Town of Port Deposit v. Petetit

THEODORE G. BLOOM, Judge, Retired Specially Assigned. These appeals by the Town of Port Deposit (the Town) and its former chief of police, Samuel Maranto, are from an order of the Circuit Court for Harford County (Whitfill, J.) refusing to dismiss with prejudice or grant summary judgment with respect to certain counts in a complaint filed by appellees, Pierre Petetit and his wife, Becky. The jurisdictional basis for the Town’s appeal from the interlocutory order is its claim of governmental immunity; the jurisdictional basis for Maranto’s appeal is his claim of public official immunity. Issues The sole issue presented to us by the Town is: Did the appellees’ complaint state causes of action against the Town of Port Deposit for which relief could be granted?

Maranto presents two issues: 1. Did the circuit court err in denying Chief Maranto’s motion to dismiss Plaintiffs’ state constitutional claim or for summary judgment based on immunity where Plaintiffs could demonstrate no evidence of actual malice? 2. Did the circuit court err in refusing to dismiss Counts Four, Seven and Eight without leave to amend when ⁴⁰⁵ they were brought in violation of the conditions placed by the federal court pursuant to Federal Rule of Civil Procedure 41(a)(2) on Plaintiffs’ voluntary dismissal without prejudice? Intertwined with those issues is a jurisdictional question: are these appeals, or either of them premature?

Facts The following statement of facts was described in the Memorandum Opinion and Order of the circuit court as “undisputed.” None of the parties has challenged that description. On the evening of 14 November 1992, appellee Pierre Petetit, a resident of the State of Oregon, went to Harvey’s, Jr., a bar at the intersection of Arena Road and Conowingo Road (U.S. Route 1) in Harford County. Between 10:00 p.m. and 2:00 a.m. that night, he consumed approximately seven alcoholic drinks. Around 2:00 a.m. on the 15th, Mr. Petetit became involved in a verbal confrontation with several other customers in the bar, including Jeffrey Keeney and Burton Anderson.

Mr. Petetit exited the bar, intending to leave the area. The verbal altercation, however, continued onto the parking lot and escalated into a violent assault on Petetit by unidentified patrons of the bar. Mr. Petetit entered his truck to escape the attack, whereupon his assailants began throwing rocks at the truck; one of them attempted to jump onto the truck’s running board. Mr. Anderson ran into the path of the truck and was struck by it.

Mr. Petetit proceeded to drive away from the scene in order to escape his attackers and to seek police protection. Just as Mr. Petetit was leaving the bar’s parking lot, Maranto (then Chief of Police of the Town of Port Deposit), who was driving home from work, passed Harvey’s, Jr. He was in plainclothes, off-duty, and driving his own personal vehicle with a passenger in it. As he passed Harvey’s, Jr., at approximately 2:15 a.m., he saw several men throwing rocks at Petetit’s truck, the truck striking Anderson, and Petetit ⁴⁰⁶ speeding off. Maranto let his passenger ont of the car and instructed him to call police.

Leaving the premises, Petetit drove south on U.S. Route 1 in search of help. Observing a vehicle following him in a manner that he interpreted as threaténing and believing that the bar patrons who had assaulted him were pursuing him in that vehicle, Mr. Petetit increased his speed in an attempt to reach the Bel Air Police Barracks before being overtaken. The vehicle pursuing him was Maranto’s. Believing that Petetit was placing the publie at risk, Maranto fired several shots at the rear wheel of Petetit’s truck.

That high-speed pursuit continued for approximately eight miles, with Petetit being unaware that he was being pursued by a police officer and not by the men who had attacked him. Petetit’s truck finally came to a stop when the right front tire blew out as he attempted to make a U-turn in order to get the attention of a passing state trooper. Emerging from his vehicle, Maranto pointed a gun at Petetit, identified himself as a police officer, pulled Petetit from his truck and threw him to the ground, placed handcuffs on him, and detained him until a state trooper arrived. Procedural History On 10 November 1993, Pierre and Becky Petetit filed in the Circuit Court for Harford County a multiple count complaint asserting various causes of action against appellants, including a count based on 42 U.S.C. § 1983 .

Citing appellees’ assertions of federal constitutional claims, appellants succeeded in having the case removed to the United States District Court for the District of Maryland on the basis of federal question jurisdiction. On 20 December 1993, appellees sought leave to amend their complaint, which the District Court granted. Two months later, the court granted Maranto’s motion to dismiss Counts One (gross negligence), Two (negligence), Five (intentional infliction of emotional distress), Eight (injury to filial [sic] relationship), and Ten (violation of 42 U.S.C. § 1983 ), and ⁴⁰⁷ further denied appellees’ motion to extend discovery. Appellees then sought to amend their complaint again, in order to substitute causes of action alleging violations of the Maryland Declaration of Rights for the stricken federal constitutional claims.

Neither appellant opposed the motion. Appellees also requested the court to remand the case to the Maryland court, citing the then-existing lack of federal question jurisdiction. The court denied the motion to remand because, despite the absence of a federal question, the court had diversity jurisdiction. Nevertheless, the court granted appellees’ motion for leave to amend their complaint.

On 12 April appellant Maranto subsequently filed a motion to dismiss for failure to state a claim or, alternatively, to grant summary judgment with respect to Counts Six (violations of the Maryland Declaration of Rights), Seven (loss of consortium), and Nine (assault). The plaintiffs responded by moving to dismiss the case voluntarily, without prejudice, intending to litigate their claims in a Maryland court. In his memorandum opinion and order, Judge Frederick Smalkin granted the Petetits’ motion to dismiss without prejudice, stating: The only possible prejudice to the defendants from reinstitution of the suit in a state court can be avoided by conditioning the order of dismissal on prohibition of assertion of any claims other than those stated in the complaint as presently amended, and on prohibition of further discovery by the plaintiffs without leave of court, all of which the Court has power to order under the broad authority under (F.R.Civ.Pr.) 41(a)(2). The following counts remained at the time Judge Smalkin granted the motion to dismiss: Count Defendant Three: Respondeat Superior Town Four: Negligent Hiring and Supervision Town Six: Violation of Maryland Declaration Maranto of Rights ⁴⁰⁸ Seven: Loss of Consortium Maranto and Town Nine: Assault Maranto Ten: Violations of Maryland Declaration Maranto of Rights and Town After the voluntary dismissal of this action in the federal court, appellees filed in the Circuit Court for Harford County an eight count complaint against the Town and Samuel Maranto, asserting the following causes of action: Count Defendant One: Violation of Maryland Declaration Maranto of Rights Two: Violation of Maryland Declaration Town of Rights Three: Gross Negligence Maranto Four: Loss of Consortium Maranto Five: Negligence Maranto and Town Six: Loss of Consortium Town Seven: Battery Maranto and Town Eight: Loss of Consortium Maranto and Town Appellees alleged in their complaint that the Town was responsible for providing law enforcement services and was responsible for the training, instruction, supervision, discipline, control and conduct of ...

Maranto, and had the power, right and duty to control the manner in which [Maranto] carried out the objectives of [his] employment and to see that all policies, order, rules, instructions and regulations promulgated for [Maranto] were consistent with ⁴⁰⁹ the constitution and law of the United States, State of Maryland and the municipality. They further alleged that at all times referred to in the complaint Maranto “was acting under color of law and pursuant to his authority as a law officers [sic] of the Town of Port Deposit, Maryland.” With respect to Maranto, appellees asserted that he acted “intentionally, negligently, wantonly, reckless, maliciously, and ... with complete and deliberate indifference for [Petetit’s] rights----” In response to appellees’ complaint, the Town filed a motion to dismiss; Maranto also filed a motion to dismiss, or alternatively, for summary judgment. On 8 December 1995, Judge Whitfill issued a memorandum opinion and order dismissing Counts Four, Seven and Eight, with leave to amend, and Counts Three, Five, and Six, without leave to amend. With respect to Counts One and Two, the court dismissed claims for punitive damages without leave to amend but denied appellants’ motions to dismiss those counts on grounds of immunity.

The Town and Maranto appealed the circuit court’s order. I Generally, a party may only appeal from a final judgment, that is, a judgment that settles the rights of the parties or concludes the cause. Md.Code (1974, 1995 Repl.Vol.), § 12-301 of the Courts and Judicial Proceedings Article (C.J.); In re Special Investigation No. 231, 295 Md. 366 , 455 A.2d 442 (1983). C.J. § 12-303 specifically authorizes appeals from certain interlocutory orders, but none of them are applicable to this case.

A judgment that adjudicates less than all claims arising out of the same transaction is not a final judgment in the absence of an express determination that there is no just reason for delay, coupled with an order directing the entry of a final judgment. Md.Rule 2-602; Harkins v. August, 251 Md. 108 , 246 A.2d 268 (1968). Obviously, the denial of Maranto’s motion to dismiss or for summary judgment as to Count One, the Town’s motion to dismiss Count Two, and the dismissal of Counts Seven and ⁴¹⁰ Eight with leave to amend do not constitute a final judgment on the merits of the litigation. The Court of Appeals has “ ‘long recognized, however, a narrow class of orders, referred to as collateral orders, which are offshoots of the principal litigation in which they are issued and which are immediately appealable as “final judgments” without regard to the posture of the case.’ ” State v. Jett, 316 Md. 248 , 558 A.2d 385 (1989), quoting Harris v. Harris, 310 Md. 310 , 529 A.2d 356 (1987).

To be appealable under the collateral order doctrine, an order 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. Jett, 316 Md. at 251 , 558 A.2d 385 . See also Bunting v. State, 312 Md. 472, 477 , 540 A.2d 805 (1988); Clark v. Elza, 286 Md. 208, 213 , 406 A.2d 922 (1979). Both appellants assert that the order appealed from was an immediately appealable collateral order because it denied them the immunity from suit to which they were entitled — in the case of Maranto, the qualified immunity of a public official exercising discretionary functions; in the case of the Town, a municipality’s immunity from tort suits with respect to its governmental activities.

In State v. Hogg, 311 Md. 446 , 535 A.2d 923 (1988), the Court of Appeals held that the collateral order doctrine per- . mitted immediate review of the denial of a motion by the State and its agency, the Maryland Deposit Insurance Fund Corporation, to dismiss, on grounds of governmental immunity, a counterclaim for recoupment. The Court noted that the policy underlying the doctrine of sovereign immunity not only protects the public treasury but also protects the State and its instrumentalities from standing trial. The Court in Hogg noted that in Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), the Supreme Court entertained, under the collateral order doctrine, an appeal from the denial of a defendant’s motion for summary judgment predicated on the ⁴¹¹ qualified immunity of public officials exercising discretionary functions. The Supreme Court explained that [t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.

Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court’s decision is effectively unreviewable on appeal from a final judgment. Id. at 526-27 , 105 S.Ct. at 2816 . The refusal of the circuit court to grant Maranto’s motion is not an immediately appealable collateral order because it does not conclusively determine the disputed question as to whether he is immune from suit. Chief Judge Wilner, writing for this Court in Artis v. Cyphers, 100 Md.App. 633 , 642 A.2d 298 , aff'd mem., 336 Md. 561 , 649 A.2d 838 (1994), pointed out that, although State v. Hogg, supra, 311 Md. 446 , 535 A.2d 923 , has not been overruled and thus remains the law, the Court of Appeals limited its applicability with respect to immediate appealability in Bunting v. State, 312 Md. 472 , 540 A.2d 805 (1988), in which the Court noted that there were a number of immunity-type rights that, in a broad sense, could be regarded as trial-avoidance rights but which did not permit interlocutory appeals, mentioning, among others, the States’ right under the Eleventh Amendment to avoid being haled into Federal Court as a defendant. [The Bunting Court] concluded, at 481-82, 540 A.2d 805 : In sum, the idea that an issue is not effectively renewable after the termination of the trial because it involves a “right to avoid the trial itself, should be limited to double jeopardy claims and a very few other extraordinary situations.

Otherwise, as previously indicated, there would be a proliferation of appeals under the collateral order doc ⁴¹² trine. This would be flatly inconsistent with the long established and sound public policy against piecemeal appeals.” 100 Md.App. at 642 , 642 A.2d 298 . In a footnote to that last sentence, the Court of Appeals stated that Hogg should not be viewed as reflecting a contrary policy. In his concurring opinion, however, Judge Eldridge expressed the belief that the approach taken in Bunting could not be reconciled with that taken in Hogg and that Hogg should be overruled.

Unless and until Hogg is overruled by the Court of Appeals, we must attempt to reconcile it with Bunting and Artis. Bunting held that denial of a motion to dismiss an indictment for violation of the “single transfer rule” embodied in the Interstate Agreement on Detainers (Md.Code., art. 27, § 616D(d)) was not immediately appealable under the collateral order doctrine. The right claimed by the accused was held to be a right not to be returned to the original place of confinement without standing trial, not a right to avoid the trial itself. In Artis , the appellant, a certified cardiac rescue technician and member of a Baltimore City ambulance crew, was sued by the widow of a patient who died while being treated, allegedly negligently, by the appellant.

The appellant claimed immunity under two theories: public official immunity and “good Samaritan” immunity. As explained in Artis , in order for one claiming public official immunity to be relieved of liability for his negligent acts, two factors must “ ‘simultaneously exist: (1) the individual actor, whose alleged negligence is at issue, is a public official rather than a mere government employee or agent; and (2) his tortious conduct occurred while he was performing discretionary as opposed to ministerial acts in furtherance of his official duties.’ ” 100 Md.App. at 638 , 642 A.2d 298 , quoting James v. Prince George’s County, 288 Md. 315, 323-24 , 418 A.2d 1173 (1980). If both of those factors exist, a qualified immunity attaches, that is, in the absence of malice, the individual is free from liability. Id.

The good Samaritan immunity claimed by the ⁴¹³ appellant is found in Md.Code (1974, 1995 Repl.Vol.), §§ 5-309 and 5-309.1 of the Courts and Judicial Proceedings Article, which provides immunity from liability for tortious acts or omissions if the individual falls within the enumerated categories of persons protected by the statute and the alleged negligence did not amount to gross negligence. Both public official immunity and good Samaritan immunity are conditional, the former being conditioned on the absence of malice and the latter on the absence of gross negligence, and the existence vel non of those factors are generally issues of fact to be determined at trial. Therefore, the existence of the claimed immunity is not “completely separate from the merits of the action” and, by the same token, are not “effectively unreviewable on appeal from a final judgment.” Hogg , which involved a claim of sovereign immunity by the State and one of its agencies, which is a claim of absolute immunity as a matter of law, independent of any facts that might arise at trial, is not incompatible with either Bunting or Artis. Hogg does, however, contain the following quotation from Mitchell v. Forsyth, 472 U.S. 511, 526-27 , 105 S.Ct. 2806, 2815-16 , 86 L.Ed.2d 411 (1985), in which the Supreme Court entertained, under the collateral order doctrine, an appeal from the denial of a motion for summary judgment predicated on the qualified immunity of a public official exercising discretionary functions.

Mitchell explained that [“t]he entitlement is an immunity from suit rather than a mere defense to liability; and like an absolute immunity it is effectively lost if a case is erroneously permitted to go to trial. Accordingly, the reasoning that underlies the immediate appealability of an order denying absolute immunity indicates to us that the denial of qualified immunity should be similarly appealable: in each case, the district court’s decision is effectively unreviewable on appeal.” The Court of Appeals then stated that it had recognized a similar rule in Public Serv. Comm’n v. Patuxent Valley Conservation League, 300 Md. 200 , 477 A.2d 759 (1984), in which it ⁴¹⁴ allowed an immediate appeal by individual commissioners of. the Public Service Commission from an order permitting them to be deposed in an administrative appeal from a Commission decision. The references to Mitchell v. Forsyth and Public Service Comm’n v. Patuxent Valley Conservation League are, of course, mere dicta.

The holding in Hogg , that an erroneous denial of a claim of sovereign immunity by the State or one of its agencies is immediately appealable under the collateral order doctrine because it is similar to the erroneous denial of a double jeopardy defense, is not inconsistent with Bunting or Artis . Appellant Maranto’s