Bittner v. Huth

MURPHY, Chief Judge. In the Circuit Court for Baltimore City, Charles Bittner, his ■wife Juanita, and their daughter Julie Bittner, appellants, sued Baltimore County and several (named and unnamed) Baltimore County police officers, 1 appellees. According to appellants, who reside at 6561 St. Helena Avenue in Baltimore City, several Baltimore County police officers committed an unlawful trespass upon the Bittner residence on October 7, 2002, when the officers made (1) a warrantless entry of the residence to arrest Mr. and Mrs. Bittner’s son, Steven Bittner, and (2) a second warrantless entry after the officers had left the premises -with Steven in custody. 2 Appellees argued that, even though almost all of the events at issue occurred in ⁷⁴⁹ Baltimore City, 3 appellants should be required to litigate their claims in the Circuit Court for Baltimore County. The circuit court agreed with appellees’ venue argument, and this appeal followed, in which appellants present three questions for our review: I. Did the trial court improperly transfer venue to the Circuit Court for Baltimore County?

II

Did the lower court improperly dismiss the Bittners’ trespass to land claim?

III

Did the lower court improperly make factual findings and improperly consider arguments and papers offered by appellees in connection with their reply motion? For the reasons that follow, we answer “yes” to questions I and II. We shall therefore remand this case to the Circuit Court for Baltimore City for further proceedings not inconsistent with this opinion. The Ruling at Issue Subsequent to a December 29, 2003 motions hearing, the circuit court filed a Memorandum Opinion and Order that included the following findings of fact and conclusions of law: In the case at bar, Steven Bittner committed a misdemean- or in the presence of Baltimore County Police Officers and fled to his home.

The Officers followed him, entered the house, arrested him and shortly thereafter searched the Bittner home. (The Court infers that the search was shortly after Steven Bittner and the other men were arrested and removed from the house based on paragraphs 8-10 of the Bittner affidavit.) The Baltimore County Officers in this case had at least the same degree of good faith and reasonable belief in the appropriateness of their actions as ⁷⁵⁰ the Deputies in Ford [v. Baltimore City Sheriff’s Office, 149 Md.App. 107 , 814 A.2d 127 (2002)]. They were in pursuit of someone they witnessed commit a crime and, accordingly, had a privilege against trespass to enter the Bittner home. The plaintiffs argue that even if the first entry by the Defendant Officers was justified, the second was not.

On the information before this Court as to the second entry into the home, there is nothing to establish, or even suggest, that the Officers’ good faith and reasonable belief as to the propriety of their actions did not extend to the second entry of the home shortly after the first. Accordingly the second trespass was also privileged as against a trespass action. For these reasons, the Court finds that an action for trespass to land will not support venue in Baltimore City. (The Court is not dismissing the trespass claim for procedural reasons and because the allegations of the complaint can also be construed as a trespass to personal property which this Court has not had reason to address.

This decision is without prejudice. The defendants may move to dismiss in the transferee jurisdiction.) Therefore, venue does not lie in Baltimore City pursuant to section 6-203(b)(4) of the Courts and Judicial Procedure Article. Rather it lies in Baltimore County pursuant to section 6-201. * * * There are seven named defendants, all of whom are Baltimore County Police Officers and then unnamed Baltimore County Police Officers. Presumably all would find a Baltimore County venue convenient since that is where they work, as would the officials of Baltimore County itself, the municipal defendant.

Additionally there is the likelihood of numerous other Baltimore County witnesses based on the other allegations. Plaintiff Juanita Bittner alleges that she was transported to Baltimore County and searched, imprisoned, handcuffed, and denied necessary medical attention there. She alleges she was further imprisoned at the office of the Baltimore County Commissioner and released from there without money or transportation with only bedroom slippers to wear. Juanita Bittner further alleges that she ⁷⁵¹ had to engage counsel to defend herself against charges in Baltimore County.

She alleges that she negotiated with Baltimore County for it to drop charges against her in exchange for her agreement not to pursue a civil action against it. She alleges that Baltimore County was responsible for publication of the events in a local Baltimore County newspaper, the Dundalk Eagle. (The Court takes judicial notice that most of the area known as Dundalk is located in Baltimore County.) The plaintiffs allege that the obstruction charge was dismissed by a Baltimore County prosecutor and that they filed a complaint with Baltimore County. They further allege that Julie and Juanita were confronted by Baltimore County Police Officers with knowledge of the complaint pending against the County and that the Officers acted in retaliation because of that complaint.

It is quite obvious from the plaintiffs’ allegations that there are numerous persons in Baltimore County government, or who were simply located in Baltimore County, who are potential witnesses to the actions alleged by the plaintiffs. The list includes prosecutors, clerks, the Commissioner, and citizens. It is beyond peradventure that the events subsequent to the entry into, and search of the Baltimore City home of the Bittners has produced the potential for numerous Baltimore County witnesses and witnesses who are custodians of the Baltimore County records documenting the events involving the plaintiffs there. Because all these events took place in Baltimore County and many Baltimore County government employees or agents were involved, it can be presumed that a Baltimore County venue would be convenient for these witnesses.

Accordingly this Court finds that “the convenience of the witnesses” factor weighs heavily in favor of a Baltimore County venue. The court also finds that transfer to Baltimore County is in the interest of justice. As outlined above, most of the contacts in the events giving rise to the plaintiffs’ several claims occurred in Baltimore County and the actors are all exclu ⁷⁵² sively Baltimore County Police Officers or agents. Baltimore County and its citizens, therefore have a keen interest in addressing the alleged misconduct of its Officers and Baltimore County courts and jurors are the proper ones to be tasked with determining the extent of their improprieties, if any.

As alleged, the misconduct by Baltimore County agents, including police officers, prosecutors, the Commissioner, clerks and possibly county attorneys, is prevalent and extreme. The multitude of injustices alleged in Baltimore County government should be addressed in that forum. Because of the multitude of contacts with Baltimore County, and the nature and extent of alleged misconduct by Baltimore County agents, Baltimore County’s “local interest” in having this matter heard locally is far more pronounced than was the interest of the defendant health care provider in Cobrand [v. Adventist Healthcare, Inc.], see 149 Md.App. [431] at 441[, 816 A.2d 117 ]. Accordingly this Court concludes that a transfer of this action to the Circuit Court for Baltimore County is in the interest of justice.

For these reasons, the Court finds that statutory venue lies in Baltimore County and alternatively, that the convenience of the parties and witnesses and the interests of justice, dictate that this Court should exercise its discretion, Cobrand, 149 Md.App. at 444 [, 816 A.2d 117 ] to transfer this case to the Circuit Court for Baltimore County. It will be so ordered. Venue of a Trespass to Land Action A trespass is defined as an intentional or negligent intrusion upon or to the possessory interest in property of another. Patapsco Loan Co. v. Hobbs, 129 Md. 9, 15-16 , 98 A. 239 (1916) (citations omitted). “Every unauthorized entry upon the land of another is a trespass, and whether the owner suffers substantial injury or not, [the owner] at least sustains a legal injury, which entitles [the owner] to a verdict for some damages; though they may, under some circumstances, be so small as to be merely nominal.” Tyler v. Cedar Island Club, ⁷⁵³ Inc., 143 Md. 214, 219 , 122 A. 38 (1923) (quoting B. & O. R.R. Co. v. Boyd, 67 Md. 32, 40 , 10 A. 315 (1887)).

In the case at bar, appellants allege that two separate trespasses occurred: (1) one before Steven Bittner was arrested, and (2) one that occurred when the officers entered the residence a second time. The trial court found the initial trespass was justified under the “Fresh Pursuit” statute, Md.Code. Ann.Crim. Proc. 2-301 which, in pertinent part, provides: (c) A law enforcement officer may engage in fresh pursuit of a person who: (2) has committed a misdemeanor in the presence of the law enforcement officer in the jurisdiction in which the law enforcement officer has the power of arrest.

(d) A law enforcement officer who is engaged in fresh pursuit of a person may: (1) arrest the person anywhere in the State and hold the person in custody . .. In finding that the police were privileged to enter appellant’s residence, the trial court relied on Ford v. Baltimore Sheriffs Office, 149 Md.App. 107 , 814 A.2d 127 (2002), in which the officers made a forcible entry into Ford’s home in order to serve what turned out to be an invalid arrest warrant. 4 The Ford Court held that no actionable trespass occurred in this case because the officers were justified in relying on the facially valid warrant, and they did not use excessive force to effect the entry. 5 Id. Appellants argue that, even if the initial trespass was justified under the “fresh pursuit” doctrine, there was no justification whatsoever for the second trespass. Appellees claim (in ⁷⁵⁴ the words of the police report prepared subsequent to the events at issue) that the search subsequent to Steven Bittner’s arrest was justified by the need to locate items “within Mr. Bittner’s lunge reach and grasp and see if a fourth person from the Blazer was hiding in the upstairs bedroom.” It is well settled that a law enforcement officer is not entitled to summary judgment merely because the law enforcement officer filed an affidavit in which he or she denies having acted with malice.

DiGrazia v. County Exec. for Mont. Co., 288 Md. 437, 445 , 418 A.2d 1191 (1980); Clea v. Mayor and City Council of Baltimore, 312 Md. 662, 677-78 , 541 A.2d 1303 (1988). For that reason, appellees’ explanation for the second entry — which may be accepted as true, 6 or rejected as false by the trier of fact — is insufficient to support the circuit court’s conclusion that “the second trespass was also privileged against a trespass action.” For the reasons stated above, we are persuaded that appellants are entitled to a trial on the merits of the trespass action they have asserted as a result of the second warrantless entry into the Bittner residence. We are also persuaded that, when a viable trespass claim exists, venue is in the jurisdiction where the trespass is alleged to have occurred.

Section 6-201 of the Courts and Judicial Proceedings Article, which sets forth the “general” venue rule, expressly provides that the general rule is “subject to” both sections 6-202 7 and 6-203: 6-201. In general ⁷⁵⁵ (a) Subject to the provisions of 6-202 and 6-203 and unless otherwise provided by law, a civil action shall be brought in a county where the defendant resides, carries on a regular business, is employed, or habitually engages in a vocation. In addition, a corporation also may be sued where it maintains its principal offices in the State. (b) If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a) all may be sued in a county in which any one of them could be sued or in the county where the cause of action arose. 6-203 General Rule Inapplicable (a) The general rule of 6-201 does not apply to actions enumerated in this section.

(b) The venue of the following actions is in the county where all or any portion of the subject matter of the action is located: (1) Partition of real estate; (2) Enforcement of a charge or lien on land; (3) Eminent domain; (4) Trespass to land; and (5) Waste.... (Emphasis added). In Superior Construction Co. v. Elmo, 204 Md. 1 , 102 A.2d 739 (1954), a case that involved a claim that real property on the Baltimore City side of the boundary line between Baltimore City and Baltimore County had been damaged by operations conducted on contiguous land on the Baltimore County side of the boundary line, the Court of Appeals stated: The distinction between local and transitory actions still exists in Maryland, and equally well settled is the rule that an injury to real estate is local and not transitory, as the cause of action could not have originated in any other place. Patterson v. Wilson, 6 Gill & J. 499 [(1834)]; Ireton v. Mayor and City Council of Baltimore, 61 Md. 432, 434 [(1884)]; Crook v. Pitcher, 61 Md. 510 [(1884)]; Gunther v. ⁷⁵⁶ Dranbauer, 86 Md. 1 , 38 A. 33 [(1897)]; Guest v.