Laws v. Thompson, No. 783

• Court: Court of Special Appeals of Maryland
• Writing for the Court: ROSALYN B. BELL; Fischer
• Citation: 554 A.2d 1264,78 Md.App. 665
• Docket Number: No. 783
• Decision Date: 01 September 1988
• Parties: Harry L. LAWS v. Gregory THOMPSON, et al. ,

Page 665

78 Md.App. 665 554 A.2d 1264 Harry L. LAWS
v.
Gregory THOMPSON, et al. No. 783, Sept. Term, 1988. Court of Special Appeals of Maryland. March 29, 1989.
Concurring Opinion April 26, 1989.

[554 A.2d 1266]

Page 668

Howard J. Schulman, Baltimore, for appellant.

Francis B. Burch, Jr. (Eric B. Miller, Piper & Marbury, on the brief), Baltimore, for appellees, Stiller & Frank, Bernstein, Conaway & Goldman.

Gilbert A. Hoffman (Robert K. Nead, O'Doherty, Nead, Hoffman, Baltimore, and William A. Saltysiak, Towson, on the brief), for appellees, Thompson & Met.

(J. Joseph Curran, Jr., Atty. Gen., and Ronald M. Levitan, Asst. Atty. Gen., on the brief), Baltimore, for appellee, Howard B. Gersh.

Argued before BISHOP, ROSALYN B., BELL and FISCHER, JJ.

ROSALYN B. BELL, Judge.

In a suit claiming defamation, false imprisonment, malicious prosecution and abuse of process, the Circuit Court for Baltimore City granted summary judgments for defendants Gregory Thompson, Metropolitan International, Inc., Shale D. Stiller, and Frank, Bernstein, Conaway & Goldman, against Harry L. Laws. Laws has appealed both from the summary judgments and the quashing of a subpoena

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against an assistant State's Attorney whom he sought to depose. The issues on appeal are whether the court erred in

--granting summary judgment for the defendants as there was evidence that they deliberately gave false information to the police and hence were not entitled to "good faith" immunity;

--granting summary judgment for all defendants because there was no dispute of material facts, and that judgment should have been entered as a matter of law;

--granting the motion to quash the subpoena served on the assistant State's Attorney based on executive privilege.

We reverse and remand.

The facts vary widely, depending on who recounts them. Indeed, it is precisely this factual disparity which made summary judgment inappropriate. We must provide a setting, however, against which we view the specifics. We begin by setting forth a general factual background, identifying the persons involved. We then narrate Laws's version of the facts leading to his arrest and to his subsequent civil suit; this will be interspersed with some reference to the account of defendants Thompson, Metropolitan, Stiller, and Frank, Bernstein.

The State of Maryland Deposit Insurance Fund Corporation (MDIF), Receiver for Old Court Savings and Loan, retained Stiller and the law firm in which he is a partner, Frank, Bernstein, as counsel. MDIF obtained a judgment in the Circuit Court for Baltimore City on June 10, 1986. ¹ against Galleria Enterprises of Maryland, Ltd. (Galleria), which owned and operated the Gucci store formerly located at 122 Redwood Street in Baltimore City.

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Stiller sought to levy on Galleria's property to satisfy MDIF's judgment, and on June 26, 1986, he filed a Request for a Writ of Execution, asking the sheriff to seize the property, including inventory. During the next few weeks, MDIF employees received reports that merchandise was being [554 A.2d 1267] removed from the Redwood Street store. ² At a meeting held on either July 14 or 15 at Frank, Bernstein's offices, and attended by Stiller and MDIF employees, it was decided to hire a security guard service, Metropolitan, to protect the merchandise during the hours the store was closed. On July 16, 1986, Metropolitan dispatched its employee, Gregory Thompson, to the store. Thompson's instructions were that no one, including owners and employees, were to enter the store after it was closed.

At about 8:00 p.m. that same day, Laws, an employee of Galleria, was electronically paged by two of Galleria's owners. ³ The owners asked Laws to come to the Gucci store. Accompanied by his girlfriend, Zina, Laws drove his own car to the store. Zina remained in the car, but reminded Laws not to forget to retrieve a picture of their daughter, which he kept in his store office. Laws looked for the owners outside the front entrance of the store, but no one was there. Because the front entrance on Redwood Street was barricaded by a metal roll-down cage, Laws entered the building from Calvert Street, walked through the building's lobby, went down a staircase, using the basement door to gain entry of the store. ⁴ The building's night custodian

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was in the lobby and observed Law's entry. The Galleria owners were waiting for Laws inside the store; they instructed him to fill up the gas tank of a store van. Laws left, refueled the van, and returned it to the owners. Laws was on his way out of the store with the owners when he remembered Zina's admonition to get his daughter's picture--he went back into the store alone to retrieve it. When he got back outside, he encountered security guard Thompson.

Thompson's version of the tale is different. Thompson maintained that Laws had approached him as he was guarding the store, offering him money if he would "look the other way" while Laws entered the store. Thompson refused the alleged bribe, and shortly thereafter, as he was shining his flashlight into the Gucci store windows, he saw a masculine figure lurking inside. ⁵ Thompson checked with the night custodian, who identified Laws as having been inside the building. Thompson apprehended Laws outside the store, and called the police. Baltimore City Police Officer Innes Foster, among others, responded to the call.

According to Stiller, that evening at about 10:00 p.m., he received a phone call from a Metropolitan agent. Metropolitan told Stiller that the security guard had reported that someone had attempted to break into the store and bribe the guard, and subsequently was seen ducking behind a counter in the closed store. Stiller was also told the police were at the scene and would contact him.

Thompson told Officer Foster that he had been hired to guard the Gucci store and to prevent anyone from entering. In order to ascertain precisely who had hired the security guard, Officer Foster called Thompson's supervisor at Metropolitan, telling Metropolitan that he wanted to verify their legal control over the store and the reason for not letting

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the owners and employees go into the store. Metropolitan gave Officer Foster Stiller's telephone number. Foster called Stiller, informing him that a man named Harry Laws had been apprehended. Stiller told him that he [554 A.2d 1268] was MDIF's attorney, and he had seized all records and merchandise of the store, and had issued the order that no one was to enter. According to Stiller, he did not know that Laws was an employee, or that he was authorized to be in the store, nor did he ask who Laws was. Officer Foster's recollection differs--he stated that he did tell Stiller that Laws was a Gucci employee. Officer Foster asked Stiller whether he wanted Laws arrested. Stiller asked the officer what was usually done in similar cases; the officer responded that if Stiller and MDIF had legal control of the store, and if Laws had no legitimate purpose there, then Laws could be charged with burglary. According to Officer Foster, Stiller responded, "Well, then, let's just do what you normally do, and we will lock him up."

Laws was arrested. At the time of his arrest, he had in his possession his employee payroll stub, a 5" X 7" picture of his daughter, his keys to the store, and approximately $10.00. Laws had no Gucci merchandise. Based on the information Stiller provided, i.e., that MDIF had legal control of the store, and that provided by Thompson, i.e., that Thompson had seen Laws inside the store, Officer Foster swore out a complaint. Laws was charged with storehouse breaking, in violation of Art. 27, § 31B (1957, 1987 Repl.Vol.), a misdemeanor punishable by up to six months imprisonment, or a fine of up to $500, or both. Laws spent the night in jail; he was released in the early morning of July 17. A trial date was scheduled for August 11.

On July 18, the sheriff officially executed the writ, taking possession of the store premises and merchandise. That same day, Linda Richards, a Frank, Bernstein associate, called Deborah Chasanow of the Attorney General's office because:

"Debbie Chasanow is a friend of mine. I admire her abilities in criminal law very much so I gave her a call to

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tell her what we believed was going on and to ask her whether this was a crime. I believe that is what my purpose in calling her was. I believe it was Debbie who said that it could be obstruction of justice and what we would need to do some research to see whether or not the taking of inventory by debtors like Mrs. Kenny and Mr. Burbage constituted obstruction of justice." ⁶

Laws's misdemeanor offense was subsequently assigned to Howard Gersh, a senior felony prosecutor at the circuit court level of the Baltimore City State's Attorney's office. On July 22, 1986, Stiller met with Gersh. ⁷ On August 7, Gersh returned Richard's telephone call, advising her that he could not pursue the burglary charge against Laws. Richard's notes of her conversation with Gersh show that Gersh stated that he could not "figure out any offense" with which Laws could be charged. The charges against Laws were nolle prossed.

After Laws's civil suit was filed, counsel for Laws sought to depose Gersh and to obtain some notes Gersh made in regard to his meeting with Stiller. The subpoena was quashed and the trial court granted summary judgment for all the defendants. This appeal followed.

THE SUMMARY JUDGMENT

We enter again the familiar arena of how to evaluate a summary judgment motion. Rule 2-501 provides, in pertinent part, that

"[t]he court shall enter judgment in favor of or against the moving party if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is

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entitled to judgment as a matter of law." (Emphasis added.)

The purpose of...