraudulently untrustworthy, identify- entered or are otherwise who into these docu- ing person wrote the term HABC using ments is not essential to the business record exception a qualifies for admission of these documents. record “[W]here record, as a business there is a of trustworthi- presumption ness, case, objecting especially and the in a civil party, bears heavy burden in order to exclude an otherwise admissible Owens-Illinois, untrustworthy.” business record as Inc. v. (1992). 107, 116, Armstrong, 326 Md. 604 A.2d seeWe nо error.
CONCLUSION above, For the reasons stated we hold that the Circuit in finding Court erred substantial and in compliance consider- ing the non-admitted HABC part Packet as its determina- tion that there was family cause Woodland’s to fail to give timely written notice of its claim. Yet there was suffi- cient evidence to support good cause determination without Packet, considering the and with the valid determination, compliance court’s substantial ruling was Finally, moot. neither of the evidentiary issues raised by Appellant error on part demonstrates of the trial court.
JUDGMENT OF THE CIRCUIT COURT FOR BALTI- MORE CITY AFFIRMED. BE PAID BY COSTS TO APPELLANT. JJ„ WATTS,
MCDONALDand concur and dissent. WATTS, J., Concurring Dissenting, which McDonald, j., joins concur,
Respectfully, dissent, I part, part. I agree the circuit court erred concluding substantially complied Woodland with the notice requirement of the Local (“LGTCA”), Government Tort Claims Act Md.
446 Vol.) (1987, § 5- Ann., Repl. Proc. Art. Cts. & Jud.
Code
however,
hold,
that the circuit court
I
also
seq 1
301 et
would
that
showed
concluding
in
Woodland
abused its discretion
the
notice
comply
failure to
with
LGTCA
cause for her
good
of the circuit court.
judgment
the
and reverse
requirement,
in
circuit court erred
acknowledges,
the
Majority
As the
cause-
finding good
in
in
information not
evidence
considering
the rea
significantly,
Packet. But most
namely, the HABC
court,
by
and in turn
the
the circuit
upon by
sons relied
to
with
good
compliance
not
cause waive
Majority, do
establish
requirement.
notice
the LGTCA
circuit
three factors the
states that there were
Majority
The
cause existed to waive
determining
good
in
court found
requirement:
notice
with the LGTCA
compliance
(1)
being
HABC after
mother’s interaction with
Woodland’s
(2)
level;
blood-lead
daughter’s
notified of her
elevated
being
in
informed of Wood-
response
actions
HABC’s
(3)
level;
the content
land’s elevated blood-lead
family.
to Woodland’s
provided
HABC Packet
(footnote omitted).
437-38,
As
The unambiguously record demonstrates that Woodland did not argue present or evidence establishing reliance on in response “HABC’s actions of being informed Woodland’s level[.j” elevated blood-lead It is accurate as the Majority that, writes at the motion for summary judgment hearing, that, counsel for Woodland stated according to Woodland and Monterio, “it was their understanding they that were moved because of the lead in the house.” Counsel for Woodland argument, however, made this before a motion pretrial hear- ing judge, who judge was not the who presided over the trial and who responsible was not for issuing ruling as to cause. Put simply, vague ambiguous statement no way an argument constitutes as to reliance and was not made to the trial judge who ruling issued the we now review. Later, trial, at before the judge opinion whose is subject of this Court’s opinion, Woodland did not allege produce or any evidence of reliance on any action or statement by HABC nor did produce Woodland evidence that the reason she failed to comply with the requirement LGTCA notice due to was by actions Despite being HABC. there no evidence of detri- mental reliance alleged produced, cause, or in finding good trial judge nonetheless stated: “This Court does believe that the actions that were taken were taken timely and response such and that if it were not such it upon was the detrimen- tal reliance that from which obstructed the [HABC] natural compliance as required.” clearly This was an abuse discre- tion as such reliance was Yet, neither raised nor established. the Majority gives credence to the circuit court’s erroneous ruling by holding now that it was not unreasonable to conclude grandmother Woodland’s mother and “reasonably relied thought for the by the HABC action responsive
on the 92 A.3d Majority Op. sufficient notice.” they given had at 393. or alleged never remains that Woodland
The quandary
family,
her
having relocated
relied on HABC
argued that she
completed visual
or, indeed,
having
relied on HABC
that she
the LGTCA.2
complying
for not
as a reason
inspection
actions of anoth-
representations
reliance on
Although
and/or
established,
circum-
may, under certain
er,
alleged
if
cause,
has never contended
stances,
Woodland
constitute
To the extent that Woodland
by
action HABC.
any
reliance on
substan-
contended
inspection,
Woodland
made an issue
HABC
inspection provided
in that the visual
tial compliance,
made
investigation;
an
Woodland
to conduct
sufficient notice
evidence,
no
presented
importantly
and most
allegation,
no
and moved
having inspected
property
reliance on HABC
require-
notice
waiver of the LGTCA
as a basis for
family
actions
by
reliance Woodland
regarding
ment. The facts
not exist in the record.
simply
do
taken
the circuit court
Majority asserts
Alternatively,
above-namely,
factors set forth
Wood-
that the first two
found
being
HABC after
notified
interaction with
land’s mother’s
*28
actions after
level
HABC’s
elevated blood-lead
Woodland’s
elevated blood-lead level—
of
being informed Woodland’s
of
finding
to sustain a
on their own
“were sufficient
Contrary to the
at
449 (3) concerning paint; advertisement lead the statute applicable (4) trial; of limitations had not run the time of not affirmatively HABC did advise Woodland’s mother she was required submit written notice of her intent to behalf, a claim on bring Woodland’s but provided Woodland’s mother with two “information concerning paint, booklets” lead which allegedly contained an advisement of what actions to regarding take lead paint. Significantly, Majority as the concedes, case, in this the circuit court in considering erred ie., evidence, information not in the HABC Packet. Stated otherwise, it is apparent the circuit court abused discretion finding good cause based on information thаt was not admitted as evidence. The Majority acknowledges this but I, finds the error to be harmless. Again, respectfully, disagree.
When considered individually, the two factors relied upon by Majority mother’s interaction with HABC —Woodland’s being after notified Woodland’s elevated blood-lead level and HABC’s actions after being informed of Woodland’s ele- vated blood-lead level—are not sufficient to demonstrate good cause for Woodland’s failure to provide notice. Stripped basics, we are confronted with following —Woodland’s orally mother notified HABC of Woodland’s elevated blood- reduction, ie., lead level HABC conducted a modified risk a visual inspection, and moved family. No further action was taken on Woodland’s behalf for almost twelve years, until after advertisement, Woodland’s mother saw a televised which point complaint was filed. That Woodland’s mother notified an elevated blood-lead level and HABC family moved the after a inspection visual simply does not provide good cause for Woodland’s mother’s failure to prose- cute Woodland’s claim with diligence of an ordinarily Strader, See Heron v. prudent рerson. 258, 271, 361 Md. (2000). A.2d early 30, 1997,
As as September Woodland’s mother knew Yet, Woodland’s blood-lead level was |xg/dL. *29 record any is devoid of action by Woodland’s mother to notify HABC, else, or anyone orally or in writing, other than provid- ing level, Woodland’s elevated blood-lead that Woodland in-
450 HABC, any or against claim paint a lead pursue tended to claim on actually pursue mother to by effort Woodland’s nearly behalf, filing complaint until the Woodland’s trialA level test results. the blood-lead years twelve after that a concluding plaintiff its discretion court abuses with the comply failure to plaintiffs for the showed (1) takes plaintiff where: requirement notice LGTCA claim; plaintiffs potential prosecute action to barely any (2) plaintiffs sufficiently explain does plaintiff requirement. notice See the LGTCA comply with failure 181, 208-09, 211, A.2d Hunsicker, 172 Md.App. v. Wilbon denied, A.2d 1060 (2006), 398 Md. 678, 695, cert. (2007). level does not an elevated blood-lead oral notice of
Giving diligence degree claim with th[e] “prosecuting a] constitute have exercised under would ordinarily prudent person that an Montgomery Rios v. circumstances.” the same or similar (citation (2005) 1, 22 104, 141, 872 A.2d Cnty., 386 Md. omitted). an That a child has elevat- marks quоtation internal an reports the child’s mother level and ed blood-lead may occur circumstances level are elevated blood-lead on the intent to may bearing or not have may frequently, bring a claim. moving risk reduction and
Here, undertaking a modified misleading representations no HABC made family, no Woodland; absolutely reduction had and the modified risk grand- mother or on whether Woodland’s bearing or effect behalf with the a claim on Woodland’s prosecuted mother As ordinarily prudent person. of an diligence degree above, contended or substantiated has not explained Woodland or that grandmother, mother or that HABC misled her a claim mislead- upon any representation, detriment they relied to her Thus, otherwise, circumstances of made HABC. or ing i.e., reduction, being con- inspection, a visual a modified risk not establish family being moved do ducted and the the LGTCA notice comply failure cause for Woodland’s requirement. *30 above,
For all of the set forth I reasons would hold that the court in finding good circuit abused its discretion cause and judgment reverse the of the circuit court.
Judge joins McDONALD has authorized me to state that he opinion.
v. PARTNERSHIP, LEXINGTON CHARLES LIMITED et al. 12, Sept. Term, No. 2013. Appeals Maryland.
Court of March 2014. May
Reconsideration Denied 2014.