Johnson v. Francis

• Decision Date: 28 November 2018
• Docket Number: No. 1425, 2500, Sept. Term, 2017,1425, 2500, Sept. Term, 2017
• Citation: 197 A.3d 582,239 Md.App. 530
• Parties: Michael JOHNSON, Jr. v. Tyrone S. FRANCIS, et al.
• Court: Court of Special Appeals of Maryland

239 Md.App. 530

197 A.3d 582

Michael JOHNSON, Jr.

v.Tyrone S. FRANCIS, et al.

No. 1425, 2500, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 28, 2018

Argued by: Allan B. Rabineau (A. Dwight Pettit, Latoya Francis-Williams, Law Office of A. Dwight Pettit, P.A. all on the brief), Baltimore, MD, for Appellant.

Argued by: Dana Moore (Andre M. Davis, City Solicitor, Michael G. Comeau, Chief Solicitor, Michael P. Redmond, Rachel Simmonsen on the brief), Baltimore, MD, for Appellee.

Panel: Leahy, Reed, Fader, JJ.

Fader, J.

This consolidated appeal arises from appellant Michael Johnson, Jr.'s attempts to execute on a judgment entered against three Baltimore City police officers. Having previously been unsuccessful in his effort to collect from the non-party City of Baltimore, Mr. Johnson turned to the non-party Baltimore Police Department (the "Department"). He first issued interrogatories seeking detailed information about the Department's assets. He then sought to obtain the same information through depositions of the Department's then-commissioner and then-chief fiscal officer. The Circuit Court for Baltimore City entered protective orders as to all of this discovery and quashed the subpoenas. Mr. Johnson argues that the court erred in doing so.

We affirm. The circuit court did not err in protecting the Department from having to respond to interrogatories because the Maryland Rules permit interrogatories to be issued only to parties and the Department is not a party. The circuit court also correctly quashed the subpoenas, which were not reasonably calculated to lead to the discovery of evidence relevant to the enforcement of a judgment against the officers.¹

BACKGROUND

Prior Proceedings

In litigation initiated in 2010, Mr. Johnson alleged that three officers of the Department violated his rights by "taking him from Baltimore in a police van, assaulting him, breaking his phone, and then dropping him off in Howard County in the rain, without shoes, socks or a way home." Johnson I , 219 Md. App. at 537, 101 A.3d 494. After a 2013 trial, a jury found the officers liable and awarded Mr. Johnson $500,000 in damages, which we ultimately reduced to $247,000 in compensatory damages and $34,000 in punitive damages. Id. at 537, 560-61, 564, 101 A.3d 494. We further found that the court did not abuse its discretion by upholding the jury's award of punitive damages because of the "overwhelming evidence to support a finding of malice on the part of" two of the officers. Id. at 564, 101 A.3d 494. We remanded the case for further proceedings, which necessarily would include entering a new judgment against the officers for the reduced amounts. Id.

Before any further proceedings in the trial court occurred on remand, Mr. Johnson sought a writ of execution and a writ of garnishment against the City of Baltimore. Johnson v. Mayor & City Council of Balt. , 233 Md. App. 43, 50, 161 A.3d 95 (2017) (" Johnson II "). At the City's request, the trial court quashed the writs. Id. at 51, 161 A.3d 95. We affirmed, holding that (1) Mr. Johnson's collection efforts were premature because no proceedings had taken place on remand to enter the new judgment, as required by Johnson I , and (2) Mr. Johnson could not collect from the City, which was not responsible for a judgment against officers of the Department. Id. at 54-56, 161 A.3d 95. We noted in that opinion that if the Department failed to pay a judgment for compensatory damages against its officers, the Department would be "subject to an enforcement action" by Mr. Johnson. Id. at 56, 161 A.3d 95 (citing Balt.Police Dep't v. Cherkes , 140 Md. App. 282, 326, 780 A.2d 410 (2001) ). To date, Mr. Johnson has not initiated such an action.

Current Discovery Disputes

Mr. Johnson disagrees with our decision in Johnson II . For the ostensible purpose of proving that our decision denying his attempt to collect from the City was incorrect, he initiated discovery designed to show that the Department has no assets with which to satisfy the judgment authorized in Johnson I . He first propounded interrogatories to the Department, in its purported capacity as "Indemnitor of the Defendants," requesting detailed information about the Department's assets. The interrogatories did not seek any information about any assets of, or obligations owed to, the three officers. The Department sought a protective order, which the circuit court granted on June 6, 2017. In a footnote, the court stated that its order "shall not be construed to preclude the use of subpoenas or other instruments of post-judgment discovery authorized by the Maryland Rules to compel production of the information sought."

Mr. Johnson moved for reconsideration. On June 22, 2017, the circuit court denied that motion, observing that " Maryland Rule 2-421(a) limits use of interrogatories to parties" and that the Department is not a party. Mr. Johnson filed a second motion for reconsideration on July 13, which the court denied on August 16.

On July 10, 2017, after the circuit court's denial of his first motion for reconsideration regarding the interrogatories, Mr. Johnson served a subpoena for deposition and production of documents on the then-commissioner of the Department. The schedule of documents to be produced sought detailed information about the Department's assets. It did not seek any information about any assets of, or obligations owed to, the three officers. On August 16, in the same order in which it denied Mr. Johnson's second motion for reconsideration regarding the interrogatories, the circuit court granted the commissioner's motion for protective order and quashed the subpoena. The court held that although the Department may be subject to an "enforcement ‘action’ pursuant to [the Local Government Tort Claims Act]" and applicable case law, the subpoena to the commissioner was not yet appropriate.

On November 21, 2017, Mr. Johnson served on the Department's then-chief of fiscal affairs a subpoena for deposition and production of documents. The subpoena demanded production of "[a]ny and all information consisting of documents or otherwise pertaining to the property (assets) of the Baltimore City Police Department," including without limitation information regarding a specific bank account at M & T Bank. As with the earlier discovery, the subpoena did not seek any information about any assets of, or obligations owed to, the three officers. The circuit court granted the chief's motion to quash on January 19, 2018.

Mr. Johnson noted two separate appeals: (1) on September 14, 2017, the 29th day after the August 16 order; and (2) on February 15, 2018, the 27th day after the January 19 order. Neither notice of appeal identified any specific order or judgment; both simply noted an appeal "in the above captioned case."

DISCUSSION

I. WE REVIEW THE ORDERS FROM WHICH MR. JOHNSON APPEALED FOR ABUSE OF DISCRETION .

Before turning to the merits, we address two jurisdictional issues.² First, pursuant to the final judgment rule, discovery orders are not ordinarily immediately appealable. Addison v. State , 173 Md. App. 138, 156, 917 A.2d 1200 (2007) ("[T]he Court of Appeals has been unswerving in its position that discovery rulings (at least those which affect only the parties to the action and do not compel discovery from a high government official) may not be appealed in advance of the entry of a final judgment."). Under that rule, to be appealable, a "decision must be ‘so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.’ " Quillens v. Moore , 399 Md. 97, 115, 923 A.2d 15 (2007) (quoting Cant v. Bartlett , 292 Md. 611, 614, 440 A.2d 388 (1982) ). The purpose of the final judgment rule "is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if and when final judgment results." Ashcraft & Gerel v. Shaw , 126 Md. App. 325, 728 A.2d 798 (1999) (quoting Sigma Reprod. Health Ctr. v. State , 297 Md. 660, 668, 467 A.2d 483 (1983) ). Here, where a final judgment in the underlying dispute has already been rendered, appealed, and affirmed, and nothing else is pending, the issues resolved in these discovery orders are the sole issues remaining to be decided in the case (other than, perhaps, the need to enroll a new judgment reflecting our prior ruling as discussed above in footnote 1). If Mr. Johnson is denied the discovery he seeks, it is unclear what, if anything, would remain to be decided in the case or how there would be any future opportunity for him to appeal from these decisions. The final judgment rule thus does not bar his appeals.

Second, we must determine which orders are properly before us on appeal. Rule 8-202(a) generally provides that an appeal must "be filed within 30 days of the entry of the judgment or order from which the appeal is taken." Rule 8-202(c) provides for an exception that tolls the running of that appeal period while the court considers certain motions, including motions to alter or amend that are filed within ten days of entry of the judgment or order "under Rule 2-534 and/or 2-535." Edery v. Edery , 213 Md. App. 369, 383, 73 A.3d 1229 (2013). A motion for reconsideration filed more than ten days, but within 30 days, after entry of a judgment or order may still be considered by the trial court, pursuant to Rule 2-535, but it does not toll the running of the time to note an appeal. Pickett v. Noba, Inc. , 114 Md. App. 552, 557, 691 A.2d 268 (1997) ("If the motion [under Rule 2-535] is filed within ten days of judgment, it stays the time for filing the appeal; if it is filed more than ten days after judgment, it does not stay the time for filing the appeal."). Moreover, once a court has denied one motion for reconsideration, the filing of additional such motions does not toll the running of the time to note an appeal. Leese v. Dep't of Labor, Licensing...