Waicker v. Colbert ( 1997 )

RAKER, Judge.

In this appeal, we must decide whether the Circuit Court for Baltimore City abused its discretion by entertaining a declaratory judgment action when the issue presented in the proceeding for declaratory relief was the same as that presented in pending, previously filed, tort actions. This case presents no unusual and compelling circumstances to justify the declaratory judgment while the same issue presented in the declaratory judgment action was presented in another pending case between the parties. Accordingly, we shall hold in this appeal that the Circuit Court for Baltimore City abused its discretion when it entertained the declaratory judgment action.

This action began when Appellants, Gary Waicker and Cavalier Realty Company, Inc. (hereinafter ‘Waicker” and “Cavalier”), filed a declaratory judgment action in the Circuit Court for Baltimore City, seeking a declaration that they are entitled to absolute judicial immunity in any lead paint lawsuits filed by tenants of certain Baltimore City premises. Waicker and Cavalier were defendants in two. pending actions which had been instituted on behalf of minor children, Christina Colbert (Circuit Court for Baltimore City Case No. 92-337038) and William Reginald Brown (Circuit Court for Baltimore City Case No. 92-197001). The Circuit Court declared that Waicker and Cavalier do not enjoy absolute judicial immunity, but are entitled only to such immunity as is set forth in the Order of the District Court of Maryland dated December 18, 1986. Waicker and Cavalier appealed to the Court of Special Appeals, and this Court granted certiorari on our own motion before consideration by that court.

We shall briefly set out the facts necessary for an understanding of our decision. In 1986, the Mayor and City Council of Baltimore filed a municipal code enforcement action in the District Court of Maryland for Baltimore City against several owners of certain residential, rental properties located in Baltimore City. Mayor and City Council of Baltimore v. Max Berg, et. al., Case No. 23800-86. The parties to that action reached an agreement to settle the case, and the District Court entered a judgment by consent. The Consent Order provided for the appointment of a “Court Agent” to serve as an officer and agent of the court, independent of both parties. The “Court Agent” was to act as property manager to perform certain management, maintenance, and rehabilitation responsibilities specified in the order and to monitor the defendants’ compliance with the order, and to report to the court and the plaintiff. Appellants, Waicker and Cavalier, were appointed and served as “Court Agents” pursuant to the Consent Order. The Order addressed the immunity of a “Court Agent” as follows:

While acting pursuant to the terms of this Order, the Court Agent shall be vested with such immunities as by law vest with this Court. This Court does not consent to any suit, legal action or administrative proceeding in any other court or forum arising out of an action taken by the Court Agent in the performance for the duties specified herein. The Court may, after reviewing an application therefor filed by any person, consent to a suit, action or proceeding against the Court Agent in the capacity as an Officer and Agent of this Court, in any particular case when it finds that such suit, action or proceeding will not materially interfere with the achievement of the purposes of this Order and implementation thereof.

In 1992, certain tenants of rental properties that were the subject of the municipal code enforcement case filed lawsuits in Baltimore City alleging lead paint poisoning. The owners of the rental properties, along with Waicker and Cavalier as “Court Agents” under the District Court Order, were named as defendants. See Brown, et. al. v. Gresser, et. al., Case No. 92-197001, and Colbert, et. al. v. Berg, et. al, Case No. 92-337038, in the Circuit Court for Baltimore City. In both of those lawsuits, Waicker and Cavalier filed motions to dismiss and for summary judgment. They asserted that no plaintiff in the lead paint cases made any application with the District Court of Maryland for Baltimore City seeking consent to file a suit against the “Court Agent.” The main thrust of their argument was that, notwithstanding the language in the District Court Order of December 18, 1986, the “Court Agent” enjoys absolute judicial immunity because no agreement or order of court is required to provide a court agent with such immunity, nor can the court limit such immunity. The Circuit Court denied the motions.

Appellants then filed, in the Circuit Court for Baltimore City, a complaint for declaratory relief, seeking a declaration that they are entitled to absolute judicial immunity. See Maryland Uniform Declaratory Judgments Act, Maryland Code (1973, 1995 RepLVol., 1996 Supp.) §§ 3-401 through 3-415 of the Courts & Judicial Proceedings Article.¹ The tort actions were stayed by agreement of the parties pending resolution of the declaratory judgment action. The Circuit Court declared that Waicker and Cavalier “do not enjoy absolute judicial immunity, but enjoy only those immunities specifically set forth in the Final Judgment and Consent Order dated December 18, 1986, subject to the power of the District Court of Maryland in and for the City of Baltimore to consent to suit.” It is the judgment in the declaratory action that is before us in this appeal.

Waicker and Cavalier seek to have resolved in the declaratory judgment proceeding an issue which would be fully decided in the pending tort actions, i.e., the nature of their immunity. The issue raised in the motion to dismiss and motion for summary judgment in both tort actions is identical to the issue raised in the declaratory judgment action.

Section 3-409(a) of the Maryland Uniform Declaratory Judgments Act provides in pertinent part:

(a) In general.—... [A] court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:

(1) An actual controversy exists between contending parties;

(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or

(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.

Section 3-409(c) provides that a party may obtain a declaratory judgment or decree notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy, whether or not recognized or regulated by statute.

As a general rule, courts will not entertain a declaratory judgment action if there is pending, at the time of the commencement of the action for declaratory relief, another action or proceeding involving the same parties and in which the identical issues that are involved in the declaratory action may be adjudicated.² This Court has consistently held that, absent unusual and compelling circumstances, “a declaratory judgment action ‘is inappropriate where the same issue is pending in another proceeding.’ ” Haynie v. Gold Bond Bldg. Products, 306 Md. 644, 650, 511 A.2d 40, 43 (1986) (quoting Aetna Casualty & Surety v. Kuhl, 296 Md. 446, 449 n. 1, 463 A.2d 822, 824-25 n. 1 (1983)); see State v. 91st Street Joint Venture, 330 Md. 620, 631, 625 A.2d 953, 958 (1993); Turnpike Farm Ltd. Partnership v. Curran, 316 Md. 47, 49, 557 A.2d 225, 226 (1989); Truck Ins. Exch. v. Marks Rentals, 288 Md. 428, 430 n. 1, 418 A.2d 1187, 1188 n. 1 (1980); Brohawn v. Transamerica Ins. Co., 276 Md. 396, 406, 347 A.2d 842, 849 (1975); A.S. Abell Co. v. Sweeney, 274 Md. 715, 721, 337 A.2d 77, 81 (1975); Grimm v. County Comm’rs of Wash. Co., 252 Md. 626, 640, 250 A.2d 866, 873 (1969); see also St. Paul Fire & Marine Ins. v. Pryseski, 292 Md. 187, 193-96, 438 A.2d 282, 285-87 (1981).

Judge Eldridge, -writing for the Court in Haynie v. Gold Bond Bldg. Products, 306 Md. 644, 511 A.2d 40 (1986), traced this Court’s application of the rule that a party to a pending action is ordinarily not entitled to a declaratory judgment to resolve the same issues presented in the pending action. Id. at 649-52, 511 A.2d at 43-44. In Haynie, the plaintiff filed a “Bill for Declaratory Judgment” in the Circuit Court for Baltimore City after he filed a tort action. The declaratory judgment action raised issues identical to those raised in the pending tort case. That tort action was still pending in the Circuit Court at the time of oral argument before this Court. We noted:

The Declaratory Judgment Act, as amended by Ch. 724 of the Acts of 1945, provided that a party is not barred from obtaining a declaratory judgment merely because the controversy “is susceptible of relief through a general common law remedy....” But the Act does not provide that, once the common law remedy is actually invoked to provide relief in the controversy, and the common law action is still pending, the parties may also institute a second lawsuit and obtain a declaratory judgment to resolve the same matter. Our cases have repeatedly held to the contrary.

Id. at 649-50, 511 A.2d at 43 (footnote omitted). This Court held that “there were no very unusual and compelling circumstances justifying the declaratory judgment,” and remanded the case to the Circuit Court for Baltimore City with directions to dismiss the declaratory judgment action. Id. at 652, 654, 511 A.2d at 44-45. Similarly, in Aetna Casualty & Surety v. Kuhl, 296 Md. 446, 449 n. 1, 463 A.2d 822, 824-25 n. 1 (1983), this Court concluded that a declaratory judgment action was inappropriate where the same issue was pending in another proceeding, and the issue sought to be resolved could have been decided in the pending tort case.

In both Haynie, 306 Md. at 651, 511 A.2d at 43, and Grimm v. County Comm’rs of Wash. Co., 252 Md. 626, 637, 250 A.2d 866, 871 (1969), this Court quoted Professor Borchard’s treatise on declaratory judgments:

Where an action or proceeding is already pending in another forum involving the same issues, it is manifestly unwise and unnecessary to permit a new petition for a declaration to be initiated by the. defendant or the plaintiff in that suit.

if: if! ijs sfc # :Jc

[T]he court will refuse a declaration where another court has jurisdiction of the issue, where a proceeding involving identical issues is already pending in another tribunal, where a special statutory remedy has been provided, or where another remedy will be more effective or appropriate under the circumstances. In these cases it is neither useful nor proper to issue the declaration.

Borchard, Declaratory Judgments, Ch. v. Discretion at p. 302 (2d ed.1941).

Strong policy considerations support application of this rule. Absent such a rule, “almost any pending action could be interrupted and held at bay until the determination, in one or more subsequently instituted declaratory judgment actions, of issues culled out of the pending action.” Redmond v. Matthies, 149 Conn. 423, 428, 180 A.2d 639, 642 (1962). Issuing a declaratory judgment under such circumstances “would unduly burden the courts,” and would be undesirable in view of the heavy trial dockets. Haynie, 306 Md. at 651, 511 A.2d at 43. It would also be contrary to our policy which favors the determination of related matters in a single action. As we observed in Haynie:

[UJnder circumstances like those in the present case, overlooking the inappropriate procedure might result in litigants misusing the declaratory judgment statute in order to circumvent the policy against appeals from interlocutory orders and against piecemeal appeals.

# % jfc j|:

Conceivably, ... each separate disputed issue in the tort case could be made the Subject of a separate declaratory judgment action. If this Court were to overlook the improper use of the declaratory judgment statute as long as no party to the litigation challenged the procedure, we would be allowing the parties, by consent, to bypass the final judgment requirement.

Id. at 653-54, 511 A.2d at 44-45. Likewise, in Turnpike Farm Ltd. Partnership v. Curran, 316 Md. 47, 49, 557 A.2d 225, 226 (1989), we held that “[u]se of the declaratory judgment procedure to evade the final judgment requirement for appeal will not be permitted.”

We find no unusual and compelling circumstances in this case that would permit the declaratory judgment action while other actions involving the same issue are pending. Appellants assert that they are entitled to a declaratory judgment because several suits have been filed against them and future suits will likely be filed against them as Court Agents under the Final Judgment and Consent Order, and a declaration that they are entitled to absolute immunity will preclude such suits. “[Fjear of having to participate in a ‘multiplicity of suits,’ cannot be the basis for this extraordinary intervention into a pending action.” State v. 91st Street Joint Venture, 330 Md. 620, 630, 625 A.2d 953, 958 (1993).

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED, AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO DISMISS THE DECLARATORY JUDGMENT ACTION. APPELLANTS TO PAY COSTS.

1 . Unless otherwise indicated, all statutory references are to the Maryland Uniform Declaratory Judgments Act, Maryland Code (1973, 1995 Repl.Vol., 1996 Supp.) §§ 3-401 through 3-415 of the Courts & Judicial Proceedings Article.

2 . At oral argument, in response to a question from the bench inquiring whether every party in this declaratory judgment action is a parly in a pending action that has already been filed, the Attorney General responded “Yes, and those were stayed pending the outcome of the declaratory judgment actions....”

Upon our review of the record in this case, we note that Waicker and Cavalier represented in their response to Colbert’s motion to dismiss the complaint for declaratory judgment that the Mayor and City Council of Baltimore is a party in the declaratory judgment action, but is not joined as a party in either of the pending lead paint lawsuits. It appears that the Mayor & City Council never filed an answer to the complaint for declaratory relief and they are not a party to this appeal.

Although the plaintiffs have included a party in the declaratory action that is not a party in either of the pending actions, this fact does not, in and of itself, render this declaratory judgment action permissible. See Redmond v. Matthies, 149 Conn. 423, 180 A.2d 639, 642 (1962); see also 1 W.H. Anderson, Actions For Declaratory Judgments, § 209 at 444 (2d ed. 1951) ("Where the issues in the declaratory action are the same as those involved in a pending action, the mere fact that an unnecessary party is joined, either as a plaintiff or a defendant will not prevent the operation of the rule to bar the declaratory action.”). As in Redmond, the interests of the additional party defendant and the plaintiffs are not adverse and the complaint lacks any allegation establishing any real justification for joining the Mayor & City Council as a defendant.