Nelson v. Kenny

BYRNES, Judge. This case arose out of an altercation between two students at Mace’s Lane Middle School, in the City of Cambridge, on September 10, 1993. When teacher Ramona F. Kenny tried to intervene, one of the students hit her. The police were called and Officer Chantay Nelson, appellant, responded.

After interviewing the students and Mrs. Kenny, Officer Nelson took Mrs. Kenny into custody and started to book her on charges of assault and battery. Before that process was completed, another member of the police force intervened, releasing Mrs. Kenny and telling her that “everything had been dropped.” Mrs. Kenny subsequently received a letter of apology from the Cambridge City Police Chief. Mrs. Kenny and her husband, Wade A. Kenny, appellees, sued Officer Nelson, the Cambridge City Police Department, the Commissioners of Cambridge, and the Board of Education of Dorchester County in the Circuit Court for Dorchester County alleging false arrest, false imprisonment, violation of Article 24 of the Maryland Declaration of Rights, and loss of consortium. Motions to dismiss were granted in favor of all of the defendants except for Officer Nelson.

Officer Nelson then moved for summary judgment on the ground of public official immunity. When her motion was denied, she noted this interlocutory appeal. She presents the following question for review, which we have slightly rephrased: ⁴⁸⁵ Did the lower court err in denying summary judgment when appellees provided no evidence of actual malice sufficient to defeat appellant’s public official immunity defense? We conclude that this interlocutory appeal is not properly before us; accordingly, we dismiss it and remand the case for further proceedings.

Appellate Jurisdiction Ordinarily, an appeal may only be taken from a final judgment, see Md.Code Ann., (1995 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article (“C.J.”), unless an interlocutory appeal is authorized by C.J. § 12-303 or the trial court expressly determines that there is no just reason for delay and directs the entry of final judgment as to one or more but fewer than all of the claims or parties, pursuant to Md. Rule 2-602(b). The trial court’s order denying Officer Nelson’s motion for summary judgment in this case is not a final judgment under C.J. § 12-301 because it does not conclusively determine the rights of the parties. Porter Hayden Co. v. Commercial Union Ins. Co., 339 Md. 150, 164 , 661 A.2d 691 (1995).

It also is not within the class of orders for which interlocutory appeals are permitted under C.J. § 12-303 and is not certified (and could not be certified) as a final judgment under Md. Rule 2-602(b). Accordingly, we may exercise appellate jurisdiction to review the order only if it falls within the extremely narrow class of interlocutory orders that are treated as final under the “collateral order doctrine,” which was first recognized by the United States Supreme Court in Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-47 , 69 S.Ct. 1221, 1225-26 , 93 L.Ed. 1528 (1949). For an order to be appealable under that doctrine it must: 1) conclusively determine the disputed question, 2) resolve an important issue, 3) be completely separate from the merits of the action, and 4) be effectively unreviewable on appeal from a final judgment. ⁴⁸⁶ State v. Jett, 316 Md. 248, 251 , 558 A.2d 385 (1989); Bunting v. State, 312 Md. 472, 477 , 540 A.2d 805 (1988); Harris v. Harris, 310 Md. 310, 316 , 529 A.2d 356 (1987). In Bradley v. Fisher, 113 Md.App. 603 , 688 A.2d 527 (1997), we discussed the jurisdictional posture of interlocutory appeals from orders denying summary judgment on immunity grounds, brought under the collateral order doctrine: An interlocutory appeal [of the denial of a motion for summary judgment premised on immunity] is permitted only because, if complete and absolute immunity exists, it may, under certain circumstances, encompass the right to be immune from the trial process itself, and, thus, if an immunity claim is wrongfully denied, absent an immediate appeal, the right not to be tried, if it exists is lost.

Id. at 605 , 688 A.2d 527 . Absolute immunity, like the constitutional guarantee against double jeopardy, is a time-bound right that fits precisely the framework of the collateral order doctrine: it is an important issue separate and apart from the merits of the case that is effectively unreviewable on appeal from a final judgment because taking the case to a final judgment will destroy the right. Mandel v. O’Hara, 320 Md. 103, 134 , 576 A.2d 766 (1990)(denial of ex-governor’s motion to dismiss on grounds of absolute immunity is immediately appealable); Parrott v. State, 301 Md. 411, 421 , 483 A.2d 68 (1984)(denial of motion to dismiss on grounds of double jeopardy is immediately appealable). When the immunity claimed is a qualified immunity, not an absolute immunity, however, application of the collateral order doctrine is not as clear-cut, for two reasons.

First, it may not be possible to determine whether the defendant is entitled to qualified immunity without resolving disputes of fact that go to the merits of the case. In that circumstance, the issue of qualified immunity is not “collateral,” within the meaning of the collateral order doctrine: ‘When ... resolution of the immunity defense depends upon disputed factual issues, or upon mixed questions of fact and law, an immediate appeal will not lie, and review of the qualified immunity ⁴⁸⁷ determination will have to await the trial court’s resolution of the factual questions.” Port Deposit v. Petetit, 113 Md.App. 401, 414 , 688 A.2d 54 (1997). Only when a qualified immunity defense can be decided without delving into and resolving disputed facts is an interlocutory order denying summary judgment sufficiently separate from the merits of the case to qualify as a collateral order. Id.; Artis v. Cyphers, 100 Md.App. 633, 652 , 642 A.2d 298 , aff'd mem., 336 Md. 561 , 649 A.2d 838 (1994).

Second, even if the issue is truly collateral, the defense of qualified immunity may not be effectively unreviewable on appeal from a final judgment because it may not be tantamount to a right not to be tried. Bunting, 312 Md. at 481-482 , 540 A.2d 805 (“the idea that an issue is not effectively renewable after termination of the trial on the merits because it involves a ‘right’ to avoid the trial itself, should be limited to double jeopardy claims and a very few other extraordinary situations”). The statutory public official immunity on which Officer Nelson predicated her motion for summary judgment is found at C.J. § 5-321(b)(1). It provides: Nonliability of officials generally [ ... ] — (1) An official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action.

As this statutory language makes plain, public official immunity is qualified, not absolute. It may be defeated by proof of malice, i.e. affirmative evidence that the official “ ‘intentionally performed an act without legal justification or excuse, but with an evil or rancourous motive influenced by hate, the purpose being to deliberately injure the plaintiff.’ ” Davis v. DiPino, 99 Md.App. 282, 290 , 637 A.2d 475 (1994), rev’d on other grounds, 337 Md. 642 , 655 A.2d 401 (1995)(quoting Leese v. Baltimore County, 64 Md.App. 442, 480 , 497 A.2d 159 , cert. denied, 305 Md. 106 , 501 A.2d 845 (1985)); Thomas v. Annapolis, 113 Md.App. 440, 458-459 , 688 A.2d 448 (1997); Elliott v. ⁴⁸⁸ Kupferman, 58 Md.App. 510, 526 , 473 A.2d 960 (1984)(malice sufficient to defeat immunity under predecessor statute to C.J. § 5-321 must be an intentional act done knowingly for an improper purpose without legal justification or excuse). Statutory public official immunity shields the immunized party against liability for common law and State constitutional torts. Davis v. DiPino, supra, at 290-91, 637 A.2d 475 .

Mr.- and Mrs. Kenny do not dispute that at all times relevant to their claims, Officer Nelson was performing discretionary acts in furtherance of her public duties as a police officer. Their opposition to the immunity defense advanced by Officer Nelson in her motion for summary judgment rested solely on the ground that she did not act “without malice.” The Kennys maintain that a genuine dispute of material fact exists on the issue of malice and that the issue is properly resolved by a jury. Officer Nelson argues, to the contrary, that the facts adduced in discovery are insufficient as a matter of law to generate a jury question on the issue of actual malice. When it denied Officer Nelson’s motion for summary judgment, the trial court explained: “It appears to the Court that the issue ... is one of motive or intent, presence or absence of actual malice.

And I find that this is a factual matter which is in dispute, so the motion is denied.” If our examination of the record reveals that indeed there is a genuine dispute of material fact over whether Officer Nelson acted “without malice” and that resolution of the dispute hinges on the determination of factual findings integral to the merits of the case, then this appeal must be dismissed because it does not fall within the narrow confines of the collateral order doctrine. With that in mind, we turn to the record, reciting first the factual chronology that the Kennys argue gives rise to a dispute on the issue of malice and then the pertinent contentions made by Officer Nelson. Factual Background On the day in question, Mrs. Kenny was standing outside of her classroom before the start of classes when she noticed a ⁴⁸⁹ large gathering of girls outside the door to Mrs. Joann Baker’s classroom. Mrs. Kenny walked down the hall to investigate.

She heard Lanielle Adams, a student, say “bitch” and saw another student, Lakita Pittman, enter Mrs. Baker’s classroom. Adams followed Pittman into the classroom and Mrs. Kenny followed behind them. Mrs. Baker was not there. Mrs. Kenny then saw Adams throw Pittman against the wall and start punching her in the face.

Mrs. Kenny intervened by stepping between the two girls. Adams responded by turning away from Pittman and striking Mrs. Kenny, who fell backwards, landing on top of a group of desks about 12 feet away. Adams then resumed punching Pittman. Mrs. Kenny got up, buzzed the office intercom, and asked for the principal to come right away.

At that point, Mrs. Wydella Thomas, another teacher, entered the classroom and pulled Adams off of Pittman. Mrs. Thomas took hold of Adams’s arm and removed her bodily from the room. After Mrs. Kenny determined that Pittman was alright, the two left the classroom and headed for the school office. Mrs. Kenny and Pittman encountered Principal John Hurley in the hall.

Mrs. Kenny told Principal Hurley what had happened. They proceeded to the office and a short time later Principal Hurley took Mrs. Kenny into a room in which Adams and Pittman were seated. He questioned Adams, who admitted that she had hit Mrs. Kenny. He told Adams that her conduct constituted an assault on a teacher and that he was going to call the police to come and remove her from the building.

Before making that call, Principal Hurley phoned Adams’s mother, informing her of the incident and telling her that the police were about to be notified. He then called the police. Mrs. Kenny left and returned to her classroom. Officer Nelson responded to the call.

Principal Hurley told her what had occurred and asked her to arrest Adams and charge her with assault and battery against Mrs. Kenny. Officer Nelson interviewed Adams, who by then was in the company of her mother, Mrs. Adams-Travers. According to the police report later prepared by Officer Nelson, Adams admitted to punching Pittman but accused Pittman of starting ⁴⁹⁰ the fight. Mrs. Adams-Travers