Brewer v. Mele

Citation298 A.2d 156,267 Md. 437
Decision Date20 December 1972
Docket NumberNo. 96,96
PartiesWilliam BREWER v. Dominic J. MELE et al.
CourtMaryland Court of Appeals

R. Roger Drechsler, Baltimore, for appellant.

William K. Connor, Bel Air, for Dominic J. Mele.

Cypert O. Whitfill, Bel Air, for Raymond Leard.


CHARLES E. MOYLAND, Jr., Special Judge.

It is the realistic judgment of state and national constitutions as well as that of the common law that personal liberties must sometimes yield to the needs of public order upon the basis of probabilities which are less than certainties. The balance, painstakingly arrived at, is adjusted to reduce significantly the incidence of mistake, but it does not presume to eliminate it. That a decision based upon probable cause should upon occasion yield an improbable consequence is of the very nature of such reliance upon probability. Inherent in the process is the sometime bad arrest of the guilty and the sometime good arrest of the innocent.

The appellant, William Brewer, may well have been the victim of one of the mistakes to which the system is sometimes heir. On the early evening of Friday, June 9, 1967, he was arrested at his home on Joppa Road in the Perry Hall section of Baltimore County. He was charged with having received a stolen tractor and with the cognate offenses of grand larceny and breaking and entering. He was transported first to the Benson Police Barracks and then to the Harford County Police Station. He remained in custody for between two and two and one half hours before posting bond to guarantee his reappearance. He set out immediately to demonstrate his innocence. At a meeting on June 22, 1967, with the state's attorney for Harford County, the sheriff, and the deputy sheriff who had been the investigating officer, the appellant, accompanied by his wife and his lawyer, produced not only documentary evidence and the dealer who had sold him the tractor, but two other witnesses to establish that he had been the innocent and bona fide purchaser of the tractor. The state's attorney was persuaded that the charges were unfounded and dismissed the warrants.

To the appellant, criminal vindication was but partial solace. Having been inconvenienced, embarrassed and chagrined at the clutch of circumstance into which he had been thrust, he sued in the Circuit Court for Harford County those he believed to be his tormentors, the appellees Dominic J. Mele and Raymond Leard, for both false imprisonment and malicious prosecution.

Mele was the deputy sheriff for Harford County who had investigated the tractor theft and who had applied for arrest warrants against the appellant. Leard was the state trooper who, pursuant to those warrants, arrested the appellant. The malicious prosecution charge was predicated upon the application for the warrants. The false imprisonment charge was predicated upon the execution of the warrants.

As to the first count (charging false imprisonment and false arrest), separate motions for summary judgment were ultimately granted in favor of both Mele and Leard. No appeal has been taken from the trial court's decision to dismiss the charges of false imprisonment. Mele had presented, under oath, his probable cause to a duly constituted committing magistrate who issued proper warrants of arrest. 1 The arrest having been effected by valid legal process, it is fundamental that an action for the sub-species false arrest of the species false imprisonment will not lie. Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173-174, 122 A.2d 457 (1956); Lewin v. Uzuber, 65 Md. 341, 4 A. 285 (1886). The only charge remaining before us is the kindred one of malicious prosecution.

The necessary elements of a case for malicious prosecution of a criminal charge are well established. There must be: (a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the 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. Banks v. Montgomery Ward & Co., 212 Md. 31, 38, 128 A.2d 600 (1957); Safeway Stores, Inc. v. Barrack, supra, 210 Md. at 173, 122 A.2d 457; Prosser, Torts (4th ed.) p. 835; Restement, Torts, § 653.

The case reaches us with Mele and Leard not simply cast in slightly but critically different law enforcement roles but placed as well in different legal postures for purposes of review. The granting of summary judgment in favor of Leard by the trial judge is before us upon its merits. The granting by Judge Close of summary judgment in favor of Mele, on the other hand, was by way of ex parte hearing after the appellant failed to make timely reply to the motion for the judgment. No direct appeal has been taken from the judgment itself as to Mele. The appellant did, however, subsequently move to strike that judgment, which motion was denied. He appeals from that denial.

In reviewing the granting of the summary judgment itself, we are concerned with whether the trial judge was legally correct. In reviewing the denial of a motion to strike a summary judgment, on the other hand, we are concerned only with whether the trial judge abused his discretion. Clarke Baridon v. Union Co., 218 Md. 480, 147 A.2d 221 (1958). These are distinct types of decision. The critical question for the trial court vis-a-vis the Leard summary judgment was whether there existed a genuine dispute as to a material fact and, if not, what the ruling of law should be upon those undisputed facts. The critical question for the trial court vis-a-vis the Mele motion was whether the appellant had shown a reasonable indication of a meritorious defense to the motion or other equitable circumstances that would justify striking the judgment-that is, whether the court entertained a reasonable doubt that justice had been done in the earlier granting of the summary judgment. Abrams v. Gay Investment Co., 253 Md. 121, 251 A.2d 876 (1969); Clarke Baridon v. Union Co., supra; Cromwell v. Ripley,11 Md.App. 173, 176-177, 273 A.2d 218 (1971).

We shall consider first the granting of summary judgment in favor of the arresting officer, Leard, upon its merits. Maryland Rule 610 d 1 is clear, providing in pertinent part:

'The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

The purpose of this rule is to determine whether trial is necessary when there is no genuine dispute as to a material fact. Greenwell v. American Guaranty Corporation, 262 Md. 102, 277 A.2d 70 (1971). Thus, inquiry must first be directed to the question whether there exists a genuine dispute of a material fact. Orrison v. Vance, 262 Md. 285, 292, 277 A.2d 573 (1971). In so inquiring, if the facts are susceptible of more than one inference, the materiality of that arguable factual dispute must be judged by looking to the inferences drawn in a light most favorable to the person against whom the motion is made and in a light least favorable to the movant. Trustees of Broadfording Church of Brethren v. Western Maryland Railway Co., 262 Md. 84, 85, 277 A.2d 276 (1971), and cases therein cited. See also Mason v. Henderson, 14 Md.App. 370, 374-375, 286 A.2d 825 (1972). In Lipscomb v. Hess, 255 Md. 109, 257 A.2d 178 (1969), we discussed the nature of the summary judgment procedure, at 255 Md. 118, 257 A.2d 182:

'The limitations on summary judgment procedure are too well known to require elaboration. It is not a substitute for trial but a hearing to determine whether a trial is necessary, * * * when there is no genuine controversy, * * *. The purpose of the hearing is not to determine disputed facts, but to determine whether such issues exist. * * *.' (citations omitted)

Judge Close had before him, when he granted the summary judgment in favor of Leard, the depositions of the appellant, of Deputy Sheriff Mele, and of the state's attorney for Harford County. As to the role played by Leard, there was no genuine dispute of any fact, let alone a material fact. As a Maryland state trooper working in the Harford County area, he was in regular communication with local law enforcement personnel, including Deputy Sheriff Mele. He did, at the urging of Mele, check out one piece of information with a tractor dealer in Kingsville. Leard was not, however, responsible for the investigation of the case. He did not initiate any action with respect to the appellant. He did not confer with the state's attorney. He did not apply for the arrest warrants. Only after the warrants had been issued for the appellant, residing without Harford County, were they turned over to Trooper Leard for execution. We hold that Judge Close was correct in determining, as a matter of law, that Leard was not shown to have instituted, instigated or inspired in any fashion a criminal proceeding against the appellant within the contemplation of the law of torts. The appellant failed to establish the first element of malicious prosecution and the summary judgment as to Leard was properly granted. Fertitta v. Herndon, 175 Md. 560, 565-567, 3 A.2d 502 (1939); Angellozzi v. Cossentino, 160 Md. 678, 155 A. 178 (1931); McNamara v. Pabst, 137 Md. 468, 474-475, 112 A. 812 (1921); cf. Nance v. Gall, 187 Md. 656, 667-669, 50 A.2d 120, 51 A.2d 535 (1946).

Deputy Sheriff Mele, on the other hand, did initiate a criminal proceeding in swearing out the warrants of arrest. 52 AmJur.2d, Malicious Prosecution, § 21; Prosser, Torts (4th ed.), pp. 836-837. With the dismissal of the warrants by the state's attorney under the circumstances of this case, there was further a termination of the criminal...

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