Dehn Motor Sales, LLC v. Schultz

KRAUSER, C.J. As a result of numerous citizen complaints, officers of the Baltimore City Police Department seized and towed untagged and unregistered vehicles owned by Dehn Motor Sales, LLC, a used car business that was operated and owned, in part, by Farzan Mohamed. Some of the vehicles, parked on a nearby street and in an alleyway, were impeding if not blocking traffic; others, parked in a fenced lot and on the lawn of an adjacent property owned by Dehn Motor Sales, LLC, were leaking fluids, posing both a fire and chemical hazard. Mohamed, Dehn Motor Sales, LLC, and a related entity 1 (whom we shall hereafter collectively refer to as “Dehn Motor”) then brought a replevin action in the District Court of Maryland for the return of the towed vehicles, which ended when the parties reached an agreement that the vehicles would be returned to Dehn Motor, subject to the condition that it not bring them back to the locations from which they had been towed. Following the resolution of the District Court replevin action, which was almost three years after the date the cars were towed, Dehn Motor 2 filed suit in the Circuit Court for Baltimore City against, among others, the two officers who had ordered that the vehicles be towed, Officer Joseph A. Shultz, Jr., and Sergeant Anthony Proctor, 3 alleging violations of the Maryland Declaration of Rights and the United States Constitution, although no timely notice of claim had been provided pursuant to the Local Government Tort Claims Act (“LGTCA”). 4 Officer Schultz and Sergeant Proctor thereafter ³⁷⁹ moved for summary judgment on the grounds that Dehn Motor’s claims were barred, first, by its failure to comply with the LGTCA, second, by its failure to state a claim upon which relief could be granted, and third, by the officers’ qualified immunity.

We shall affirm not only on each of those grounds, but on a ground rejected by the circuit court, as the officers, contrary to what that court held, were engaged in a community caretaking function when they had the vehicles in question removed. Background Farzan Mohamed was the operator and part owner 5 of Dehn Motor Sales, LLC, a used car business, located on the corner of East Patapsco Avenue and Fourth Street in Baltimore City. The business encompassed three adjacent lots: a sales lot at 330 East Patapsco Avenue, a fenced vacant lot at 3554 Fourth Street, and a single family residence at 3550 Fourth Street. In 2003, the Baltimore City Police Department began receiving complaints from citizens about “untagged,” “unregistered,” and unattended vehicles parked on the street and in an alleyway that bordered Dehn Motor’s business.

Those cars were reported to be blocking and inhibiting traffic. Responding to those complaints, Officer Joseph A. Schultz, Jr., “on numerous occasions,” went to Dehn Motor’s business. Each time, upon arrival, he instructed Mohamed or one of his employees to move the cars. Usually the cars were moved, but, when they were not, Officer Schultz issued parking tickets for each of the unmoved cars.

But the complaints continued unabated. In March of 2005, upon being instructed by his supervisor to “tak[e] care of the problem,” Officer Schultz then went to the car lot and observed that the alley was blocked, that cars without tags were ³⁸⁰ parked on the street, and that cars were on the lawn of the house at 3550 Fourth Street. As Mohamed was not there when he arrived, the officer informed an employee of the car lot about the complaints and told him to “get this cleaned up ... by Monday.” If it was not, the officer warned, he would bring “everybody” back with him, including the “Environmental Crimes Unit” (“ECU”), “transit and traffic,” and “inspectors.” When Monday arrived, Officer Schultz, upon personally confirming that the vehicles had not been moved as directed, left and then returned to the location of Dehn Motor’s business with Sergeant Anthony Proctor, 6 his supervisor, and personnel from the ECU, transit and traffic, and zoning, along with tow trucks. Upon arrival, the officers allowed Mohamed to move the vehicles blocking the alleyway that could be moved.

The others were towed. At that time, the officers also observed vehicles parked on the front and side lawns of the house on the lot at 3550 Fourth Street. Among other things, those vehicles were purportedly blocking access to that building. 7 As Officer Schultz described it, the cars were “jammed in there” and parked “all the way up to [the] other property line.” In fact, the officers, said Schultz, “had to literally climb over these cars to get to” all of the vehicles. Officer Shultz was then informed by an ECU officer that the cars surrounding the house posed a hazard, as “fluids” from the vehicles were “seeping right into the ground.” Fearing that the cars were also creating a “horrific” fire hazard because of the gasoline in their tanks and because they blocked the fire department’s access to the house, and recalling that only a “week or two before” there had been a fire in Dundalk “where four houses burned down, under the same ³⁸¹ means,” Officer Schultz and Sergeant Proctor had the cars surrounding the house towed.

Officer Schultz further observed, within the fenced lot located at 3554 Fourth Street: “half cars,” “cars with the motor sticking out,” “cars sitting on top of other cars,” “engine parts,” “transmissions,” and “motors” and was informed by “zoning” personnel that Dehn Motor only had a permit for “an auto dealership and light mechanical work, not for a body shop and heavy mechanical work” and certainly not for a “junkyard.” Upon closer examination of the fenced lot, the officers found that the cars were “leaking fluids,” which were “leaching into the ground.” Officer Shultz could “see the fluids leaking out of the motors ... [and] antifreeze coming out of the radiators.” When ECU detectives advised Sergeant Proctor that the “cars presented] an immediate ... chemical and fire hazard to the community” and that their removal “would resolve the hazardous situation,” he had the vehicles towed to “remove the hazard.” The officers were also concerned, according to Officer Schultz, that the fluids that were “running into the soil in that area,” were also “going down the storm drains” as well, expanding the threat of the hazard. Before leaving this scene, police department personnel provided Dehn Motor with a list of the vehicles towed from the street, alleyway, lawn, and fenced lot. The list showed that a total of sixty-one vehicles had been towed. 8 Dehn Motor thereafter requested and received an administrative hearing as to each of three cars that had been towed, to contest the removal by police of that particular vehicle. 9 As a result of those hearings, it was determined that two of the vehicles should be returned to Dehn Motor and that it would not have to pay any towing or storage fees as to those vehicles, but that ³⁸² it would have to pay such fees for the return of the third vehicle. District Court Proceedings While those hearings were pending, on April 19, 2005, eighteen days after the cars had been towed, Dehn Motor filed an action for replevin in the District Court seeking the return of the vehicles.

Named as defendants in that suit were the Director of the Baltimore City Department of Transportation, Alford Foxx; the “Acting Tow Manager” for the Baltimore City Department of Transportation, Richard Hooper; and the Mayor and City Council of Baltimore. The suit ended when the parties agreed that the vehicles would be returned to Dehn Motor, who would not have to pay the towing and storage fees, but in return, Dehn Motor agreed that it would not return the vehicles to the locations from which they had been towed. The District Court signed an order dated March 12, 2008, reflecting that agreement. Circuit Court Proceedings After the District Court replevin action had concluded, Mohamed, Dehn Motor, LLC, and the businesses Mohamed operated at that site 10 filed a complaint, sixteen days later, in the Circuit Court for Baltimore City against, among others, 11 Officer Schultz and Sergeant Proctor—neither of whom had been named in the replevin action.

The suit alleged, for the first time, violations of Articles 19, 24, and 26 of the Maryland Declaration of Rights and the Fourth and Fourteenth Amendments to the United States Constitution. Ultimately, Dehn Motor and the officers filed cross-motions for summary judgment. The circuit court promptly mailed a ³⁸³ notice to the parties informing them that a hearing on the motions would be held on February 4, 2011, and that any response to those motions must be filed by January 7, 2011, 12 but neither side filed a response by that date. On January 25, 2011, the circuit court sent to the parties a reminder of the date on which the hearing would be held.

On February 3, 2011, the day before the hearing was to be held on the parties’ cross-motions for summary judgment and almost thirty days after the court’s deadline for a response had passed, Dehn Motor filed a response to Officer Schultz and Sergeant Proctor’s motion for summary judgment. The next day, the court began the hearing on the cross-motions by inquiring as to why Dehn Motor’s response had been filed so late. When the court found the explanation offered by Dehn Motor’s counsel unpersuasive, it struck the response. The circuit court, after hearing argument, denied Dehn Motor’s motion for summary judgment but granted the summary judgment motion of Officer Schultz and Sergeant Proctor.

The court found that Dehn Motor had not complied with the notice requirement of the LGTCA, declaring that the replevin suit Dehn Motor filed in the District Court “was not notice to anyone ... that there was a claim against these two officers, a claim for money damages” and thus that Dehn Motor had failed to comply with the LGTCA. In so holding, the court disposed of Dehn Motor’s claims under the Maryland Declaration of Rights. 13 It then turned to Dehn Motor’s federal constitutional claims and held that it had failed to state a claim upon which relief could be granted. The seizure of the vehicles was lawful, the ³⁸⁴ court opined, because the officers were acting pursuant to Article 19, § 50-2; 14 Article 19, § 50-11; 15 Article 31, § 6-3; 16 Article 31, § SIS', 17 and Article 31, § 31-8 18 of the Baltimore City Code whose constitutionality had not been challenged, because the response that had addressed those provisions had been struck ³⁸⁵ by the court for untimeliness. The court further held that, even if the provisions of the Baltimore City Code did not bestow upon the officers the legal authority to tow the vehicles, the officers nonetheless were protected by qualified immunity from any federal claims against them for that action.

Having found that the Baltimore City Code authorized the officers’ actions, the court then addressed the officers’ claim that the seizure of Dehn Motor’s vehicles was lawful under the community caretaking function. The court disagreed, stating that it did not think that the officers were acting pursuant to their community caretaking role because that function involved activities by the police such as responding to car accidents or checking houses for possible burglaries, and not the kind of action taken by police in the case at bar. Following the subsequent denial of its motion to alter or amend, Dehn Motor noted this appeal. DISCUSSION As this is an appeal from the grant of summary judgment in favor of the officers, we turn to Maryland Rule 2-501, the rule governing summary judgment.

Subsection (f) of that rule provides that, upon a party’s motion for summary judgment, a 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.” Because there was no dispute below as to any material fact, we proceed to the question of whether the officers were “entitled to judgment as a matter of law.” To answer that question, we conduct a review de novo of the legal determinations made by the circuit court, which are the subject of this appeal. Frazier v. Castle Ford, Ltd., 200 Md.App. 285, 294 , 27 A.3d 583 (2011), aff'd in part, 430 Md. 144 , 59 A.3d 1016 (2013). I. Dehn Motor contends that the circuit court erred in granting summary judgment on the grounds that the replevin ³⁸⁶ action it filed in the District Court did not comply with the notice requirement of the LGTCA. 19 Dehn Motor insists that, in accordance with the LGTCA, its replevin action did provide sufficient notice to the City of the “time, place and cause of [Dehn Motor’s] injury” and gave the City an adequate opportunity to investigate the incident and prepare for any other claim that might be brought. As a consequence, we begin our discussion by addressing, first, the question of what does the notice provision demand, and, second, the question of whether Dehn Motor’s replevin action satisfies that mandate.

To begin with, we note that section 5—304(b) of the Courts and Judicial Proceedings Article 20 (“CJP”) sets forth the LGTCA’s notice requirements. That section requires a notice of the claim under the LGTCA be given within 180 days of the injury alleged. Specifically, it provides: Notice Required.—Except as provided in subsections (a) and (d) of this section, an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 180 days after the injury. To whom the notice is to be given is set out in CJP § 5-304(c)(3)(i), which requires that, as for the City of Baltimore, notice is to be given to the City Solicitor.

As for the form and content of the notice, CJP § 5—304(b)(2) states that “[t]he notice shall be in -writing and shall state the time, place, and cause of the injury.” The notice provision of the LGTCA is a “condition precedent to maintaining an action directly against a local government or its employees,” Hansen v. City of Laurel, 420 Md. 670, 682 , 25 A.3d 122 (2011), but, strict compliance with that provision is not required. A notice, may, if it substantial ³⁸⁷ ly complies with the notice requirement, “satisfy the statute where the purpose of the notice requirement is fulfilled.” Moore v. Norouzi, 371 Md. 154, 168 , 807 A.2d 632 (2002). The purpose of the notice requirement, the Court of Appeals has said, is to apprise a municipality “ ‘of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.’ ” Id. at 167-68 , 807 A.2d 632 (internal quotation marks omitted) (quoting Williams v. Maynard, 359 Md. 379, 389-90 , 754 A.2d 379 (2000)). To fulfill that purpose, the notice must set forth the “ ‘facts and circumstances giving rise to the claim.’ ” Faulk v. Ewing, 371 Md. 284, 299 , 808 A.2d 1262 (2002) (quoting Condon v. Univ. of Maryland, 332 Md. 481, 496 , 632 A.2d 753 (1993)).

In the instant case, the District Court replevin action did not forewarn, as a notice of claim must, that an action for unliquidated damages may follow; in fact, it suggested the contrary: Dehn Motor’s replevin claim was only against the City. More importantly, the only issue raised by the replevin action was the return of the vehicles, the towing fees that had been charged, and any damages for the temporary detention of the vehicles. There was no reason to suspect from the replevin action—which Dehn Motor claims was comparable to a notice of claim—that Sergeant Proctor and Officer Schultz were potential parties. Nor was there any reason to believe, from the nature of the action, that constitutional claims were waiting in the wings.

The matter was thereafter settled by the return of the vehicles and the lifting of towing and storage fees, in exchange for the promise by Dehn Motor not to return the vehicles to the locations from which they had been towed. The relief sought by Dehn Motor in the replevin suit was the return of its towed vehicles, without having to pay the towing and storage fees, as well as damages for the seizure and detention of the vehicles. No other injuries were alleged. Nor could they have been as a replevin action entails very ³⁸⁸ limited relief, namely, the return of the vehicles and damages caused by the detention of the vehicles.

Koch v. Mack Int’l Motor Truck Corp., 201 Md. 562, 572 , 95 A.2d 105 (1953) (stating that “damages in replevin actions are for the detention of the chattel”). Moreover, the replevin complaint gave no warning, expressed or implied, that the officers might be future defendants in a more substantial and thus more threatening action in an altogether different court involving constitutional claims and that the City could also face additional and substantial damage claims, far greater than those that could be advanced in a replevin action. While the replevin suit requested limited damages, the circuit court action demanded $500,000 in compensatory damages and $1,000,000 in punitive damages. In sum, the failure to provide a separate notice of a claim of unliquidated damages had troubling consequences.

If, in addition to filing their replevin complaint in the District Court, Dehn Motor had sent a notice of claim to the Baltimore City Solicitor, the City would have been on notice that Dehn Motor might file an additional and significantly larger lawsuit. Provided with such notice, the City would have been on notice of the need to conduct a more extensive investigation, and would have probably provided the officers with counsel during the replevin proceeding at which they were called as witnesses or the officers would have obtained counsel on their own. Moreover, the City agreed to settle the replevin action unaware that another larger suit would follow, and, had it been put on notice of that, it would have probably requested, we presume, that Dehn Motor release it and its employees from liability for any future claims arising from the towing of Dehn Motor’s vehicles. Thus, instead of aiding the City in preparing for a possible future suit, as is the purpose of the notice requirement, the replevin suit hindered that preparation by misleadingly suggesting that the City only faced an action of a limited nature.

If it was on notice of an “action for unliquidated damages,” it was a notice of a deceptively small amount of such damages. ³⁸⁹ Because the replevin action did not adequately inform the City “of its possible liability” in an action for unliquidated damages, Dehn Motor did not substantially comply with the notice requirement of the LGTCA. Moore, 371 Md. at 167-68 , 807 A.2d 632 . Therefore, the circuit court did not err in granting summary judgment in favor of the officers as to Dehn