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Berrain v. Katzen8/25/1993
Opinion by Karwacki, J.
In this appeal we are asked to determine whether the trial court abused its discretion in dismissing with prejudice personal injury actions of minors brought on their behalf by their mother as next friend when their mother failed to respond to interrogatories propounded by the defendant.
I.
Karla Berrain, Karl Berrain, and Tonya Berrain, who are now aged 7, 9 and 11, respectively, allegedly suffered brain damage from lead poisoning. It is claimed that the primary source of their exposure to that toxin was the deteriorating lead based paint the children ingested while living with their mother, Tonia Hanson, at premises she rented from the appellee, Raymond Katzen. A suit seeking damages for that lead paint poisoning was brought in the Circuit Court for Baltimore City in 1987 on behalf of the Berrain children by their mother and custodial parent as next friend pursuant to Maryland Rule 2-202(b). That suit was subsequently dismissed without prejudice on July 17, 1989, for lack of prosecution pursuant to Md. Rule 2-507. A second action was filed in the Circuit Court for Baltimore City in 1991 against Katzen. Again, the suit was filed on behalf of the Berrain children by their mother as next friend pursuant to Md. Rule 2-202(b). On December 2, 1991, defense counsel propounded interrogatories to the plaintiffs through their mother. Md. Rule 2-421(b) requires in part that:
"The party to whom the interrogatories are directed shall serve a response within 30 days after service of the interrogatories . . .
After more than seven months of waiting, on July 20, 1992, Katzen moved for sanctions for failure to provide discovery pursuant to Md. Rule 2-432(a). Included in the defendant's motion was a certification of defense counsel's good faith attempts to discuss and resolve the discovery dispute. Those efforts included forwarding a second copy of the interrogatories to plaintiffs' counsel and contacting plaintiffs' counsel by telephone. Md. Rule 2-432(a) provides in part:
"A discovering party may move for sanctions under Rule 2-433(a), without first obtaining an order compelling discovery under section (b) of this Rule, . . . if a party fails to serve a response to interrogatories under Rule 2-421. . ."
Among the sanctions sought by the defendant was a judgment of dismissal with prejudice in favor of the defendant against the plaintiffs. Md. Rule 2-433(a) provides in part:
"Upon a motion filed under Rule 2-432(a), the court, if it finds a failure of discovery, may enter such orders in regard to the failure as are just, including one or more of the following:
(3) An order . . . dismissing the action or any part thereof . . ."
The trial court dismissed the action with prejudice and denied the plaintiffs' motion for reconsideration on September 17, 1992. An appeal to the Court of Special Appeals was noted the same day. Prior to argument of the case before the intermediate appellate court, we issued a writ of certiorari on our own motion.
II.
A.
In Baltimore Transit v. Mezzanotti, 227 Md. 8, 174 A.2d 768 (1961), Judge Prescott, speaking for this Court, explained:
"We do not deem it necessary nor desirable, at this time, to make an extended or elaborate statement concerning our discovery rules. It will suffice to say that it is clear they are broad and comprehensive in
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