Carter v. Aramark Sports & Entertainment Services, Inc.

RAYMOND G. THIEME, JR., Judge (Retired, Specially Assigned). Appellants Gail Carter and her spouse appeal from the Circuit Court for Baltimore City’s grant of summary judgment in this multi-count tort action in favor of both corporate and individual defendants, the appellees, and dismissing all of the counts in the Third Amended Complaint. The Carters sued Aramark Sports and Entertainment, Inc. (Aramark), and two individuals, Sabrina Knouse and David Milburn, bringing in their Third Amended Complaint allegations of malicious prosecution, interference with economic relations, abuse of process, defamation, intentional infliction of emotional distress, false imprisonment, aiding and abetting as to Ms. Knouse, as well as related counts for punitive damages and loss of consortium. Issues Appellants raise myriad issues in their appeal but, at bottom, they contest the circuit court’s entry of summary judgment, which dismissed their complaint in its entirety.

For the following reasons, we affirm the circuit court in all respects. ²²¹ Summary Background and Course of Proceedings This litigation has as its genesis certain events which took place on July 27, 1999. Appellant, Gail Carter, was employed as an usher by the Baltimore Orioles at the Oriole Park at Camden Yards Stadium for the 1999 baseball season, and was at work that day. Appellee Aramark supplies concession services to the stadium. Both Ms. Rnouse, Aramark’s human resources director, and Mr. Milburn, an Aramark security officer, also were working that day. 1 On that date, prior to the first pitch of the Oriole’s game, Ms. Carter was accused of participating with an Aramark vender, Ruth Brunson, in a “scheme” to reuse discarded Styrofoam yogurt cups for the sale of frozen yogurt.

According to the allegations, Ms. Carter would collect discarded Styrofoam and plastic “helmet” cups, take them home to wash them, and then return the items to Camden Yards for resale by Brunson. 2 When certain Aramark managers became aware of rumors of this activity, they investigated. Ms. Brunson’s yogurt stand was audited on the spot, an employee dispatched to a nearby women’s restroom to look for a supposed cache of Styrofoam cups, and Ms. Carter was told to report to an Aramark office at the stadium where she was confronted by these allegations. She was immediately suspended by the Orioles pending an investigation. The allegations of the scheme ripened into criminal charges, when a complaint, accusing Ms. Carter of theft, was filed by ²²² David Milburn, a Baltimore City Police Officer moonlighting with Aramark as a security officer.

The criminal case went to trial in the district court after Ms. Carter refused an offer to have her case placed on the Stet docket. She was acquitted by the court on a motion for judgment of acquittal after the close of the State’s case. In entering the acquittal, the district judge found: Okay. I’ve taken a look at the State’s Exhibit, these 50-or-so cups that Ms. Knouse introduced.

Of course, I read the statement of charges and the application for the statement of charges, and I’m very curious about the circumstances of the case. The Court finds that these cups are actually new.... But these cups are not used cups. The statement of charges says, “did steal frozen yogurt of Aramark, Incorporated.” The application for the statement of charges is filled' with a great deal of speculation not proven in court today, indicates that the defendant, Ms. Ruth Brunson, would receive Styrofoam cups collected after a baseball event.

Those cups were then taken home, presumably by Ms. Carter, washed out and the same—“washed out same and give cups to defendant to resell. As customers would approach Defendant Brunson, Defendant Brunson would fill the cups with frozen yogurt, property of Aramark, Incorporated, keep $3.25 for each cup of yogurt sold that way. After the event, defendant and codefendant would divide the profits.” Well, let’s go it in reverse. We’ve never heard anything about commingling of monies between either of the defendants.

That’s an allegation that’s not been proved. We’ve never [heard] anything about any cups being filled with any frozen yogurt, another allegation also not shown today. We haven’t heard anything about Ms. Carter having taken these cups home and/or washed those out, another allegation, again speculative, not shown by any testimony today. ²²³ We do have testimony, according to one witness, and that’s Mr. Sachs, that he saw Ms. Carter with a sleeve of cups in a duffel bag. Those cups were given to Ms. Brunson, but they’re not the theft of the cups, and I do believe that they are ARA cups, and I have a sneaking suspicion that something was under foot with these cups, but the defendant, both of them, are charged with having stolen frozen yogurt.

I haven’t heard anything whatsoever about frozen yogurt having been stolen. I do believe that that may have been the plan involved, and I think it’s a legitimate suspicion or speculation on the part of the state, but there’s not been one scoop of yogurt discussed in this case whatsoever, and the defendants have only been charged with having stolen yogurt. It may very well have been their intention. Their intention also could equally have been to make some type of mobile out of the Styrofoam cups, although that’s stretching it and certainly not my belief or speculation.

But suffice it to say, there’s been no yogurt stolen in this case.... For that reason, I find both of you ladies not guilty of the offense. In the wake of this acquittal, Ms. Carter filed the first of three complaints against these defendants in connection with the above events. After the usual pre-trial skirmishes, she lodged a “Third Amended Complaint” alleging all the above-referenced counts.

Following a hearing on the defense’s dis-positive motion for summary judgment, the circuit court ruled in favor of Aramark on all counts. The court denied appellants’ motion to reconsider. Although appellants have framed a variety of issues, which will be addressed below, all their contentions on appeal implicate the propriety of the circuit court’s grant of summary judgment as to all counts of their Third Amended Complaint. We will recite additional facts and procedural landmarks of this case as will be necessary for the resolution of the issues before us. ²²⁴ Discussion I. The logical starting point for our analysis, therefore, lies with the language from the Maryland Rule governing this manner of summary disposition.

That Rule dictates that “[t]he court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(e). See Rite Aid Corp. v. Hagley, 374 Md. 665, 683 , 824 A.2d 107 (2003); Sterling v. Johns Hopkins Hosp., 145 Md.App. 161, 167 , 802 A.2d 440 , cert. denied, 371 Md. 264 , 808 A.2d 808 (2002). Our review over a circuit court’s decision on summary judgment is plenary. Hemmings v. Pelham Wood Ltd. Liab.

Ltd. P’ship, 375 Md. 522, 533 , 826 A.2d 443 (2003); Mayor and City Council of Baltimore v. Utica Mutual Ins. Co., 145 Md.App. 256 , 282 n. 30, 802 A.2d 1070 , cert. granted, 371 Md. 613 , 810 A.2d 961 (2002), appeal dismissed, 374 Md. 81 , 821 A.2d 369 (2003); Sterling, 145 Md.App. at 168 , 802 A.2d 440 . Pursuant to this de novo inquiry, we must discern whether a genuine dispute of material fact exists and will review the circuit court’s legal conclusions for correctness. Hagley, 374 Md. at 683 , 824 A.2d 107 . “When ruling on a motion for summary judgment, a court must view the facts, including all inferences drawn therefrom, in the light most favorable to the opposing party.” Sterling, 145 Md.App. at 167 , 802 A.2d 440 (quoting Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 676 , 766 A.2d 617 (2001)).

Accord, Hemmings, 375 Md. at 535 , 826 A.2d 443 . “ ‘A material fact is a fact the resolution of which will somehow affect the outcome of the case.’ ” Sterling, 145 Md.App. at 168 , 802 A.2d 440 (quoting Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206 (2001) (quoting King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608, 614 (1985))). The moving party bears the burden of establishing the absence of a genuine issue of material fact. Id. (citing Adickes v. S.H. Kress & Co., ²²⁵ 398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970)).

And, as Chief Judge Bell recently observed: The party opposing a motion for summary judgment must produce admissible evidence to show that a genuine dispute of material fact, i.e., one “the resolution of which will somehow affect the outcome of the case,” ... does exist.... This requires more than “general allegations which do not show facts in detail and with precision.” Hagley, 374 Md. at 684 , 824 A.2d 107 (citations omitted). Indeed, “ ‘conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgments ” and an “ ‘opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely suspicions.’ ” Opals On Ice Lingerie v. Bodylines Inc., 320 F.3d 362 , 370 n. 3 (2d Cir.2003) (quoting Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97 , 107 n. 14 (2d Cir.1981) (quoting 6 J. Moore, Federal Practice ¶ 56.15(3) at 56-486 to 56-487 (2d ed.1976))). “The summary judgment procedure is not a substitute for trial.” Hagley, 374 Md. at 683 , 824 A.2d 107 . “[I]f [the] facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law[.]” Porter v. General Boiler Casing Co., 284 Md. 402, 413 , 396 A.2d 1090 (1979) (quoting Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A.2d 256 (1970)). Thus, a reasonable dispute over a material fact will preclude summary judgment, because its resolution lies with the jury.

Again, where no material fact presented is in dispute, summary judgment is appropriate to resolve purely legal questions. Sterling, 145 Md.App. at 168 , 802 A.2d 440 . We are mindful that summary judgment is generally inappropriate in cases involving abuse of process, defamation, false imprisonment, and malicious prosecution. Hagley, 374 Md. at 684 , 824 A.2d 107 (citing Laws v. Thompson, 78 Md.App. 665, 669-687, 554 A.2d 1264 (1989)).

See Hemmings, ²²⁶ 375 Md. at 535 , 826 A.2d 443 (quoting Brown v. Dermer, 357 Md. 344, 355-56 , 744 A.2d 47 (2000)). Nevertheless, this disposition may properly obtain if the prerequisites for summary judgment are satisfied, to wit: the absence of a disputed issue of material fact and the presence of a legal basis for the entry of judgment. See Hagley, 374 Md. at 685 , 824 A.2d 107 (citing Gross v. Sussex, Inc., 332 Md. 247, 257 , 630 A.2d 1156 (1993); Driver v. PEPCO, 247 Md. 75, 79 , 230 A.2d 321 (1967)).

II

In contesting the entry of summary judgment on the malicious prosecution count, appellants contend that the criminal prosecution was initiated without probable cause. Under this' general argument, appellants raise, explicitly or by implication, a host of assertions, which we shall address seriatim. 3 A. Malicious Prosecution Appellants’ initial argument broadly contests the circuit court’s determination of probable cause as a basis for malicious prosecution. This contention effectively relates to whether that court erred in granting summary judgment as to the count alleging malicious prosecution, Count I of the Third ²²⁷ Amended Complaint, and whether the court properly disposed of that primary count’s derivative charges, viz. Count II, punitive damages, and Counts XIII and XIV, those aiding and abetting allegations against Ms. Knouse with respect to malicious prosecution.

In a case of malicious prosecution, a plaintiff must establish “1) a criminal proceeding instituted or continued by the defendant against the plaintiff; 2) without probable cause; 3) with malice, or with a motive other than to bring the offender to justice; and 4) termination of the proceedings in favor of the plaintiff.” Heron v. Strader, 361 Md. 258, 264 , 761 A.2d 56 (2000). See Okwa v. Harper, 360 Md. 161, 183 , 757 A.2d 118 (2000); DiPino v. Davis, 354 Md. 18, 54 , 729 A.2d 354 (1999); Exxon v. Kelly, 281 Md. 689, 693 , 381 A.2d 1146 (1978); Green v. Brooks, 125 Md.App. 349, 367 , 725 A.2d 596 (1999). The first and final elements have been established in appellants’ favor. The issue of probable cause has drawn the most attention in this appeal.

The Acquittal First, appellants maintain that the acquittal of the criminal prosecution undermines the determination of probable cause. We do not agree. An acquittal is not, by itself, evidence of a lack of probable cause. Palmer Ford v. Wood, 298 Md. 484 , 492 n. 4, 471 A.2d 297 (1984).

As the Court of Appeals has observed: [T]he fact of acquittal after trial on the merits is not evidence of a want of probable cause. Prosser, Torts (2d ed.), p. 656, §§ 98; Restatement, Torts, §§ 667, comment (c); Western Union Telegraph Co. v. Thomasson, 251 F. 833, 837 (C.C.A.4th.). This is said to be for the reason that the finding may be based on a mere lack of proof beyond a reasonable doubt, and throws no light on the sufficiency of the evidence on which the instigator acted at the time the proceedings were instituted, because the verdict may have been based on other evidence produced by the defense that was unknown to the instigator. We find nothing in the Maryland cases at variance with this view.

In Stansbury v. ²²⁸ Luttrell, 152 Md. 553 , 137 A. 339 , a judgment for the plaintiff was reversed because of a failure to establish a want of probable cause, despite the fact that he had been acquitted of larceny after a jury trial. In Safeway Stores, Inc. v. Barrack, supra, [ 210 Md. 168 , 122 A.2d 457 ] we held that the case was properly submitted to the jury because of the conflict in the evidence as to what occurred prior to the arrest. We referred to the fact that in Nance v. Gall, 187 Md. 656 , [ 50 A.2d 120 (1946), 51 A.2d 535 (1947)], and in Straus v. Young, 36 Md. 246 , it was said that acquittal before a magistrate would permit an inference of a want of probable cause. In both those cases, however, there was not an acquittal on the merits.... [Discharge by a magistrate on preliminary hearing may furnish some evidence of a want of probable cause, whereas acquittal after trial does not....

In the instant case we hold that the acquittal by the jury is not evidence of a want of probable cause[.] Norvell v. Safeway Stores, Inc., 212 Md. 14, 20-21 , 128 A.2d 591 (1957). As was stated in another fashion by the Fourth Circuit in applying Maryland law, “[p]robable cause does not require evidence sufficient to convict a person but only ‘a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.’ ” Alvarez v. Montgomery County, 147 F.3d 354, 360 (4th Cir.1998) (quoting Palmer Ford, 298 Md. at 493 , 471 A.2d 297 ). In Porterfield v. Lott, 156 F.3d 563, 569 (4th Cir.1998), the court observed: Probable cause requires more than “bare suspicion” but requires less than evidence necessary to convict.... “It is an objective standard-of probability that reasonable and prudent persons apply in everyday life____” And when it is considered in the light of all of the surrounding circumstances, even “seemingly innocent activity” may provide a basis for finding probable cause. (Citations omitted.) To conclude on this point, we find instructive the observation by Judge Hill, writing for the Eleventh Circuit: ²²⁹ There is a substantial difference between the quantum of proof necessary to constitute sufficient evidence to support a conviction and that necessary to establish probable cause.

Although we characterized [on direct appeal of the plaintiffs criminal conviction] the evidence against Kelly at trial as supporting little more than “speculation and conjecture,” this assessment does not mean that there was not probable cause to bring the charges. Kelly v. Serna, 87 F.3d 1235, 1241 (11th Cir.1996). Hearsay Statements Of particular focus in appellants’ appeal is their charge that the circuit court relied on “inadmissible hearsay” in rendering the determination that probable cause existed in this case. They essentially complain that the “cumulation of information,” viz. the statements, remarks, innuendo, and rumors from other ushers and stadium employees should not have formed the basis of the court’s ruling, because “[there are] no witnesses claiming to have personal knowledge of a scheme[.]” Aramark responds, first, that appellants failed to raise this issue before the circuit court, and, second, that such statements as were presented to Ms. Knouse were adequate to form the basis for probable cause.

Preservation As a preliminary matter, we address whether appellants preserved their hearsay theory for our consideration. Prompted by Aramark’s preservation argument, appellants in their reply brief assure us that their objection to the “facts” which came to Ms. Knouse’s attention was indeed brought before the circuit court. They cite the hearing on the motion for summary judgment, where the following exchange occurred: THE COURT: Can I ask you this, [counsel]? Is your position here that these facts as just enunciated for the record and for everyone’s understanding so we’ll have a ²³⁰ common road map here, is your argument today that those facts are belied by other facts? [COUNSEL]: These facts, we believe, are uncorroborated, unreliable, unverified, quote/unquote “facts.” Appellants further respond to the preservation argument that in their motion to reconsider the entry of summary judgment, the “issues concerning hearsay were raised.” Maryland Rule 8-131(a), repeatedly quoted by this Court, provides in part that “[o]rdinarily, the appellate court will not decide any other [than a jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” This issue is before us, but just barely.

In our view, appellants’ complaint, that the evidence in question was “uncorroborated” and “unreliable,” provides a sufficient basis for us to consider their complaint on appeal that it is inadmissible hearsay. The following passage from the Seventh Circuit is instructive: .;.. Spiller’s argument on appeal relates to the government’s use of the ledgers to show that he produced 28,000 grams of crack cocaine. In other words, he objects to their use to prove the truth of the information they contained, a hearsay objection.

The government maintains that since the initial admission of the records was appropriate under Rule 404(b), and since Spiller did not make a continuing hearsay objection, Spiller forfeited his right to object to the use of the ledgers. Generally, to preserve an issue for appellate review, a party must make a proper objection at trial that alerts the court and opposing party to the specific grounds for the objection. Thus, not just any objection will save an issue for review—neither á general objection to the evidence nor a specific objection on a ground other than the one advanced on appeal is enough. Rather, this Court null consider an argument only if the party asserting it made a ²³¹ proper, timely and specific objection on the same ground at trial, that is, unless plain error is manifest.

Thus, we must decide whether Spiller’s objections that the ledgers were “irrelevant, immaterial and uncorroborated” is sufficient to preserve the issue that they constitute inadmissible hearsay. Spiller’s objection regarding relevance and materiality is not sufficient to preserve a hearsay objection for appellate review. In fact, much hearsay, even inadmissible hearsay, is relevant and material. However, Spiller’s objection based on lack of corroboration is probably sufficient.

Lack of reliability and corroboration go to the heart of the hearsay objection. United States v. Spiller, 261 F.3d 683, 689-90 (7th Cir.2001). Thus, while we disagree with appellants’ assertion that they effectively presented a hearsay objection in their motion for reconsideration, we do conclude that counsel’s above-referenced objection at the hearing to the lack of corroboration is sufficient to preserve this issue. Nature and Use of Hearsay Statements Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

This is the traditional definition of hearsay as articulated in Md. Rule 5-801 (c). “Generally, statements made out-of-court that are pffered for their truth are inadmissible as hearsay, absent circumstances bringing the statements within a recognized exception to the hearsay rule.” Su v. Weaver, 313 Md. 370, 376 , 545 A.2d 692 (1988) (citing Kapiloff v. Locke, 276 Md. 466, 471 , 348 A.2d 697 (1975)). The Hearsay Rule is therefore a rule of exclusion, and thus the proponent of the disputed evidence bears the burden of showing that the Rule does not apply. See Cassidy v. State, 74 Md.App. 1, 7-8 , 536 A.2d 666 , cert. denied, 312 Md. 602 , 541 A.2d 965 (1988). But as was pointed out by Judge ²³² Moylan, sitting by designation in the Court of Appeals, “[t]he acceptability of hearsay, even ... compounded, in the accumulation of probable cause is fundamental.” Brewer v. Mele, 267 Md. 437 , 450 n. 12, 298 A.2d 156 (1972) (citing cases). 4 We need venture no farther in our consideration of appellants’ hearsay argument.

The proper consideration of the various statements that are implicated in Aramark’s actions is whether they formed a reasonably objective basis at the time upon which Aramark could have relied to go forward with those actions which were adverse to Ms. Carter. The statements were the proper subject of the circuit court’s analysis on summary judgment, even though they were not admissible in Ms. Carter’s trial in the district court. ²³³ Probable Cause We now consider the issue of whether there was probable cause, the presence of which will bar the malicious prosecution and related counts. See Kennedy v. Crouch, 191 Md. 580, 587 , 62 A.2d 582 (1948). “Probable cause, as the term implies, is a concept based on probability.” Okwa, 360 Md. at 183 , 757 A.2d 118 . The Court of Appeals continued in Okwa : It does not have a technical definition.

Rather, the question of whether a law enforcement officer had probable cause to make a particular arrest is determined on “factual and practical considerations of everyday life on which reasonable and prudent [people] ... act.” ... We have defined probable cause as “ ‘facts and circumstances sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense.’ ” DiPino, 354 Md. at 32 , 729 A.2d at 361 (citations omitted) (alterations in original). Okwa, 360 Md. at 183-84 , 757 A.2d 118 (citations omitted). Judge Hollander, writing for this Court in Green , refers us to the following instructive statement by the Court of Appeals: “Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious [person] in believing that the accused is guilty.” ...

It is equally clear that if the facts, and the inferences to be drawn therefrom, relied on to constitute probable cause are clear and undisputed, the question is one of law for the court; where the facts are contested, however, whether they are proved is a question for the jury. Green, 125 Md.App. at 368 , 725 A.2d 596 (quoting Exxon Corp. v. Kelly, 281 Md. at 697-98 , 381 A.2d 1146 ). Malice may be inferred from the lack of probable cause. Okwa, 360 Md. at 189 , 757 A.2d 118 .

We recognize that probable cause cannot rest on rumor. The record, nevertheless, contains evidence of “circumstances sufficiently strong in themselves” to justify a reasonable belief that Ms. Carter was guilty of an offense. On July 27, 1999, ²³⁴ Ms. Knouse had been informed that Ms. Carter had collected. Styrofoam cups and miniature plastic baseball helmets after the games.

She was told that one Sean Clark, an Aramark employee, reported that a Steve Sachs, a bartender for Ara-mark, had seen Ms. Carter pass a number of Styrofoam cups to Ms. Brunson, an Aramark yogurt vender, and that the latter had been seen entering the ladies room with a bag during an audit of her stand. Ms. Knouse was informed by an Orioles usher, Mary Ellen Myers, of rumors that Ms. Carter and Ms. Brunson were involved in selling yogurt. In a deposition, Ms. Myers testified that she had heard rumors 5 that Ms. Carter “was collecting the caps 6 and taking them home and bringing them back to the yogurt stand ... to give it [the caps] to Ms. Ruthie [who] would use that as inventory. That’s how they made their money.” At her deposition, Ms. Myers continued: Other than collect [the helmets in which yogurt was served] after the games, [Ms. Carter] would put them in her bag and she would, you know, just go up and down the aisle, and seating area and collect the helmets.

It seemed like it was basically every game, you know. * * * ... At times, I mean that was the summer it was very hot and Gail would be constantly at the Yogurt Tree.... It came to a time that, you know, she was actually helping Ms. Ruthie serve the yogurt[J ... And then, you know, we were all told as a group no more being at the yogurt place. ²³⁵ Ms. Myers said that she had not raised this as an issue before July 27, 1999.

On that date, however, she had stopped by the bar where an Aramark bartender, Steve Sachs, was working, for some ice. Ms. Brunson’s yogurt stand was nearby, but Sachs was apparently unaware of the rumors about Ms. Carter. Ms. Myers recalled: And all of a sudden [Sachs] just started yelling and went— calling [yelling for] his supervisor, I don’t remember the name, and I went back to my section. So I didn’t find out until after the fact what had happened....

That Gail ... was taking Styrofoam cups home too ... and Ms. Ruthie got caught putting the cups in the ladies bathroom. [Ms. Myers did not actually see anything.] I just saw Gail there with her bag on the yogurt place, which it was always, you know, whenever she went there, she had her bag there, but I didn’t see anything transpire, no. Ms. Myers never saw Ms. Carter and Ms. Brunson exchange money. Nor did she see the latter sell yogurt in cups allegedly given to her by Ms. Carter. Diane Taylor, an employee, signed a statement reporting that on July 26,1999, she had seen Ms. Carter “picking up the baseball cups [presumably plastic helmets] left behind by the fans[.]” Subsequent to July 27, 1999, Aramark obtained a statement from one “Antionette R.” who wrote that Ms. Brunson would come to the writer’s stand and ask Antionette “to washout cups[.]” Steve Berry, the Aramark supervisor contacted by bartender Sachs, recalled in a written statement that, while conducting an audit of Ms. Brunson’s yogurt stand on July 27, Ms. Brunson left for the ladies’ room with her bag.

A subsequent search of that restroom yielded a bag containing Styrofoam cups underneath the “trash bag” in the refuse can. ²³⁶ The circuit court was entitled, on the extant record, to conclude that appellants failed to raise a genuine issue of material fact with respect to the above recitations. Cautiously avoiding reliance on rumors and reports from unidentified ushers who actually saw Ms. Carter rinse cups, we ourselves conclude that undisputed facts give rise to those facts and circumstances sufficient to warrant Aramark management and Ms. Knouse in believing that Ms. carter had committed or was committing an offense. Moreover, appellants have failed to point to any dispute of material facts that would militate against an affirmance of the circuit court’s decision below. Compare, Exxon Corp., 281 Md. at 697-98 , 381 A.2d 1146 (court points to conflict in evidence which had formed basis for decision to prosecute).

Aramark’s case is further strengthened by the fact that Officer Milburn consulted an Assistant State’s Attorney, Marshall Shure, before submitting the amended police report that gave rise to the prosecution. Officer Milburn had initially prepared a lengthy police report outlining the facts presented to him by Ms. Knouse and Aramark, and stating that the charge was “flim-flam larceny.” Milburn testified at his deposition that he changed this to “theft” after consulting with Mr. Shure. Non-lawyers, such as Aramark, who rely on the advice of counsel, may in some circumstances raise this as a defense to an allegation of malicious prosecution. In Brewer v. Mele, 267 Md. 437, 453-54 , 298 A.2d 156 (1972), the Court ruled that a deputy sheriff who brought criminal charges was “fully protected by having sought and received the advice of counsel, specifically the State’s attorney, provided only that he shall have made a full and fair disclosure of everything within his knowledge and information and that he subsequently shall have followed the advice given.” We believe that Brewer v. Mele applies here, because Officer Milburn consulted with Mr. Shure about the appropriate charge.

Although appellants accuse Ms. Knouse of making falsehoods in her report, which informed Officer Milburn in his actions, we perceive no inaccu ²³⁷ racies that would render inapplicable the rule insulating malicious prosecution defendants from liability because they consulted with counsel. 7 Because Aramark’s, and Ms. Knouse’s, actions were supported by probable cause, we shall therefore affirm the circuit court’s entry of summary judgment as to Counts I and II and their related punitive damages claims, and the relevant (as to malicious prosecution) counts against Ms. Knouse. B. Defamation and Intentional Interference Appellants assail the circuit court’s entry of summary judgment on the related counts of defamation and intentional interference of economic relations, viz. Ms. Carter’s employment with the Orioles. Ms. Carter alleged the torts of “intentional interference with economic relations” and “defamation” respectively in Counts III and VII of the Third Amended Complaint.

These theories of action were treated similarly by the circuit court, which entered summary judgment for Aramark on the basis of privilege. Defamation This Court has outlined the elements of the tort of defamation in cases involving a plaintiff who is not a public figure: In [such a case] a prima facia case of defamation requires proof of the following elements: (1) that the defendant made a defamatory communication—i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement ²³⁸ was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm. Peroutka v. Strong, 116 Md.App. 301, 311 , 695 A.2d 1287 (1997) (quoting Shapiro v. Massengill, 105 Md.App. 743, 772 , 661 A.2d 202 , cert. denied, 341 Md. 28 , 668 A.2d 36 (1995)). See Gohari v. Darvish, 363 Md. 42, 54 , 767 A.2d 321 (2001). “A defamatory statement is one which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person.” Batson v. Shiflett, 325 Md. 684, 722-23 , 602 A.2d 1191 (1992) (quoting Bowie v. Evening News, 148 Md. 569, 574 , 129 A. 797 (1925)).

In this instance, the allegation that a person is a thief constitutes defamation per se. See R.J. Gilbert and P.T. Gilbert, Maryland Tort Law Handbook, § 6.4 (3d ed. 2000). A defendant in a defamation action may interpose the defense of a qualified, or conditional, privilege. Gohari, 363 Md. at 55 , 767 A.2d 321 .

The Court there observed that a defendant would not face liability for an otherwise defamatory statement “where, in good faith, he publishes a statement in furtherance of his own legitimate interests, or those shared in common with the recipient or third parties, or where his declaration would be of interest to the public in general.” Id. at 56 , 767 A.2d 321 (quoting Marchesi v. Franchino, 283 Md. 131, 135-36 , 387 A.2d 1129 (1978)). The alleged defamatory communications made by Aramark to the Orioles, and to employees of each organization, are defended on the basis of the “shared interest” or “common interest” conditional privilege. The Court of Appeals explained this privilege in a passage that merits extensive quotation: An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which ²³⁹ another sharing such common interest is entitled to know.... In determining what qualifies as a common interest, we have stated that a common interest may include “interests in property, business and professional dealings,” id., and can “inhere in business dealings between the publisher and the recipient.” ...

Dobbs has elaborated: Common interests are usually found among members of identifiable groups in which members share similar goals or values or cooperate in a single endeavor.... The idea is to promote free exchange of relevant information among those engaged in a common enterprise or activity and to permit them to make appropriate internal communications and share consultations without fear of suit.... The privilege does not arise in the first place unless the communication relates in some degree to the common interest, and once the privilege arises it is lost if it is abused by malice or excessive publication. [Dan B. Dobbs,] The Law of Torts [(2000)], supra, § 414, at 1160-61. Gohari, 363 Md. at 57-58 , 767 A.2d 321 (quoting Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151 (1973)).