Bradley v. Fisher

• Decision Date: 01 September 1996
• Docket Number: No. 752,752
• Citation: 688 A.2d 527,113 Md.App. 603
• Parties: Donald BRADLEY et al. v. Martin A. FISHER et al. ,
• Court: Court of Special Appeals of Maryland

Page 603

113 Md.App. 603

688 A.2d 527

Donald BRADLEY et al. v. Martin A. FISHER et al.

No. 752, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Feb. 5, 1997.

Kevin Karpinski (Daniel Karp and Allen, Johnson, Alexander & Karp, on brief), Baltimore, for appellants.

Harry M. Walsh, Jr. (Harold P. Pugh, and Walsh & Phillips, P.A., on brief), Easton, for appellees.

Argued before CATHELL, SALMON and EYLER, JJ.

CATHELL, Judge.

Appellants, Donald Bradley, the mayor or former mayor of Hurlock, and apparently a member of the Hurlock "police commission," and Wendell Travers, the former chief of police of Hurlock, ¹ filed separate motions for summary judgment with attached memoranda of law. Bradley's Motion and Memorandum was over forty pages long; Travers's was over sixty-five pages long. In each motion was a request for summary judgment based on immunity grounds. Bradley's immunity assertion and argument began on page thirty-one of his motion, and Travers's began on page forty-seven. The Circuit Court for Dorchester County denied both motions. In their Notice of Appeal, appellants appealed "from the Court's Order of April 3, 1996, denying their motions for summary judgment on immunity grounds and all other adverse rulings." We shall address only the immunity arguments.

We are aware that in the recent collateral order doctrine case of Montgomery County v. Stevens, 337 Md. 471, 654 A.2d 877 (1995), the Court of Appeals opined that because, under the collateral order doctrine, judgments rendered under it were considered final, other adverse rulings could also be resolved pursuant to Maryland Rule 8-131(d), which provides that on an appeal from a final judgment interlocutory orders may be reviewed. We do not perceive, however, that the language utilized by the Stevens Court was intended by it to require this Court to resolve completely all other interlocutory adverse rulings, in addition to an adverse ruling on an immunity issue, when the immunity issue is believed to authorize an immediate appeal.

While an order granting summary judgment in favor of all defendants on immunity grounds would be a final judgment, an order denying such a motion is not a final order. An interlocutory appeal 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. We also point out that a denial of a motion based upon immunity grounds is not required to be immediately appealed. It may be appealed after the conclusion of the entire case, should an appellant so choose.

If we reverse the trial court on the immunity issue, the other alleged "adverse rulings" are, so long as our holding is not reversed by higher authority, of no importance. While appellants, in the event we were to affirm the trial court's action, might like us to act as an advisory body in respect to the trial court's other interlocutory rulings, we shall decline to do so. In plain terms, this case is in a procedural morass. Were we to affirm the trial court on the immunity issue and attempt to resolve the other interlocutory issues as well, we would accomplish little. The case, considering the disparate causes of action and the fact that it has not yet been tried, would merely revert to its former posture, be tried, and, more likely than not, then be appealed again. We decline to do that now since we are probably going to have to do it later in any event. Such a procedure as suggested would circumvent the purpose of Maryland Rule 2-602 and would improperly result in piecemeal appeals.

Turning to the case sub judice, the trial court succinctly set forth the general facts underlying this multiparty and multi-claim case in its opinion in respect to a prior motion to dismiss:

In legal circles, an action brought by several individuals, against several defendants, on the basis of multiple causes of action, is often referred to as the "shotgun approach." This is such a case. Here seven seemingly dissociated individuals have brought this action to recover damages from wrongs allegedly visited upon them by the town of Hurlock, Maryland (Mayor and Council of Hurlock, Inc.), its Mayor (Donald Bradley), its police chief (Wendell Travers), and its "Police Commission."

The individual Plaintiffs may be viewed as being three distinct groups: former officers of the Hurlock Police Department (H.P.D.), a present H.P.D. officer, and two individuals who are not, and have never been, Hurlock police officers. They have joined forces to fire a "shotgun" blast at the Defendants, through a Complaint and Amended Complaint embodying twelve counts and at least five different causes of action, some of which apply to all Defendants, some to only one of the Defendants, and each of which applies to only one of the Plaintiffs.

The matter is presently before the Court on Motions of the respective Defendants to dismiss the action; in effect, to determine whether Plaintiffs have used the wrong ammunition and/or aimed at the wrong targets.

The factual averments of the various counts are tied together by a common thread, or theme, woven into and underscoring each count: that Hurlock's police chief, Wendell Travers (Chief Travers) regularly and systematically engaged in illegal and wrongfully abusive actions in performance of his duties and powers as police chief, encouraged and even required his officers to do likewise, and established a "code of silence" forbidding his officers to reveal or even discuss such activities to or with others. A secondary theme, running through many of the counts, avers that the town (through its Mayor and Council) and its mayor were aware of the alleged activities and that they not only failed to take corrective action, but also participated with and assisted the police chief in retaliating against those officers who broke the "code of silence" by reporting the unlawful activities to the mayor and/or councilmen, and to other legal authorities (including the State's Attorney for Dorchester County and the State Prosecutor). The various individual counts are but minor variations in which the themes are more or less adapted to the particular wrong complained of in the count.

Generally, the former officers seek damages for wrongful discharge. They allege that they were fired from H.P.D. because they refused to obey illegal commands and because they reported the chief's activities to others. Apparently they were "rookies" still serving as at-will employees in a "probationary status" when their employment was terminated. One officer, Sgt. Thomas Wolf, was a veteran officer with vested rights under the Law Enforcement Officers' Bill of Rights. His complaint is that, because he could not be cavalierly fired, he was subjected to harassment and the intentional infliction of emotional distress by the Chief (with the complicity of the mayor and Town Council). He also claims to have been slandered by the Chief. The two "private citizens" Plaintiffs allege that they were illegally arrested, unlawfully detained, and otherwise tortiously wronged by the Chief and by officers acting under his direct supervision and orders. [Footnotes omitted.]

The trial judge dismissed the action against the Town of Hurlock on the grounds that it did not receive the 180-day notice required by the Local Government Tort Claims Act, Md.Code (1973, 1995 Repl.Vol.), § 5-404 of the Courts & Judicial Proceedings Article, and, accordingly, sovereign immunity barred the action. The trial court also dismissed the Hurlock police commission from the case because it had, and continues to have, no legal existence. No appeal from those rulings has been taken.

As alluded to in the trial court's opinion, the various counts allege wrongful discharge, failure to supervise, assault, false imprisonment, defamation, and a multitude of other related and unrelated wrongs against police officers, in addition to other unrelated offenses allegedly committed against several private citizens. Questions of misjoinder arise out of what the trial court described as appellees' "shot gun approach." The most temperate judicial language we can use to describe the pretrial nature of this case is that it is a mess. ² Appellants, by raising non-immunity issues on appeal, relating to the underlying claims of wrongful/constructive discharge, slander, intentional infliction of emotional distress, false arrest, and false imprisonment, invite us early to the table. We decline the invitation and shall address only the immunity issues, firm in our belief that during any subsequent trial below, counsel and Judge Warren would or will be able to clarify the issues and enable counsel, if necessary, to present clear appellate issues after the final judgments are rendered.

Immunity

Appellants present their immunity arguments in three places in their brief. In argument I., argument II.c., and argument V.c. Argument I. alleges that Bradley and Travers are entitled to public official immunity from all of the actions filed against them by all of the appellees because "Appellees did not cite to any specific material facts in dispute ... [and] did not cite to any specific actions taken by Appellants to strip them of the protection of public official immunity." Argument II.c. is the same but, because it is directed at the "wrongful and/or constructive discharge" claims, would be limited to the present and former employee-appellees. Argument V.c. applies only to the citizen-appellees, McWilliams and Hill, and the claims filed by them against Travers. Presumably, this argument is based on the same premise, as it is prefaced by "as discussed above."

Standard of Review

In reviewing the grant or denial of a summary judgment motion, we are concerned with whether a dispute of material fact exists. Arnold...