Butler v. S & S Partnership

HARRELL, J.,

concurring.

I join the judgment in this case, for the reasons explained in Parts II and III of the majority opinion (Maj. op. at 653-70, 80 A.3d at 309-19). I do not subscribe, however, to much of the analysis or the holding of the Majority opinion in its Part I (Maj. op. at 643-55, 80 A.3d at 303-10). Although I agree that Section 2(c) of the Scheduling Order is, on its face, ambiguous *671 (Maj. op. at 646-47, 80 A.3d at 305-06) and that there has been offered to us naught but anecdotal recollections from select participants of the “lead paint Bar” of their perception of how and why the language of that Section came to be as it exists in the present case (Maj. op. at 647, 80 A.3d at 305-06), my view of the correct interpretation of “[t]he defendants [to be] permitted to attend the lead test accompanied by a consultant(s) or expert(s)” differs in a material way from the Majority.

Section 2(c) intended (quite clearly) to address more than the problem of assuring to plaintiffs the right to enter upon “a subject property ... to perform a non-destructive lead test,” although that appears to be the main thrust of the Section. Of course, it is the legal right of a present owner or owners of a subject property to control who enters upon his/her/its property that must be overcome to assure that a test may occur. Past owners are irrelevant to the question of securing contemporary entry upon the property. Even less relevant for this purpose are other defendants who never had an ownership or management interest in a subject property during the time the plaintiffs) resided in the dwelling.

As regards construing which defendants are entitled to notice of when a lead test of a dwelling is to be made by a plaintiff, however, the interests of present defendants, who were past owners or managers of the affected rental property at times when the plaintiffs) resided there, are implicated demonstrably. The application of the lead test results to them may be (and usually are) just as significant in determining their liability as the results would be to the present owner/manager defendants whose permission is given (implicitly) for the test to be conducted. For the Majority opinion to conclude, as it does (Majority op. at 645-46 and 648-49, 80 A.3d at 304-05 and 306-07), that only present owner/manager defendants of the property are entitled to notice and an opportunity to attend (with their consultant(s) or expert(s)) to observe how the test is conducted is wrong and prejudicial manifestly. 1

*672 The only rational way, in my view, to interpret Section 2(c) of the Scheduling Order is that it is an assurance to the present-owner/manager defendant of a property to be tested, and to any former-owner/manager defendant of the property, of notice and opportunity to attend the testing. Failure to give the notice to, or other frustration of the right to attend by, each of these categories of defendants is a rational and appropriate basis upon which to have excluded the Arc Report in this case.

At the time of the 24 August 2009 Arc testing of 2238 Linden Avenue and 2308 Bryant Avenue, the former property was owned by the defendant Benjamin 2 and the latter property by a non-defendant (S & S Business Trust) (Maj. op. at 643, 80 A.3d at 303). At the time of testing, the defendant Runkles managed the latter property. Runkles remains in the case as a Respondent in this Court. Moreover, as to the Linden Avenue property, it was alleged by Petitioners in their complaint that S & S General Partnership owned the property during part of Petitioners’ relevant occupancy (Shpritz, another defendant and Respondent here, was the Partnership’s general partner). As regards the Bryant Avenue property, S & S Partnership (composed of the Rochkinds, defendants and Respondents), owned the property at all times that Petitioners resided there. The remaining defendants/ Respondents, Runkles and Dear Management & Construction Co., Inc., managed allegedly the properties during relevant times. It is conceded that no notice or opportunity to attend Petitioners’ lead testing of either property was afforded the respective defendant *673 owners or managers (whether former or as of the date of the tests) of the respective properties. 3 Under these circumstances, the trial judge was justified entirely to exclude the Arc Report as to both properties.

It is not a cure for the bald failure to give notice and an opportunity to attend testing that the affected defendants may cross-examine at trial presumably any witness offered by Petitioners in the course of trying to gain admission of the Arc Report or its contents. The handicap of not being able to verify with the defendants’ (or their consultants’ or experts’) own eyes how and where the lead testing was conducted by Petitioners’ Arc expert places them, to a large degree, at the mercy of whatever the witness chooses to say, whether true, false, or merely overly generous in its slant toward what may be in plaintiffs’ best interests.

. I agree with the Majority opinion that a defendant who never owned or managed the subject property (during the plaintiffs’ occupancy) is *672 not entitled to notice or the opportunity to attend the testing. See footnote 3 infra.

. As the Majority opinion notes, Benjamin ceased to be a party defendant sometime while the case was on appeal in the Court of Special Appeals (Maj. op. at 648-49, 80 A.3d at 306-07). Contrary to the Majority’s attribution of significance to that fact, what is important for present purposes is that Benjamin was a defendant/present-owner at the time of testing (and entitled to notice and an opportunity to attend testing, under my view of Section 2(c)) and at the time the trial judge *673 excluded the Arc Report and entered judgment in favor of all defendants.

. I do not contend that the defendant owner(s)/manager(s) of 2238 Linden Avenue were entitled to notice and opportunity to attend the lead test administered to 2308 Bryant Avenue, or vice versa.