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Gary W. Waicker, et. al. v. Christina Colbert, et. al. - No. 86, September Term, 1996. Declaratory Judgment-- Pendency of another action-- Absent very unusual or compelling circumstances, a trial court may not entertain a declaratory judgment action when the issue or issues presented in the proceeding for declaratory relief are the same as those presented in a pending, previously filed, civil action. Declaratory Judgment-- Pendency of another action-- Trial judge abused discretion by entertaining declaratory judgment action because the issue presented in the declaratory judgment action was the identical issue presented in the pending tort action.

IN THE COURT OF APPEALS OF MARYLAND No. 86 September Term, 1996 ________________________________________

GARY W. WAICKER, et. al. v. CHRISTINA COLBERT, et. al. ________________________________________

Bell, C.J. Eldridge Rodowsky Chasanow Karwacki Raker Wilner, JJ. _________________________________________

Opinion by Raker, J. Chasanow, J., dissents _________________________________________ Filed: September 2, 1997

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. 92337038) and William Reginald Brown (Circuit Court for Baltimore City Case No. 92197001). 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

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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

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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 Repl.Vol., 1996 Supp.)

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