Wood v. Palmer Ford, Inc.

Orth, J., delivered the opinion of the Court. Franklin E. Wood filed a declaration in the Circuit Court for Prince George’s County which, as amended, sought money damages from Palmer Ford, Inc. for malicious prosecution (Count I) and for malicious abuse and use of process (Count II). As to each count Palmer pleaded the general issue, limitations, and that Wood caused or contributed to the incident. As to Count I he also pleaded justification.

Trial before a jury was set. The case was disposed of prior to trial by the grant of a motion for summary judgment made by Palmer. Judgment was entered in favor of Palmer for costs. A motion to strike the judgment was filed by Wood and denied.

Wood appealed from the judgment and from the denial of his motion to strike it. The issue is the propriety of the court’s determination, summarily, that a trial was not necessary. The principles governing the determination of a motion for summary judgment have been set out repeatedly by the Court of Appeals and this Court. The summary judgment procedure is not a substitute for trial, so the Court does not decide disputed facts but ascertains whether any real dispute as to material facts admissible in evidence exists.

The burden of demonstrating clearly the absence of any genuine issue of fact is on the one moving for summary judgment, and any doubt as to the existence of such an issue is resolved against the movant. Even where the underlying facts are undisputed, if those facts are susceptible of more ⁶⁹⁴ than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. The material facts, that is those the resolution of which will somehow affect the outcome of the case, and all reasonable inferences deducible therefrom, must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Facts necessary to the determination of a motion may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations, and concessions.

If there is no genuine dispute of any material fact or of any reasonable inference deducible therefrom and the moving party is entitled to judgment as a matter of law, judgment should be rendered forthwith. Conversely if there is such a genuine dispute, or judgment is not entitled as a matter of law, summary judgment should not be granted. Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-718 , 382 A.2d 555 (1978) and cases therein cited.

The primary source of the facts before the trial court was a deposition by Wood and answers by Palmer to interrogatories. We give a compendium of Wood’s testimony. The general background is that he took his car to Palmer for repair and received an estimate of about $400 as the cost. Upon completion of the repairs he was presented with a bill for $952 with the explanation that the difference represented additional work he had requested.

Wood had $400 given him by his father, but did not have the remaining $552. The car remained at Palmer’s while Wood attempted to raise, the additional cash even though he disputed the charge and thought that the bill was "ridiculous.” Palmer’s firm position was "no money, no car.” Wood received a telephone call from Palmer’s service manager. Although the caller did not identify himself, Wood recognized the caller’s voice. Representing himself as "a friend,” the caller observed that the original estimate for the repairs was $400 and that "we did very little over [that].” He said that he was willing to give Wood the car for $400 in cash.

He instructed Wood to leave the cash under the trash can in the men’s room at ⁶⁹⁵ Palmer’s at noon tomorrow and "you will receive the keys to your car. You will find them there under the trash can, the keys to your car and the receipts to your car.” Wood did not then follow the suggestion and received a second telephone call from the same person the next night. The proposition was repeated with the explanation: "The reason why I need $400 is . .. it will pay for the parts and labor. You did kind of get screwed over on the deal, and I feel sorry for you and want to help you out.” Wood told the mechanic, Steve Gore, who had worked on the car, what had occurred.

Gore said that it was the service manager who called and advised Wood to "[g]o right ahead and do it.” Wood did it. He left the $400 as directed and found his car keys and receipted bills for the full amount charged. He retrieved his car but after driving it around for a few hours "it started to mess up from the work they did on it. . .. [M]y car was in almost worse shape than when I took it in there. It was such a shoddy job.” He took it back to Palmer.

The service manager came running out and asked him what he was doing there. When Wood told him that he was bringing the car back because they had not fixed it right, the service manager disclaimed responsibility. He said: "I am telling you if you want to go any further you are going to have to go to court. Call your consumer agency.

But we are not responsible for that work.” After some argument Wood left in his car. The same day Wood received a call from John Kirby, Treasurer of Palmer, who asked how Wood got the car since they had no record of payment for the repairs. At Kirby’s request Wood went to Palmer’s office, told Kirby exactly what had occurred and asked to confront the service manager. Kirby informed Wood that the manager had "quit this morning for some reason.

He has gone. He doesn’t work here any more.” After some discussion, Wood agreed to pay Palmer $952. A few days later "a Detective Marks from the Prince George’s County Police” came to Wood’s residence where he lived with his mother, and said: "I would like you to come down to the Hyattsville station and talk with me” about the ⁶⁹⁶ Palmer incident. Wood telephoned Kirby and asked what was going on.

Kirby said: "Well, Frank, I did not want to bring any charges. I think you are a good guy. You paid us off. You showed good faith.

But the president of Palmer Ford; I did not know it, but he has a strict policy of prosecuting all people that deal in fraudulent ways with the company. ... It is out of my hands. I am sorry.” While Wood’s car was in the possession of Palmer, it had been broken into and the transmission linkage and AM/FM cassette was stolen. Wood had reported the matter to the police.

Wood told Kirby that everyone knew that an employee of Palmer was a thief. "I understand he was fired. He wasn’t prosecuted.” Kirby replied: "That is a different story. I cannot comment on that.

I am sorry. The president of Palmer Ford has a strict policy of prosecuting anyone that deals with us in fraudulent ways.” Wood went with the detective to the police station. He told Marks what had occurred. Marks said: "Okay.

You are under arrest.... I am going to have to charge you with embezzlement.” Wood was charged and released on his personal recognizance. The initial charge against Wood was embezzlement. Subsequently, he was charged with false pretenses, grand larceny and unauthorized use of the car.

Ultimately, all criminal proceedings were terminated in his favor. In our review as an appellate court of the propriety of the trial court’s grant of Palmer’s motion for summary judgment, we are concerned with whether there was a dispute as to any material fact, and if not, whether Palmer was entitled to judgment as a matter of law. Washington Homes, 281 Md. at 717 . In satisfying our concern, we need to look to the elements of malicious prosecution growing out of a criminal charge for guidance with respect to what facts are material.

The necessary elements of that tort are: "(a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the ⁶⁹⁷ accused, (c) absence of probable cause for the proceeding, and (d) 'malice’, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.” Exxon Corp. v. Kelly, 281 Md. 689, 693 , 381 A.2d 1146 (1978), citing Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173 , 122 A.2d 457 (1956), quoted in Durante v. Braun, 263 Md. 685, 688 , 284 A.2d 241 (1971). It is undisputed that all criminal proceedings were ultimately terminated in favor of Wood, thus meeting the second element of his malicious prosecution action. But, we point out again that the burden of demonstrating clearly the absence of any genuine issue of fact is here on Palmer as the moving party. Any doubt as to the existence of such an issue is resolved against the movant.

The duly shown facts which would be admissible in evidence and all reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Even where underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. Applying these principles, we cannot say, on the record before us, that whether Wood met the other three elements necessary to sustain his case was for the court as a matter of law and not for the trier of fact. What muddies the waters is the lack of definitive facts regarding the circumstances surrounding the bringing and the termination of the criminal charges against Wood.

Detective Marks had died prior to the hearing on the motion for summary judgment and his version of what occurred is unknown. The charging documents were alluded to during the deposition of Wood but were not produced at that time. Wood testified that he had been arrested three times: "I was charged with three different crimes. At first, I was arrested for embezzlement; went to court.

I was found not guilty by the judge. Then I was ⁶⁹⁸ rearrested and charged with grand larceny and false pretenses, and I went to court. The judge dropped the charges. Then I was arrested again, this time charged with unauthorized use of a motor vehicle.

Went to court. and the charges were dropped. And, at that time, they did not re-charge me.” To Wood’s knowledge, Kirby, an officer of Palmer, made application for "these various warrants.” Wood’s counsel attempted to clarify the matter, stating: "There was only one arrest. And. the charges were kicked around three different times because they tried to make something that would fit.” Wood added: "Iwas only formally charged once.” Later in his testimony on deposition, Wood stated that Marks arrested him and said: "I am going to have to charge you with embezzlement.” What type of charging document was utilized to bring the charge was not shown. Wood was examined by Palmer on what occurred during his various court appearances.

Apparently the case was in the District Court. Wood said he did not testify on the embezzlement charge. "The prosecution made their case. [My lawyer] ... made a motion of dismissal, and it was granted.” At the suggestion of Palmer’s counsel Wood’s counsel elucidated: "First charge was embezzlement. When we came up, they refused to bring it up for trial because they realized embezzlement was not a proper ground.

So they went and kicked it over and changed it to false pretenses. . . . Then they took the false pretenses out, finally, after two dates on that .... [When it came up at the second hearing] they re-did the information for two charges of grand larceny and unauthorized use. It came up for a brief hearing and it was put off — put over by the judge, because it just didn’t make any sense, and, finally, it came up in February again on those two charges, when it was dismissed because there were no statutory grounds for any charge against Mr. Wood.” ⁶⁹⁹ It seems that no testimony was ever taken at any of the court appearances, although the State’s Attorney made a proffer of the facts at some of them. Palmer’s answer to interrogatories propounded by Wood asserted that no representative of Palmer had made and signed the application for the criminal complaint against Wood.

It stated that $952.25 for the repairs was paid on 3 May 1977. Repair bills attached were receipted as paid on 13 April 1977, apparently about the time Wood left the $400 and took the car. (It was later developed that the first charging document against Wood was issued 27 April 1977.) At the hearing on the motion for summary judgment, the first charging document against Wood was shown to the court. It was not filed as an exhibit, however, and is not included in the record before us.

From the judge’s comments it seems that it was a statement of charges. Maryland District Rules 710 and 720. Whether it was issued before or after the arrest of Wood is not clear. M. D. Rule 720 a and b.

The judge observed that the embezzlement charge in the document had been amended by him "to section 140, which was obtaining property by false pretenses.” See M. D. Rule 713. The change in the charge was in the judge’s handwriting. He said: "If it was amended by me it was because some State’s Attorney was making that motion in open Court and there would be a transcript of that record.” If there was such a transcript it was not produced and is not in the record before us. After extensive argument the court expressed its view: "In this case all you have is the report of what appears to be an alleged crime to the police authorities and the police authorities apparently caused the prosecution to be instituted.” (emphasis supplied).

The report referred to was not before the court, and Wood’s counsel brought to the court’s attention that he had not seen it — "I don’t know what the report says.” He argued that the facts showed that Palmer had "instigated the arrest.” As far as the court could see there was "no genuine dispute of the facts in the case.” Nevertheless, he expressly found "as a matter of fact, that all the Defendant, Palmer Ford, did was report to the police ⁷⁰⁰ authorities what was an apparent crime and subsequently thereafter showed up in Court for purposes of prosecution.” The court summed up the reasons for granting the motion for summary judgment: "There is no showing on the record that they instituted the affidavit before the Commissioner of the District Court or that they ever gave any sworn testimony against the plaintiff, and for this reason, and only because of the reporting of an apparent crime the Court feels that there was sufficient showing of probable cause to cause them to do their action and that the Court also finds by their actions alone that there is no malice shown on the part of the Defendant, Palmer Ford, and for that reason I am going to grant the motion for summary judgment to both counts because the Court feels that they, are both styled on both counts and they, both counts have to rise and fall by both situations.” As we construe this reasoning, the court found as a matter of law that Palmer had not instituted or continued the criminal proceedings against Wood because it was the police and not Palmer who swore to the charges. This view followed the argument advanced by Palmer and was contrary to the urging of Wood who claimed that the facts indicated that Palmer had "instigated” the proceedings whether or not it had sworn out the charges. "The defendant may be liable either for initiating or for continuing a criminal prosecution without probable cause. But he cannot be held responsible unless he takes some active part in instigating or encouraging the prosecution.

He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused, even though his testimony is perjured, since the necessities of a free trial demand that witnesses are not to be deterred by fear of tort suits, and shall be immune from liability. On the other hand, if he ⁷⁰¹ advises or assists another person to begin the proceedings, ratifies it when it is begun in his behalf, or takes any active part in directing or aiding the conduct of the case, he will be responsible. The question of information laid before prosecuting