Shipp v. Autoville Ltd.

Orth, C. J., delivered the opinion of the Court. CASE SUMMARY This is an appeal from a judgment for costs in favor of the defendants in an ex delicto action before a jury in the Circuit Court for Prince George’s County in which Carol Susan Shipp, appellant, sued Autoville Limited and John A. B. Fenwick, appellees, seeking damages for malicious prosecution and false arrest and imprisonment. The ⁵⁵⁷ judgment was entered upon a directed verdict granted by the court at the close of all the evidence. Maryland Rule 552.

We reverse. PRELIMINARY ISSUE A preliminary issue for decision is whether the appeal is properly before us. The case was tried on 21 and 22 January 1974. The court reserved a ruling on a motion for a directed verdict made by appellees at the close of evidence offered by appellant.

The course of events thereafter is shown by the docket entries'. “1/22/74 ... At the conclusion of the entire case, Motion for Directed Verdict renewed. Motion granted. 1/22/74 Judgment nisi entered in favor of the Defendant for costs. 1/28/74 Final Judgment entered in favor-of the Defendant for costs.” On 20 February 1974 appellant filed an order of appeal. She requested the Clerk to enter an appeal to the Court “. . . from the judgment entered in this action on January 22, 1974.” This was not a final judgment.

The general rule is that an appeal may be taken only from a final judgment. Courts Art., § 12-301. See Courts Art., §§ 12-302 and 12-303. It once was that the practice followed in a law case in entering a final judgment upon a jury trial was different from the practice followed in entering a final judgment upon a bench trial.

Uniformity was obtained by rule. Maryland Rule 564 b 1 providés: “Where an action at law is tried upon the facts by the court, the court shall direct judgment nisi to be entered upon the law and the evidence.” Rule 567 a prescribes: “A motion for a new trial as to all or part of the matters in controversy shall be filed within three days after .the reception of a verdict, or, in case of a special verdict or a trial by the court within three days after the entry of a judgment nisi.” Rule 567 f declares: “If a motion for a new trial is not made, within the time prescribed by section a of this Rule, the clerk shall enter a final judgment as of ⁵⁵⁸ course.” 1 The Court of Appeals explained it all in Merlands Club v. Messall, 238 Md. 359 , 362: “This portion [§ b 1] of Rule 564 was amended to its present form in 1957, to make the practice of law in regard to the entry of judgment by the court sitting without a jury the same as the practice of entering judgment upon a verdict of a jury. See Baltimore Luggage Company v. Ligon, 208 Md. 406 , 118 A. 2d 665 (1955). Prior to the amendment of Rule 564, an absolute judgment was entered immediately upon the announcement of the court’s ‘verdict’ when sitting without a jury and upon the rendition of special verdicts by a jury, Baltimore Luggage Company v. Ligon, supra.

After the amendment, when the facts of the case are tried by the court sitting without a jury, the clerk enters up a judgment nisi, which act is analogous to the entry of a verdict when the facts of the case are tried by a jury. The principal purpose of the entry of a judgment nisi is to enable an aggrieved party to file a motion for a new trial within three days from the rendition of the verdict or judgment nisi.” So with respect to actions at law it is now well settled that a) when no motion for a new trial has been filed, the judgment absolute is entered at the expiration of 3 days from the entry of the judgment nisi in a court trial and from the rendition of the verdict in a jury trial, and b) when a motion for a new trial has been filed, the judgment absolute is entered upon denial of the motion, whether the trial be by court or jury. It is the “final judgment” from which an appeal may be taken. An appeal lies only from a judgment absolute and not from a judgment nisi.

Hawkins v. GMAC, 250 Md. 146, 148 . Of ⁵⁵⁹ course, the time in which the appeal must be filed runs from the entry of the final judgment. Rule 1012. The Court of Appeals has stated, iterated and reiterated that jurisdiction may not be conferred upon an appellate court in this jurisdiction by consent of the parties.

Lang v. Catterton, 267 Md. 268, 275 . It has been steadfast in dismissing appeals not taken from a final judgment. It has found its Rule 812, Section a of which is substantially the same as Rule 1012 applicable to this Court, to be mandatory, giving it no alternative but to dismiss the appeal for non-compliance, in the absence of proof of extenuating circumstances. 2 Hawkins v. GMAC, supra, at 148. See Rules 835 and 1035.

It has dismissed the appeal where the order was filed after the judgment nisi but before the judgment absolute, Merlands Club v. Messall, supra, Hawkins v. GMAC, supra; after the verdict of the jury but before judgment absolute, even though the clerk should have entered judgment, Aronstamn v. Coffey, 259 Md. 47 , Page-Loten v. Howard, et ux., 260 Md. 1 ; in the absence of both a judgment nisi and absolute, A. & A. Masonry v. Polinger, 259 Md. 199 ; when there was no final judgment under Rule 605 (Multiple Claims — Judgment Upon) Arteno v. Arteno, 257 Md. 227 , Lang v. Catterton, supra. The rationale of the action of the Court of Appeals in dismissing the appeals was that there was no order of appeal entered within 30 days after the entry of a judgment absolute. It is this rationale which saves the appeal in the case before us. Appellant’s order for appeal was filed after the judgment absolute was entered and within 30 days thereof.

Although she designated the appeal to be from the judgment nisi, the designation was superfluous. 3 The order of appeal would have been effective had it merely directed the clerk to note an appeal; it would necessarily follow that it be from the ⁵⁶⁰ final judgment. 4 As the order of appeal here was filed within 30 days of the entry of the judgment absolute, we conclude the appeal is properly before us. ISSUE The sole issue on the merits of the appeal is whether the court below erred in directing a verdict for appellees. Appellant claims that the evidence adduced was sufficient to compel submission of the case to the jury. Appellees argue that it was not, and that they were properly entitled to judgment in their favor as a matter of law.

FACTS The bare facts are that appellant issued a check payable to Autoville Limited in the amount of $30.20 drawn on her account at the Suburban Trust Company for repairs Autoville had made to her automobile. She later stopped payment on the check, which was returned to Autoville uncollected for that reason. John A. B. Fenwick, Vice President of Autoville, swore out a warrant for her arrest, charging the crime proscribed by Code, Art. 27, § 144 — obtaining something of value by check with intent to stop payment. She was arrested under authority of the warrant.

When the case came on for trial, the prosecutor entered a nolle prosequi with the notation “No evidence of criminal intent.” Appellant instituted an action against Autoville and Fenwick for damages arising from the malicious prosecution and false arrest and imprisonment of her. The case terminated at the close of all the evidence in the grant of a motion for a directed verdict in favor of the defendants. We flesh out this apothegm with an account of the circumstances leading to appellant’s order to stop payment and appellees’ prosecution of her. The prevailing rule of law is that where the court directs in favor of one of the parties, we must assume the truth of all credible evidence in the case ⁵⁶¹ tending to sustain the contention of the party against whom the verdict is directed as well as all inferences of fact reasonably and fairly deducible therefrom.

Trionfo v. R. J. Hellman, Inc., 250 Md. 12, 15 ; Buchanan v. Galliher, 11 Md. App. 83, 87-88 . We narrate the evidence adduced accordingly. In 1971 appellant, then single and known as Carol Susan Pike, was a student at the University of Maryland, residing in an apartment at 3588 Powder Mill Rd., Apt. 302, Beltsville, Maryland. 5 On 31 August of that year she and her father, William Patrick Pike, purchased a new 1971 Volkswagen Super Beetle from Silver Spring Auto City, Inc. Among the accessories with which the car was to be delivered equipped as listed on the purchase order was an air conditioner at $379. On 31 May 1972 when the car had been driven about 7,300 miles, appellant took it to Autoville, an authorized service dealer, for repairs to the air conditioning and heater systems.

She spoke to William Roberson, a “service adviser". lie told her the heater was covered by warranty. His recollection was that “She asked me about the air conditioner and, of course, she said it should be warranty. Now I wasn’t too sure because warranty on the air conditioner is kind of tricky, so I said, well, I will check on it. I said, T am not sure.

I won’t guarantee you it is warranty.’ I believe she said she would check back with me later during the day. ... I told her at that time that it was not warranty. Well, she said, ‘Go ahead and fix it. It had to be fixed anyhow.’ ” When she bought the car she received a Warranty Voucher, issued by Volkswagen of America, Inc. and authenticated by the selling dealer.

It specified: “The warranty commences at the date the VW automobile is delivered to the original purchaser, viz. on 9-1-71 and covers a period of 24 months or the period before the vehicle has ⁵⁶² been driven 24,000 miles, whichever event shall first occur. Should any warranty claim arise, you are requested to submit this voucher to your VW dealer.” The warranty voucher was contained in a Volkswagen Maintenance Record Book which discussed the warranty terms. It stated: “If any part of the vehicle becomes defective during this period under normal use and service and the vehicle is brought to the workshop of any authorized Volkswagen dealer in the continental United States, Hawaii or Canada, the dealer will, without charge, either repair the defective part or replace it with a new or factory reconditioned part.” It designated items not covered by warranty. An air conditioner was not listed as one of them.

The warranty was further explained in the book. There was no indication that the air conditioner was not covered. The explanation declared: “Volkswagen of America, Inc. is proud of the quality of the automobiles it imports. It warrants new vehicles for a period of 2 years or 24,000 miles from the date of purchase, whichever comes first.

In general the complete vehicle including battery and tires is covered under the provisions of the Volkswagen New Vehicle Warranty. It will be honored by any Authorized Volkswagen Dealer in all 50 States, the District of Columbia and Canada.” 6 Later in the day on 31 May 1972 when she went to Autoville to pick up the repaired car, she questioned the bill, 7 telling the cashier that she understood that at least the heater was under the warranty. The cashier called Roberson over. He simply said that it was not covered — “Well, I made a mistake.” She paid the bill by check.

She did not press the warranty issue further at the time because “. .. well, he had convinced me — I don’t know anything about mechanical process or anything and he talked to me in mechanical language and I figured of the two of us he certainly knew ⁵⁶³ more about cars than I did and I at that point had no reason to distrust him.” When she went home she talked to her future husband, Gary Shipp, and her father. Both thought the repairs should be under the warranty. Her father said, “We got you a new car so there wouldn’t be any problems.” He suggested she stop payment on the check. She decided to call Autoville “. . . and talk not just to a service adviser but to a service manager and I asked — I called them and I asked for such a person, I didn’t have any name, and I was going to explain how I felt and what I had learned since I got home, and you know, find out if there was something that could be done about it, and if I didn’t get any satisfaction from that phone call that I would stop payment on the check, because I didn’t think I was going to get any better satisfaction, and they also had my money.” She made the phone call the next morning and spoke to a Mr. Hunt who identified himself as a Service Manager.

She told him about the transaction, that she felt it was work covered by the warranty and that an error had been made in charging her $30.20. She testified that she told him “That I had on good authority, that other Volkswagen dealerships in the area would have called that work warranty work and would not have charged me and ... his answer was that I had to bring him notarized affidavits from service managers that this was true, and I said that was ridiculous. Why should the burden of proof be on me, that he should know what the warranty was without everybody else telling him, and he was not really very cooperative.. He said, ‘Well, I really don’t know anything about the case and I will have to look into it and see the invoice and I will call you back.’ And because I didn’t get any satisfaction and he had not been the most cooperative person I decided it was best if I did stop payment on the check, so I called my father and I told him what had happened and then I called the bank”.

She stopped payment on her check. The early part of June 1972 Sharon Greer, appellant’s roommate, took a telephone message for appellant from Hunt. According to Ms. Greer, Hunt said, “First of all she does have to pay the check; she should not stop payment on ⁵⁶⁴ the check. She has to, you know, pay the check.” He went on to explain about the air conditioning. “There was a problem, warranty problem.

He said that some parts of the air conditioning, he used all the technical terms, but the gist of it was that some parts of the air conditioner were put in by the manufacturer and other parts were put in by the dealer. The dealer parts that air conditioner was put under wasn’t covered by the warranty and he said, ‘But if Miss Pike feels that she still is entitled to this money she should go back to the original dealer where she purchased the car and they will in turn reimburse her for the payment, I think it was $30, but they will pay her’, but she still had to pay them.” Appellant testified that Fenwick called her about the middle of June. “He informed me that he had a cancelled check and that if I didn’t make good on the check he was going to have me arrested and he read out the code and everything that I had violated and after he had gone on for a bit and I hadn’t really gotten a chance to say anything I broke in and I said ‘Well, I did have a reason for stopping payment on that check.’ And I explained to him what it was, and that I felt it needed more of an explanation as to why this was not warranty work and then he told me that he really did not know any details about the case and these are his own words, he said the only thing he knew was he had my cancelled check in his hand. I use his words because I remember them. And he said that he would have to look into it and that he would get back to me in the mail and either he would send me the check or he would send me information as to that he would proceed with prosecuting me for stopping payment.” Fenwick told about his telephone call to appellant. “It took a while to contact her, but I finally did through her mother.

Her mother gave me a phone number where I could reach her and I got her at a number other than the one on this check, 8 I think. . . . She said, well, she told me something ⁵⁶⁵ about a warranty dispute that she didn’t believe that she should be responsible for paying for some repairs. All I had at that time was the check and I believe that I said that ‘Well, I will have to look into it’ or something like that Well, I believe that I told her that I would be back to her, one way or another and I think that because I had a hard time getting her on the telephone that I said that I would send her something in the mail.” He “probably” asked her that the check be made good. Fenwick decided that the work that was performed was not covered by the Volkswagen warranty as he interpreted it.

He sent a letter, signed by him as Vice President, to the address that was on the check and the invoice. The letter was dated 9 June 1972. It read: “The Suburban Trust Company has returned your check #312 written to Autoville, Ltd. for $30.20 marked ‘Payment Stopped’. Unless we have received this sum in cash within ten days of receipt of this letter, we shall use the avenues of legal recourse left open to us.

If you have any questions on this matter, please contact us.” The letter was mailed on 9 June 1972 by certified mail, return receipt requested, with instruction to deliver to addressee only. It was returned “Unclaimed”. Fenwick had no contact with appellant between the time he talked to her on the telephone and the sending of the letter. When the letter was returned he went to Detective Schachner and complained.

Schachner said, “We are not a collection agency.” Fenwick replied, “Well, I don’t particularly care about [the money] at this point.” No civil suit had been instituted. During his testimony he was asked why he went to the police. He explained: “Well, because I just, I couldn’t understand why someone could just arbitrarily decide to — well, I considered it stealing. They had gotten something and not given anything back for it, and I just — I didn’t feel it was right.” He could not remember whether he was told that appellant had discussed the warranty problem with ⁵⁶⁶ Roberson and Hunt.

He admitted that in the telephone conversation with appellant he told her when she inquired about the warranty that he would be in touch with her concerning the warranty matter. But he made clear he did not do so. “The only time I believed I talked to her was the one time on the telephone. I had never seen her. Never met her.

Never seen her car at all.” There was no mention of the warranty dispute in his letter of 9 June. In Fenwick’s application for a warrant for appellant’s arrest the reason as set out therein was that appellant “paid for services received with a worthless check, number 312, dated 5-31-72, in the amount of $30.20 drawn on the Suburban Trust Co., Hyattsville, Md., returned Payment Stopped. Said check was given to an employee, Florence V. Webb, who can identify the accused. No restitution has been made to date.

The accused did not claim the registered letter sent to notify her of the banks refusal to honor said check.” The warrant was issued upon the sworn application of “John A. B. Fenwick agent for Autoville Ltd.” The defendant was named as Carol S. Pike, 620 University Blvd., West, Silver Spring, Maryland, who was described as “W/F/20/5'3/140 lbs/heavy bld/bleached blond”. 9 It charged her with violation of Code, Art. 27, § 144 and gave a “Concise statement of essential facts constituting offense charged”: “did unlawfully with intent to cheat and defraud the said Florence V. Webb, agent for Autoville, Ltd., 9330 Baltimore Blvd., College Park, Maryland, of Thirty dollars and twenty cents ($30.20), current money of the United States by means of a check drawn on Suburban Trust Company, Hyattsville, Maryland, which said bank was not indebted to the drawer, and said drawer did not provide for payment of same, said check was not paid on presentation and returned marked payment ⁵⁶⁷ stopped and said check was not made good within ten (10) days.” During his testimony, Fenwick expressly conceded that other than the fact that he had a check on which payment had been stopped, he had no other evidence that appellant intended to stop payment on the check when she delivered it to Autoville. Appellant asserted emphatically in testifying that when she gave the check to Autoville she had no intention of stopping payment on it. It is clear that when she made the check there were sufficient funds in her account to cover it. She had deposited $75.34 in her checking account before she wrote the check.

The deposit slip so showing and a ledger sheet of her account were received in evidence. The ledger sheet showed that when the check was charged to her account on 5 June (it was credited the same day as not paid) there was a balance on deposit of $263.12. The balance on 31 May was $82.44. At no time between the time the check was made and the time it was presented for payment were there insufficient funds to cover it.

Around the 4th of July 1972 appellant went to Ocean City with her parents. When she returned home on 7 July there was a message to call Detective Schachner. He told her a warrant had been issued for her arrest and that it would be better for her to come in on her own than for him to send a squad car after her. She went to the Forestville Police Station with her mother and was arrested.

She was transported to the Hyattsville Police Station. She was given a copy of the warrant, informed of her rights, fingerprinted and photographed. 10 After being in ⁵⁶⁸ custody over two hours she was released on her own recognizance. DECISION The Torts of False Arrest and False Imprisonment The Court of Appeals in Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 654-657 , neatly summed up the status of the law in this jurisdiction with respect to false arrest and false imprisonment: 11 “False imprisonment and false arrest are common law torts that apparently differ only in terminology. 32 Am.Jur.2d, False Imprisonment, Sec. 1 (1967).

The necessary elements of a case for false imprisonment are a deprivation of the liberty of another without his consent and without legal justification. Safeway Stores Inc. v. Barrack, 210 Md. 168 , 122 A. 2d 457 (1956). The term legal justification has created some confusion in other courts. See Roberts v. Hecht Company, 280 F. Supp. 639 (D. Md. 1968).

This confusion arises because of the frequent statement that probable cause is not a defense to an action for false imprisonment but legal justification is. Probable cause, however, may be shown in mitigation of punitive damages. Clark’s Park v. Hranicka, 246 Md. 178, 227 , A. 2d 726 (1967); Fleisher v. Ensminger, 140 Md. 604 , 118 A. 153 (1922). We think the law in Maryland is settled on this point.! 12 !

When the cases speak of legal justification ⁵⁶⁹ we read this as equivalent to legal authority. In Dorsey v. Winters, 143 Md. 399 , 122A. 257