REPORTED 

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND 

 

No. 2175 

September Term, 2013 

______________________________________ 

100 HARBORVIEW DRIVE 

CONDOMINIUM COUNCIL OF UNIT 

OWNERS AND ZALCO REALTY, INC. 

v. 

PAUL C. CLARK

______________________________________ 

 Wright, 

Leahy, 

Salmon, James P. 

 (Retired, Specially Assigned), 

JJ.

______________________________________ 

Opinion by Leahy, J.

______________________________________ 

 

 Filed: July 30, 2015 

*Judge Kevin Arthur did not participate, pursuant to Md. Rule 

8-605.1, in the Court’s decision to report this opinion.
1

In the multiplex of administrative and trial court actions and appeals involving 

Appellee/Cross-Appellant Dr. Paul C. Clark—owner of Penthouse 4A in the 100 

Harborview Drive Condominium—and Appellants/Cross-Appellees 100 Harborview 

Drive Condominium Council of Unit Owners (“Harborview” or “the Council”) and 

property manager Zalco Realty, Inc. (“Zalco”), this appeal features the Maryland 

Condominium Act and the extent to which it compels the production of Harborview’s legal 

and financial records. 

On January 16, 2013, Dr. Clark filed a three-count complaint in the Circuit Court 

for Baltimore City, alleging that pursuant to the Maryland Condominium Act (“MCA”), 

Maryland Code (1974, 2010 Repl. Vol.) Real Property Article (“RP”) §§ 11-101 et seq.

and Article X of the By-laws of 100 Harborview Drive Condominium, he was entitled to 

examine and copy “(a) detailed billing reports or supporting documentation for 

[Harborview]’s legal invoices concerning Dr. Clark, his family, and the Unit; (b) written 

advice of legal counsel concerning Dr. Clark, his family, and the Unit; and (c) e-mails 

between [Harborview] and Zalco concerning the financial well-being of the 

Condominium.” In Count I, Dr. Clark sought a permanent injunction directing Harborview 

and Zalco to produce the documents; in Count II, he requested specific performance on his 

request to inspect the documents; and in Count III, he demanded damages for failure to 

provide the requested documents. On March 5, 2013, Harborview and Zalco filed an 

answer and a counter-complaint seeking a declaratory judgment that Dr. Clark was not 

entitled to inspect the detailed billing reports and written advice of counsel. 
2

Following a two-day bench trial, the circuit court rendered its decisions on October 

16, 2013. The court decided, among other things, to deny Dr. Clark’s request to inspect 

the written advice of Harborview’s counsel, but entered a permanent injunction enjoining 

Harborview and Zalco from denying Dr. Clark’s request to inspect and copy legal invoices 

and billing records concerning Dr. Clark, his family, and the Unit. The Court also enjoined 

Harborview and Zalco from refusing to provide Dr. Clark any future e-mails between 

Harborview and Zalco concerning the financial well-being of Harborview, and required 

that they comply with any future request by Dr. Clark for e-mails concerning the financial 

well-being of Harborview. 

For the reasons that follow, we affirm the judgments of the circuit court regarding 

the scope and application of the Maryland Condominium Act, and hold that RP § 11-116 

does not abrogate the attorney-client privilege or the work product doctrine. We also find 

no error on the ancillary matter of the court’s exclusion of Harborview’s proffered expert 

testimony. We are compelled, however, to vacate the court’s order enjoining Harborview 

and Zalco from refusing to produce future e-mail correspondence, as it is not based on any 

showing of a likelihood of future irreparable harm. 

BACKGROUND 

Litigation History

 Context bears special significance in this appeal wherein the request for the 

inspection of financial and attorney-client privileged records is made by an adversary in a 

series of contentious law suits and administrative actions. In our unreported opinion in an 

earlier related action between these parties, Clark v. Zalco Realty, Inc., No. 277, Sept. Term 
3

2012, slip op. at 2-3 (filed Apr. 24, 2013), we summarized the facts of Dr. Clark’s 

acquisition of the property and the underlying conflict as follows:

In 2009, [Dr. Clark] learned that a penthouse unit (“the Unit”) of the 

Harborview Building in downtown Baltimore was to be sold at auction, “as 

is.” Appellant made a few visits to see [the Unit], the last of which was to a 

cocktail reception on the night before the auction. It was raining heavily, and 

[Dr. Clark] noticed water dripping from the ceiling into two bowls. 

 The next morning, [Dr. Clark] met with Gisele Rivera—the building’s 

property manager and a Zalco employee—to discuss the leak he had seen. 

According to [Dr. Clark’s] deposition testimony, Ms. Rivera told him that 

the roof was scheduled to be repaired “in the March time frame,” and she 

showed him “books that had construction plans and schedules.”

 [Dr. Clark] won the auction for the property, and the Council had its 

property management contractor, Zalco Realty, prepare a resale certificate as 

required by [RP] § 11-135(c). The document certified that the Council had 

no knowledge “that any alteration or improvement to the unit or to the limited 

common elements assigned to the unit violates any provision of the 

declaration, by laws, or rules or regulations,” see [RP] § 11-135(a)(4)(ix), 

and no knowledge “of any violation of the health or building codes with 

respect to the unit,” see [RP] § 11-135(a)(4)(x). The certificate further stated 

that there were no “capital expenditures approved by [the Council] planned 

at the time of the conveyance which are not reflected in the current operating 

budget disclosed” to [Dr. Clark], see [RP] § 11-135(a)(4)(iv), (vi). 

 In the wake of a large snowstorm in 2010, the water leak in the Unit 

worsened. A mold expert tested the Unit for spores and recommended that 

it be vacated. [Dr. Clark] began remediation efforts in the summer, but they 

proved unsuccessful because water continued to leak in through the 

building’s roof. 

On October 20, 2010, Dr. Clark filed suit against Harborview and Zalco alleging 

that they had engaged in fraudulent misrepresentation and unfair or deceptive trade 

practices, and seeking $5 million in damages. That complaint was resolved on summary 

judgment in favor of Harborview and Zalco on February 23, 2012. This Court affirmed 

the judgment of the Circuit Court for Baltimore City on April 24, 2013. 
4

During the interval between his purchase of the Unit and the October 20, 2010, 

complaint, Dr. Clark filed a number of administrative complaints related to his Unit. 

Following a noise complaint from downstairs neighbors and a January 19, 2010, “cease 

and desist” letter from Harborview advising Dr. Clark to have his child play in the 

downstairs recreation area or invest in soundproofing, Dr. Clark filed a complaint with the 

U.S. Department of Housing and Urban Development, alleging familial status housing 

discrimination against Harborview. That complaint, dated January 28, 2010, was 

dismissed for lack of probable cause. In February, the complaint was referred to the 

Maryland Commission on Human Relations, which, after investigation, also made a 

finding of no probable cause on August 17, 2010. 

Dr. Clark filed three complaints with the Baltimore City Health Department during 

the months of May and June 2010, alleging the presence of mold in his Unit and 

contamination from pigeon droppings. These complaints were ultimately dismissed 

following evidentiary hearings. On June 15, 2010, Dr. Clark also filed a complaint against 

Harborview in the Maryland Office of the Attorney General, Consumer Protection 

Division. The complaint, alleging that Harborview failed to properly maintain the common 

elements of the building, was later withdrawn. 

 On May 8, 2013, Dr. Clark filed another complaint against Harborview in the 

Circuit Court for Baltimore City, along with a Petition for Order of Arbitration and Stay of 

Action. In his complaint for specific performance, negligence, breach of contract, and 

breach of fiduciary duty, Dr. Clark alleged, inter alia, that Harborview failed to retain a 

reasonable repair and replacement reserve fund and breached its duty to remediate damage 
5

caused to his Unit from water infiltration and mold contamination. Dr. Clark demanded, 

and the circuit court ordered, arbitration of that complaint. Harborview appealed, 

contending that the circuit court erred by not finding that Dr. Clark had waived his right to 

arbitration because he improperly split his claims (arising from the same facts) by litigating 

to judgment less than all of his legal theories in a prior action before bringing the subject 

suit. In an unreported opinion, Harborview v. Clark, No. 1314, Sept. Term 2013 (filed 

April 8, 2015), we affirmed the judgment of the circuit court.1

 

While Dr. Clark’s first appeal to this Court was pending, and prior to filing the case 

underlying the second appeal, the events leading to the instant appeal were developing. 

The Present Case

 The opening act was Dr. Clark’s November 20, 2012, request, sent by letter through 

counsel, to examine and copy Harborview’s books and records relating to the financial 

welfare of the Condominium, including “all of the Condominium’s legal bills from October 

2009 through the present[.]” The letter advised that Dr. Clark had entered into a common 

interest agreement with James W. Ancel, Sr., the owner of Penthouse 4C at 100 

Harborview Drive. Penthouse 4C, LLC, whose sole member is James W. Ancel, Sr., had 

filed a complaint (similar to, though entirely separate from this appeal) on April 8, 2011, 

 

1

 Following Harborview’s appeal to this Court, Dr. Clark filed a line in the circuit 

court withdrawing the petition for order of arbitration and requesting entry of a new 

scheduling order. Dr. Clark challenged this Court’s decision denying his motion to dismiss 

Appellant’s appeal as moot by filing a writ of certiorari in the Court of Appeals. Clark v. 

100 Harborview Drive Council of Unit Owners, 438 Md. 143 (2014). After the Court 

denied the writ, Dr. Clark withdrew his election to waive arbitration on June 13, 2014. 
6

requesting the production of books and records pursuant to RP § 11-116. That complaint 

went to arbitration, and on January 5, 2012, the arbitration panel found, among other things, 

that RP § 11-116 “provides unit owners with a broad right to inspect the books and records 

of the Condominium[,]” including “any written advice of legal counsel if the requesting 

unit owner is the subject of that advice.”2

 Dr. Clark’s November 20, 2012, letter to 

Harborview cited the Penthouse 4C, LLC arbitration award as binding precedent, and 

further instructed that “the Council may not redact the Condominium’s legal bills unless 

one of the limited circumstances set forth in § 11-116(c)(3) of the Maryland Condominium 

Act apply.” 

On December 5, 2012, Harborview responded, instructing Dr. Clark to contact 

Zalco to schedule a time to inspect the requested documents. After scheduling a date to 

inspect the documents, Dr. Clark sent another letter to Harborview expanding his records 

inspection request to include “any written advice of legal counsel that relates to or concerns 

[Dr. Clark], Rebecca Delorme [Dr. Clark’s spouse], or Penthouse 4A.” Harborview 

responded by letter dated December 18, 2012, stating that legal invoices would be made 

available for inspection, but that detailed billing reports from legal counsel would not be 

made available because they were considered privileged and, therefore, were not 

maintained as regular financial books or records of Harborview. Further, Harborview 

asserted that in any case, legal documents that constituted a financial book or record would 

 

2

 Penthouse 4C, LLC, filed a petition to confirm the arbitration award and enter 

judgment on January 10, 2012. On October 17, 2012, the circuit court entered an order 

confirming the arbitration award. The order was not appealed. 
7

only be produced as they pertained to the requesting unit owner, so the requests for records 

pertaining to Rebecca Delorme and Penthouse 4A would not be produced. 

On December 19, 2012, Rebecca Delorme—acting as Dr. Clark’s agent—inspected 

and copied documents at Zalco’s office in Silver Spring, Maryland. She was refused access 

to the detailed billing reports or written advice of counsel. Ms. Delorme did, however, 

review four boxes of documents, and she received copies of all available legal invoices 

from 2009 to 2012. Two days later, Dr. Clark notified Harborview by letter that Ms. 

Delorme had not been given access to all the books and records requested, and renewed his 

requests for detailed billing reports (including any other supporting documentation for legal 

invoices) and for “legal opinions or the written advice of legal counsel.” 

Dr. Clark filed the underlying suit on January 16, 2013, seeking preliminary and 

permanent injunctions, specific performance, and damages for breach of contract in the 

amount of $30,000.00. He argued that the By-laws constituted a contract between him and 

Harborview, as well as between him and Zalco as Harborview’s managing agent. He 

alleged that Harborview and Zalco breached their contractual obligations by refusing to 

permit him to inspect the documents at issue, and that unless his request for preliminary 

injunction was granted, he faced the “fact” that Harborview would move to compel his 

claims to arbitration under Article XV of the By-laws, thereby requiring him to “go through 

the same time-consuming and costly arbitration process that a separate unit owner 

[Penthouse 4C] recently did.”3 Dr. Clark also alleged that due to the extensive problems 

 

3

 Dr. Clark also presented a copy of the Final Arbitration Award in the matter 

between Harborview and Penthouse 4C, LLC to the circuit court at the October 8, 2013 
8

that he encountered in owning the Unit, including that it was uninhabitable because of mold 

contamination, he needed the requested documents “immediately to see the impact on how 

his important investment is being treated.”

Harborview and Zalco filed a joint answer on March 5, 2013, admitting that they 

“refused to make the requested documents available to [Dr. Clark] because they constitute 

privileged attorney-client communications and privileged attorney work product in several 

adversarial matters including an ongoing lawsuit brought by [Dr. Clark] against the Council 

and Zalco.” As an affirmative defense, they claimed that Zalco was no longer in 

contractual privity with Harborview and, therefore, Zalco could not comply with any 

injunctive order regarding future books or records. That same day, Harborview and Zalco 

filed a verified counterclaim seeking a declaratory judgment as to whether RP § 11-116 

required them to provide Dr. Clark access to written legal advice and detailed billing 

reports that Harborview received from its attorneys in connection with the representation 

of Harborview and Zalco in various investigative matters, claims, and litigation brought by 

Dr. Clark. 

 The circuit court held a bench trial on October 8 and 9, 2013. The circuit court 

summarily granted Dr. Clark’s pre-trial motion to exclude Harborview’s expert witness 

 

trial. The Final Arbitration Award was admitted in to evidence, over objection, and on the 

understanding that it was a non-binding nisi prius decision. Therein, the arbitrators 

concluded that the plain language of RP § 11-116 was sufficient to require Harborview to 

allow Penthouse 4C, through its agent, to inspect the books and records maintained by 

Harborview including the written advice of legal counsel. The circuit court memorandum 

opinion, however, does not specifically address the resolution reached in the arbitration 

award.
9

who was expected to testify, based on his review of the relevant documents and his 

familiarity with RP § 11-116, that the books and records that Harborview is required to 

maintain and provide for inspection do not include the detailed billing reports of legal 

counsel. At trial, the parties presented lay witnesses’ testimony on the issue of the 

disclosure of detailed billing reports and written advice of counsel. Dr. Clark, for example, 

testified on cross-examination: 

[Dr. Clark]: I believe that in order for me to assess how my money is being 

spent and the use of attorneys or I think most would agree, the overuse of 

attorneys, I have the right to review what they are having you guys do. 

[Defense Counsel]: When you say over use of attorneys, what do you mean 

Sir? 

[Dr. Clark]: I mean there’s been nearly $2 Million the last few years spent 

on legal bills. That’s insane. 

* * * 

[Defense Counsel]: And do you expect when you sue Harborview that 

Harborview will retain Counsel?

[Dr. Clark]: No, I would expect not to have to sue them in fact. 

* * * 

[Defense Counsel]: Did you know that Harborview retained Counsel to 

defend the lawsuits that you brought against them? 

[Dr. Clark]: I did. 

[Defense Counsel]: And did you expect that the law firm that was defending 

Harborview would be paid for its services?

 * * * 

[Dr. Clark]: I would expect that they would be paid, but I want to know what 

they are being paid to do. 
10 

Dr. Clark continued, characterizing his need to inspect the detailed billings reports 

provided to Harborview from legal counsel as a need to ensure the “responsible use of 

funds,” and denying that the attorney-client privilege was applicable to those billing 

reports. However, as the circuit court noted later in its opinion, Dr. Clark admitted that the 

attorney-client privilege is applicable to the written advice of legal counsel. 

Harborview and Zalco offered testimony from Council President John Cochran and 

Zalco property managers Richard Brandis and Peter Fabreziani, Jr. Mr. Cochran testified 

that since April of 2009, the Harborview management files have been kept in locked 

cabinets: “I mean we have bars and padlocks on all the file cabinets and we have our 

Detailed Billing Reports that are kept in a fire proof safe in the manager’s office that only 

the On-site Manager has the key to.” Mr. Cochran testified to the precautions he 

implemented to avoid inadvertent disclosures of the billing records, stating that “I 

understood them to be confidential.” Former Zalco employee and Harborview property 

manager, Mr. Fabreziani, also testified to his understanding that detailed billing reports 

submitted to Harborview were confidential in nature. 

At the conclusion of trial, the court granted the defendants’ motion for judgment on 

Count III for breach of contract, finding that there was no evidence presented to support 

Dr. Clark’s damages claim. Later, on October 16, 2013, the circuit court issued its Order 

and Memorandum Opinion on the remaining judgments. Following a thorough 

examination of the history and purpose of § 11-116 of the Maryland Condominium Act, 

and after corresponding analysis of the attorney-client privilege and work product doctrines 

as applied in Maryland, the circuit court decided: 
11 

 Section 11-116 allows [Dr. Clark] to inspect and copy the e-mails 

requested by him concerning the financial well being of Harborview. The 

language of Section 11-116 indicates that “books and records” under that 

section relate to financial information, as it makes reference to “accounting 

practices” and “audits.” Md. Code Ann., Real Prop., § 11-116(a)-(b). 

[Harborview and Zalco] do not dispute this interpretation. Indeed, [President 

of the Harborview Council of Unit Owners, John] Cochran produced these 

e-mails to [Dr. Clark]. Cochran uncontrovertedly described his process of 

sifting through thousands of e-mails and supplying all of those fitting the 

description of [Dr. Clark’s] request.

 [Dr. Clark] is additionally entitled to inspect and copy the detailed 

billing reports or supporting documentation for Harborview’s legal invoices 

concerning him, his family, and his unit. Although [Harborview and Zalco] 

have asserted the attorney-client privilege and work product doctrine with 

respect to this information, they have not demonstrated the applicability of 

either of these. [Harborview and Zalco’s] blanket assertion is insufficient to 

overcome the presumption that information contained in detailed billing 

reports is generally unprotected. 

* * * 

This Court recognizes that, pursuant to Section 11-116(c)(3), [Dr. Clark] is 

unambiguously granted the right to inspect the written advice of 

Harborview’s legal counsel if he, his family, and his unit are the subject of 

that information. . . . Notwithstanding that statutory language, [Dr. Clark] 

may only obtain such information if the statute clearly abrogated the common 

law privilege and doctrine. . . . The language of Section 11-116 displays no 

express abrogation of the above-described common law privilege and 

doctrine. 

(Internal citations omitted). The court also decided that RP § 11-116 does not impliedly 

abrogate the common law attorney-client privilege and work product doctrine because it 

found that the existence of the privilege and the doctrine did not have the effect of 

“depriving the statute’s efficacy and rendering its provisions nugatory.” The circuit court 

explained: 

[S]ection 11-116 is read as being in harmony with the common law privilege 

and doctrine: it allows a unit owner who is the subject of the written advice 
12 

of the condominium’s legal counsel to inspect that information, provided that 

it is not protected by the common law attorney-client privilege or the work 

product doctrine. 

(Internal citations omitted). 

The court granted Dr. Clark’s prayer for injunctive relief and specific performance 

with respect to detailed billing reports and supporting documentation for legal invoices; 

however, Dr. Clark’s request for the written advice of legal counsel was denied. In granting 

the request for a declaratory judgment, the court proclaimed that RP § 11-116 “does not 

invalidate the common law attorney-client privilege and work product doctrine, which 

safeguard [written advice of legal counsel] from public view.”4

 The court declared, 

therefore, that RP § 11-116 does not require Harborview to make the written advice of 

legal counsel regarding Dr. Clark, his family, or his unit available for inspection and 

copying by Dr. Clark, the unit owner. 

 

4

 The Court of Appeals in Harford Mutual v. Woodfin Equities Corp., 344 Md. 399, 

414 (1997), explained that “when a declaratory judgment action is brought, and the 

controversy is appropriate for resolution by declaratory judgment, ‘the trial court must 

render a declaratory judgment.’” (quoting Christ by Christ v. Maryland Dep’t of Natural 

Res., 335 Md. 427, 435 (1994)). “[W]hether a declaratory judgment action is decided for 

or against the plaintiff, there should be a declaration in the judgment or decree defining the 

rights of the parties under the issues made.” Case v. Comptroller, 219 Md. 282, 288 (1959). 

Although the order of the circuit court in this case does not fully comply with the 

requirements by providing an entirely separate written declaratory judgment, we recognize 

the circuit court’s order as sufficiently clear to declare the rights and obligations of the 

parties. We further note that even were this not so, the circuit court’s failure to enter a 

proper declaratory judgment is a procedural error, rather than a jurisdictional error. Bushey 

v. N. Assurance Co. of Am., 362 Md. 626, 651 (2001). “This Court, in its discretion, may 

‘review the merits of the controversy and remand for entry of an appropriate declaratory 

judgment by the circuit court.’” Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 

256 (2009) (quoting Bushey, 362 Md. at 651). 
13 

Finally, the court noted that as of the date of the trial, it was uncontradicted that 

Harborview and Zalco had produced all prior e-mail correspondence regarding the 

financial well-being of the condominium. Accordingly, the circuit court denied injunctive 

relief for existing communications. However, the court enjoined Harborview and Zalco 

from refusing to produce any future e-mails between them concerning the financial wellbeing of the condominium. 

Harborview and Zalco filed a timely motion to alter or amend and request for 

hearing as well as a motion to stay the enforcement of the circuit court’s orders. The court 

denied both motions without a hearing on December 10, 2013. On December 17, 2013, 

Harborview and Zalco filed a notice of appeal from the circuit court’s orders of September 

20 (excluding expert witness), October 16 (final judgment), and December 10, 2013 

(denying reconsideration). 

Appellants present the following issues, which we have slightly rephrased, for 

review: 

I. Did the circuit court err by excluding the testimony of Harborview’s 

expert, Gehrig Cosgray, CPA? 

II. Did the circuit court err by concluding that the detailed billing reports of 

Harborview’s counsel are “books and records” subject to inspection by 

Clark under section 11-116 of the Condominium Act? 

III. Did the circuit court err in not accepting Harborview’s claims of attorneyclient privilege and work product in the detailed billing reports? 

IV. Did the circuit court err by entering injunctive relief against Zalco 

because Zalco’s management contract ended on December 31, 2012, and 

Zalco returned all of Harborview’s records and materials? 
14 

V. Did the circuit court err by enjoining Harborview to comply with future 

requests for e-mails between Harborview and Zalco concerning 

Harborview’s financial well-being? 

On December 26, 2013, Dr. Clark noted his cross-appeal from the Order of October 

16, 2013, and presents the following question for review: 

Was the circuit court legally correct in holding that § 11-116(c)(3)(v) of 

the [Maryland Condominium Act] does not require Harborview to make 

written advice of legal counsel for Harborview concerning Dr. Clark, his 

family, and his Unit available for inspection by Dr. Clark when he is the 

subject of the written legal advice?

We include additional facts in the discussion relevant to the issues there examined.

DISCUSSION 

 Dr. Clark argues that both Article X of the Harborview By-laws and RP § 11-116 

allow a unit owner to inspect and copy the detailed billing reports and the written legal 

advice of counsel without regard for whether any of the material is privileged.5

 However, 

 

5

 Article X of the By-laws of 100 Harborview Drive Condominium provides, in 

pertinent part: 

The Board shall keep the books of the Council, with detailed accounts 

in chronological order, noting all receipts and expenditures affecting the 

property and its administration, and specifying the maintenance and repair 

expenses of the common elements and any other expenses incurred. A 

separate account shall be maintained for each condominium unit, showing 

the amount of each assessment of common expenses . . . . The books together 

with all bills, statements and vouchers accrediting the entries made 

thereupon, all other records kept by the board . . . shall be available for 

examination and copying by any unit owner and any holder, insurer, or 

guarantor of a mortgage on any unit, and the duly authorized agents or 

attorneys of such unit owner, holder, insurer, or guarantor, during normal 

business hours, and after reasonable notice. All books and records of the 

Council shall be kept in accordance with good accounting practices, on a 

consistent basis, and an outside audit shall be made at least once a year with 
15 

as the circuit court recognized in constraining its analysis primarily to the application of 

RP § 11-116, the statutory provision is more specific in defining the material to be 

produced. Indeed, the “Rules of Construction” contained in RP § 11-124 direct as follows: 

Conflicts in provisions (e) If there is any conflict among the provisions of 

this title, the declaration, condominium plat, bylaws, or rules adopted 

pursuant to § 11-111 of this title, the provisions of each shall control in the 

succession listed hereinbefore commencing with “title”. 

Likewise, the Court of Appeals has instructed that in regard to the MCA, “[i]f there is any 

conflict between the provisions of the various documents governing the condominium, the 

statute controls, then the declaration, plat, bylaws, and rules in that order.” Ridgely Condo. 

Ass’n, Inc. v. Smyrnioudis, 343 Md. 357, 361 (1996) (citing RP § 11-124(e)). Accordingly, 

we look to RP § 11-116 (and not the By-laws) to determine what documents are available 

for inspection and copying by Harborview unit owners.

I.

Privileged Communications Under 

§ 11-116 of the Maryland Condominium Act. 

Harborview and Zalco maintain that the longstanding common law and statutory 

principles of attorney-client privilege, the work product doctrine, and the basic tenets of 

the adversarial system must control over RP § 11-116 where the unit owner and council of 

unit owners are directly adverse to one another. They assert that Dr. Clark seeks an unfair 

 

respect to common expenses. The cost of such audit or audits shall be 

considered part of the common expense. 

 
16 

advantage in ongoing litigation by obtaining, via the Condominium Act, what would 

otherwise be prohibited to him in discovery. Harborview and Zalco also contend that 

reading RP § 11-116 to allow the discovery of privileged litigation materials would have 

the effect of abrogating longstanding common law in Maryland. 

This Court analyzes a circuit court’s interpretation of statutory provisions de novo. 

Powell v. Breslin, 195 Md. App. 340, 346 (2010) (citing Maryland–National Capital Park 

& Planning Comm’n v. Anderson, 395 Md. 172, 181 (2006)), aff’d, 421 Md. 266 (2011); 

see also Moore v. State, 388 Md. 446, 452 (2005). “Although the factual determinations 

of the circuit court are afforded significant deference on review, its legal determinations 

are not.” Goss v. C.A.N. Wildlife Trust, Inc., 157 Md. App. 447, 456 (2004). “[W]here the 

order involves an interpretation and application of Maryland statutory and case law, [we] 

must determine whether the lower court’s conclusions are ‘legally correct’ under a de novo

standard of review.” Walter v. Gunter, 367 Md. 386, 392 (2002) (citing In re Mark M., 365 

Md. 687, 704-05 (2001)).

a. The phrase “books and records” includes written advice of 

counsel and detailed billing reports. 

The MCA establishes the statutory framework for a condominium regime, including 

the scope and duties of condominium development and ownership in Maryland. Ridgely 

Condo. Ass'n, Inc., 343 Md. at 360. Our focus in this appeal is on RP § 11-116 of the 

MCA, which provides, in pertinent part:

§ 11-116. Books and records to be kept; audit; inspection of records. 
17 

(a) Books and records to be kept. ─ The council of unit owners shall keep 

books and records in accordance with good accounting practices on a 

consistent basis.

* * * 

(c) Inspection of records. ─ (1)(i) Except as provided in paragraph (3) of this 

subsection, all books and records, including insurance policies, kept by the 

council of unit owners shall be maintained in Maryland or within 50 miles of 

its borders and shall be available at some place designated by the council of 

unit owners for examination or copying, or both, by any unit owner, a unit 

owner’s mortgagee, or their respective duly authorized agents or attorneys, 

during normal business hours, and after reasonable notice. 

 (ii) If a unit owner requests in writing a copy of financial statements 

of the condominium or the minutes of a meeting of the board of directors or 

other governing body of the condominium to be delivered, the board of 

directors or other governing body of the condominium shall compile and 

send the requested information by mail, electronic transmission, or personal 

delivery: 

* * * 

 

(3) Books and records kept by or on behalf of a council of unit owners 

may be withheld from public inspection, except for inspection by the 

person who is the subject of the record or the person’s designee or 

guardian, to the extent that they concern:

(i) Personnel records, not including information on individual salaries, 

wages, bonuses, and other compensation paid to employees; 

(ii) An individual’s medical records; 

 (iii) An individual’s personal financial records, including assets, 

 income, liabilities, net worth, bank balances, financial history or 

activities, and creditworthiness; 

 (iv) Records relating to business transactions that are currently in 

 negotiation; 

(v) The written advice of legal counsel; or 

(vi) Minutes of a closed meeting of the board of directors or other 

governing body of the council of unit owners, unless a majority of a 

quorum of the board of directors or governing body that held the 

meeting approves unsealing the minutes or a recording of the minutes 

for public inspection. 

(Emphasis added). 
18 

Harborview and Zalco argue that the meaning of the phrase “books and records” 

contained in the statute does not include written advice of counsel or detailed billing 

reports. Dr. Clark contends—and the circuit court found—that in the context of the statute, 

the phrase “books and records” does include the detailed billing reports provided to 

Harborview and Zalco by their legal counsel, and that through the exception to the allowed 

withholdings, emphasized above, Dr. Clark is statutorily entitled to those documents. Dr. 

Clark also argues that the circuit court erred by not finding that RP § 11-116 abrogated the 

common law attorney-client privilege and work product doctrine. He maintains that he is 

entitled, through the MCA, to inspect the written advice of opposing counsel. 

 The goal of any statutory interpretation analysis is to give effect to the legislative 

purpose or policy underlying the statute. Mayor & Town Council of Oakland v. Mayor & 

Town Council of Mountain Lake Park, 392 Md. 301, 316 (2006) (“Mayor of Oakland”); 

State Dep’t of Assessments & Taxation v. Maryland-Nat’l Capital Park & Planning 

Comm’n, 348 Md. 2, 13-14 (1997). Where, as here, the applicable phrase “books and 

records” is not defined, this Court first looks to the plain and ordinary meaning of the words 

in determining that purpose or policy. Schreyer v. Chaplain, 416 Md. 94, 108 (2010) 

(citing Pelican Nat’l Bank v. Provident Bank, 381 Md. 327, 336 (2004); Comptroller of the 

Treasury v. Kolzig, 375 Md. 562, 567 (2003)). We will refrain from “resort[ing] to subtle 

or forced interpretations for the purpose of extending or limiting the operations of the 

statute.” Maryland-Nat’l Capital Park & Planning Comm’n, 348 Md. at 14-15 (citing 

Brown v. State, 285 Md. 469, 474 (1979)). The phrase must be reviewed in context and 

interpreted in conformity with the meaning of its companion terms. See Lockshin v. 
19 

Semsker, 412 Md. 257, 275 (2010) (citations omitted) (“We . . . do not read statutory 

language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain 

language to the isolated section alone.”). If, after a plain meaning analysis, the purpose of 

the statute remains ambiguous, we will look for other clues—e.g., longstanding 

interpretation, the overall legislative scheme, the legislative history, and the general 

purpose and intent of the statute. Breslin v. Powell, 421 Md. 266, 286-88 (2011). 

 On its face, RP § 11-116 clearly establishes that the phrase “books and records” 

necessarily includes documents maintained “in accordance with good accounting practices 

. . . including insurance policies”; “financial statements of the condominium”; and “the 

minutes of a meeting of the board of directors or other governing body.” The exceptions 

enumerated in RP § 11-116(c)(3) permit the reasonable inference that “books and records” 

maintained by the Council of Unit Owners also includes, among other things, personnel 

records, records relating to current business transactions, and the written advice of counsel. 

The latter documents however, are protected by the exception to disclosure, which provides 

that they may be withheld from inspection by all except “the person who is the subject of 

the record or the person’s designee or guardian[.]” RP § 11-116(c)(3). 

 In its Memorandum Opinion, the circuit court recognized that, “pursuant to Section 

11-116(c), [Dr. Clark] is unambiguously granted the right to inspect the written advice of 

Harborview’s legal counsel if he, his family, and his Unit are the subject of that 

information.” We agree that the plain language of RP § 11-116 allows Dr. Clark to request 

access to the written advice of counsel, as well as the billing records of counsel, so long as 

he and/or his unit are “the subject of the record.” However, it is also clear that these records 
20 

would normally be subject to the attorney-client privilege and work product doctrine, 

especially where, as here, Dr. Clark and Harborview are adverse parties in ongoing 

litigation. We arrive then, at the juncture where we must examine whether the exception 

to the exception to disclosure contained in RP § 11-116(c)(3) abrogates the attorney-client 

privilege and work product doctrine. 

b. The MCA Does Not Abrogate the Attorney-Client Privilege or the 

Work Product Doctrine. 

i. Modalities of Abrogation 

Harborview and Zalco contend, and the circuit court found, that RP § 11-116(c)(3) 

“does not abrogate” the common law attorney-client privilege. As a point of clarification, 

we understand that the parties do not employ the term “abrogate” as it is traditionally used.6 

To be sure, none of the parties contend that RP § 11-116 repeals or extinguishes the entire 

attorney-client privilege as a part of the general common law in Maryland. Rather, Dr. 

Clark posits that RP § 11-116 creates an exception to the application of the attorney-client 

privilege by mandating disclosure of Harborview’s confidential legal records to him, as a 

unit owner and subject of the records, without further qualification. Nevertheless, as we 

shall see, although Maryland courts most frequently use “abrogate” to denote the full 

 

6

 Black’s Law Dictionary defines abrogation as “[t]he abolition or repeal of a law, 

custom, institution, or the like.” Black’s Law Dictionary 8 (10th ed. 2014). Consistent 

with this definition, the courts of Maryland have used the term “abrogate” when referring 

to an enactment or judicial decision that repeals or replaces another law or principle in its 

entirety. See, e.g., Robinson v. State, 353 Md. 683, 694 (1999) (abrogating the common 

law crimes of assault and battery by codifying the entire subject-matter); Loh v. Safeway 

Stores, Inc., 47 Md. App. 110, 126-27 (1980) (abrogating the common law principle that 

where a plaintiff has accepted satisfaction in full from one tort-feasor the right to proceed 

against other joint tort-feasors is extinguished).
21 

removal or replacement of a law or principle, the term is sometimes employed where a 

limited exception to the common law is created. See e.g., Fagerhus v. Host Marriot Corp.,

143 Md. App. 525, 535 (2002).

In Boblitz v. Boblitz, the Court of Appeals recognized that where the legislature 

intends, “[the common law] may be changed by legislative act as Art. 5 of the Declaration 

of Rights expressly provides[.]” 296 Md. 242, 274 (1983) (quoting Pope v. State, 284 Md. 

309, 341-42 (1979)), holding modified by Bozman v. Bozman, 376 Md. 461, 470 (2003) 

(judicially abrogating the interspousal immunity doctrine as “a vestige of the past [and] no 

longer suitable to our people” and stating that where no legislative barrier to abrogation 

exists, the Court of Appeals also has the power and authority to abrogate a common law 

rule). In the seminal case on abrogation, Lutz v. State, 167 Md. 12, 15 (1934), the Court of 

Appeals examined the precedent contained in the Ruling Case Law:7

 In 25 R. C. L. 1054, it is said that: “It has been said that statutes are 

not presumed to make any alterations in the common law further than is 

expressly declared, and that a statute, made in the affirmative without any 

negative expressed or implied, does not take away the common law. The 

rules of the common law are not to be changed by doubtful implication, nor 

overturned except by clear and unambiguous language. In order to hold that 

a statute has abrogated common law rights existing at the date of its 

 

7 Ruling Case Law (cited as R.C.L.) was an American Legal Encyclopedia published 

from 1865 to 1929 by McKinney, William Mark, 1865-1955, ed.; Rich, Burdett Alberto, 

1854-1925, [from old catalog] joint ed.; Porterfield, Charles, [from old catalog] joint 

ed.; Farnham, Henry P. (Henry Philip), 1863-1929, joint ed.; Fisher, S. B., [from old 

catalog] joint ed. It was the predecessor to American Jurisprudence. The full original title 

is “Ruling case law as developed and established by the decisions and annotations 

contained in Lawyers reports annotated, American decisions, American reports, American 

state reports, American and English annotated cases, American annotated cases, English 

ruling cases, British ruling cases, United States Supreme court reports, and other series of 

selected cases.”
22 

enactment, it must clearly appear that they are repugnant to the act, or 

the part thereof invoked, that their survival would in effect deprive it of 

its efficacy and render its provisions nugatory.” 

 Where, however, a statute and the common law are in conflict, the 

common law yields to the statute to the extent of the inconsistency, 

Sutherland on Stat. Const. § 294; 12 C. J. 186, and a statute which deals with 

an entire subject–matter is generally construed as abrogating the common 

law as to that subject.

(Emphasis supplied). More recently, the Court of Appeals has reiterated this principle by 

stating, “[i]t is a generally accepted rule of law that statutes are not presumed to repeal the 

common law further than is expressly declared.” Robinson, 353 Md. at 693 (citation 

omitted) (internal quotation marks omitted). Additionally, where a statute deals with an 

entire subject-matter, that statute is often construed as impliedly abrogating the common 

law as to that subject. Id. (citing Lutz, 167 Md. at 15; Watkins v. State, 42 Md. App. 349, 

353-54 (1979)). 

 Of these two common modalities by which a statute may be held to abrogate the 

common law—express abrogation and abrogation by adoption of a statutory scheme that 

deals with an entire subject matter, see Lutz, 167 Md. at 15—the latter is easily identifiable 

and has figured prominently in Maryland case law. In Robinson v. State, the Court of 

Appeals held that the 1996 enactment establishing the statutory crime of assault replaced 

the common law crimes of assault and battery. 353 Md. at 694. The Court stated: 

To be sure, the language of the 1996 assault statutes contain no specific 

words of repeal or abrogation, nor is there any conflict between those 

statutes and the common law. We have determined, however, that the 

statutes as adopted represent the entire subject matter of the law of assault 

and battery in Maryland, and as such, abrogate the common law on the 

subject.
23 

Id.; see also Watkins, 42 Md. App. at 354 (“The [escape] statute as adopted represented 

the entire subject matter of the law of escape in Maryland and thereby abrogated the 

common law of escape.”). 

 In contrast, whether a statute constitutes an express abrogation of the common law 

engenders a murkier analysis. Typically, “abrogation” is declared in the circumstance 

where the law, right, or duty previously held is completely extinguished. See Loh, 47 Md. 

App. at 114, 118. And, despite the language in Lutz, it is not always necessary that the 

statute contain words expressing the intention to abrogate the law, right or duty previously 

held. See, e.g., id. at 126-27 (concluding that the Uniform Contribution Among Tortfeasors Act, which did not include express language of abrogation, but provided that “[a] 

release by the injured person of one joint tort-feasor . . . does not discharge the other tortfeasors unless the release so provides,” Maryland Code (1957, 1979 Repl. Vol.) Article 50 

§ 19, operated to abrogate the common law rule that the release of one joint tort-feasor 

releases all tort-feasors). This is consistent with the principle articulated in Lutz—where 

the common law rule and the statute are in such direct conflict that they cannot co-exist. 

167 Md. at 15. 

In Moaney v. State, 28 Md. App. 408, 413 (1975), this Court observed that although 

under the common law “it appears that a person accused of grand larceny is entitled to be 

tried upon an indictment returned by a grand jury,” that principle was abrogated through 

both legislative enactment and rule change. Id. at 414-15. The statute in question, as 

enacted in 1973, and the contemporaneous amendments to the Maryland Rules, provided 

that a person charged with a felony, other than a felony within the jurisdiction of the district 
24 

court, and who has not requested a preliminary hearing within ten days after being informed 

of such hearing, or for whom a preliminary hearing has been held, may be charged by 

information at the election of the State’s Attorney. Id. We observed that “[w]hether to 

seek indictment or charge by information is now at the election of the State’s Attorney 

within the conditions specified,” and that “the common law right has also been changed by 

amendment to the Maryland Rules.” Id. at 414-15. Although the right to be charged 

through grand jury indictment was not categorically dissolved, we found that the common 

law rule regarding persons charged with a felony under limited circumstances was rendered 

completely without effect. See id.

In Fagerhus v. Host Marriott Corp., we addressed a case involving a limited 

departure from the common law rather than a full abrogation. 143 Md. App. 525, 535-36, 

cert. denied, 369 Md. 572 (2002). When presented with the question of whether 

Maryland’s recreational use statute (“MRUS”) “abrogate[d] traditional premises liability 

law under which a property owner must take reasonable care to make his premises safe or 

to warn of dangerous conditions,” we more narrowly determined that “the language of th[e] 

subtitle and its legislative history make it clear that the legislature intended to carve out an 

exception.” Id. Regarding the relevant portion of the recreational use statute, we stated: 

Section 5-1103 of the MRUS plainly states: 

Except as specifically ... provided in § 5–1106 ..., an owner of land 

owes no duty of care to keep the premises safe for entry or use by 

others for any recreational or educational purpose, or to give any 

warning of a dangerous condition ... on the premises to any person 

who enters on the land for these purposes.

* * * 
25 

We need not speculate whether the legislature intended the MRUS to limit 

traditional premises liability standards, because it codified an intent to do so. 

The purpose of this subtitle is to encourage any owner of land to make 

land, water, and airspace above the land and water areas available to 

the public for any recreational and educational purpose by limiting the 

owner's liability toward any person who enters on land, water, and 

airspace above the land and water areas for these purposes. NR § 5–

1102(a). 

Id. at 536-37 (emphasis in original) (footnote omitted). In the context of a direct textual 

conflict with the common law rule (owner must take reasonable care versus owner owes 

no duty of care) and a “purpose provision” in the statute articulating the legislature’s intent 

to limit liability, the Fagerhus Court noted that the statute “explicitly abrogates common 

law principles of premises liability.” Id. at 542. In the matter sub judice, however, we lack 

such explicit guidance from the General Assembly. 

 Here, it is clear that RP § 11-116 contains no specific words of repeal or abrogation. 

Moreover, on its face, the statute does not directly conflict with the common law attorneyclient privilege such that the two cannot co-exist. The statute neither invalidates nor 

supplants the entire subject matter of attorney-client privilege or work product doctrine. 

Under similar circumstances, the Court of Appeals examined the history of both the statute 

and the common law to determine whether the common law right is “repugnant to the act, 

or the part thereof invoked, that [its] survival would in effect deprive it of its efficacy and 

render its provisions nugatory.” Nickens v. Mount Vernon Realty Grp., LLC, 429 Md. 53, 

75 (2012) (citations and internal quotation marks omitted). 

In Nickens, the Court of Appeals addressed whether a mandatory eviction notice 

ordinance in Baltimore City abrogated or superseded a property owner’s long-recognized 
26 

right to peaceable self-help. 429 Md. at 73 (2012). Absent express language abrogating 

or superseding the common law, the Court looked to the legislative history of the ordinance 

and conducted an extensive review of the origin and rationale underlying the common law 

principle. The Court stated: 

Our goal is, as much as possible, to harmonize [the ordinance] with the 

common law remedy of peaceable self-help (as derived from its antecedent 

English statutes), for “various consistent and related enactments, although 

made at different times and without reference to one another, nevertheless 

should be harmonized as much as possible.” 

Id. at 74 (quoting Pete v. State, 384 Md. 47, 65-66 (2004)). 

Returning to our review of RP § 11-116, absent a clear repeal or abrogation, we will 

focus on the legislative history and the cardinal rule of statutory construction—to give 

effect to the intent of the legislature. Mayor of Oakland, supra, 392 Md. at 316. More 

specifically, we must ascertain whether the language of the statute can be harmonized with 

the common law, or whether the intent of the legislature was to grant such broad access to 

records that it rendered the statute “clearly contrary to the common law right [so] that the 

two cannot occupy the same space.” Nickens, 429 Md. at 74. 

ii. Legislative History of RP § 11-116(c)(3)

The Horizontal Property Act—precursor to the Maryland Condominium Act—was 

enacted in 1963 and contained a requirement that accounting books and records of 

expenditures be maintained and available to condominium owners for examination. 1963 

Md. Laws, ch. 387 (H.B. 1). Section 130 of the Horizontal Property Act provided: 

The manager or board of directors, or other form of administration provided 

in the by-laws, shall keep books with detailed accounts in chronological 

order, of the receipts and of the expenditures affecting the building and its 
27 

administration and specifying the maintenance and repair expenses of the 

common elements and any other expenses incurred. The books and vouchers 

accrediting the entries made thereupon shall be available for examination by 

the co-owners, their duly authorized agents or attorneys, at normal business 

hours. All books and records shall be kept in accordance with good 

accounting practices and an outside audit be made at least once a year. 

(Codified as Md. Ann. Code (1957, 1966 Repl. Vol.), Art. 21 § 130). The 1963 enactment 

clearly contemplated “books with detailed accounts . . . of the receipts and of the 

expenditures . . . kept in accordance with good accounting practices.” It made no provision 

for the maintenance or availability of documents beyond those directly concerning the 

finances of the condominium. 

 In 1974, pursuant to the Laws of Maryland, chapter 12, the Maryland Horizontal 

Property Act was recodified as part of the Annotated Code of Maryland at §§ 11–101 et 

seq. of the Real Property Article. Later that year, the Horizontal Property Act was renamed 

as the Maryland Condominium Act. 1974 Md. Laws, ch. 641 (S.B. 714). The original 

audit and inspection provision in the MCA was recodified as RP § 11-113 and provided: 

(A) The manager, board of directors, or other person in charge of 

administration provided in the by-laws shall keep books and records in 

accordance with good accounting practices on a consistent basis.

(B) On the request of the unit owners of at least 5 percent of the units, an 

audit by an independent certified public accountant shall be made not more 

than once in any consecutive 12 month period. The cost of the audit shall be 

a common expense. 

(C) Every record kept by the council of unit owners shall be available 

for examination and copying by any unit owner, his duly authorized 

agents or attorneys, at his expense, during normal business hours, and after 

reasonable notice.

1974 Md. Laws, ch. 641 (S.B. 714) (emphasis added). The 1974 MCA provision 

maintained a focus on “books and records in accordance with good accounting practices.” 
28 

However, the addition of a mandate that “[e]very record kept by the council . . . shall be 

available for examination[,]” left open the argument that “books and records” under the 

MCA could be construed more broadly than under the Horizontal Property Act. 

 In 2004, the General Assembly partially addressed this problem by passing House 

Bill 879, which “alter[ed] the kinds of books and records a homeowners association may 

withhold from public inspection.” 2004 Md. Laws, ch. 382 (H.B. 879). The bill 

simultaneously altered the books and records inspection provisions for Cooperative 

Housing Corporations and Homeowner’s Associations, as well as Condominiums. Id. The 

Maryland Attorney General submitted written testimony to the House Environmental 

Matters Committee in support of HB 879, describing the purpose of the legislation: 

Access to the books and records of the governing body of the association is 

of vital importance to unit and home owners who wish to participate in the 

democratic process of their associations regardless of the type of commonownership community they live in. However, some of the records maintained 

by the governing bodies contain sensitive information, such as private 

information about individual home or unit owners, employees, or legal 

proceedings or advice. 

* * * 

Section 11-109.1 of the Maryland Condominium Act provides that meetings 

of a Board of Directors may be closed for discussion of [] most of [the] same 

topics as those listed in the Homeowners Association Act. However, Section 

11-116 of the Act provides that “every record” of the condominium be kept 

available for inspection by unit owners and provides no exception for any 

topic.

* * * 

HB 879 provides a uniform standard for unit and homeowner access to 

association records . . . and limits the records that may be withheld from unit 

and homeowners to those topics that the General Assembly has already 

deemed to be sensitive in nature. 
29 

Cooperative Housing Corporations, Condominiums, and Homeowners Associations - 

Books and Records: Hearing on H.B. 879 Before the H. Envtl. Matters Comm., 2004 Leg., 

418th Sess. (Md. 2004) (statement of the Office of the Attorney General, Consumer 

Protection Division). 

 Effective October 1, 2004, the new exceptions to disclosure provided: 

[(c)](2) Books and records kept by or on behalf of a council of unit owners 

may be withheld from public inspection to the extent that they concern: 

(i) Personnel records; 

(ii) An individual’s medical records;

(iii) An individual’s financial records;

 (iv) Records relating to business transactions that are currently in 

 negotiation; 

(v) The written advice of legal counsel; or

 (vi) Minutes of a closed meeting of the board of directors or other 

 governing body of the council of unit owners. 

2004 Maryland Laws Ch. 382 (H.B. 879) (codified as RP § 11-116).8 House Bill 879 

created, without caveat, six categories of documents that were not subject to mandatory 

inspection at the request of a unit owner. Among those was the written advice of legal 

counsel. Id.

 Prompted, in part, by the 2006 final report of the Governor’s Task Force on 

Common Ownership Communities,9 the General Assembly enacted the 2009 Home 

 

8

Identical language was also added to Maryland Code (1975, 1999 Repl. Vol., 2004 

Supp.), Corporations and Associations § 5-6B-18.3 (cooperative housing corporations), 

and RP § 11B-112 (homeowner’s associations). 

9

 The Governor’s Task Force on Common Ownership Communities was established 

by 2005 Laws of Maryland, chapter 469 (S.B. 229). The Task Force expressed particular 

interest in bringing uniformity to the disclosures made to prospective condominium unit 

buyers under what it considered to be apparent inconsistencies under sections 11-126 and 
30 

Financial Accountability Act (“HFA”). 2009 Md. Laws, ch. 659 (H.B. 137). The HFA 

also made identical amendments to several provisions of the Maryland Cooperative 

Housing Corporation Act and the Maryland Homeowners Association Act in addition to 

the MCA. All of the revisions authorized the withholding of certain documents from an 

association member or unit owner.10

 Id. The specific revisions to RP § 11-116 (and the 

other Acts) prohibited a Council of Unit Owners from withholding any books or records 

from inspection by the person who is the subject of the record. See RP § 11-116(c)(3) 

(reproduced supra). Thus, the protections for sensitive information implemented by the 

2004 amendment were left intact with the exception that otherwise withholdable 

 

11-135 of the condominium act. The Task Force noted that “disclosures var[ied] 

depending on whether the transaction is the initial sale of a unit (RP 11-126), or if the 

transaction is a resale of a unit in a condominium that has 7 or more units (RP 11-135(a)) 

or fewer than 7 units (RP 11-135(b)).” Governor’s Task Force on Common Ownership 

Communities, Final Report, at 31 (Dec. 31, 2006). 

10 The provisions of the Cooperative Housing Corporation Act and the Maryland 

Homeowners Association Act—codified at Md. Code (1975, 2014 Repl. Vol.), 

Corporations and Associations Article (“CA”) § 5-6B-26 and Md. Code (1974, 2010 Repl. 

Vol.), Real Property Article § 11B-112, respectively—were amended to add language 

identical to that added to § 11-116. Both sections provide: 

(2) Books and records kept by or on behalf of a [cooperative housing 

corporation or homeowners association] may be withheld from public 

inspection, except for inspection by the person who is the subject of the 

record or the person's designee or guardian, to the extent that they concern:

* * * 

(v) The written advice of legal counsel; or

CA § 5-6B-26, RP § 11B-112. Neither of these provisions has been discussed or construed 

by the appellate courts of Maryland. 
31 

documents should be made available to a unit owner whose person or property is the subject 

of the document(s). 

Tracing the history of the “books and records” inspection provisions applicable to 

Maryland condominiums and common ownership communities, we cannot conclude that 

the intent of the legislature was to grant such broad access to documents that the MCA 

abrogates fundamental common law principles and protections, such as the attorney-client 

privilege and work product doctrine. Nor does RP § 11-116 so clearly dominate the 

subject-matter to warrant implied abrogation of the common law. Rather, the General 

Assembly has evinced the intention to provide the information necessary to property 

owners so that they might assess and protect their investments, while simultaneously 

recognizing the importance of protecting certain documents from unnecessary disclosure. 

Clearly, the exception to the exception was intended to permit a unit owner to obtain certain 

documents, otherwise protected from disclosure, if they concern the unit owner. Indeed, 

there may be a variety of legal records in Harborview’s files to which a unit owner is 

entitled, such as a letter from the unit owner’s own counsel, or a letter from another third 

party (e.g. an advice letter written by the Maryland Attorney General). But nothing in the 

legislative history suggests that the provision permits a unit owner to trample protections 

and privileges held and not waived by another, such as a document that contains the legal 

advice of Harborview’s counsel, or even, a document that contains the personal financial 

information of another unit owner. The General Assembly is well aware that the attorneyclient privilege is a fundamental right under Maryland law, and we discern no intent by the 
32 

General Assembly, express or implied, to abrogate the attorney-client privilege by its 

various amendments to RP § 11-116 over the years. 

iii. Attorney-Client Privilege Is Enshrined in Statute 

The common law attorney-client privilege was codified over 42 years ago,11 in what 

is now Maryland Code, (1973, 2013 Repl. Vol.), § 9-108 of the Courts and Judicial 

Proceedings Article (“CJP”). The statute provides that “[a] person may not be compelled 

to testify in violation of the attorney-client privilege.” The Court of Appeals has declared 

that the statute also “prevents the disclosure of a confidential communication made by a 

client to his attorney for the purpose of obtaining legal advice.” Zook v. Pesce, 438 Md. 

232, 240-41 (2014) (quoting E.I. du Pont de Nemours & Co. v. Forma–Pack, Inc., 351 Md. 

396, 414 (1998)) (internal quotation marks omitted); see also CR-RSC Tower I, LLC v. 

RSC Tower I, LLC, 202 Md. App. 307, 363 (2011), aff’d, 429 Md. 387 (2012). 

 “The General Assembly is presumed to have had, and acted with respect to, full 

knowledge and information as to prior and existing law and legislation on the subject of 

the statute and the policy of the prior law.” Bd. of Educ. of Garrett Cnty. v. Lendo, 295 

Md. 55, 63 (1982). Additionally, when undertaking a statutory analysis, the law disfavors 

 

11 The attorney-client privilege was codified in Maryland through the 1973 

enactment that created the Courts and Judicial Proceedings Article. 1973 Md. Laws, 1st 

Sp. Sess., ch. 2 (S.B. 1). The revisor’s note to the session law provides, in part: 

This section is new language which does not presently appear in the Code, 

but is a common law principle that has been long established. Morris v. State, 

4 Md. App. 252, 254 (1968); Bris Realty v. Phoenix, 238 Md. 84, 89-90 

(1965). 
33 

repeal by implication. Id. “[Y]et another cardinal rule of statutory construction is that 

repeals not expressed will not be found unless demanded by irreconcilability or 

repugnancy.” Id. at 62-63. When possible the Maryland courts endeavor to harmonize 

statutory provisions in a manner that avoids needless conflict between them. See, e.g., 

Henriquez v. Henriquez, 413 Md. 287, 306 (2010) (construing Family Law Article § 12-

103 to be in harmony with sections 7-107, 8-214, and 11-110 to avoid an “illogical result”). 

Here again, absent an express declaration abrogating or carving out an exception to 

the statutory attorney-client privilege, we decline to imply such abrogation or exception. 

Rather, realizing that the General Assembly is cognizant of the existence and applicability 

of the statutory attorney-client privilege, we are compelled to harmonize the two 

provisions. In so doing, we hold that RP § 11-116 does not abrogate the common law work 

product doctrine or common law and statutory attorney-client privilege.12 Further, we 

agree with the circuit court that reading RP § 11-116 in harmony with the common law 

“allows a unit owner who is the subject of the written advice of the condominium’s legal 

counsel to inspect that information, provided that it is not protected by the common law 

attorney-client privilege or the work product doctrine.” 

 

12 Harborview and Zalco also argue that an interpretation of RP § 11-116 that 

requires the production of privileged material or work product to an adverse party in the 

specific context of litigation involving a condominium creates an absurd result in the face 

of an attorney’s ethical duties under Rules of Professional Conduct 1.4 and 1.6. However, 

we need not address this contention for the resolution of this matter. 
34 

c. Applying the Attorney-Client Privilege and Work Product 

Doctrine in the Context of an MCA “Books and Records” 

Request.

 We now examine two distinct categories of documents—the written advice of legal 

counsel and detailed billing reports from legal counsel—and discern the extent to which 

the attorney-client privilege and work product doctrine act as brakes on the potentially 

unfettered disclosures that may otherwise be sought through RP § 11-116. We preface our 

discussion of these documents with a brief overview of the attorney-client privilege and 

work product doctrine. 

 In addition to being hallowed common law principles, the attorney-client privilege 

and the work product doctrine are also embedded in Maryland law through statute and rule. 

The attorney-client privilege is “based upon the public policy that an individual in a free 

society should be encouraged to consult with his attorney whose function is to counsel and 

advise him and he should be free from apprehension of compelled disclosures by his legal 

advisor.” Zook, 438 Md. at 241 (quoting State v. Pratt, 284 Md. 516, 520 (1979)) (internal 

quotation marks omitted). Indeed, the attorney-client privilege is one of “the oldest of the 

privileges for confidential communications known to the common law.” Id. (quoting 

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). 

 “Once the attorney-client privilege is invoked, the trial court decides as a matter of 

law whether the requisite privilege relationship exists, and if it does, ‘whether or not any 

such communication is privileged.’” Ehrlich v. Grove, 396 Md. 550, 574 (2007) (quoting 

E.I. du Pont de Nemours & Co., 351 Md. at 415). Under Maryland law, the party asserting 

the privilege bears the burden of establishing whether it applies to evidence in the case. 
35 

E.I. du Pont de Nemours & Co., 351 Md. at 415. “Although the court makes a legal 

determination about the existence of a protective privilege, . . . [it] makes a factual 

determination with respect to satisfaction of the burden.” Catler v. Arent Fox, LLP, 212 

Md. App. 685, 702-03 (citation omitted), reconsideration denied (Sept. 3, 2013), cert. 

denied sub nom. Blumberg v. Fox, 435 Md. 502 (2013). “[T]he burden of substantiating 

non-discoverability . . . cannot be met by conclusory allegations or mere assertions.” Id. 

(quoting Gallagher Evelius & Jones, LLP v. Joppa Drive-Thru, Inc., 195 Md. App. 583, 

598 (2010)) (internal quotation marks omitted). Where a person asserting privilege has 

met his or her initial burden that “person may not be compelled to testify in violation of 

the attorney-client privilege,” and this prohibition extends to bar the compelled production 

of privileged documents. See, e.g., Ashcraft & Gerel v. Shaw, 126 Md. App. 325, 350-51 

(1999). 

 Similarly, the work product doctrine “protects from discovery the work of an 

attorney done in anticipation of litigation or in readiness for trial.” Catler, 212 Md. App. 

at 702 (quoting E.I. du Pont de Nemours & Co., 351 Md. at 407). Maryland Rule 2-402(d) 

provides: 

Work Product. Subject to the provisions of sections (f) and (g) of this Rule, 

a party may obtain discovery of documents, electronically stored 

information, and tangible things prepared in anticipation of litigation or for 

trial by or for another party or by or for that other party’s representative 

(including an attorney, consultant, surety, indemnitor, insurer, or agent) only 

upon a showing that the materials are discoverable under section (a) of this 

Rule and that the party seeking discovery has substantial need for the 

materials in the preparation of the case and is unable without undue hardship 

to obtain the substantial equivalent of the materials by other means. In 

ordering discovery of these materials when the required showing has been 

made, the court shall protect against disclosure of the mental 
36 

impressions, conclusions, opinions, or legal theories of an attorney or 

other representative of a party concerning the litigation.

(Emphasis added). In E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., the Court of 

Appeals recognized that, like the attorney-client privilege, “the party claiming the privilege 

bears the burden ‘to substantiate its non-discovery assertion by a preponderance of the

evidence[.]’” 351 Md. at 409 (quoting Kelch v. Mass Transit Admin., 287 Md. 223, 229 

(1980)). Determining “whether a document or other tangible thing was ‘prepared in 

anticipation of litigation or for trial’ . . . is essentially a question of fact, which, if in dispute, 

is to be determined by the trial judge following an evidentiary hearing.” Id. (quoting Kelch,

287 Md. at 228). 

 There are, however, a few key distinctions between the attorney-client privilege and 

the work product doctrine. We recognized in Blair v. State that “[a]lthough the attorneyclient privilege and the work product doctrine ‘appear to embrace the same concepts of 

confidentiality and zealous client advocacy, the work product doctrine is separate and 

distinct from the attorney-client privilege.’” 130 Md. App. 571, 605 (2000) (quoting E.I. 

du Pont de Nemours & Co., 351 Md. at 406); see also Pratt v. State, 39 Md. App. 442, 446 

n.2 (1978) (“The work product doctrine . . . is separate from the attorney-client privilege 

and serves to protect materials from discovery that are not subject to another privilege.”), 

aff’d, 284 Md. 516 (1979). Although “the attorney-client privilege is held by the client[,] 

. . . the protections associated with the work product doctrine belong to the lawyer.” Blair, 

130 Md. App. at 605 (citation omitted). Moreover, the attorney-client privilege is narrowly 

construed, whereas the work product doctrine is broader in scope. E.I. du Pont de Nemours 
37 

& Co., 351 Md. at 406 (citing Leonen v. Johns–Manville, 135 F.R.D. 94, 96 (D.N.J. 1990)). 

Finally, even if the party asserting protection under the work product doctrine is successful 

in meeting its burden, the party seeking discovery can gain access to the material by 

demonstrating “substantial need” and “undue hardship.” See Md. Rule 2–402(d). Central 

to the case before us is the Court of Appeals’s direction that in examining the application 

of either privilege or protection, we look to the nexus between the creation of the material 

and the prospect of litigation. E.I. du Pont de Nemours & Co., 351 Md. at 410 (quoting 

APL Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 15 (D. Md. 1980)). 

i. The Written Advice of Legal Counsel 

We can envision no more fundamental an example of a confidential communication 

between an attorney and client than written legal advice transmitted from the attorney 

directly to the client. Indeed, as the circuit court noted in its memorandum opinion, “[b]oth 

parties hav[e] admitted that the attorney-client privilege is applicable to the written advice 

of legal counsel.” We acknowledge that the attorney-client privilege is not an absolute bar, 

as it is subject to waiver, both express and implied. See Fraidin v. Weitzman, 93 Md. App. 

168, 228 (1992) (citing Pratt, 284 Md. at 521). However, Dr. Clark does not argue that 

Harborview and Zalco waived the privilege with regard to the written advice of legal 

counsel; instead, he solely argues that he is entitled to the documents pursuant to RP § 11-

116. Moreover, Dr. Clark’s trial testimony confirms he seeks written legal advice that 

concerns not only the “prospect of litigation[,]” E.I. du Pont de Nemours & Co., 351 Md.

at 410, but the ongoing administrative actions and civil litigation between him and 

Harborview.
38 

Having already determined, supra, that RP § 11-116 does not abrogate the attorneyclient privilege or work product doctrine, we observe that especially where a condominium 

unit owner seeking the production of the written advice of legal counsel is engaged in 

ongoing litigation against the condominium’s governing association, “the pursuit of truth 

and justice” does not compel the production of otherwise privileged material.13

 See 

Newman v. State, 384 Md. 285, 301 (2004). Rather, the facts in the matter sub judice weigh 

in favor of the “public interest[] . . . need to promote candor in communications between 

attorneys and their clients.” See id. at 302. Therefore, we affirm the declaratory judgment 

of the circuit court and hold that the written advice of legal counsel, protected by the 

attorney-client privilege, is not discoverable under RP § 11-116 absent waiver.

14

 

 

13 We note, that although this interpretation forecloses the discovery of documents 

between parties who are directly adverse absent waiver, unit owners would remain able to 

obtain the written advice of counsel in cases in which they are a co-plaintiff or co-defendant 

with the Council of Unit Owners or in matters against non-unit owners in which the Council 

undertakes the prosecution of a claim or defense on behalf of all unit owners and affecting 

the requesting owner or unit. 

14 The circuit court did not decide, nor was it necessary to decide, whether the 

written advice of counsel was also protected by the work product doctrine. We note that 

the work of an attorney done in anticipation of litigation is also protected from discovery 

via RP § 11-116 absent waiver or a showing sufficient to satisfy the requirements of 

Maryland Rule 2-402(d). Under Maryland Rule 2-402, generally, a party may obtain 

discovery regarding any matter that is relevant to the subject matter involved in the action 

and not otherwise privileged or protected by the work product doctrine. However, 

subsection (d) of the rule provides for discovery of documents otherwise protected upon a 

showing that the requestor has a “substantial need for the materials in the preparation of 

the case and is unable without undue hardship to obtain the substantial equivalent of the 

materials by other means.” 
39 

ii. The Detailed Billing Reports 

In seeking the disclosure of the detailed billing reports, Dr. Clark asserts his 

significant interest as a unit owner in the financial transactions and decisions of 

Harborview. As a unit owner, Dr. Clark owns an undivided percentage interest in the 

common elements and is correspondingly responsible to pay a percentage of Harborview’s 

common expenses. RP § 11-107. Pursuant to the MCA and Harborview’s governing 

documents, Harborview may levy assessments and impose liens on unit owners for unpaid 

common expenses. RP § 11-110. Those common expenses include legal expenses.15

 

 Dr. Clark avers that the circuit court was correct in determining that Harborview 

and Zalco failed to meet their burden to establish that either the attorney-client privilege or 

the work product doctrine are applicable to the detailed billing reports of legal counsel. Dr. 

Clark contends that rather than attempting to meet the initial burden—by, for example, 

introducing redacted copies of the detailed billing reports—Harborview and Zalco waited 

to assert the impossibility of satisfying their burden in a post-trial motion. Thus, Dr. Clark 

argues that Harborview and Zalco should not now be allowed to re-open the case after 

having failed to prove its defense in trial. 

Harborview maintains that Dr. Clark’s interest in the disclosure of legal expenses 

affecting the financial well-being of Harborview, and thereby the unit owners, was satisfied 

 

15 As a poignant example of the scale of this expense in recent years, Dr. Clark notes 

that the Harborview Condominium Budget Narrative for 2013 lists legal expenses in the 

amount of $890,950.00. Dr. Clark contends this is a significant expense for all of the 

Harborview unit owners, but Harborview and Zalco maintain that a sizable portion of the 

amount was incurred defending against the multiple actions initiated by Dr. Clark and his 

common interest agreement partner, James Ancel. 
40 

through the production of legal invoices. Regarding the detailed billing reports received 

from legal counsel, Harborview and Zalco contend that they met the burden to prove that 

both the attorney-client privilege and the work product doctrine are applicable. 

During the October 8, 2013, trial, Harborview and Zalco introduced a sample 

detailed billing report as an exemplar. This exhibit (unrelated to the matter between these 

parties) contained billing detail to the tenth of an hour and included, among other things, 

the name of the attorney who performed the work and a brief description of the nature of 

the work. Mr. Fabreziani, former property manager employed by Zalco to manage 

Harborview, testified that he had received detailed billing reports from counsel for 

Harborview and that “[i]t would have an accounting of all the details in terms of times, 

what the attorneys were working on, [and] documents that were prepared.” President of 

the Harborview Council of Unit Owners, John Cochran, also testified that he received 

detailed billing reports from counsel for Harborview. He further testified that, in his 

experience as an attorney, a detailed billing report is “a communication to the client that 

says to the client what I’ve been doing, what my mental impressions are, what work I’ve 

been doing[.]” In an effort to avoid inadvertent disclosure or waiver, Harborview did not 

introduce any specific detailed billing reports into evidence to show that the attorney-client 

privilege or work product doctrine applied.

16

 

 

16 Because Harborview and Zalco’s motions to stay the circuit court’s October 16, 

2013, order before both the circuit court and this Court were denied, the question of what 

portion, if any, of the detailed billing reports may have been privileged is largely academic. 

Nevertheless, the parties dispute on appeal whether the actual privileged records could have 

been produced in camera to the court and opposing counsel. The Court of Appeals has 

recognized the dilemma presented by allowing opposing counsel to view allegedly 
41 

In Maxima Corp. v. 6933 Arlington Development Limited Partnership, we stated: 

“[a]ttorneys’ bills are generally not protected by the attorney-client privilege; and to the 

extent that portions of a bill might have been privileged, [a party’s] blanket assertion [i]s 

inadequate.” 100 Md. App. 441, 455 (1994). Addressing the level of detail contained in 

an attorney’s billing report, we quoted the Ninth Circuit, stating: 

 

attorney-client privileged documents submitted in camera, where it was unclear whether 

the court had determined that the privilege applied to those documents. See Ehrlich, 396 

Md. at 574. A workable solution already exists through the modalities by which the courts 

of Maryland have employed in camera inspection. “If the court determines that the 

defendant has established the need to inspect the material at issue, then ‘the court may elect 

to review the records alone, to conduct the review in the presence of counsel, or to permit 

review by counsel alone, as officers of the court, subject to such restrictions as the court 

requires to protect the records' confidentiality.’” Fields v. State, 432 Md. 650, 667 (2013) 

(quoting Zaal v. State, 326 Md. 54, 87 (1992)). We recognize that where “an in camera

inspection is an intrusion on . . . attorney-client privilege and the work product doctrine, 

then, clearly, expanded in camera review is a more serious intrusion on those privileges 

because opposing counsel is being made privy to allegedly privileged information.” 

Ehrlich, 396 Md. at 571. As the Second Circuit observed in Chase Manhattan Bank v. 

Turner & Newall, PLC, 

If opposing counsel is allowed access to information arguably protected by 

the privilege before an adjudication as to whether the privilege applies, a 

pertinent aspect of confidentiality will be lost, even though communications 

later deemed to be privileged will be inadmissible at trial. 

* * * 

Moreover, attorneys cannot unlearn what has been disclosed to them in 

discovery. Some of the economies gained by the practice of pre-adjudication 

disclosure may thus be offset by later proceedings seeking to unscramble the 

effects of the disclosure of materials subsequently held to be privileged. 

964 F.2d at 165. In cases like the one sub judice, an expanded in camera proceeding, “one 

in which counsel for [both parties] participate or permitting the review of the records by 

counsel in their capacity as officers of the court,” Zaal, 326 Md. at 86, is often an 

unsatisfactory resolution. This is, in large part, why the Court of Appeals recognized in 

Zaal and Fields that in camera review by a judge without the presence of counsel is 

sometimes warranted. 
42 

[T]he identity of the client, the amount of the fee, the identification of 

payment by case file name, and the general purpose of the work performed 

are usually not protected from disclosure by the attorney-client privilege. 

However, correspondence, bills, ledgers, statements, and time records which 

also reveal the motive of the client in seeking representation, litigation 

strategy, or the specific nature of the services provided, such as researching 

particular areas of the law, fall within the privilege. 

Id. at 456-57 (quoting Clarke v. Am. Commerce Nat’l Bank, 974 F.2d 127, 129 (9th Cir. 

1992)). 

 In the instant case, the circuit court found that Harborview and Zalco failed to carry 

their burden of showing that attorney-client privilege applied to all or portions of the 

requested detailed billing reports, and stated: “[Harborview and Zalco’s] blanket assertion 

is insufficient to overcome the presumption that information contained in detailed billing 

reports is generally unprotected.” (citing Maxima Corp., supra, 100 Md. App. at 457). We 

affirm the court’s ruling. Indeed, as we have previously stated, “a finding that information 

in attorneys’ bills is within the attorney-client privilege is the exception and not the general 

rule.” Id. at 457-58. 

Harborview and Zalco also contend that their detailed billing reports are protected 

by the broader work product doctrine. The threshold for application of the work product 

doctrine is that the material must have been prepared “in anticipation of litigation or in 

readiness for trial.” Catler, 212 Md. App. at 702 (quoting E.I. du Pont de Nemours & Co.,

351 Md. at 407). Based on the timing of the requests and ongoing litigation between the 

parties, we may infer that this is the case for at least some of the detailed billing reports. 

However, we have recognized two categories of attorney work product: fact and opinion. 

Blair, 130 Md. App. at 607-08 (citing Hickman v. Taylor, 329 U.S. 495, 507-08 (1947); 
43 

E.I. du Pont de Nemours & Co., 351 Md. at 407-08; Nutramax Labs., Inc. v. Twin Labs. 

Inc., 183 F.R.D. 458, 462 (D. Md. 1998)). Fact work product consists of generally those

“materials gathered by counsel (or at counsel’s instructions) in preparation of trial.” Id. at 

607 (quoting Joseph F. Murphy, Jr., Maryland Evidence Handbook § 904(A) (3d ed. 

1999)). Opinion work product concerns the attorney’s mental processes. See E.I. du Pont 

de Nemours & Co., 351 Md. at 407-08. 

The circuit court found that Harborview and Zalco did not present sufficient 

evidence to establish that the detailed billing reports did, in fact, contain facts developed 

by their attorneys’ efforts in preparation of a case or opinions the attorneys had formed 

about any phase of the litigation. Accordingly, we hold that without a showing that either 

the attorney-client privilege or the work product doctrine applies to bar the production of 

the requested detailed billing reports, the circuit court correctly declined to apply those 

privileges to the reports otherwise properly available to Dr. Clark as financial records 

maintained by the governing body of the condominium under RP § 11-116. 

II.

 

The Availability of Injunctive Relief to Enforce 

an MCA “Books and Records” Request. 

 We review the exercise of the circuit court’s discretion to grant or deny a request 

for injunctive relief under an “abuse of discretion” standard. El Bey v. Moorish Sci. Temple 

of Am., Inc., 362 Md. 339, 354-55 (2001) (citing Colandrea v. Wilde Lake Cmty. Ass’n, 

Inc., 361 Md. 371, 394 (2000)); see also Maryland Comm’n on Human Relations v. State 

Dep’t of Health & Mental Hygiene v. Baltimore Cnty., 281 Md. 548, 554 (1977); Downey 
44 

Commc’s, Inc., 110 Md. App. 493, 521 (1996). Where an appeal concerns the issuance of 

a permanent injunction, we are guided by the principles of injunctive relief: 

An injunction is a writ framed according to the circumstances of the case 

commanding an act which the court regards as essential to justice, or 

restraining an act which it esteems contrary to equity and good conscience. 

Thus, injunctive relief is a preventative and protective remedy, aimed at 

future acts, and is not intended to redress past wrongs. 

El Bey, 362 Md. at 353-54 (emphasis in original) (citations and internal quotations marks 

omitted). Thus, the pertinent question presented when reviewing the grant of a permanent 

injunction is “whether [appellee] produced evidence that [appellant’s] conduct caused, or 

was likely to cause, . . . the type of [irreparable] harm necessary to justify the court’s 

issuance of injunctive relief.” Id. at 355. 

In Coster v. Department of Personnel, we relied on American Jurisprudence to 

require the prospect of irreparable injury before granting an injunction: 

A court of equity reserves its injunctive process for the protection of property 

or other rights against actual or threatened injuries of a substantial character 

which cannot be adequately remedied in a court of law. That is to say, the 

jurisdiction or power to grant injunctive relief should be exercised only when 

intervention is essential to effectually protect property or other rights, of 

which equity will take cognizance, against irreparable injuries. The very 

function of an injunction is to furnish preventive relief against irreparable 

mischief or injury, and the remedy will not be awarded where it appears to 

the satisfaction of the court that the injury complained of is not of such 

character. Suitors may not resort to a court of equity to restrain acts, actual 

or threatened, merely because they are illegal or transcend constitutional 

powers, unless it is apparent that irremediable injury will result. The mere 

assertion that apprehended acts will inflict irreparable injury is not enough. 

The complaining party must allege and prove facts from which the court can 

reasonably infer that such would be the result.

36 Md. App. 523, 525-26 (1977) (quoting 42 Am. Jur. 2d Injunctions §§ 48, 49). 

Importantly, mere allegations or arguments by a party that it will suffer irreparable damage 
45 

are insufficient bases for injunctive relief; “facts must be adduced to prove that [the 

requesting party’s] apprehensions are well-founded.” El Bey, 362 Md. at 356 (citing Smith 

v. Shiebeck, 180 Md. 412, 421 (1942); Mayor & Council of Salisbury v. Camden Sewer 

Co., 135 Md. 563, 573 (1920)). 

Here, the dispute settlement mechanism under the MCA provides:

If any unit owner fails to comply with this title, . . . the unit owner may be 

sued for damages caused by the failure or for injunctive relief, or both, by 

the council of unit owners or by any other unit owner. 

RP § 11-113(c). Thus, the MCA contemplates injunctive relief as an appropriate vehicle 

for enforcing the rights and obligations it creates. Because the failure to comply with a 

unit owner’s rights under RP § 11-116 “cannot be readily, adequately, and completely 

compensated for with money,” see Coster, 36 Md. App. at 525-26 (quoting 42 Am. Jur. 2d 

Injunctions § 49), injunctive relief may be granted “to effectually protect [the] rights” of 

the party requesting equitable relief, see id. (quoting 42 Am. Jur. 2d Injunctions § 48). 

Therefore, absent a sufficient showing by Harborview and Zalco of the applicability of a 

privilege against disclosure, Dr. Clark is entitled to the production of detailed billing 

reports as financial documents maintained by Harborview and Zalco pursuant to RP § 11-

116, and to injunctive relief to enforce that production when it has been denied. 

 Contrastingly, the circuit court’s order enjoining Harborview and Zalco to produce 

any future e-mail correspondence between them concerning Harborview is not supported 

by any reasonable apprehension of irreparable harm. As all parties acknowledge, the 

management contract between Harborview and Zalco expired on December 31, 2012. A 

separate management company has since taken over operations at Harborview. The record 
46 

does not contain any indication that communications between Harborview and Zalco—

regarding the financial well-being of Harborview—will continue in any form. As such, 

this request is likely moot and inappropriate for an award of permanent injunctive relief. 

See El Bey, 362 Md. at 355 (citing Maryland–Nat’l Capital Park & Planning Comm’n v. 

Washington Nat’l Arena, 282 Md. 588, 615 (1978)) (“Injunctive relief normally will not 

be granted unless the petitioner demonstrates that it will sustain substantial and irreparable 

injury as a result of the alleged wrongful conduct.”). Accordingly, we vacate the order of 

the circuit court awarding specific performance directing Harborview and Zalco to produce 

any future e-mail correspondence and enjoining them from refusing. However, with regard 

to the remaining orders for specific performance and injunctive relief, we cannot conclude 

that the circuit court abused its discretion. 

III.

The Exclusion of Harborview’s Expert Witness 

 Harborview maintains that its accounting expert was prepared to opine, inter alia, 

that detailed billing reports of legal counsel are not part of the financial books and records 

that a condominium association is required to keep in accordance with good accounting 

practices. The events leading to the court’s decision to exclude this testimony began on 

March 13, 2013, when the pretrial scheduling order was issued. According to the order, 

Harborview and Zalco were to designate their expert witnesses by June 11, 2013, and trial 

was set for October 8, 2013. Harborview maintained that it had not received a copy of the 

scheduling order and was unaware of the deadline. Several days after Harborview failed 

to meet the deadline for the identification of expert witnesses, Dr. Clark served 
47 

interrogatories on June 13, 2013, asking Harborview to identify its expert witnesses. On 

July 15, 2013, Harborview responded to those interrogatories and identified Mr. Gehrig 

Cosgray, CPA, as an expert witness. Dr. Clark then moved, on August 7, 2013, to exclude 

Mr. Cosgray as an expert witness due to Harborview’s failure to comply with the 

scheduling order. 

On September 12, 2013, Dr. Clark identified his rebuttal expert witnesses, and on 

September 26, 2013, Dr. Clark noticed Mr. Cosgray’s deposition. The same day Dr. Clark 

noticed the deposition, the circuit court summarily granted his motion to exclude Mr. 

Cosgray as an expert witness. Nevertheless, Dr. Clark deposed Mr. Cosgray on October 

1, 2013. At trial, Dr. Clark did not introduce any expert testimony. 

Harborview contends that the circuit court erred by excluding the testimony of its

expert witness. Harborview maintains that despite not receiving the scheduling order and 

thereby, admittedly, missing the deadline for the disclosure of expert witnesses, it

substantially complied with the order by notifying Dr. Clark of its expert witness a month 

after the deadline and almost three months before trial. Moreover, it argues that Dr. Clark 

was able to identify his own rebuttal expert witnesses on September 12, 2013, and that he 

deposed Mr. Cosgray prior to trial. Harborview asserts that although the appropriate 

sanction for a party’s failure to comply with a discovery order is a matter of discretion for 

the circuit court, Livingstone v. Greater Washington Area Anesthesiology & Pain 

Consultants, 187 Md. App. 346, 388 (2009) (citing Maddox v. Stone, 174 Md. App. 489, 

501 (2007)), the court’s failure to exercise discretion requires reversal. We do not agree 

that the court’s decision is so manifestly erroneous as to warrant reversal. 
48 

 The circuit court must enter a scheduling order in most civil actions pursuant to 

Maryland Rule 2-504(a)(1). In Dorsey v. Nold, 362 Md. 241, 255-56 (2001), the Court of 

Appeals stated:

The principal function of a scheduling order is to move the case efficiently 

through the litigation process by setting specific dates or time limits for 

anticipated litigation events to occur.

* * * 

Rule 2-504 is not a discovery rule. It is not included in the Title 2, Chapter 

400 rules on discovery and, except as provided in § (b)(2)(A), is not intended 

either to enlarge or constrict the scope of discovery. Its function, to the extent 

it references discovery in § (b)(1), is to provide for the setting of time limits 

on certain discovery events; it is, in that regard, a rule of timing, not of 

substance.

In Maddox v. Stone, this Court, in reviewing the above language, concluded: 

[A]lthough scheduling orders should not be applied in a manner that is 

“unyieldingly rigid,” litigants must make good faith and reasonable efforts 

to substantially comply with the court’s deadlines[.]

174 Md. App. at 499 (citing Naughton v. Bankier, 114 Md. App. 641, 653 (1997). We 

have deemed substantial compliance with a scheduling order to be sufficient where the 

opposing party has not suffered prejudice. See, e.g., Wormwood v. Batching Sys., Inc., 124 

Md. App. 695, 702-05 (1999). Still, the overriding tenet persists that, “[t]he decision to 

admit or exclude ‘expert’ testimony is within the broad discretion of the trial court and that 

decision will be sustained on appeal unless it is shown to be manifestly erroneous.” Kleban 

v. Eghrari–Sabet, 174 Md. App. 60, 61 (2007) (quoting Wood v. Toyota Motor Corp., 134 

Md. App. 512, 520 n.8 (2000)) (internal quotation marks omitted). 
49 

 In the instant case, the order of the circuit court excluding the expert testimony of 

Mr. Cosgray summarily states: 

 Upon consideration of the Plaintiff’s Motion to Exclude Expert 

Testimony of Gehrig Cosgray, CPA (#37), Defendant’s Opposition to 

Plaintiff’s Motion to Exclude Expert Testimony of Gehrig Cosgray, CPA 

(#37/1) and Plaintiff’s Reply in Support of Motion to Exclude Expert 

Testimony of Gehrig Cosgray, CPA (#37/2), it is this 20th day of September 

2013, by the Circuit Court for Baltimore City, hereby 

ORDERED that, Plaintiff’s Motion to Exclude Expert Testimony of 

Gehrig Cosgray, CPA (#37) is GRANTED.

There is no accompanying memorandum, and the record reveals that the court did not hold 

a hearing on the motion. For those reasons, Harborview asserts that it cannot be discerned 

from the summary exclusion of its expert witness whether the circuit court exercised proper 

discretion or granted the exclusion based on a predetermined position that exclusion was 

mandatory. See Gunning v. State, 347 Md. 332, 351 (1997) (“[A] judge’s unyielding 

adherence to [a] predetermined position amounts to a . . . failure to properly exercise 

discretion.”); Maus v. State, 311 Md. 85, 108 (1987) (“When a court must exercise 

discretion, failure to do so is error, and ordinarily requires reversal.”). However, the record 

reveals that the court had ample time to consider all parties’ filings and arguments. 

Additionally, it appears that Mr. Cosgray’s expert testimony was to be, in large part, 

his legal opinion on the scope of “books and records” under RP § 11-116. Harborview

designated Mr. Cosgray as its expert witness in its July 15, 2013, answers to interrogatories. 

Those answers, which were attached to Appellee’s motion to exclude, provided, in 

pertinent part: 

Mr. Cosgray is expected to testify based on his review of the relevant 

documents and depositions and his familiarity with Section 11-116 of the 
50 

Maryland Real Property Article that the books and records Harborview is 

required to maintain and provide for inspection do not include the detailed 

billing reports prepared by outside counsel for Harborview and are submitted 

to Harborview for purposes of communicating itemized descriptions of legal 

work performed for Harborview by its outside counsel.[17]

 

“Witnesses (whether lay or expert) generally may not testify to their conclusions on legal 

issues, because their opinions would not be helpful to the court or the jury.” 6 Lynn 

McLain, Maryland Evidence, State & Federal § 701:7, at 864-65 (3d. ed.). 

In Burch v. Prudential Insurance Company of America, 184 Md. 664, 671 (1945), 

the Court of Appeals considered the propriety of witness testimony regarding the legal 

effect of bookkeeping practices. In that case, the appellant brought an action upon a special 

agency contract to collect renewal commissions on life insurance premiums. Id. at 666-

67. The contract provided for “the payment of commissions, with respect to business 

procured by the agent personally, on all premiums and considerations collected by him and 

paid to the company in cash during the continuance of the contract.” Id. The policy in 

question, however, contained a provision stating that “upon proof that the insured had 

become totally and permanently disabled before the age of sixty, [the insurer] would waive 

the payment of certain premiums otherwise payable under this policy.” Id. at 673 (internal 

quotation marks omitted). The sole question presented to the Court of Appeals was 

whether this waiver of premium payments constituted a discontinuance of payment or 

should be deemed constructive payment for the purpose of the agency contract and 

commission payments. Id. The appellant argued that the trial court erred in excluding 

 

17 The subject of Mr. Cosgray’s testimony was provided to the circuit court again 

through proffer—using substantially similar language—at the October 9, 2013, hearing. 
51 

testimony as to bookkeeping practices and custom and usage among insurance companies 

regarding premiums waived during disability. Id. The Court of Appeals disagreed, stating 

that questions calling for conclusions regarding the legal effect of company bookkeeping 

practices “were not designed to elicit any new facts as to that practice, but merely called 

for an expression of opinion upon a point which . . . was for the court to decide” Id. at 671. 

 We are presented with a similar circumstance. Just as the construction of an 

unambiguous contract is a matter of law to be decided by the court, Connors v. Gov't 

Employees Ins. Co., 442 Md. 466, 480 (2015) (citations omitted), so too is the construction 

of a statute such as RP § 11-116, see Davis v. Slater, 383 Md. 599, 604 (2004) (citations 

omitted) (stating that interpreting the Maryland Code is a matter of law). In the matter 

before us, we cannot conclude that the circuit court either abused or failed to exercise its 

discretion in excluding the testimony of Harborview’s expert witness. 

IV.

Cross-appeal 

In his cross-appeal, Dr. Clark argues that the circuit court erred in conducting its 

statutory construction analysis and that it erred in determining that the provisions of RP §

11-116 can be read in harmony with the attorney-client privilege and the work product 

doctrine. We have already addressed these contentions above. The arguments advanced 

on cross-appeal are not otherwise distinct. 

JUDGMENTS OF THE CIRCUIT 

COURT FOR BALTIMORE CITY 

AFFIRMED IN PART AND VACATED 

IN PART. ORDER AWARDING 

SPECIFIC PERFORMANCE 
52 

DIRECTING APPELLANTS/CROSSAPPELLEES TO PRODUCE ANY 

FUTURE E-MAILS CONCERNING 

THE FINANCIAL WELL-BEING OF 

HARBORVIEW AND ENJOINING 

THEM FROM REFUSING TO 

PRODUCE SUCH FUTURE E-MAILS 

VACATED. ALL OTHER ORDERS OF 

THE CIRCUIT COURT FOR 

BALTIMORE CITY AFFIRMED. 

COSTS TO BE DIVIDED EQUALLY 

AMONG THE PARTIES.