Balt. City Police Dept. v. Esteppe

Baltimore City Police Department v. David Esteppe, et al., No. 3128, September Term, 2018. Opinion by Fader, C.J. LOCAL GOVERNMENT TORT CLAIMS ACT — SCOPE OF EMPLOYMENT — PROCEEDINGS TO ESTABLISH LIABILITY OF LOCAL GOVERNMENT TO PAY JUDGMENT A plaintiff who seeks to establish a local government’s liability under the LGTCA for a judgment entered against its employee must initiate a proceeding that (1) joins the local government entity as a party and (2) offers the parties an opportunity to litigate whether the tortfeasor employee committed the relevant tort while acting within the scope of employment. A plaintiff may initiate such a proceeding either within the underlying tort action or as a separate action. LOCAL GOVERNMENT TORT CLAIMS ACT — SCOPE OF EMPLOYMENT — ACTIONS BY LAW ENFORCEMENT OFFICERS The circuit court erred in concluding that police officer’s conduct fell within the scope of that officer’s employment as a matter of law where the record (1) contained evidence that the officer’s conduct was motivated by personal reasons, and (2) is devoid of any factual support for the contention that the officer acted, even in part, in furtherance of the police department’s interests.

Circuit Court for Baltimore City Case No. 24-C-13-001297 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 3128 September Term, 2018 ______________________________________ BALTIMORE CITY POLICE DEPARTMENT v. DAVID ESTEPPE, ET AL. ______________________________________ Fader, C.J., Leahy, Eyler, Deborah S. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: August 27, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-27 15:20-04:00 Suzanne C. Johnson, Clerk Appellee David Esteppe, the plaintiff below, obtained a judgment against appellee Adam Lewellen, the defendant below. Mr. Esteppe then sought to recover the judgment from the appellant, the Baltimore City Police Department (the “Department”), which is Mr. Lewellen’s former employer.

The Department’s appeal raises two separate issues— one a matter of procedure and the other of substance—relating to a local government’s liability under the Local Government Tort Claims Act (“LGTCA”), § 5-303 of the Courts & Judicial Proceedings Article (Repl. 2013; Supp. 2019). First, the Department contends that the circuit court erred in ruling on the basis of the “Motion for Declaratory Relief to Enforce Judgment” Mr. Esteppe filed in the same action in which he obtained his judgment against Mr. Lewellen. We hold that a plaintiff who seeks to hold a local government liable under the LGTCA for a judgment entered against its employee must initiate a proceeding that (1) joins the local government entity as a party and (2) offers the parties an opportunity to litigate whether the tortfeasor employee committed the relevant tort while acting within the scope of employment. Here, although Mr. Esteppe did not formally join the Department as a party to the proceeding, the Department participated without objecting on that ground and, therefore, waived that objection.

Accordingly, we conclude that the circuit court did not err procedurally in ruling on Mr. Esteppe’s motion. Second, the Department argues that the circuit court erred in determining that Mr. Lewellen acted within the scope of his employment when he engaged in the tortious conduct that gave rise to the judgment against him. That tortious conduct included submitting an affidavit in support of a search warrant for Mr. Esteppe’s home in which Mr. Lewellen falsely claimed that a confidential informant had purchased drugs from Mr. Esteppe. The Department first contends that serious criminal conduct can never fall within the scope of an officer’s employment.

The Court of Appeals recently rejected that argument in Baltimore City Police Department v. Potts, 468 Md. 265, 274, 305-06 (2020).1 The Department also contends that even if serious criminal conduct can fall within the scope of an officer’s employment, the circuit court erred as a matter of law in concluding that it did based on the record in this case. We agree with the Department that the record is devoid of any factual support for Mr. Esteppe’s present contention that Mr. Lewellen’s perjury was committed, even in part, in furtherance of the Department’s interests. Accordingly, we will reverse the circuit court’s judgment and remand for further proceedings. BACKGROUND The Underlying Criminal Case In early 2012, Mr. Esteppe ended a romantic relationship with Brandi Chelchowski that had begun in late 2011.

Subsequently, Ms. Chelchowski stalked and threatened Mr. Esteppe, called and texted him dozens of times each day, and, he suspected, damaged his vehicle. Mr. Esteppe changed his phone number and sought multiple peace orders. In March 2012, Ms. Chelchowski threatened Mr. Esteppe to the effect that she had “cop friends” and that he was “going down.” Mr. Lewellen was one such “close” friend, whom Ms. Chelchowski had known “for years.” 1 We stayed this case pending the outcome of the Court of Appeals’s decision in Potts. 2 On March 19, Ms. Chelchowski “said something to the effect of, ‘You’re going down next week.’” Eight days later, on March 27, then-Officer Lewellen applied for a warrant to search Mr. Esteppe’s home on the pretext that Mr. Esteppe was a drug dealer. In the affidavit supporting the warrant application, Mr. Lewellen stated, among other things, that he recently had orchestrated a controlled purchase in which Mr. Esteppe sold drugs to a confidential informant.

Specifically, Mr. Lewellen averred that he had the confidential informant set up the buy via telephone, searched the confidential informant to ensure that he was “free of any contraband,” dropped off the informant at Mr. Esteppe’s residence, and “took a covert position with a clear and unobstructed view of” the location as the confidential informant “approached the door and knocked.” Then, according to Mr. Lewellen’s affidavit: The front door opened, and I observed a white male whom I recognized to be David Esteppe . . . . [The confidential informant] entered the location and the door closed behind [him]. About 2 minutes later [the confidential informant] exited the location and met me nearby at a predetermined location. [The confidential informant] then provided me with 1 green ziplock bag containing a white powder substance, suspected cocaine. I then searched [the confidential informant] and [he] was found free of any other contraband. [The confidential informant] advised me upon entering the location [that the confidential informant] asked Mr. Esteppe if he could get “one,” which is street terminology for one unit of cocaine. [The confidential informant] then gave Mr. Esteppe $20.00 in US Currency and Mr. Esteppe provided [the confidential informant] with 1 green ziplock bag containing a white powder substance. In what appears to be a boilerplate portion of the affidavit, Mr. Lewellen identified a number of things that, in his experience, drug dealers commonly keep in connection with 3 their trafficking activities, including “large amounts of . . . currency”; “paraphernalia used in the manufacture, packaging, preparation, and weighing of [controlled dangerous substances] in preparation for trafficking”; “firearms and ammunition”; “financial records and financial instruments”; “records of their drug transactions”; “books, records and other documents that identify” the names of associates; telephones and pagers; photographs and videos of themselves and their associates; “identification and travel documents”; and vehicles.

The search warrant application sought permission to seize any of those items, as well as any illegal drugs. Based on Mr. Lewellen’s affidavit, the court issued a warrant authorizing the search of Mr. Esteppe’s home and seizure of items found there. Later that day, Mr. Lewellen and several other officers “busted in” through Mr. Esteppe’s front door and executed the search warrant. During the search, the officers repeatedly accused Mr. Esteppe of being a drug dealer and asked him to identify the location of the drugs in his home.

The officers did not uncover any illegal drugs. They did, however, find and seize a black powder rifle and a shotgun that Mr. Esteppe kept for hunting. Mr. Esteppe was arrested and charged for unlawful possession of a firearm based on a relatively new law—of which Mr. Esteppe had been unaware—that disqualified him from possessing firearms.2 When he was arrested, Mr. Esteppe heard Mr. Lewellen say that “Brand[i] led us to it.” 2 Mr. Esteppe was convicted of assault in 2008, a fact that Mr. Lewellen listed under the “Criminal History” section of his warrant application. Unknown to Mr. Esteppe at the time, just months before his arrest the General Assembly had made it illegal for anyone convicted of a crime of violence to possess a rifle or shotgun.

See 2011 Md. Laws, ch. 164, codified at Md. Code Ann., Pub. Safety § 5-206 (Repl. 2018; Supp. 2019). 4 After his arrest and release awaiting trial, Mr. Esteppe, along with other witnesses, informed the Department of their suspicions that he may have been set up. The Department’s Internal Affairs Division began an investigation, during which the confidential informant listed in the warrant application stated that he had never seen or met Mr. Esteppe, nor had he ever set foot in Mr. Esteppe’s house or called him on the phone. Investigators obtained phone records for the confidential informant and Mr. Esteppe, which verified that the two had not had any phone contact.

After he was interviewed for the investigation, the confidential informant contacted Mr. Lewellen, who met with the confidential informant and pressured him to recant the information he had provided to the investigators. Mr. Lewellen had the informant call the investigators over speakerphone in Mr. Lewellen’s presence and “direct[ed] him what to say.” The informant complied at the time, but then subsequently reported that interaction to the Internal Affairs investigators. Subsequently, the State entered a nolle prosequi in the criminal case against Mr. Esteppe, thereby dropping all charges. In two separate charging documents, the State charged Mr. Lewellen with perjury as to the affidavit, misconduct in office, and obstruction, among other crimes.

He pleaded guilty to perjury and misconduct in office, and resigned from the Department as part of his plea deal. At the plea hearing, the prosecutor recited a statement of facts to which Mr. Lewellen agreed, with no modifications or objections. The statement included, among other things, that Mr. Lewellen had been “close” friends with Ms. Chelchowski “for years”; the affidavit he had submitted in support of the warrant application was “bogus,” 5 “fraudulent,” and “perjurious”; he “was the lead on th[e] execution of that search warrant”; and he had directed the confidential informant “to recant what he told Internal Affairs.” The Civil Action In March 2013, Mr. Esteppe filed a complaint for damages against Mr. Lewellen, the Department, the Mayor and City Council of Baltimore (the “City”), and the State of Maryland. Mr. Esteppe brought counts for assault, battery, false arrest, false imprisonment, intentional infliction of emotional distress, malicious prosecution, negligence, violations of the Maryland Declaration of Rights, and civil conspiracy.

The circuit court dismissed the claims against all defendants but Mr. Lewellen. In November 2014, the court held a bench trial. During his opening statement, counsel for Mr. Esteppe advanced his theory that Mr. Lewellen’s actions were motivated not by malice toward Mr. Esteppe, but rather by Mr. Lewellen’s “desire to please and remain in a relationship with Brand[i] Chelchowski.” Counsel explained that “subsequent to Mr. Esteppe breaking up with Ms. Chelchowski, she got involved in a relationship with the Defendant, Adam Lewellen. And then she encouraged him – as we understand it – to basically bring down Mr. Esteppe.

So, the motivation was to please her, and not to get Mr. Esteppe. That’s our position.” Mr. Esteppe’s case-in-chief consisted only of his testimony and the transcript of Mr. Lewellen’s guilty plea, which the Court admitted as substantive evidence.3 After 3 At the time, § 9-104 of the Courts and Judicial Proceedings Article rendered Mr. Lewellen incompetent to testify as a result of his perjury conviction. See Md. Code Ann., Cts. & Jud. Proc. § 9-104 (Repl. 2013).

In 2016, the General Assembly repealed § 9-104, and amended § 10-905 of the Courts Article to provide that “[e]vidence that a 6 hearing Mr. Esteppe’s case-in-chief, the court granted Mr. Lewellen’s motion for judgment regarding the counts of assault, battery, false arrest, false imprisonment, and malicious prosecution, as well as the request for punitive damages.4 The court denied Mr. Lewellen’s motion concerning the counts for intentional infliction of emotional distress, negligence, constitutional tort, and civil conspiracy. During his closing argument, Mr. Esteppe’s counsel argued that Mr. Lewellen’s “conduct was intentional” and his purpose singular: As a matter of fact, that was why he did it. He knew, he knew that this woman – who he knew, he was friends with – had broken up with David Esteppe, and . . . in fact, what maybe she knew or didn’t know at that time was that Lewellen was trying to make headway with her. So, for all of the wrong motives, he was using his power – he was abusing his authority – to try to cause pain, which he succeeded in doing to someone else. . . . [H]is real motive was the intentional infliction of emotional distress.

On rebuttal closing, Mr. Esteppe’s counsel returned to the same theme: Mr. Lewellen[] entered into an illegal agreement with this woman who was the former girlfriend of Mr. Esteppe—and whom he was trying to court to become his girlfriend . . . . He wanted to get in tight with her – he, through his agreement with her, led to conduct on his part that he was so, so trying to impress her that he was willing to put his career on the line. And in fact, he did put his career on the line, and destroyed it by going to a judge and lying under oath . . . . witness has been convicted of perjury shall be admitted for the purpose of attacking the credibility of the witness.” See 2016 Md. Laws, ch. 530. 4 At the outset of the trial, Mr. Esteppe abandoned his request for punitive damages, although the court later stated that it would have awarded them. The court entered judgment in favor of Mr. Lewellen on the assault, battery, and malicious prosecution counts because Mr. Esteppe disclaimed any malice on Mr. Lewellen’s part.

The court also entered judgment for Mr. Lewellen on the malicious prosecution count, as well as the false arrest and false imprisonment counts, for the separate reason there was a legal basis to arrest and prosecute Mr. Esteppe after the police found the firearms he unlawfully possessed. 7 After closing arguments, the trial court ruled in favor of Mr. Lewellen on the intentional infliction of emotional distress count because the court was “not convinced by a preponderance of the evidence” that Mr. Esteppe’s embarrassment and humiliation were sufficiently “severe” and “extreme.” The court then found in favor of Mr. Esteppe on all three of his remaining claims and awarded him $166,007.67 in damages. This Court affirmed in an unreported opinion. See Lewellen v. Esteppe, No. 2009, Sept. Term 2014, 2015 WL 7941110 (Dec. 4, 2015). Among other rulings, this Court held that the circuit court had properly admitted and considered the statement of facts from Mr. Lewellen’s plea agreement as substantive evidence, id. at ⁶-¹¹, and that sufficient evidence supported the court’s ruling that Mr. Lewellen and Ms. Chelchowski had engaged in a civil conspiracy, with Mr. Lewellen’s act of perjury “committed in furtherance of that agreement,” id. at ¹⁶ .

We stated: The evidence before the circuit court indicated that Ms. Chelchowski and [Mr. Esteppe] had been in a relationship, that Ms. Chelchowski was angered when [Mr. Esteppe] ended that relationship, that Ms. Chelchowski threatened [Mr. Esteppe] by telling him that “I have cop friends and you’re going down,” that Ms. Chelchowski told [Mr. Esteppe] that he was “going down next week” on March 19, 2012 – approximately one week before [Mr. Esteppe] had been surprised by police at his house, and that [Mr. Lewellen] told [Mr. Esteppe] while searching his house that “Brandi led us to it.” In light of this evidence, the court was justified in circumstantially finding an agreement between Ms. Chelchowski and [Mr. Lewellen], and [Mr. Lewellen]’s fraudulent application for the search warrant was surely an act committed in furtherance of that agreement. Id. 8 Mr. Esteppe’s Attempt to Enforce the Judgment Against the Department In April 2016, Mr. Esteppe sent two letters requesting that the City pay the judgment entered against Mr. Lewellen. The City refused, replying by letter that (1) because the City and the Department had been dismissed from the case, “the issue of whether Mr. Lewellen was acting within the scope of his employment was not, nor could it have been, adjudicated” in the underlying case, and (2) the LGTCA did not obligate the City or the Department to pay the judgment because Mr. Lewellen was not acting within the scope of his employment when he “obtain[ed] the perjured warrant against Mr. Esteppe . . . for personal reasons having nothing to do with the lawful objectives of the [Department].” Mr. Esteppe then filed a “Motion for Declaratory Relief to Enforce Judgment” against both the Department and the City. Mr. Esteppe, who filed his motion in the same civil case in which he had obtained his judgment against Mr. Lewellen, sought “a written declaration specifying that (a) Mr. Lewellen’s conduct, on which the underlying tort judgment was based, occurred in the scope of Mr. Lewellen’s employment, and (b) that the City and the Department are required to pay the judgment that Mr. Esteppe obtained against Mr. Lewellen.” Mr. Esteppe argued that “[t]he City and the Department [we]re necessary parties” at that juncture of the proceedings based on their “interest in the declaratory relief sought.” Therefore, he contended, their prior dismissal from the case “ha[d] no effect on [their] responsibility to comply with the LGTCA at the post-judgment stage” or their obligation “to pay judgments against their employees.” Mr. Esteppe also argued that “Mr. Lewellen’s criminal conduct, though not expressly authorized by the [City and the Department], was within the scope of [his] 9 employment.” Specifically, Mr. Esteppe contended that Mr. Lewellen’s conduct had involved routine police work—investigating potential crime, swearing out an affidavit, executing a warrant, and making an arrest—that benefited his employer, and thus was within the scope of his employment, notwithstanding any mixed or entirely improper motive.

The motion relied entirely on the record developed in Mr. Esteppe’s case against Mr. Lewellen; Mr. Esteppe sought no new discovery, nor did he add to the evidentiary record. According to the certificate of service attached to his motion, Mr. Esteppe served the motion personally on the City Solicitor and the Department’s chief solicitor. The Department filed a written response in opposition to Mr. Esteppe’s motion in which it argued that he lacked standing to seek indemnification from the Department, that the Department had sovereign immunity from his claim, and that Mr. Lewellen had acted outside the scope of his employment. The Department did not request discovery, nor did it seek to introduce any new evidence in opposition to Mr. Esteppe’s motion.

Instead, for its factual defense based on scope of employment, the Department’s responsive brief relied exclusively on the transcript from Mr. Lewellen’s guilty plea hearing and the judgment against Mr. Lewellen for conspiring with Ms. Chelchowski. Notably, the Department did not assert a defense based on Mr. Esteppe’s failure to join it as a party. The City separately opposed Mr. Lewellen’s motion. Unlike the Department, the City did argue that Mr. Esteppe’s motion was improperly filed against it, as a non-party.

The City also argued that: (1) Mr. Esteppe lacked any right of enforcement against the 10 City, which was not Mr. Lewellen’s employer;5 (2) Mr. Lewellen had acted outside the scope of his employment; and (3) Mr. Lewellen had acted with malice. Mr. Esteppe’s motion for declaratory relief to enforce the judgment was heard by a different judge than the trial judge. At oral argument on his motion—in stark contrast to his arguments during his case against Mr. Lewellen—Mr. Esteppe argued that the Department was “asking us to assume facts that aren’t here, namely that [Mr. Lewellen] did this solely to please the woman.” According to Mr. Esteppe, the record contained only “innuendo” and “speculation” that Mr. Lewellen had acted to please Ms. Chelchowski.6 Mr. Esteppe contended that Mr. Lewellen had acted within the scope of his employment because it was undisputed that, at the time of Mr. Lewellen’s tortious conduct, he “was working,” had obtained a search and seizure warrant, and “went through the ministerial duties of filling out the probable cause statement and filling out the affidavit and going to [the issuing judge].” In other words, Mr. Esteppe argued, Mr. Lewellen was “doing things that police officers do.” 5 Unlike other local police departments in Maryland, the Department “was created as a state agency, through an act of the General Assembly, and not as a municipal agency.” Houghton v. Forrest, 412 Md. 578, 588 (2010). Thus, the City is “not . . . the employer of members of the [Department] for purposes of tort liability.” Id. at 588-89 (quoting Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 668 (1988), superseded by statute on other grounds as stated in Houghton, 412 Md. at 589 ). 6 In its opposition to Mr. Esteppe’s motion, the Department cited Vogel v. Touhey, 151 Md. App. 682, 718-19 (2003), for the proposition that “Mr. Esteppe is judicially estopped from contesting any of the facts of this case or asserting any legal position . . . inconsistent” with those “he advanced in the earlier trial, and that were accepted by the trial court and this Court on appeal.” 11 The motions judge took the matter under advisement.

Nine months later, having not yet received a ruling, Mr. Esteppe filed a supplement to his motion to call the court’s attention to two recently decided cases. Specifically, Mr. Esteppe averred that under Johnson v. Mayor & City Council of Baltimore, 233 Md. App. 43 (2017), (1) the Department “is the responsible ‘local government’ under the LGTCA when a judgment is rendered against a Baltimore City police officer”; and (2) “[w]hen the [Department] fails to pay a judgment for which it is responsible, the plaintiff may bring an enforcement proceeding to collect from the [Department].” Mr. Esteppe also argued that under Prince George’s County v. Morales, 230 Md. App. 699 (2016), Mr. Lewellen’s exertion of police authority put his conduct within the scope of his employment as a police officer. The Department filed an opposition to the supplement in which it argued that Mr. Esteppe’s reliance on Johnson and Morales was misplaced. In December 2018, the motions court issued a three-page memorandum and order in which it found that “[a]t the time of the tortious conduct, . . .

Lewellen was clearly within his scope of employment.” The court reasoned: Executing a search warrant to seize an illegal firearm is exactly the type of conduct for which Lewellen was employed. As the search was executed whilst Lewellen was on duty, and in a jurisdiction for which Lewellen had police powers, the conduct occurred in an authorized area. A primary goal of the [Department] in recent years is the seizure of illegal firearms and the arrest of those in possession of those weapons, and therefore the search, however motivated, furthered a purpose of Lewellen’s master, the [Department]. Indeed, when considering the issue at trial, [the trial judge] similarly concluded: 12 And it’s undisputed that [Mr. Lewellen] was working.

It’s undisputed that it was a search and seizure warrant. It’s undisputed that he went through the ministerial duties of filling out the probable cause statement, and filling out the Affidavit, and going to [the issuing judge]. Thus, the motions court held, “the [Department] is liable for the judgment held by Esteppe against Lewellen.”7 The Department timely appealed. DISCUSSION8 Mr. Esteppe’s motion was styled as a “Motion for Declaratory Relief to Enforce Judgment,” which is not a permissible mechanism to raise a claim for declaratory relief. 7 The circuit court denied Mr. Esteppe’s motion as to the City.

Mr. Esteppe has not raised the denial of that motion on appeal, and so it is not before us. 8 Before addressing the merits, we must first resolve a preliminary matter. Although this is the Department’s appeal, shortly before oral argument, the Department filed a Suggestion of Lack of Jurisdiction and Motion for Remand for Entry of Final Appealable Order. The Department stated that it had discovered that the order granting Mr. Esteppe’s motion for declaratory relief against the Department was not a final appealable order because (1) the court had not satisfied the separate document requirement of Rule 2-601 and (2) the docket entry did not identify the court’s resolution of the motion as to the Department. Although the Department’s arguments might be better taken if they had been raised earlier, it waived this issue by affirmatively appealing the court’s order and proceeding with the appeal without raising the issue until the eve of oral argument.

See URS Corp. v. Fort Myer Constr., 452 Md. 48, 70 (2017) (holding that “the separate document requirement was waived” and this Court “had jurisdiction to consider the appeals” when “[n]o party objected to the absence of a separate document, . . . [t]he Circuit Court ‘clearly intended [the docket entry] to be a final judgment,’” and remand would merely produce unnecessary delay (quoting Suburban Hosp. v. Kirson, 362 Md. 140, 156 (2000))); see also Lee v. Lee, 466 Md. 601 , 631 n.9 (2020) (“Nothing in this opinion should be read to override case law on waiver of the separate document requirement.” (citing Fort Myer, 452 Md. at 67-70 )). Remanding now on this basis would cause unnecessary delay in resolving this fully briefed appeal. See Fort Myer, 452 Md. at 70 (“[R]emand[ing] to the Circuit Court . . . [to] simply file and enter the separate judgment, from which a timely appeal would then be taken[,] . . . would be a classic example of wheels spinning for no practical purpose.”). Instead, we will address the merits.

Moreover, if we thought it necessary for the circuit court to correct its order by issuing a separate declaratory 13 Mr. Esteppe’s motion was more akin to a motion for summary judgment on the question of the Department’s liability under the LGTCA to pay the judgment rendered against Mr. Lewellen. See State Farm Mut. Auto Ins. v. Crisfulli, 156 Md. App. 515, 520 (2004) (“The ‘motion for declaratory judgment’ . . . was not a separate declaratory judgment action; rather, it was a motion for partial summary judgment on the issue of liability in [plaintiff’s] contract claim . . . .”); Wittel v. Baker, 10 Md. App. 531, 544 (1970) (where plaintiffs filed a “motion for declaratory relief pursuant to the Uniform Declaratory Judgments Act[,] . . . [t]he [circuit] court accepted the motion as an application to decide a question of law pursuant to Maryland Rule 502,” the predecessor of Rule 2-502). “Accordingly, the issue that is before us on appeal is whether the court erred in granting summary judgment on [the Department’s] liability.” Crisfulli, 156 Md. App. at 521 . “An appellate court reviews without deference a trial court’s grant of a motion for summary judgment, ‘review[s] the record in the light most favorable to the nonmoving party[,] . . . and construe[s] any reasonable inferences that may be drawn from the facts against the moving party.’” Baltimore City Police Dep’t v. Potts, 468 Md. 265, 282 (2020) (quoting Kennedy Krieger Inst. v. Partlow, 460 Md. 607, 632-33 (2018)). “Summary judgment is appropriate where ‘there is no genuine dispute as to any material fact and [ ] the [moving] party is entitled to judgment as a matter of law.’” Potts, 468 Md. at 282 (quoting Md. Rule 2-501(a)). judgment, we could order it to do so after we decide the merits of this appeal. See Md. Cas.

Co. v. Hanson, 169 Md. App. 484, 524-25 (2006). 14 “If there is a material factual dispute as to whether an employee’s actions were taken within the scope of employment, the question is one of fact. If there is not, the question is one of law.” Clark v. Prince George’s County, 211 Md. App. 548, 570 (2013). “Even when the parties’ versions of events are in conflict, however, if the facts adduced to show that the defendant was acting within the scope of his employment are not legally sufficient to support such a reasonable finding by the trier of fact, any dispute of fact is not material, as it will not affect the outcome of the case.” Id. at 570-71 . “Where there is no conflict in the evidence relating to the question [of whether an employee is acting within the scope of employment] and but one inference can be drawn therefrom, the question is one of law for the court.” Id. at 571 (alteration in Clark) (quoting Rusnack v. Giant Food, 26 Md. App. 250, 265 (1975)); see also Brown v. Mayor & City Council of Baltimore, 167 Md. App. 306, 323 (2006) (noting that although “whether [the employee] was, in fact, acting within the scope of his employment . . . is ordinarily a question of fact for the fact-finder, when the facts are undisputed, it becomes a question of law”). We review “a trial court’s determinations of legal questions or conclusions of law based on findings of fact” without deference. L.W. Wolfe Enters. v. Md. Nat’l Golf, 165 Md. App. 339, 344 (2005) (quoting Ins. of N. Am. v. Miller, 362 Md. 361, 372 (2001)).

I. THE CIRCUIT COURT DID NOT ERR IN ADDRESSING THE MERITS OF MR. ESTEPPE’S MOTION. The Department contends that Mr. Esteppe’s “Motion for Declaratory Relief to Enforce Judgment” was procedurally improper and that Mr. Esteppe should instead have filed a separate action against the Department to enforce his judgment against 15 Mr. Lewellen. Mr. Esteppe responds that his motion served the same purpose as a separate action and is similar to the procedure mandated by the Court of Appeals to litigate a private insurer’s coverage obligation following a tort suit.

See Allstate Ins. v. Atwood, 319 Md. 247, 262, 265-66 (1990). We agree in part, and disagree in part, with both parties. This Court recently has analyzed a tort victim’s efforts to enforce a local government’s obligation under the LGTCA in two different opinions issued in the same underlying case. First, in Johnson v. Mayor & City Council of Baltimore, 233 Md. App. 43 (2017) (“Johnson II”),9 a tort victim who had prevailed in a suit for damages against three Department officers sought to execute the judgment against the City.

Id. at 50 . The trial court quashed the writs of execution, and we affirmed. Id. at 51, 57 . In addition to pointing out deficiencies in the tort victim’s collection efforts (which are not relevant here), we observed that “if the [Department] fails to pay a judgment for compensatory damages entered against one of its officers, ‘it is subject to an enforcement action’” by the tort victim.

Id. at 56 (quoting Baltimore Police Dep’t v. Cherkes, 140 Md. App. 282, 326 (2001)). On remand, Mr. Johnson did not heed our suggestion. Instead, without filing a claim against the Department or otherwise seeking to join it as a party to the action—and notwithstanding that his only judgment was against the three officers—he propounded discovery in aid of enforcement directly to the Department. Johnson v. Francis, 239 Md. 9 The same underlying case has led to three reported opinions from this Court.

In Francis v. Johnson, 219 Md. App. 531 (2014) (“Johnson I”), we affirmed the underlying tort judgments against the three Department officers who were found liable for violating the tort victim’s rights. Johnson I is not otherwise relevant here. 16 App. 530 , 538 (2018) (“Johnson III”), cert. denied, 463 Md. 155 (2019). The circuit court quashed the discovery propounded to the non-party Department, and Mr. Johnson again appealed. Id. at 538-39.

In affirming, we held that before engaging in collection activity against a local government under the LGTCA, a tort victim must first establish the local government’s liability. Id. at 542-48. Doing so, we held, requires the tort victim to prove that the tortfeasor employee had acted within the scope of employment when committing the tort. Id. at 547-48.

We observed that in some cases, scope of employment can be resolved without filing a new action, particularly when the parties “stipulat[e] that the officer [] acted within the scope of employment,” id. at 547 (discussing Espina v. Jackson, 442 Md. 311, 347 (2015)), or otherwise leave the issue “not really in dispute,” Johnson III, 239 Md. at 547 (discussing Houghton v. Forrest, 412 Md. 578, 592 (2010)). But conversely, when “the scope-of-employment question [] is not settled or sufficiently obvious that we can resolve it as a matter of law, . . . [i]t is the plaintiff’s burden to establish its right to collect from the Department, either through an enforcement action or some other permissible mechanism.” Johnson III, 239 Md. App. at 548. We did not expound on what “some other permissible mechanism” would look like in Johnson III, because that question was not before us.10 We did, however, give some indication as to what would be necessary: 10 In dicta, to provide guidance for the circuit court on remand, we also addressed the Department’s contention that a tort victim may not seek payment of a judgment directly from a local government under the LGTCA unless it first receives an express assignment of the tortfeasor employee’s claim to indemnification from the local government. Id. at 549.

We rejected that argument based on the plain language of the LGTCA, which makes a local government “‘liable for any judgment against its employee[s]’ . . . [p]rovided the 17 [W]here a money judgment is entered against an employee of a local government arising from tortious acts or omissions committed by the employee: • The local government is liable to the plaintiff for the amount of the judgment, up to the limits provided in § 5-303(a)(1) [of the Courts Article], if and only if the employee was acting within the scope of [] employment with the local government; and • A plaintiff who obtains a judgment against a local government’s employee can establish the local government’s liability by filing an enforcement action against the local government. In such a proceeding, the local government can raise as a defense that the employee was not acting within the scope of [] employment. Of course, as set forth above, in this case the parties are not all the way there yet. Although we are able in appropriate cases to assess whether an officer acted within the scope of employment as a matter of law based on undisputed facts in the record, Houghton, 412 Md. at 592 ; Brown, 167 Md. App. at 326 , or based on a stipulation, Espina, 442 Md. at 347 , the record and briefing here are not sufficient for us to do so.

It may be that all of the evidence necessary to make that determination was presented at the original trial and already exists, or it may be that further evidentiary proceedings are necessary. If an enforcement action is filed, that determination will need to be made by the circuit court. Id. at 555-56. Both the Department and Mr. Esteppe claim support from our opinions in Johnson II and III.

Mr. Esteppe contends that his “motion for declaratory relief” was a “permissible mechanism” to pursue his claim directly against the Department. The Department disagrees and argues that a separate enforcement action was required. This case thus requires us to carry forward our analysis from the Johnson opinions to identify how a tort employees acted within the scope of their employment.” Id. at 550 (quoting Md. Code Ann., Cts. & Jud. Proc. § 5-303 (b)(1)).

In its opposition to Mr. Esteppe’s motion for declaratory relief—which was filed before our decision in Johnson III—the Department made the same argument. The Department has not pursued that argument in this appeal. 18 victim may seek to enforce a claim against a local government under the LGTCA to pay a judgment awarded against a tortfeasor employee. As we observed in Johnson III, there is not always a genuine dispute regarding whether a tortfeasor employee’s tortious actions were undertaken within the scope of employment. In some cases, such as Houghton, that issue can be readily settled by undisputed facts in the record of the underlying case. 412 Md. at 592 .

In others, such as Espina, it may already have been settled by the local government’s stipulation.11 442 Md. at 347 . In those cases, we would expect that the local government will pay the judgment without the need for any further litigation. Where there is a genuine dispute, however, the plaintiff bears the burden to “establish the local government’s liability.” Johnson III, 239 Md. App. at 555. Here, the parties raise two different questions regarding how a tort victim may do so: (1) What type of proceeding is required? and (2) May such a proceeding be brought as part of the underlying tort action, or must it be filed as a separate action? 11 A stipulation binds the local government only if, as in Espina, the local government was a party to the stipulation.

Stipulations as to scope of employment entered by a tort victim and tortfeasor employee cannot bind the local government absent its assent to the stipulation. Under the LGTCA, it is nearly always to the benefit of both the tort plaintiff and the tortfeasor employee to agree that the employee was acting within the scope of employment. Such a finding does not disadvantage either party and, if ultimately established, provides: (1) the tort plaintiff with a deep pocket from which to recover; and (2) immunity from the judgment for the tortfeasor employee, unless he or she is found to have acted with malice. See Johnson III, 239 Md. App. at 552-53 (Under the LGTCA, where an employee is found to have acted without malice, “only the local government is liable to pay the judgment.” If the employee is found to have acted with malice, both the employee and the local government are liable.

(citing Cts. & Jud. Proc. § 5-302(b)(1))). 19 A. A Tort Victim May Establish the Local Government’s Liability to Pay a Judgment Under the LGTCA by Filing an Action Against the Local Government to Resolve the Scope of Employment Issue. As we explained in Johnson II and Johnson III—and, indeed, as we earlier suggested in Baltimore Police Department v. Cherkes, 140 Md. App. 282, 326 (2001)—a tort victim may file “an enforcement action” against a local government to compel it to pay a judgment awarded against its tortfeasor employee. In such an action, the tort victim seeks a judgment against the local government for payment of the underlying judgment against the tortfeasor employee.

Mr. Esteppe contends that a declaratory judgment proceeding is also a permissible mechanism for settling the disputed issue of the local government’s liability. A declaratory judgment proceeding “is a vehicle by which a person may obtain a judicial declaration to ‘afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.’” Hanover Invs. v. Volkman, 455 Md. 1, 15 (2017) (quoting Md. Code Ann., Cts. & Jud. Proc. § 3-402 ). Under § 3-409(a) of the Courts Article, a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: (1) An actual controversy exists between contending parties; (2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or (3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.

In other words, “[t]he ‘uncertainty or controversy[]’ . . . must be justiciable.” Volkman, 455 Md. at 15 . 20 Importantly, “[a] party may obtain a declaratory judgment or decree notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy, whether or not recognized or regulated by statute.” Cts. & Jud. Proc. § 3-409(c); see also id. § 3-403(a) (“Except for the District Court, a court of record within its jurisdiction may declare rights, status, and other legal relations whether or not further relief is or could be claimed. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for.”). “[T]he General Assembly added this proviso to the Declaratory Judgments Act to make clear that a party is not precluded from seeking declaratory relief simply because that party has the option of pursuing some other remedy.” Volkman, 455 Md. at 16 . Thus, “[t]he existence of other potential causes of action or remedies is not a bar to pursuit of a declaratory judgment.”12 Id.; see also Allied Inv.

Corp. v. Jasen, 354 Md. 547, 556-57 (1999) (“That a separate claim exists upon which suit could be brought . . . ordinarily does not defeat a party’s right to seek and obtain a declaratory judgment prior to filing the other claim.”); Post v. Bregman, 349 Md. 142, 160 (1998) (We have not . . . generally blessed the dismissal of a proper action for declaratory judgment because of a ruling on an alternative claim in the same action.”). Therefore, the availability of an enforcement action to pursue a claim against a local government is not a bar to seeking declaratory relief. 12 It would, of course, be improper to “entertain an action for declaratory relief . . . when there is already a pending action ‘involving the same parties and in which the identical issues that are involved in the declaratory action may be adjudicated.’” Volkman, 455 Md. at 17 (quoting Sprenger v. Pub. Serv. Comm’n, 400 Md. 1, 26 (2007)); Waicker v. Colbert, 347 Md. 108, 113 (1997) (same).

But that is not the case here: the Department’s liability was not before the court in the underlying civil action against Mr. Lewellen. 21 Regardless of whether a tort victim seeks to establish a local government’s obligation to pay an underlying judgment through an enforcement action, a declaratory judgment action, or a combination of the two, however, any such action must be brought directly “against the local government.” Johnson III, 239 Md. App. at 555. At that point, the tort victim’s claim is no longer against the tortfeasor employee for the underlying tort, but against the local government he or she contends has become liable to pay the judgment under the LGTCA. That local government must, therefore, be made a party and given the opportunity to be heard.13 See Md. Rule 2-101(a) (“A civil action is commenced by filing a complaint with a court.”); Md. Rule 2-211(a) (requiring joinder of “a person who is subject to service of process . . . if in the person’s absence (1) complete relief cannot be accorded among those already parties, or (2) disposition of the action may impair or impede the person’s ability to protect a claimed interest relating to the subject of the action . . . .”); 13 In addition to the practical aim of judicial economy, the primary purpose of our joinder rules is “to assure that a person’s rights are not adjudicated unless that person has had his ‘day in court.’” See Serv. Transp. v. Hurricane Express, 185 Md. App. 25, 39 (2009) (quoting Mahan v. Mahan, 320 Md. 262, 272 (1990)).

That “day in court”—i.e., a person’s “opportunity to be heard”—is a “fundamental requisite of due process of law.” Grannis v. Ordean, 234 U.S. 385, 394 (1914). Indeed, “there can be no doubt that at a minimum [the Due Process Clause] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Canaj, Inc. v. Baker & Div. Phase III, LLC, 391 Md. 374, 424 (2006) (alterations in Canaj) (quoting Mullane v. Cent. Hanover Bank & Tr.

Co., 339 U.S. 306, 313 (1950)); see also, e.g., Superior Court v. Ricketts, 153 Md. App. 281, 336-37 (2003) (citing cases for the proposition “that procedural due process requires that litigants must receive notice, and an opportunity to be heard” (quoting Pickett v. Sears, Roebuck & Co., 365 Md. 67, 81 (2001))). “It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefor[e] has never had an opportunity to be heard.” Bryan v. State Farm Mut. Auto. Ins., 205 Md. App. 587, 606 (2012) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322 , 327 n.7 (1979)). 22 see also Cts. & Jud. Proc. § 3-405(a)(1) (“If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.”); Serv.

Transp., 185 Md. App. at 37-38 (“[T]here is no difference in a necessary parties analysis whether the Declaratory Judgment Act or Md. Rule 2-211 is invoked.” (citing Gardner v. Bd. of County