Davis v. DiPino

• Decision Date: 01 September 1994
• Docket Number: No. 53,53
• Citation: 655 A.2d 401,337 Md. 642
• Parties: Wayne Nelson DAVIS v. Bernadette DIPINO et al. ,
• Court: Maryland Court of Appeals

Page 642

337 Md. 642

655 A.2d 401

Wayne Nelson DAVIS v. Bernadette DIPINO et al.

No. 53, Sept. Term, 1994.

Court of Appeals of Maryland.

March 13, 1995.

Reconsideration Denied April 7, 1995.

Peter Ayers Wimbrow, III, Ocean City, for petitioner.

Guy R. Ayres, III, Ayres, Jenkins, Gordy & Almand, P.A., Ocean City, Carmen M. Shepard, Asst. Atty. Gen. (Julia M. Freit, Asst. Atty. Gen., J. Joseph Curran, Jr., Atty. Gen., all on brief), Baltimore, for respondents.

Charles S. Fax, Gregory M. Miller, Dana M.S. Wilson, Shapiro and Olander, Baltimore, amicus curiae, for Local Government Ins. Trust.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

CHASANOW, Judge.

We are called upon in this case to determine whether an appellate court reviewing a trial court's grant of summary judgment may, after ruling that summary judgment was improperly granted, nevertheless affirm a trial court's judgment based on the plaintiff's failure to plead any claim upon which relief can be granted even though the defendants never argued that the complaint was defective. For the reasons set forth below, we hold that an appellate court should not undertake to review whether a plaintiff failed to state a claim upon which relief can be granted when the only motion filed and the only motion on appeal was the trial court's grant of summary judgment.

I.

This case arises out of an action filed by Wayne Nelson Davis (Davis) against Ocean City police officer Bernadette DiPino (DiPino), the Mayor and City Council of Ocean City (Ocean City), and District Court Commissioner Donald E. Turner (Turner). Davis filed a nine-count complaint in the Circuit Court for Worcester County seeking money damages from DiPino and Ocean City, and also requesting injunctive and declaratory relief against Turner based in part on Davis's arrest on a warrant obtained by DiPino and issued by Turner. Count I alleged that DiPino violated Davis's rights under the First, Fourth, Fifth, Sixth and Eighth Amendments to the United States Constitution as protected by 42 U.S.C. § 1983. Count II alleged that DiPino and Ocean City violated Davis's rights under Articles 21, 24, 25, 26 and 40 of the Maryland Declaration of Rights. Counts III through VI contained counts against DiPino and Ocean City for false arrest/imprisonment, malicious prosecution, abuse of process and intentional infliction of emotional distress. Count VII alleged that Ocean City violated 42 U.S.C. § 1983 for failing to "instruct, supervise, control and discipline [DiPino] on a continuing basis." Counts VIII and IX alleged that Turner and other similarly situated district court commissioners violated 42 U.S.C. § 1983 and Articles 24 and 26 of the Maryland Declaration of Rights by routinely issuing warrants without any finding of probable cause and routinely ignoring the requirements of Maryland Rule 4-212(d)(1) by issuing warrants instead of a criminal summons. The complaint sought injunctive and declaratory relief as well as attorney's fees.

Since we are called upon to consider whether Davis may be able to establish a cause of action against the defendants, we shall set forth the disputed facts contained in the pleadings, proffers and affidavits in the light most favorable to Davis's potential causes of action. Davis's complaint arose out of the following facts. On May 12, 1991, Davis was on Wicomico Street in Ocean City talking with a friend. When Davis saw DiPino and another detective, Alice Brumbley (Brumbley) across the street getting into their vehicle, he said to his friend, "[t]hose are the two girls who tried to sell me some pot and were gonna bust me." His friend asked, "[w]hat are they, narcs?" Davis responded, "I don't know what they are." Davis stated that he did not know the two women were police officers and the women could not be identified as police officers because they were not in uniform. On July 5, 1991, nearly two months after Davis made these statements to his friend, DiPino made an application for statement of charges seeking the issuance of a summons or warrant for Davis's arrest. The application alleged that:

"[Davis] did knowingly and willfully advise an unknown white male as to the identity and occupation of [DiPino] and ... Alice N. Brumbley. [DiPino] and Brumbley were working in an undercover capacity on Wicomico St. Ocean City Worcester County Md. While entering a vehicle [DiPino] and Brumbley observed [Davis] state to an unknown white male 'Look those two girls are narcs.' Narcs being a derogatory street term for a narcotics officer. This statement was said in a loud enough voice as so the [detectives] approx[imately] 3 yds away could hear and any passerby could also hear placing the [detectives] in extreme danger and compromising their cover."

Although DiPino claimed that Davis's statement was loud enough to be heard approximately three yards away, Davis claimed that even DiPino could not hear what he was saying because she got it "garbled." Although DiPino claimed that Davis said "Look those two girls are narcs," Davis claimed that he never said that the two women were "narcs" because he did not even know they were police officers. Additionally, although DiPino claimed that the statement put her and Brumbley in "extreme danger" because bystanders could hear the statement, she never claimed that anyone actually heard the statement or that Davis directed his comment at anyone other than his friend.

DiPino presented the application for statement of charges to Turner who issued an arrest warrant, rather than a summons, as well as a statement of charges charging Davis with two counts of "obstructing and hindering." Davis was arrested at his place of employment instead of his home address which was the address listed on the application, the warrant and the statement of charges. He was arrested and handcuffed in front of his co-employees and patrons of his employer on July 6th, during one of the busiest weekends of the year. After his arrest, Davis was brought before Turner who scheduled a trial date for October 2, 1991, refused to release Davis on personal recognizance, and set bond at $50,000. Davis remained in jail for two days after his arrest waiting until his friends could post a property bond on his behalf. When the case came up for trial, the state entered a nolle prosequi as to each charge.

After answering Davis's complaint, DiPino and Ocean City moved for summary judgment and attached a supporting affidavit of DiPino claiming that Davis's comment was an intentional effort to blow her cover and the comment obstructed and hindered her "ability to operate in an undercover capacity." She stated that Davis's statements were made in a louder than normal conversational tone and were "loud enough to be heard by the bouncer ... and all others in the vicinity" of an establishment where the bouncer was the subject of an undercover narcotics investigation. DiPino also stated that "at no time have I had any malicious intent or ill will against Wayne Davis."

Turner also filed a motion for summary judgment with supporting affidavit. In his affidavit, Turner stated that, contrary to Davis's assertion that he lacked any basis to issue an arrest warrant, rather than a summons, under Md. Rule 4-212(d)(1)(B), Turner had probable cause to believe that "there was a substantial likelihood that [Davis] may have disregarded a mere summons because the charges sought involved the compromising of a police cover."

Davis filed separate responses in opposition to the motions for summary judgment, along with a supporting affidavit. After hearing argument on defendants' motions for summary judgment and Davis's opposition thereto, the circuit court granted summary judgment in favor of all defendants. Davis appealed to the Court of Special Appeals which determined that the defendants "were not entitled to summary judgment on the basis of the affidavits filed by DiPino and Turner." Davis v. DiPino, 99 Md.App. 282, 289, 637 A.2d 475, 478 (1994). We agree with that determination. Nevertheless, the Court of Special Appeals held that "each count of [Davis's] complaint failed to state a claim upon which relief can be granted" and affirmed "the circuit court's decision to terminate the proceedings." Id. We granted certiorari in this case to consider whether the Court of Special Appeals properly dismissed Davis's complaint for failure to adequately plead any claim upon which relief can be granted. Other issues were presented in Davis's petition for certiorari, but based on our decision on the first issue we deem it unnecessary to reach the remaining issues.

II.

Respondents argue that the Court of Special Appeals could properly affirm the circuit court's judgment in the instant case, even though it did so on the basis of Davis's failure to state a claim upon which relief could be granted, while the circuit court's judgment was based on the grant of defendant's summary judgment motion. We disagree.

The scope of appellate review is found in Md.Rule 8-131(a) which provides:

"Ordinarily, the appellate court will not decide any other issue [besides subject matter and personal jurisdiction] unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal."

See also Moats v. City of Hagerstown, 324 Md. 519, 524-25, 597 A.2d 972, 974-75 (1991); Friedman v. Clark, 252 Md. 26, 31, 248 A.2d 867, 870 (1969) (citing former Md.Rule 885, which stated that appellate courts "will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided in the lower court") (emphasis added).

This Court has stated that the "primary purpose of Rule 8-131(a) is ' "to ensure fairness for all parties in a case and to promote the orderly administration of law." ' "...