author: Krauser, J.

text:
    165 A.3d 600
    STATE of Maryland v. Donte GRAHAM
    No. 2783,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    July 27, 2017

      Submitted by: Carrie J. Williams (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellant.
    Submitted by: Brian M. Saccenti (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellee.
    Panel: Berger, Leahy, Krauser , JJ.

       Krauser, Peter B., J., now retired, participated in the hearing of this case while an active member of this Court and as its Chief Judge; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.

   Krauser, J.

Charged with possession of cocaine and attempted distribution of cocaine, in the District Court of Maryland for Baltimore City, Donald Graham, appellee, filed a discovery request in that court, for information relating to the drug testing that had been performed, by the Baltimore City Crime Lab, as to substances that he had allegedly thrown to the ground, shortly before his arrest. When, on the scheduled date of his District Court trial, Graham demanded a jury trial, his case was transferred to the Circuit Court for Baltimore City.

On the date that his trial was to commence in the circuit court, Graham’s counsel informed that court that the State had not provided the information requested by the defense, in the District Court and, on those grounds, moved to dismiss the case. The State responded that it had only learned of the request the preceding Friday (that is, the last business day before trial) and that it would be “more than happy” to provide him with the information requested. Then, without explanation or even further inquiry, the circuit court granted the defense’s motion and dismissed the charges.

Appealing that decision, the State contends that the circuit court erred in granting Graham’s motion to dismiss the criminal charges against him because of the State’s failure to provide, before trial, the discovery requested by the defense. In support of that contention, the State makes three claims: first, that its failure to provide the discovery that had been requested by Graham was not a discovery violation under Maryland Rule 4-262, which both sides agree is the rule that governs the present dispute; second, that even if its failure to provide that discovery did violate Rule 4-262, dismissal of the charges against Graham was not an available sanction under that rule; and, third, that, assuming that dismissal of the charges against Graham was a sanction available to the circuit court, the court abused its discretion in choosing that sanction.

Because we conclude that the circuit court did have the discretion to impose a sanction for the State’s discovery violation but abused that discretion in imposing the drastic sanction that it did, we vacate the judgments of the circuit court and remand for further proceedings.

Background

On August 17, 2015, Baltimore City police saw Graham engage in what they believed to be a hand-to-hand drug transaction. As a uniformed police officer approached Graham, moments after that transaction, he observed Graham throw small items under a vehicle parked on the street. Then, from under that vehicle, the officer retrieved four zip lock baggies containing a “rock like substance[,]” which he believed to be cocaine. Graham was thereafter arrested and charged with possession of cocaine and attempted distribution of that drug in the District Court of Maryland for Baltimore City.

On October 13, 2015, Graham filed requests for discovery, in the District Court, demanding that the State, pursuant to Maryland Rule 4-262(d)(2)(D) and Cole v. State, 378 Md. 42, 835 A.2d 600 (2003), provide the following documents and records: “[a] complete copy of the Baltimore City Crime Lab case file including but not limited to ... results from any preliminary [drug] screening tests, gas chromatography (“GC”), gas chromatography and mass spectrometry analysis (“GC/MS”), Fourier transform infrared spectroscopy (“FTIR”), as well as ... any reference standards and controls, and the results of any re-examinations conducted on any samples”; “[documents relat[ed] to [his] case ... regularly kept in a place other than the case file”; “any other information,” related to his case, “that the crime lab ha[d] in its possession [or] control”; “all maintenance records pertaining to any GC or GC/MS machine used in [his] case” that recorded maintenance conducted “for the relevant time period prior to the [drug testing that was] performed in [his] case”; copies of “[a]ny protocols[ ] and procedures” related to the drug testing done in his case; “[u]pdated curriculum vita [sic]” of any analyst involved in testing the drugs that were seized; and, five years of “proficiency tests ... for any analyst involved in [his] case.”

On October 29, 2015, the State filed, in the District Court, a document captioned: “Request for Discovery from Defendant and the State’s Disclosure to the Defendant.” In that document, the State asserted that, “[u]pon request of the Defendant,” it would, “by appointment^]” provide “[t]he opportunity to review and copy all documents, including but not limited to[ ] training and operations manuals, calibration records, procedures and reference material pursuant to [Cole v. State], 378 Md. 42, 835 A.2d 600 (2003), ... and Rule 4-262.”

On December 16, 2015, the date Graham’s trial was to commence in the District Court, he requested a jury trial. His case was then transferred to the Baltimore City circuit court, where it was scheduled for trial on Tuesday, January 19, 2016. On the Friday before trial, which was the last business day before trial, Graham’s counsel called the Assistant State’s Attorney assigned to Graham’s case and informed her that he had not yet received the information or material he had requested in his supplemental discovery request, though he had received a form summarizing what the State intended to disclose. Then, on January 19, 2016, when Graham’s case was called for trial, the following verbal exchange occurred, between court and counsel, regarding Graham’s discovery demand:

[DEFENSE]: Your Honor, the preliminary matter the Defense is going to raise, and I did speak with [the Assistant State’s Attorney] about this on Friday, is that in any drugs case, as a matter of course, we now in [the] District Court request the supplemental discovery from the lab that tested the drugs under Cole and we filed a request for this on October 13th.
THE COURT: Requesting what?
[DEFENSE]: Request for the copy of the—
THE COURT: Chemical analysis?
[DEFENSE]: Well, not just the chemical analysis, Your Honor, but also the copy of the file, the testing and—
[STATE]: Yes.
THE COURT: Okay.
[DEFENSE]: —we normally receive a summary. It goes through the gas chromatography—
THE COURT: Okay.
[DEFENSE]: —spikes and, Your Honor, we still have received—
[STATE]: Sorry.
[DEFENSE]: —we still haven’t received anything and as of today. And so I raise that with the Court—
THE COURT: What’s going on with that?
[DEFENSE]: —preliminarily.
[STATE]: Your Honor, the State was not aware until [Graham’s counsel] called me on Friday to let me know he had not received it. When this prayed, I didn’t have any notes or did not know that they had not received any call and the request was made October 13th. Your Honor, this prayed on December 16th. There was no indication that any of [Graham’s prior counsel before the District Court] indicated they didn’t have Cole or, you know, we did give the LIMS, the—
THE COURT: Okay.
[STATE]: —normal LIMS.
THE COURT: Okay. We’ll need to discuss this when the Defendant comes up.

When Graham thereafter arrived in court, the discussion between the court and counsel, regarding Graham’s discovery request, resumed:

[DEFENSE]: Your Honor, what I had raised at the bench was that in this case a request for the supplemental discovery under Cole v. Maryland was filed on October the 13th and I have a time stamped copy of that that it was also delivered to the State’s Attorney Office. As of this date today we have not received any of that discovery. And as I explained at the bench, Your Honor, we do—our office and I does [sic] file these requests routinely at [the] District Court in every drugs case, so it should not have come to a—as a surprise to the State that the request was filed because we do it in every drugs case.
THE COURT: All right. State?
[STATE]: Your—and, Your Honor, the State had indicated that the State at this level was not aware that there was a Cole issue until Friday when [Graham’s counsel] called me. At District the—I believe a Cole request was filed October 13th. However, Your Honor, this matter did pray on December 16th which was two months after. Made no indication to anyone in District that they were missing Cole and so prayed the case anyways, Your Honor. Therefore, the State is more than happy to get this discovery now that we know that the Defense—
THE COURT: You don’t have it?
[STATE]: No, Your Honor. There was never a request made in District apparently and the—I—the State’s not—
THE COURT: Doesn’t matter if it was made in District as long as it was made in Circuit under this case, right?
[STATE]: Yes, Your Honor, and the State did not know there was this request.
THE COURT: Hmm. They said it was hand delivered.
[DEFENSE]: It’s time stamped as being—
[STATE]: To us?
[DEFENSE]: —delivered in District—
[STATE]: Oh, in District, Your Honor.
[DEFENSE]: —in District Court, Your Honor.
THE COURT: Oh, in [the] District Court.
[STATE]: Yes, Your Honor.
THE COURT: Oh but it’s all one—
[STATE]: Yes.
THE COURT: —one office, isn’t it?
[STATE]: Yes, Your Honor. The—
THE COURT: Uh-huh.
[STATE]: —the State’s just letting you know, Your Honor, I was made aware Friday and we’ll be glad to get [Graham’s counsel’s] discovery [request] but the State does not have it in its possession.
[DEFENSE]: And, Your Honor, at this juncture I would move to dismiss on those grounds
THE COURT: Motion to dismiss is granted.

Discussion

In support of its contention that the circuit court erred in dismissing the charges against Graham under Rule 4-262 because of its failure to provide, before his circuit court trial, the information that Graham had previously demanded in his District Court discovery requests, the State first claims that its failure to provide that information was not a discovery violation under Rule 4-262(i). We disagree.

To be more precise, the State maintains that the circuit court erred in finding that it had violated Rule 4-262 because section (i) of that rule, which specifically addresses the procedure a trial court must follow to ensure that the parties have complied with their discovery obligations, does not impose a “hard deadline” as to when discovery must be provided to the opposing party but merely states that discovery must be completed prior to trial “[t]o the extent practicable.” And, since there was no “evidence in the record that it was practicable for the State to provide the drug testing discovery and that the prosecutor refused to do so,” there was no basis upon which to find, reasons the State, that it had violated Rule 4-262.

Invoking the same section of Rule 4-262, section (i), which provides, as the State noted, that a court may grant a delay or continuance when compliance is impracticable, Graham claims that, in his ease, “[t]here was no evidence or explanation offered by the prosecutor to suggest that it was impracticable for the State to provide the requested discovery prior to ... calling the case on its trial date” and that, absent such evidence, “the failure to provide the requested discovery was a discovery violation.”

As these competing claims of the parties require us to interpret Rule 4—262(i), we note that, when we are asked to render such an interpretation, we employ “the same well-established canons of construction that we use when interpreting statutes.” Dove v. State, 415 Md. 727, 738, 4 A.3d 976 (2010) (citation omitted). That is, “we look to [the] plain text” of the rule, and, if “the words of the rule are plain and unambiguous, our inquiry ordinarily ceases and we need not venture outside the text of the rule.” Johnson v. State, 360 Md. 250, 264-65, 757 A.2d 796 (2000) (citations omitted). But, if “the words of the rule are ambiguous,” then we may turn to “other sources to glean the intent of the rule.” Long v. State, 343 Md. 662, 667, 684 A.2d 445 (1996) (citation and quotation omitted).

Specifically, section (i) of Rule 4-262 provides:

(i) Procedure. To the extent practicable, the discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial, except that asserting a defense pursuant to subsection (e)(2) of this Rule shall be made at least 10 days before the trial. If a request was made before the date of the hearing or trial and the request was refused or denied, or pretrial compliance was impracticable, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery.

The “plain text” of section (i) of Rule 4-262 clearly does not support the State’s claim that, for a trial court to find a discovery violation, there must be evidence that a prosecutor intentionally refused to comply with a request for discovery or inspection permitted under the rule. Nothing in the plain language of that section, expressly or impliedly, suggests otherwise. In fact, for a discovery violation to occur, it need not even be intentional. Pantazes v. State, 141 Md.App. 422, 440, 785 A.2d 865 (2001) (observing that “[e]ven an unintentional failure to provide discoverable ... information may constitute a discovery violation”), cert. denied, 368 Md. 241, 792 A.2d 1178 (2002); accord Williams v. State, 364 Md. 160, 177, 771 A.2d 1082 (2001) (noting that whether a discovery violation “was a result of willful aforethought or inadvertence is irrelevant”) (citation and quotation omitted).

We acknowledge, however, that it is unclear from the language of section (i) of Rule 4-262 whether, as the State claims, a trial court must make a predicate finding that it was “practicable” for a party to have completed the discovery sought under Rule 4-262 before it may find that the party’s failure to do so was a discovery violation, or whether, as Graham claims, the purpose of section (i) of the rule is merely to clarify that, when it is “impracticable” for a party to comply with the rule’s requirements prior to trial, the trial court has the discretion to grant a delay or continuance. Consequently, we shall turn to the history of the rule and the minutes of the Rules Committee to assist us in resolving this question. Long, supra, 343 Md. at 667, 684 A.2d 445.

Prior to 2009, the substance of section (i) of Rule 4-262 was set forth in section (b) of that rule. It read as follows:

The discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial. A request for discovery and inspection and response need not be in writing and need not be filed with the court. If a request was made before the date of the hearing or trial and the request was refused or denied, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery.

Then, in 2009, the Criminal Rules Subcommittee presented to the Rules Committee the following changes to section (b) and relabeled it as “section (i)” of Rule 4-262:

The discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial to the extent practicable. A-request■ ■ for discovery aneh-mspec-tion and-response- need ■ not be in-writing-and need not be filed with the- court. If a request was made before the date of the hearing or trial and the request was refused or denied, or pretrial compliance was impracticable, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery.

Rules Committee, minutes, p. 75-76 (October 2, 2009) (emphasis and strikethrough text in original).

The new language, proposed by the Subcommittee, was intended to ensure “the completion of discovery in a timely fashion.” Id. at 78. Recognizing that, given the “shorter timetable in District Court cases[,]” it might not always be possible to request or provide written discovery prior to a hearing or trial, the amended rule, proposed by the Subcommittee, provided that parties must complete discovery and inspection required or permitted by the rule “before the hearing or trial to the extent practicable” and that, if discovery “cannot be completed in a timely fashion, then the [trial] court in its discretion may allow a delay or continuance.” Id.

The Rules Committee largely adopted the proposal of the Criminal Rules Subcommittee and submitted, as part of its One Hundred Sixty-Third Report to the Court of Appeals, the following draft of Rule 4—262(i):

To the extent practicable, the discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial. [A request for discovery and inspection and response need not be in writing and need not be filed with the court.] If a request was made before the date of the hearing or trial and the request was refused or denied, or pretrial compliance was impracticable, the court may grant a delay or continuance in the hearing or trial to permit the inspection or discovery.

37 Md. Reg. 134, 158 (Jan. 29, 2010) (italicized text is new; bracketed text was struck from prior version). Thereafter, the Court of Appeals adopted, effective July 1, 2010, the amended Rule 4-262 “in the form previously published,” that is, as it appeared in the One Hundred Sixty-Third Report of the Rules Committee. 37 Md. Reg. 531 (Mar. 26, 2010).

Thus, the language in Rule 4—262(i), upon which the State relies, namely, that it was required to complete the discovery specified under other sections of Rule 4-262 before the start of a hearing or trial “[t]o the extent practicable,” was added to the rule because, given the shorter time table for the disposition of cases in the District Court, circumstances might arise where there was insufficient time for a party to request or complete written discovery prior to trial. So it logically follows that, under such circumstances, the burden falls on the party seeking a delay or continuance to explain to the court why it was “impracticable” to do so. In the absence of such an explanation, or at least manifest circumstances suggesting the impracticability of a pre-trial discovery or inspection, the court has no reason to believe that it was not practicable for the party, from whom discovery was requested, to timely produce the information, documents, or material requested.

Furthermore, even if the State’s interpretation of Rule 4-262(i) were correct, the court did not err, we believe, in finding a discovery violation. In this case, Graham filed a discovery demand for the drug testing information, in the District Court, on October 13, 2015. More than three months later, on the very date Graham’s trial was scheduled to commence in the circuit court, the State had still not provided the requested discovery. Given the length of time the State was on notice of its obligation to provide the drug testing discovery, the circuit court could reasonably have concluded, and certainly in the absence of any evidence to the contrary, that it was practicable for the State to have provided the requested discovery material before the date of Graham’s trial.

II.

The State next contends that, in the event of a party’s violation of its discovery obligations under Rule 4-262, the “only remedy available” to the court, under that rule, is to “disqualify a witness [of the violating party] from testifying.” In support of that claim, the State relies upon Maryland Rule 4-262(n), which provides:

(n) Failure to Comply With Discovery Obligation. The failure of a party to comply with a discovery obligation in this Rule does not automatically disqualify a witness from testifying. If a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court.

The State contrasts Rule 4-262(n) with the broader language of its circuit court counterpart, Rule 4-263(n), which lists several sanctions that a court may impose upon finding a discovery violation, including the declaration of a mistrial or the entry of “any other order appropriate under the circumstances.” Because Rule 4-262(n) does not mention any other sanction besides disqualification of a witness’s testimony, whereas Rule 4-263(n) expressly authorizes a court to select from a broad range of sanctions, the absence, in Rule 4-262(n), of Rule 4-263(n)’s enumeration of available remedies indicates, according to the State, that a violation of Rule 4-262 may not be penalized with any sanction, other than disqualification of a witness’s testimony.

Graham responds that Rule 4-262(n) merely “clarif[ies] that one possible sanction—witness disqualification—is discretionary rather than automatic.” He points out that that section does not “purport to set forth all available responses and sanctions that a court could impose” and, consequently, absent such a “remedy” provision, the circuit court had the discretion to impose sanctions under Rule l-201(a), which provides that a court, faced with a party’s violation of a mandatory rule that does not prescribe a consequence for its violation, “may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.”

Rule 4-262(n) states that, when a party has failed to “comply with a discovery obligation,” that failure “does not automatically disqualify” a witness presented by that party from testifying. But “[i]f a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court.” Although that rule addresses the imposition of a specific discovery sanction, namely, disqualification of a witness’s testimony, it is silent as to whether that sanction is the only one available to the trial court, when a party fails to comply with a Rule 4-262 discovery obligation.

To resolve this ambiguity, we turn once more to the deliberations of the Rules Committee. In 2007, the Rules Committee proposed the addition of what was then subsection (a)(3) to Rule 4-262, which later became section (n) of Rule 4-262. The Committee’s minutes include the following statement:

Disqualification is not automatic; a motion to disqualify must be filed first, and then it is within the court’s discretion to allow a continuance, or if there is an egregious violation, the court can do what it believes is appropriate under all the circumstances ....

Rules Committee, minutes, p. 53-54 (May 11, 2007) (emphasis added). Thus, the Rules Committee minutes suggest that disqualification of a witness from testifying was a sanction that may only be imposed after a party has filed a motion to disqualify. There is no indication, however, that the new subsection was intended to circumscribe a trial court’s broad discretion in fashioning other appropriate sanctions for discovery violations. In fact, it is stated in the Rules Committee’s minutes that, pursuant to the new subsection, a trial court “can do what it believes is appropriate under all the circumstances,” in addressing an “egregious” discovery violation.

Nonetheless, the State claims that the court below lacked the discretion to dismiss the charges, as it is not mentioned as a potential remedy in Rule 4-262 but was included in that rule’s circuit court counterpart, Rule 4-263. Fortunately, the Rules Committee minutes also addressed this variance. Those minutes state, in pertinent part:

Rule 4-262 varies from the circuit court rule, which goes into a detailed listing of motions to compel and the sanctions that are available. The District Court has a time issue, with a 30-day turnaround between the time of arrest and the time of trial, in some cases. The Rule allows the court to exercise discretion if there is a failure to comply with the Rule.

Rules Committee, minutes, p. 53-54 (May 11, 2007) (emphasis added).

Thus, it is clear that, notwithstanding the omission of a list of available sanctions in Rule 4-262(n), it was intended that, under that rule, the trial court may exercise its discretion in choosing the appropriate sanction, in the event a party does not comply with Rule 4-262. Moreover, to conclude otherwise, as the State requests, would lead to an absurd result, as it would render a court powerless to impose any sanction whatsoever, where the violation did not involve the testimony of a witness.

In sum, the Rules Committee minutes indicate that, notwithstanding the language in what is now Rule 4-262(n), a trial court possesses broad discretion, in responding to discovery violations, and that the variance in language between Rules 4-262 and 4-263 was not intended to suggest, in contrast to Rule 4-263(n), that the court has only one sanction available to it under Rule 4-262(n).

III.

Finally, the State claims that the circuit court abused its discretion in dismissing the charges against Graham as a discovery sanction because, according to the State, “none of the four considerations” set forth in Raynor v. State, 201 Md.App. 209, 29 A.3d 617 (2011), to guide a trial court, in imposing sanctions, “counselled] in favor of dismissal.” The Raynor Court instructed that, “in exercising its discretion regarding sanctions for cjiscovery violations, ‘a trial court should consider: (1) the reasons why the disclosure was not made; (2) the existence and amount of any prejudice to the opposing party; (3) the feasibility of curing any prejudice with a continuance; and (4) any other relevant circumstances.’” Raynor, 201 Md.App. at 228, 29 A.3d 617 (quoting Thomas v. State, 397 Md. 557, 570-71, 919 A.2d 49 (2007)) (citations and footnotes omitted).

As for the first factor, “the reasons why the disclosure was not made,” the State clearly failed in its duty to timely disclose the information at issue. On the other hand, there is no dispute that the State’s failure to disclose was inadvertent and was the result, presumably, of poor communications between the District Court and circuit court divisions of the State’s Attorney’s office. Moreover, at no time during the three-month delay did Graham’s attorney notify the State’s Attorney’s office that he had not received the information requested, even though he described that information, in his brief, as “critically important” to his defense; nor did he even use the opportunity provided by his subsequent appearance in the District Court, on the scheduled date of his trial there, to raise that issue. Furthermore, Graham’s counsel waited until the last business day before Graham’s trial, in the circuit court, to inform the State that he had not received this “critically important” information. And, finally, the State offered to rectify its error by providing the material requested.

The second factor, “the existence and amount of any prejudice to the opposing party,” and the third factor, “the feasibility of curing any prejudice with a continuance,” are interrelated, and we shall examine them together. As for the former, the Court of Appeals has said that, when a criminal discovery rule is violated, “a defendant is prejudiced only when he is unduly surprised and lacks adequate opportunity to prepare a defense, or when the violation substantially influences the jury,” and that “the prejudice that is contemplated is the harm resulting from the nondisclosure.” Thomas, 397 Md. at 574, 919 A.2d 49. While the discovery Graham sought, and which the State failed to provide, was potentially, in his words, “critically important” to his defense, the State indicated its willingness to provide that information when Graham raised the issue before the commencement of his trial. Furthermore, Graham does not claim that a continuance to permit the State to transmit that information, and to allow his counsel time to review and evaluate it, would have resulted in any prejudice to the defense at the ensuing trial of this matter.

Moreover, although the State did not expressly request a postponement or continuance, it impliedly did so. When that issue was raised, at the outset of Graham’s circuit court trial, the prosecutor assured the circuit court that the State would be “more than happy” to provide the discovery Graham was seeking. But, the circuit court, without inquiring into how quickly the State would be able to provide that information or giving any indication as to why it chose to impose, not the least, but one of the most drastic sanctions at its disposal, did precisely that.

This action was taken by the court, notwithstanding that the “most accepted view of discovery sanctions is that in fashioning a sanction, the court should impose the least severe sanction that is consistent with the purpose of the discovery rules,” Raynor, 201 Md.App. at 228, 29 A.3d 617 (quoting Thomas, 397 Md. at 571, 919 A.2d 49) (citations omitted), which “is to give a defendant the necessary time to prepare a full and adequate defense.” Id. (quoting Ross v. State, 78 Md.App. 275, 286, 552 A.2d 1345 (1989)). Indeed, “[i]t is well-settled,” the Court of Appeals has declared, “that the sanction of dismissal should be used sparingly, if at all,” Thompson v. State, 395 Md. 240, 261, 909 A.2d 1035 (2006) (citations omitted), because, in the words of the United States Court of Appeals for the Eleventh Circuit, in United States v. O’Keefe, 825 F.2d 314 (11th Cir. 1987), a federal appellate decision upon which our highest Court relied, in addressing the issue, the dismissal of charges “for prosecutorial misconduct is an extreme sanction.” Id. at 318.

Moreover, the circuit court made no inquiry into “the feasibility of curing any prejudice,” the non-disclosure may have caused Graham, by ordering a continuance. Raynor, 201 Md.App. at 228, 29 A.3d 617. Given the State’s professed willingness to promptly provide the requested discovery information, and the fact that the deadline, under Maryland Rule 4-271, for bringing the case to trial was nearly five months in the future, a continuance was apparently a feasible remedy and would have presumably cured any prejudice Graham suffered as a consequence of the State’s non-disclosure, thereby furthering “the purpose of the discovery rules,” which “is to give a defendant the necessary time to prepare a full and adequate defense.” Raynor, 201 Md.App. at 228, 29 A.3d 617 (citation and quotation omitted).

Finally, as to the fourth Raynor factor, “any other relevant circumstances,” the circuit court did not identify any other relevant circumstances that it considered in concluding that dismissal was the appropriate remedy for the State’s failure to provide the discovery sought by Graham.

“When,” as here, “the trial court exhibits a clear failure to consider the proper legal standard” in exercising its discretion, it abuses that discretion. Kusi v. State, 438 Md. 362, 385, 91 A.3d 1192 (2014) (citations and quotations omitted). Consequently, we hold that the circuit court, although vested with the authority to impose the sanction it did for the State’s discovery violation, abused its discretion in dismissing the charges against Graham. We therefore vacate its judgments and remand the case to the circuit court for further proceedings.

APPELLEE’S MOTION TO STRIKE GRANTED AS TO PAGES 4 THROUGH 8 OF THE STATE’S APPENDIX. STATE’S UNOPPOSED MOTION TO CORRECT THE RECORD GRANTED. JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. CASE REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEE.

      . When a case is transferred from the District Court to the circuit court, pursuant to a jury trial prayer, Rule 4-262, which is the discovery rule generally applicable in criminal actions in the District Court, also governs the action in the circuit courts, unless the jury trial prayer was made in writing and filed at least 15 days before the scheduled date of trial in the District Court, See Md. Rule 4-301(b) & (c). Because Graham’s prayer for a jury trial was neither made in writing nor filed at least 15 days before his District Court trial but was orally made on the day of his District Court trial, it is undisputed that Rule 4-262 governed discovery in his case before both the District Court and the circuit court.

      . Graham filed contemporaneously a "Request for Discovery” and a "Supplemental Discovery Demand,” seeking discovery related to the chemical analysis of the drug evidence at issue in this case; the latter set forth Graham’s demand in greater detail, and we quote it in the discussion that follows.

      . Rule 4-262(d)(2)(D) provides that, upon written request of the defense, the State must provide, as to each expert witness it intends to call at trial, the following;
      (i) the expert’s name and address, the subject matter on which the expert is expected to testify, the substance of the expert’s findings and opinions, and a summary of the grounds for each opinion;
      (ii) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and
      (iii) the substance of any oral report and conclusion by the expert!.]

      . In the appendix to its brief, the State included copies of both of Graham’s discovery requests, the "State's Request for Discovery from Defendant and the State's Disclosure to the Defendant,” and a print-out from the Baltimore City Crime Lab summarizing the drug testing performed in Graham’s case.
      Challenging that addition to the State’s appendix, Graham filed, during the pendency of the appeal before this Court, a motion to strike pages 3 through 8 (the latter two documents) of the State's appendix, contending that they were "not part of the appellate record in this case” and not appendix material permissible under Maryland Rule 8-504(b). Although conceding that the copies of his own discovery requests were likewise not permissible appendix material, Graham did not move to strike them because the parties referred to them during the hearing, which concluded with dismissal of all charges.
      The State filed a response to that motion, conceding that the material was not permissible appendix material under Rule 8-504(b) and that, in its words, it "cannot confirm that the [print-out summary from the Baltimore City Crime Lab] was filed in the District Court along with the request and disclosure form.” It therefore did not oppose Graham’s motion to strike pages 3 through 8 of its appendix. The State was, however, able to confirm that the "State’s Request for Discovery from Defendant and the State's Disclosure to the Defendant,” that is, appendix page 3, had been filed with the District Court on October 29, 2015, and consequently filed an unopposed motion to correct the record by adding that document to it, To avoid confusion, we shall grant both Graham’s motion to strike, but only as to pages 4 through 8 of the State’s appendix, and the State’s unopposed motion to correct the record.

      . On Monday, January 18, 2016, the Maryland State Government was closed, in observance of the Martin Luther King, Jr„ holiday.

      . The prosecutor's statement that the State “did give the LIMS,” an acronym for “Laboratory Information Management System,” an electronic case management system used by forensic laboratories, to the defense appears to refer to the print-out, from the Baltimore City Crime Lab, summarizing the drug testing performed in Graham’s case. Graham denied having received that print-out, and the State was unable to prove that it had actually been provided to the defense.

      . Maryland Rule 4-263(n) provides:
      (n) Sanctions. If at any time during the proceedings the court finds that a party has failed to comply with this Rule or an order issued pursuant to this Rule, the court may order that party to permit the discovery of the matters not previously disclosed, strike the testimony to which the undisclosed matter relates, grant a reasonable continuance, prohibit the party from introducing in evidence the matter not disclosed, grant a mistrial, or enter any other order appropriate under the circumstances. The failure of a party to comply with a discovery obligation in this Rule does not automatically disqualify a witness from testifying. If a motion is filed to disqualify the witness’s testimony, disqualification is within the discretion of the court.

      . Rule 4—262(d)(1) and (2) provide that "the State’s Attorney shall provide to the defense” various enumerated items, section (h) of that same rule provides that a party, upon obtaining "further material information," "shall supplement [its] response promptly,” and section (i) provides that, "[t]o the extent practicable, the discovery and inspection required or permitted by this Rule shall be completed before the hearing or trial[.]” (Emphasis added.) Accordingly, it is undisputed that Rule 4-262 qualifies as a mandatory rule.

      . Maryland Rule 1—201(a) provides:
      (a) General. These rules shall be construed to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. When a rule, by the word "shall” or otherwise, mandates or prohibits conduct, the consequences of noncompliance are those prescribed by these rules or by statute. If no consequences are prescribed, the court may compel compliance with the rule or may determine the consequences of the noncompliance in light of the totality of the circumstances and the purpose of the rule.

      . Although Rule 4-263(n) does not expressly mention dismissal, that sanction is covered by the catch-all provision, "or enter any other order appropriate under the circumstances.”

      . Consequently, we need not consider Graham’s claim that the circuit court had the authority to dismiss the charges against him under Rule l-201(a).

      . The discovery sought was, potentially, "critically important” to Graham's defense because it was dispositive of an element of the crimes charged.

      . Maryland Rule 4-271 provides in pertinent part:
      (a) Trial Date in Circuit Court.
      (1) The date for trial in the circuit court shall be set within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court pursuant to Rule 4-213, and shall be not later than 180 days after the earlier of those events. When a case has been transferred from the District Court because of a demand for jury trial, and an appearance of counsel entered in the District Court was automatically entered in the circuit court pursuant to Rule 4-214 (a), the date of the appearance of counsel for purposes of this Rule is the date the case was docketed in the circuit court.... Because Graham was represented by counsel in the District Court, the starting date, for purposes of Rule 4-271, was “the date the case was docketed in the circuit court,” that is, December 16, 2015. Consequently, the ‘‘Hides” date was 180 days later, that is, Monday, June 13, 2016. State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979).


source: Caselaw Access Project

author: Deborah S. Eyler, J.

license: Public Domain

text:
    165 A.3d 613
    Joseph BASSO v. Juan CAMPOS, et al.
    No. 364,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    July 27, 2017

      Argued by: Michael Wein, Greenbelt, MD, for Appellant.
    Argued by: Thomas A. McManus (Sasseer, Clagett & Bucher, on the brief), Upper Marlboro, MD, for Appellee.
    Panel: Deborah S. Eyler, Kehoe, Shaw Geter, JJ.
   Deborah S. Eyler, J.

In 2011, Joseph Basso, the appellant, purchased a home in Hyattsville from appellees Javier Szuchman and Jose Rodriguez, both licensed real estate agents, who were agents of appellee Juan Campos, d/b/a Campos & Associates Realty, a real estate broker. Within weeks of the closing, Basso’s basement flooded, and it continued to flood regularly in the following months and years. Basso sued the appellees in the Circuit Court for Prince George’s County for negligent misrepresentation, fraudulent misrepresentation, violations of the Maryland Consumer Protection Action (“CPA”), Md. Code (1975, 2013 Repl. Vol.), sections 13-101-13-501 of the Commercial Law Article (“CL”), and, as to Campos, negligent hiring and supervision and vicarious liability for the tortious conduct of Szuchman and Rodriguez. The appellees’ motion for summary judgment was denied.

The case was tried to a jury. At the close of Basso’s case, the court granted the appellees’ motion for judgment on all counts. Basso appeals, presenting two questions, which we have reordered and rephrased:

I. Did the trial court err by precluding his expert home inspector from expressing an opinion on whether the basement of the home would have flooded during the period when Szuchman and Rodriguez owned the property?
II. Did the trial court err by granting the appellees’ motion for judgment?

For the following reasons, we answer the first question in the affirmative and shall reverse the judgment of the circuit court and remand for further proceedings. In light of our resolution of that issue, we need not address the second question.

FACTS AND PROCEEDINGS

On July 29, 2011, Szuchman and Rodriguez purchased a 2-story single-family home at 6010 39th Avenue in Hyattsville (“the Property”)- They bought the Property for $119,000, at a foreclosure sale. The Property, built in 1938, is a 1,300 square-foot bungalow-style home that had an unfinished walk-up basement.

Szuchman and Rodriguez planned to renovate and resell the Property for a profit. They hired contractors who replaced the roof and all the windows, remodeled the kitchen, and refinished the hardwood floors. In the basement, they installed drywall, replaced and relocated the sump pump, constructed a bathroom, and installed wall-to-wall carpeting.

Szuchman and Rodriguez listed the Property for sale on September 25, 2011, roughly two months after they bought it. Basso viewed the Property at the end of September, made an offer, and, on October 2, 2011, entered into a contract to purchase the Property for $260,000. The contract was contingent upon a home inspection.

Also on October 2, 2011, Szuchman and Rodriguez signed the Maryland Residential Property Disclosure and Disclaimer Statement (“Disclosure Statement”). As pertinent, they represented that they had owned the Property for 3 months and had no “actual knowledge” of any “leaks or evidence of moisture” in the basement.

On October 13, 2011, Basso’s home inspection was completed. His home inspector did not note in his report that there was any evidence of flooding or water seepage in the basement. He did note, however, that the exterior basement stairwell drain should be kept clear of debris to prevent water from entering the basement under the exterior basement door.

The sale closed on November 14, 2011 and Basso moved in, along with a housemate.

On December 7, 2011, while Basso was traveling for work in San Diego, his housemate called to alert him that “there was water in the basement.” The housemate believed that the water was entering from under the exterior basement door jamb, at the bottom of the exterior stairwell. Basso hired MCC Services, a water remediation company, to clean up the basement.

Four months later, on March 1, 2012, Basso noticed that the carpeting in the basement was “wet along the ... back wall and the side wall.” He pulled up the carpet and could see “areas where there was obviously water seeping in from the foundation.” He also noticed upon pulling up the carpet that there was “an area of concrete that[ was] a different color,” with some of the concrete appearing to be “newer.” Basso was not aware that any concrete work had been done in the basement during the renovation.

On April 18, 2012, Basso obtained from the Bartley Corporation an estimate of $19,649 for concrete work on the Property to address the water infiltration problems. He decided not to go forward with the work at that time.

During 2012 and 2013, the basement at the Property flooded “[e]very time there was a substantial rainstorm or, ... continued [sic] rain over a few days, any time that ... [it rained] a half inch ... and up[.]” The water would “seep in from ... numerous places along the back wall and the wall where the door was ... [a]nd depending on the amount of rain or the amount of ground saturation, it would just keep going.”

In July 2013, Basso became concerned about mold in his basement and hired Larry Hammond, a certified home inspector and certified mold remediation contractor, to perform a “General Grading and Water Infiltration Inspection.” Hammond did not detect any mold in the basement. The cost for the inspection was $350.

In April 2014, Basso contracted for B-Dry, a water-proofing company, to install French drains along the inside of the exterior walls of the basement and to take other measures to permanently solve the water infiltration issues. B-Dry offers a lifetime warranty for its services. In May 2014, Basso hired another company to replace the exterior basement door and door frame.

On November 13, 2014, Basso filed suit against the appel-lees. The operative complaint is the third amended complaint, filed on February 16, 2016. Basso alleges that when Szuchman and Rodriguez signed the Disclosure Statement on October 2, 2011, they had actual knowledge that the basement area flooded repeatedly and that they had attempted to conceal this defect by removing bushes that lined the side of the home and replacing them with poured concrete. Counts I and II asserted claims for negligent and fraudulent misrepresentations, respectively; Counts III, IV, and V asserted claims for breach of the CPA; and Counts VI and VII asserted claims against Campos for vicarious liability and negligent hiring and supervision. Basso sought more than $260,000 in compensatory damages and $800,000 in punitive damages, plus attorneys’ fees.

On July 17, 2016, Basso designated two expert witnesses: Howard Phoebus, a real estate agent, as an expert on valuation of real property, as well as the standard of care; and Larry Hammond, who, as mentioned, is a certified home inspector, as a standard of care and causation expert. Basso specified that Hammond was expected to testify that the appellees “knew about the regular water intrusions into the basement area ... and [that] rather than try to appropriately put money to fix the problem, adopted the strategy to ‘temporarily’ conceal the flooding, by pouring concrete around a significant portion of the stairwell.”

The appellees moved for summary judgment, arguing that there was “no admissible competent evidence that either Rodriguez or Szuchman were aware of any flooding in the [Property] prior to sale.” Basso opposed the motion, attaching, among other exhibits, excerpts of Rodriguez’s and Szuchman’s depositions, in which they testified that they were present at the Property every day during the 4-5 week renovation period, and an affidavit by Hammond, opining that it was “virtually impossible that Mr. Rodriguez and [Mr.] Szuchman would not have experienced [during that time period] the same significant level of flooding problems that Mr. Basso first experienced on or about December 7, 2011, about 3 weeks after the ... closing took place.” Hammond further opined that there was no “justified reason” for concrete to have been poured around the basement stairwell except to “conceal (temporarily and ineffectively) the flooding problems.” By order entered March 16, 2016, the court denied the motion for summary judgment, ruling that Szuchman’s and Rodriguez’s deposition testimony that they were present at the Property nearly every day for a month during the renovation created a genuine dispute of material fact about their knowledge of flooding in the basement when they signed the Disclosure Statement.

A jury trial commenced on March 28, 2016. Over two days, Basso testified and called five witnesses: Szuchman, Campos, Phoebus, Hammond, and Daniel Seger, a neighbor who lived directly across the street. He introduced into evidence certified records from the Storm Events Database for the National Climatic Data Center (“NCDC”), a division of the National Centers for Environmental Information at the United States Department of Commerce. Those records covered storm events in Prince George’s County and surrounding areas over 184 days between July 1, 2011, and December 31, 2011. The records reflected that during the period between July 29, 2011, when Rodriguez and Szuchman purchased the Property, and September 25, 2011, when the Property was listed for sale, there were multiple storm events involving significant rainfall. Most notably, on August 27-28, 2011, Hurricane Irene “tracked up the Mid-Atlantic Coast ... passing] by just to the east of Ocean City, Maryland,” resulting in tropical storm conditions throughout Maryland, including in Prince George’s County, and causing 12 inches of rain to fall in some areas.

Also, on September 7-8, 2011, “the remnants of Tropical Depression Lee interacted with a nearly stationary boundary near the Mason-Dixon Line” and resulted in “[m]ajor flooding and flash flooding” around Maryland. As a result of the “record-setting rainfall” on those days, the “[gjround across Maryland was saturated” leading to additional flooding on September 9, 2011, from thunderstorms and showers.

No storm events involving heavy rainfall were reported after September 9, 2011, until December 7, 2011, the day Basso’s basement flooded for the first time after he took title. On that date, rainfall totals in the area were as high as 4.36 inches.

Basso testified consistent with the above stated facts. He further testified that he learned for the first time during Szuchman’s and Rodriguez’s depositions that they had poured concrete “on the side of the house” during the renovation.

On cross-examination, Basso was asked whether it was his understanding that when the basement flooded on December 7, 2011, the water came in under the basement door. He replied, “On the 7th, yes.” He further testified that he did not recall having cleared the drain in the exterior basement stairwell between the date he settled on the house (November 14, 2011) and December 7, 2011. Basso recalled that upon returning from his business trip in December 2011, he observed “debris in the stairwell.” He agreed that if the basement drain was clogged, water may have come in through the basement door as a result.

Two remediation reports prepared by MCC regarding the December 2011 and March 2012 flooding incidents were introduced into evidence. The first report specified that MCC had taken steps to address “loss resulting from the water that was entering the house from underneath the door jamb at the bottom of the [basement] stairwell where water was coming through cracks that had formed over the newly repaired and painted sides of the exterior stairwell.” Even after the rain stopped, MCC had to suspend its remediation efforts for some time because water still was being “released from the ground, through the cracks in the sides of exterior[] walls and then coming in underneath the doorway into the house.” After the water stopped entering the house, MCC returned to redo its extraction process and then to dry the basement with heaters and fans. The total cost for MCC’s services in December 2011 was $4,552.55.

The second MCC report reflected that it performed remediation services in March 2012 after water “seeped through the wall of the basement underneath the side door of the house.” The total cost for those services was $1,000.87.

Szuchman testified that within a few days of purchasing the home, he and Rodriguez hired three men to begin the renovations. The men began work within “[a] couple days,” in early August 2011. At his deposition, Szuchman had testified that the contractors began work within a “week or ten days.” According to Szuchman, the contractors started with the basement. The entire renovation was complete within four to five weeks, and the Property was listed for sale “a week or ten days” after completion. Szuchman and Rodriguez were present at the Property nearly every day during that renovation period.

Szuchman testified about concrete being poured around the exterior of the Property, on the left side if facing it from the street. He explained that there was a “cracked—cracking walkway [to the left of the house] ... [a]nd in between the walkway and the house was a like—two feet of bushes or something like that.” He and Rodriguez decided to remove the bushes “[t]o make the house look better.”

After the bushes were removed, a subcontractor poured concrete on the cracked walkway to repair it. The subcontractor had extra concrete and asked if he should also pour it in the area where the bushes had been. Szuchman explained that he had noticed that the water flowed in the direction of the home, so he thought it “was [a] good idea [to] make [it] level to keep the water coming out the house .... [b]ecause ... if not, in the future you can have pooling inside the house.” Szuch-man believed that the concrete was poured at the end of August, 2011.

Szuchman did not recall any major rainstorms during the renovation period, but was sure it had rained some days. He testified that there was “no flooding” in the basement while he was present at the Property and that none of the workers ever told him about flooding in the basement.

According to Szuchman, he and Rodriguez were working for Campos at the time of the renovation subject to a flat-fee agreement whereby Campos would receive $500 at settlement. Campos never came to the Property and knew “nothing about [it],” however.

Campos testified that he had been a real estate broker since 1998 or 1999. Szuchman and Rodriguez were real estate agents affiliated with his brokerage company. He estimated that over the last decade he had received brokerage commissions on more than 25 homes sold by Szuchman and Rodriguez. He trained all of his agents about latent defects disclosures that sellers must make under Maryland law. Because in this case Szuchman and Rodriguez were the agents and the sellers, it was their obligation to complete the Disclosure Statement.

Phoebus was accepted as an expert in the field of real estate ethics. He testified about the relationship between a real estate broker and real estate agents, and about duties relative to the latent defects disclosure.

Seger testified that he had lived in the house across the street from the Property for 16 years. He recalled that five or six years earlier, the Property had been vacant for about a year. Around the end of August 2011, Seger saw workers “coming up with concrete out of the basement” and “putting it underneath the front porch.” He assumed that the basement was being dug out and remodeled. He also observed workers pouring fresh “concrete[ ] all around the front porch and down to the basement where it used to be—flower beds and mulch, from the basement steps all the way around to the front entrance.”

Hammond was admitted as an expert in home inspection and water infiltration. He testified that the bills submitted by the company that replaced the exterior basement door and by MCC all were fair and reasonable. He testified that the $8,150 bill for the waterproofing by B-Dry was too high and that a fair and reasonable price for the services performed would have been $7,200.

In Hammond’s opinion, the only way to permanently correct the water infiltration problems at the Property would be to “dig down all the way around it, like four to six inches below the footings .... [and] put a drain pipe,” followed by “re-parg[ing] and re-tar[ing] the walls” and covering the tar with plastic sheeting. In addition, he would recommend “elevat[ing] the grades” to prevent water from “ponding” on the Property.

Hammond also testified about his observations of the Property in 2013. He had immediately noticed that the “driveway ... close[ ] to the basement areaway was very low and pond-ing”; that the downspouts on an adjacent house “discharge[ed] towards [the Property,]” and that the drain at the bottom of the basement stairwell “did not have the capacity to carry water away in any large amount.”

Hammond was asked whether there was a “way ... to know whether or not [the Property] flooded” “before Mr, Basso owned [it].” He responded that the best way to determine that would be to excavate the basement walls and foundation to check for “calcification” or “water stains.” Barring that, the only information he could rely upon was “grading.” It did not appear to Hammond that “anybody had been digging around there to settle the grade” and, in his view, the “grade [wa]s the problem with this house.”

Hammond opined that pouring concrete in place of mulch or other soft material can be a way to stop water infiltration. He was shown photographs of the basement floor taken by Basso that showed a variation in the color of the concrete. Hammond opined that it looked like “French drains” had been put in and then new concrete had been put on top.

As we shall discuss in more detail, infra, Hammond was not permitted to offer an opinion about whether, based on his observations of the Property in July 2013, the Property would have had “flooding issues” prior to Basso’s purchasing it and, more specifically, during the period that Rodriguez and Szuch-man owned it.

At the close of Basso’s case, the appellees moved for judgment on all counts. On Counts I through V, defense counsel argued that Basso had not adduced any evidence, “circumstantial or otherwise, that [on October 2, 2011], [any of the appellees] were aware of or knew of any issues of flooding with that basement.” The only evidence bearing on the crucial period of time between July 29, 2011, and October 2, 2011, was that concrete was poured on the left side of the house and it rained. On Count VI, defense counsel argued that Campos could not be vicariously liable as a matter of law because Rodriguez and Szuchman were independent contractors, not employees, and, in any event, Rodriguez and Szuchman were not liable, and therefore he was not vicariously liable. On Count VII, negligent hiring and supervision, defense counsel argued that there was no evidence that Campos had any involvement in supervising Szuchman and Rodriguez in their capacity as the owners and renovators of the Property.

The court granted the motion for judgment on all counts. It opined that the evidence showed that the “first flood” in the basement occurred on December 7, 2011, and was caused by a “clogged drain.” It ruled that Basso failed to meet his burden to show that any of the appellees had knowledge of “water or flooding conditions or a wet basement” during the time in which they held title to the Property. The court described Basso’s theory of prosecution as a “syllogism”: “because it rained, therefore the basement flooded, because that is what happened on December 7th after settlement.” The court rejected the notion that evidence of rainfall amounts during the period when Szuchman and Rodriguez held title was sufficient to prove knowledge. It noted that Basso could have produced testimony from a “prior owner,” “[blanking officials” involved in the foreclosure, or “neighbors” with actual knowledge of flooding issues predating Basso’s ownership of the Property, but did not do so.

The court entered judgment in favor of the appellees on April 19, 2016. This timely appeal followed.

DISCUSSION

I.

Basso contends the trial court abused its discretion by precluding Hammond from expressing an expert opinion about whether the Property would have experienced flooding during the three month period when Rodriguez and Szuchman held title to it. The appellees respond that the court correctly precluded Hammond from testifying about conditions at the Property nearly two years before he inspected it because he lacked an adequate factual basis to offer that opinion.

Hammond had been a home improvement contractor since 1959 and had been licensed since 1965. He began working as a home inspector in 1999; and he became licensed in 2007, when the State first required licensing. He was certified by the National Association of Certified Home Inspectors as a water infiltration specialist. He testified that in assessing a water infiltration issue, he determines whether there were “low and ponding areas around [a] house [that] [would] allow water to get in around the foundation.”

The court accepted Hammond as an expert in home inspection and water infiltration for the purpose of testifying with “respect to the bills that have been submitted in this case, as to whether in his opinion they are fair and reasonable.” Defense counsel objected to Hammond’s testifying about whether the remediation work reflected in those bills was necessitated by any misrepresentation or fraud by the appel-lees. The court ruled that it would “deal with that as and if it arises.”

In preparing for his testimony, Hammond reviewed the MCC remediation reports and other bills and estimates about the water infiltration. He also reviewed the NCDC records about storm events before and after Basso purchased the Property and photographs of the Property before and after the bushes were removed.

Hammond was permitted to testify about his observations of the Property in July 2013, when Basso hired him to complete a grading and water infiltration inspection. He noted grading issues, particularly near the driveway on the left side of the house. He also observed that the exterior stairwell drain did not have sufficient “capacity to carry water away in any large amount.” He further opined that the “grading ... ha[d] settled considerably around the back of the house and the right-hand side of the house,” whereas the left side of the house had had concrete poured in order “to try and head off any water infiltration.” The “grading” was the major issue with the Property, in Hammond’s view.

Hammond was asked on direct whether, based upon his inspection of the Property in 2013, he had an opinion as to whether “this particular house—had flooding or water intrusion” prior to Basso’s purchasing it. Defense counsel objected and the court sustained the objection, noting that Hammond was being asked “if he has an opinion ... in 2011 for a house he examined in 201[3].”

Later, Basso’s counsel asked Hammond to opine, based on his experience and his review of the records in this case, whether the Property would have “had flooding issues prior to Mr. Basso’s arrival at the house?” Defense counsel objected, the objection was sustained, and Basso’s counsel asked for a bench conference. The court remarked that the question called for “[ajbsolute speculation” because Hammond had “no objective data as to what occurred in the—about the two months that the Defendants owned this property[.]” Basso’s counsel countered that there was a factual basis for Hammond to testify that it was “virtually certain based on the rain amounts [during that two month period] and the characteristics of [the Property]” that it would have flooded in August and September 2011. He argued, moreover, that Hammond should be permitted to offer an opinion about whether a house that flooded during the December 7, 2011 storm event more likely than not also would have flooded during the August 27-28, 2011 storm events and the September 7-9, 2011 storm events. The court interjected that the December 7, 2011 flooding was caused by the exterior drain being “clogged [because Basso] had not cleared it, according to his own testimony.” Basso’s counsel disagreed that that was his testimony.

Later in Hammond’s direct examination, Basso’s counsel asked him whether anything had stood out to him in the NCDC records. He responded that there had been “four or five big storms ... some ... that had ten inches of rain.” He continued that “if there was a problem in this basement, based on the settled grading around this house—.” Defense counsel objected and his objection was sustained. Basso’s counsel then asked: “Well, based on your review and your expert opinion and your experience can you say whether there would have been water infiltration from these storms?” Defense counsel objected and the court sustained the objection, remarking, “Just speculation. He has testified objectively to the things he can testify to. He cannot speculate.”

Basso’s counsel then asked Hammond about the December 7, 2011 storm and the resulting water infiltration. He followed up by asking: “Would a house stop—not flood ... if facing substantially similar or even worse weather conditions earlier?” An objection to that question was sustained. He tried rephrasing that question twice, ultimately asking: “If a house is found to flood on a certain day what factors could possibly affected [sic] it f[rom] flooding or not flooding in earlier circumstances?” An objection to that question also was sustained, and the court asked counsel to approach the bench.

The court advised Basso’s counsel that Hammond had “testified to all the things he can testify to, fairness to the bills [sic], with respect to mold, water infiltration, how (Inaudible), how he thinks it should be done. And he cannot suddenly come in here and start testifying as to conditions that predated whenever he looked at the [Property.”

Basso’s counsel argued that Hammond was qualified to offer an opinion that “this house, particularly based on the outside, where there is no evidence that anything had changed substantially, would have flooded in earlier circumstances particularly in view of the significant storms that took place during the three and a half months.” He elaborated, “you know, a house does not suddenly stop flooding and I think he can explain why a house does not suddenly stop flooding.”

The court reiterated that it was sustaining the objection because Hammond’s opinion about whether the Property would have flooded in August and September 2011 was “nothing but speculation.” Basso’s counsel was directed to “find another field of inquiry” or the court would “start interrupting [him] and terminate it.”

Rule 5-702 provides that a trial court may admit expert testimony if it

determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

“[Ejxpert testimony must be sufficiently definite and certain to be admissible, for neither the Courts nor the juries are justified in inferring from mere possibilities the existence of facts, and they cannot make mere conjecture or speculation the foundation of their verdicts.” Porter Hayden Co. v. Wyche, 128 Md.App. 382, 391, 738 A.2d 326 (1999) (citations omitted). “[Tjrial courts have ‘wide latitude in deciding whether to qualify a witness as an expert or to admit or exclude particular expert testimony,’ and we review the trial court’s decision for an abuse of discretion.” Lewin Realty III, Inc. v. Brooks, 138 Md.App. 244, 276, 771 A.2d 446 (2001), abrogated on other grounds by Ruffin Hotel Corp. of Md., Inc. v. Gasper, 418 Md. 694, 17 A.3d 676 (2011) (quoting Massie v. State, 349 Md. 834, 850-51, 709 A.2d 1316 (1998)).

In the case at bar, the trial court determined that Hammond was qualified by “knowledge, skill, experience, tráining, or education” to testify as an expert in home inspection generally and water infiltration specifically. The court ruled that Hammond lacked a sufficient factual basis, however, to testify about whether the Property flooded (or was likely to have flooded) during storm events that happened when the appellees held title because that testimony was too speculative, in the court’s view. The court also did not permit Hammond to opine about any “factors” that might cause the basement of a house to start flooding, even if it had never flooded previously. We agree with Basso that the court abused its discretion in so ruling.

Hammond inspected the Property in July 2013, less than two years after Rodriguez and Szuchman renovated it. He observed obvious grading problems that would cause water to pool near the foundation and a drain at the bottom of the exterior stairwell that had insufficient capacity. There was no evidence that Basso had altered the grading of the Property in the interim between purchasing it and hiring Hammond. Hammond reviewed storm event data showing that the area in which the Property was located had experienced a hurricane and a tropical depression over the two week period at the end of August 2011 and the beginning of September 2011, prior to the renovation being completed.

Hammond was not required to have personally observed the condition of the Property during the period when Szuchman and Rodriguez held title in order to offer an opinion about whether a house with grading problems similar to those Hammond observed in 2013 likely would have flooded during a major storm. See, e.g., Uhlik v. Kopec, 20 Md.App. 216, 223, 314 A.2d 732 (1974) (“The premises of fact on which [an expert] opinion is based need not ... have been derived from personal observation.”). Hammond also had a sufficient factual basis to opine as to whether a basement that, according to Basso, flooded every time it rained more than a half an inch from December 2011 forward, also would have flooded when it rained close to 10 inches in a two day period in August 2011. The fact that Hammond had not personally observed the condition of the Property in October 2011 went to the weight, not the admissibility, of his testimony.

The erroneous exclusion of Hammond’s testimony was prejudicial. Basso sought to prove by circumstantial evidence that the basement at the Property flooded every time it rained a half inch or more after he took title that Szuchman and Rodriguez had actual knowledge of water infiltration in the basement of the Property when they held title to it; that Szuchman and Rodriguez were present at the Property every day in August and early September 2011; that it rained extreme amounts during that period of time; and that it was not plausible that the water infiltration problems began only after Basso took title. The court granted judgment in favor of the appellees because it concluded that Basso failed to adduce any evidence that the basement ever flooded while Szuchman and Rodriguez held title. Had Hammond been permitted to testify, consistent with his affidavit in opposition to the motion for summary judgment, that it was “virtually impossible” that the basement would not have flooded in August and September 2011, during the time when Szuchman and Rodriguez were present nearly every day, there clearly would have been sufficient evidence, viewed in a light most favorable to Basso, to survive a motion for judgment. In light of this prejudicial error, reversal is required and we need not consider whether Basso adduced sufficient evidence to overcome a motion for judgment without the improperly excluded expert testimony.

JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEES.

      . In the context of this case, “French drains” are trenches, which contain gravel or rocks and a perforated pipe, dug around the inside perimeter of a basement. They are designed to redirect groundwater to a sump pump after the water has penetrated the exterior wall.

      . The men may have worked for a company called Carlos Construction, but Szuchman could not recall.

      . The court precluded Phoebus from testifying about valuation and causation. That ruling is not challenged in the instant appeal.

      . The appellees filed a post-judgment motion for attorneys’ fees pursuant to Rule 1-341. That motion has been stayed pending the resolution of the instant appeal.

      . Defense counsel’s objection to Hammond’s testifying about the ''motivation” for the pouring of the concrete was sustained. He did not move to strike Hammond’s answer, however. In any event, Szuchman already had testified that the concrete was poured to correct a grading issue and to direct water away from the foundation of the house.

      . The court also misconstrued Basso’s testimony about the cause of the December 7, 2011 flood at the Property. The court repeatedly stated that Basso acknowledged that the cause of that flood was a clogged drain. He did not so testify. He acknowledged that most of the water had come under the basement door, but did not testify that the drain was clogged or that that was the only source of the flooding on that date. Moreover, the MCC remediation report made clear that water had continued to flow into the house for several days after the storm ended, which is inconsistent with a flood caused by a clogged drain.