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Maryland Court of Special Appeals Vacates Denial of Summary Judgment Where Improper Legal Standard was Applied to Complaint to Perpetuate Evidence in Lead Paint Action

Trashawn Johnson v. Roberta Franklin
Court of Special Appeals of Maryland, Case No. 1216 (Md. Ct. Spec. App. May 29, 2015)

by Jhanelle A. Graham, Associate
Semmes, Bowen & Semmes (

Available at:

In Johnson v. Franklin, Trashawn Johnson filed a complaint in the Circuit Court for Baltimore City, seeking an order allowing him to conduct environmental testing at 3811 Reisterstown Road, Baltimore (“Property”), which was owned by Roberta Franklin. Johnson’s complaint to perpetuate evidence was filed to support a separate lead paint action against a prior owner, Riggs Properties. Johnson propounded discovery requests upon Franklin, and after Franklin failed to respond, Johnson filed a motion for summary judgment. The Circuit Court for Baltimore City denied both Johnson’s complaint and his motion for summary judgment. On appeal, however, the Court of Special Appeals of Maryland held that the trial court abused its discretion by denying Johnson’s complaint and summary judgment motion, and vacated the judgment of the circuit court. The case was remanded for further proceedings.

By way of background, Johnson filed a lawsuit against Franklin as a companion action to a lead paint poisoning case in the Circuit Court for Baltimore City. See Johnson v. Riggs Properties, 24-C-11-007769 (Cir. Ct. Balt. City 2014). In the companion 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] w[ould] be extremely relevant to his claims” in that case. Thus, on February 19, 2014, Johnson wrote a letter to Franklin, who was not a party to the companion suit and was 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 in the circuit court. In his complaint, Johnson alleged that“[a]n equitable bill of discovery [wa]s the only way for [Johnson] to obtain the information he require[d].” Franklin filed an answer pro se on April 11, 2014, requesting that the circuit court deny Johnson’s request. In the answer, Franklin denied Johnson’s assertion that he needed a “right of access to the [Property] . . . because the required testing ha[d] already been completed,” and “[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, but Franklin failed to respond to any of Johnson’s discovery requests. Consequently, Johnson moved for summary judgment pursuant to Md. Rule 2-501(a). After a hearing, the circuit court found that Johnson failed to establish that his right to access the premises outweighed the privacy rights of Franklin, and denied Johnson’s Motion for Summary Judgment and Complaint to Perpetuate Evidence.

On appeal, the Court of Special Appeals noted that Stokes v. 835 N. Washington Street, LLC, 141 Md. App. 214 (2001) 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. The intermediate appellate court 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. Id. at 225. In making its determinations, the intermediate appellate court 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. Further, because testing the premises for lead paint contamination is “vital” to a lead poisoning suit, “[a]n equitable bill of discovery is the only way for appellants to obtain the information they need.” Id. at 226.

The Court of Special Appeals acknowledged that Stokes addressed how a trial court may issue a bill of discovery under its inherent equitable power; however, the issue of how to obtain a bill of discovery, or how a court would review the grant or denial of such a bill, was one of first impression for Maryland courts.

Analyzing the history of bills of discovery, the court explained that a bill of discovery “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, 20 A.2d 189, 190 (Pa. 1941). 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 223-25.3 A litigant may, however, initiate a bill of discovery by filing a complaint that 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).

According to the Maryland court, although Johnson cited Md. Rule 2-404 as authority, the rule did not allow Johnson’s suit to continue and did not provide the requested relief. Rather, 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). Because Md. Rule 2-404 allows perpetuation of evidence by “request for production of documents required by Rule 2-422[,]” the court found that Md. Rule 2-404 did not authorize Johnson’s action to perpetuate evidence, as Franklin was not a party in the companion suit.

Moreover, Md. Rule 2-404 allows for perpetuation of evidence either “before action [is] instituted” or “pending appeal”― in Johnson’s case, the action did not fit either of those categories. Additionally, because the evidence of lead paint would not be used “against any person served with [the] request . . . in the manner provided by . . . this Rule[,]” the court determined that Md. Rule2-404 would not authorize Johnson’s action because Johnson admitted that Franklin would not be named in the companion case. According to the court, although Johnson did not title his pleading a “complaint for a pure bill of discovery,” the court discerned that he sought one based on his citation to Stokes and reference to an “equitable bill of discovery” as his only requested remedy.

Additionally, despite Johnson’s use of the word “complaint” in the title of his pleading, the court opined that it was not the type of complaint contemplated by the Maryland Rules because it is a vehicle used only for discovery and is not a cause of action, which is required in a typical complaint. See Md. Rule 2-305 (requiring that a pleading set forth “the facts necessary to constitute a cause of action”). Therefore, the court accepted that Johnson filed his complaint for the purpose of initiating a pure bill of discovery, not to institute a civil action against Franklin, even though a complaint was filed. See Md. Rule 2-101 (explaining that a “civil action is commenced by filing a complaint”). Rather, the court stated that it was more akin to a request because Johnson sought discovery by inspection. See Md. Rule 2-422 (noting that inspection is requested by the parties). Although the court stated that Md. Rule 2-422 would not give Johnson relief, it was the closest form of discovery to a pure bill of discovery contained in the Maryland Rules. See id. (allowing for inspection of property of parties).

The intermediate appellate court agreed with the circuit court’s ruling that “this type of pleading is not appropriate for Summary Judgment . . . , just sort of a grant or den[ial] of the petition or request.” Under Stokes, the parties were entitled to an evidentiary hearing on the facts of the case, and Franklin did not waive her right to a hearing, which was evident from the fact that she was present for the hearing and contested the granting of Johnson’s request. For all these reasons, the Court of Special Appeals opined that where, as here, a determination could not be made as a matter of law, a summary judgment ruling was inappropriate. After reviewing the record as a whole, the Court of Special Appeals could not find support for the premise that the circuit court considered all of the Stokes factors unique to a bill of discovery request. Therefore, the intermediate appellate court held that the trial court abused its discretion in denying Johnson’s bill of discovery by failing to consider the correct legal standard, thus vacating the judgment and remanding the case to the circuit court for proceedings not inconsistent with its opinion.