Simms v. Constantine

• Citation: 113 Md.App. 291,688 A.2d 1
• Decision Date: 01 September 1995
• Docket Number: 1629,Nos. 1628,s. 1628
• Parties: Stuart O. SIMMS, et al. v. Nicholas CONSTANTINE, et al. Stuart O. SIMMS, et al. v. Chris WADE, et al. ,
• Court: Court of Special Appeals of Maryland

Page 291

113 Md.App. 291

688 A.2d 1

Stuart O. SIMMS, et al. v. Nicholas CONSTANTINE, et al.

Stuart O. SIMMS, et al. v. Chris WADE, et al.

Nos. 1628, 1629, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Jan. 29, 1997.

Andrew H. Baida, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, for Appellants.

Barry S. Brown, Baltimore, for Appellees.

Argued before MOYLAN, HOLLANDER and EYLER, JJ.

MOYLAN, Judge.

The appellants are Stuart O. Simms, who was at the time of the alleged acts that form the basis for the complaint in this case the State's Attorney for Baltimore City, and Haven Kodeck, who was at the same time an Assistant State's Attorney for Baltimore City. Both appellants were sued, along with the Mayor of Baltimore City, Kurt L. Schmoke, and the then Police Commissioner of Baltimore City, Edward V. Woods, ¹ in the Circuit Court for Baltimore County by three former Baltimore City policemen, the appellees Nicholas Constantine, Chris Wade, and John Mohr, for malicious prosecution and other closely-related tortious acts. The appellants moved to have the complaint against them dismissed on the ground that they enjoyed absolute prosecutorial immunity. Judge Christian M. Kahl denied their motion and this interlocutory appeal has followed.

The single issue before us is whether the governmental immunity, unquestionably enjoyed by the appellants in one form or another for the performance of their official duties, is of the absolute variety or only of the qualified variety. The answer is that for prosecutors it is sometimes the one and sometimes the other, depending upon the particular prosecutorial function for which they are invoking immunity. The Appellate Lens Through Which The Alleged Facts Are

To Be Viewed

Let it be clear, as we set the necessary factual backdrop for the discussion that is to follow, that we are referring not to evidence but only to allegations. There has yet been no evidentiary hearing at which either side has had an opportunity to present evidence and at which the other side has had an opportunity to test, to challenge, or to contradict such evidence or to present countervailing evidence. We are dealing only with allegations.

The appellants' motion to dismiss was made pursuant to Maryland Rule 2-322 (Preliminary Motions), which, in subsection (b), provides in pertinent part:

Permissive.--The following defenses may be made by motion to dismiss filed before the answer, if an answer is required: ... (4) governmental immunity ...

In discussing appellate review of a trial judge's decision with respect to a motion to dismiss under Rule 2-322(b), Judge Bloom, in Bennett Heating & Air Conditioning, Inc. v. NationsBank of Maryland, 103 Md.App. 749, 757, 654 A.2d 949 (1995), rev'd in part on other grounds, 342 Md. 169, 674 A.2d 534 (1996), articulately set out the appropriate standard of review:

In reviewing the grant [or the denial] of a motion to dismiss pursuant to Maryland Rule 2-322(b), "we must assume the truth of all relevant and material facts that are well pleaded and all inferences which can be reasonably drawn from those pleadings." Sharrow v. State Farm Mut. Auto. Ins. Co., 306 Md. 754, 768, 511 A.2d 492 (1986). "[T]he complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein." Ungar v. State, 63 Md.App. 472, 479, 492 A.2d 1336 (1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1379, 89 L.Ed.2d 604 (1986).

See also Sharrow v. State Farm Mut. Auto. Ins. Co., 306 Md. 754, 768, 511 A.2d 492 (1986); Tadjer v. Montgomery County, 300 Md. 539, 542, 479 A.2d 1321 (1984); Hoffman v. Key Fed Sav. & Loan, 286 Md. 28, 33-34, 416 A.2d 1265 (1979); Schwartz v. Merchants Mortgage Co., 272 Md. 305, 307-08, 322 A.2d 544 (1974).

A long line of Maryland cases has consistently affirmed the fact that in ruling on a motion to dismiss (or, in earlier cases, ruling on a demurrer), both the trial court and the reviewing appellate court shall assume to be true not only all of the well pleaded facts in the complaint but also "the inferences which may be reasonably drawn from those well pleaded facts." Stone v. Chicago Title Ins. Co., 330 Md. 329, 333-34, 624 A.2d 496 (1993); Citizens Planning & Housing Ass'n v. County Executive, 273 Md. 333, 337-38, 329 A.2d 681 (1974); Hall v. Barlow Corp., 255 Md. 28, 42, 255 A.2d 873 (1969); Parish v. Maryland and Virginia Milk Producers Ass'n, 250 Md. 24, 71, 242 A.2d 512 (1968), cert. denied, 404 U.S. 940, 92 S.Ct. 280, 30 L.Ed.2d 253 (1971); Killen v. Houser, 239 Md. 79, 83, 210 A.2d 527 (1965).

In characterizing the prism or lens through which both the trial court and the appellate court should examine a complaint that is being subjected to a motion to dismiss, Ungar v. State, 63 Md.App. 472, 492 A.2d 1336 (1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1379, 89 L.Ed.2d 604 (1986), explained that the complaint need not specify with minute particularity every fact that need ultimately be proved. It is enough that the complaint state with reasonable certainty the cause of action. A motion to dismiss should not be granted unless it appears that no plausible evidence could be offered to support the claim. As Judge Robert M. Bell (now of the Court of Appeals) observed for this Court in Ungar, 63 Md.App. at 479, 492 A.2d 1336:

[W]ell pleaded allegations of fact contained in the complaint are taken as true and the complaint should not be dismissed unless it appears that no set of facts can be proven in support of the claim set forth therein. (Emphasis supplied).

Judge Bell relied not only on Nistico v. Mosler Safe Co., 43 Md.App. 361, 363, 405 A.2d 340 (1979), but also on Baltimore Import Car Serv. & Storage, Inc. v. Maryland Port Auth., 258 Md. 335, 339-40, 265 A.2d 866 (1970). That case, in turn, relied on and quoted with approval the following statement from Smith v. Shiebeck, 180 Md. 412, 420, 24 A.2d 795 (1942):

The material facts essential to the complainant's right to obtain relief should be alleged, but a general statement of the facts is sufficient. It is not necessary to state minutely all the circumstances which may conduce to prove the general charge, as these circumstances are properly matters of evidence which need not be recited to enable them to be admitted as proof. Even though every particular circumstance is not stated, the bill will be held sufficient if it states the complaint with reasonable certainty, clearness and accuracy so as to apprise the defendant of the nature of the claim brought against him. (Citations omitted).

See also Flaherty v. Weinberg, 303 Md. 116, 135-36, 492 A.2d 618 (1985); Morris v. Osmose Wood Preserving, 99 Md.App. 646, 652-53, 639 A.2d 147 (1994), aff'd in part and rev'd in part, 340 Md. 519, 667 A.2d 624 (1995).

It was Judge Adkins in Berman v. Karvounis, 308 Md. 259, 264, 518 A.2d 726 (1987), who then articulated the decided slant or bias that an appellate court should adopt in viewing the presumptively true allegations and all of the inferences that can reasonably be drawn from them:

Since we are dealing with a motion to dismiss, we consider appellants' well-pleaded allegations in the light most favorable to them.

See also Board of Educ. v. Browning, 333 Md. 281, 286, 635 A.2d 373 (1994); Baker v. Miles & Stockbridge, 95 Md.App. 145, 186, 620 A.2d 356 (1993).

In Faya v. Almaraz, 329 Md. 435, 443, 620 A.2d 327 (1993), Chief Judge Murphy wrote to the same effect:

In determining whether the trial court erred in granting the motions to dismiss, we must accept as true all well-pleaded facts and allegations in the complaints, together with reasonable inferences properly drawn therefrom. Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.

See also Davis v. DiPino, 337 Md. 642, 648, 655 A.2d 401 (1995); A.J. Decoster Co. v. Westinghouse Electric Corp., 333 Md. 245, 249, 634 A.2d 1330 (1994); Briscoe v. City of Baltimore, 100 Md.App. 124, 128, 640 A.2d 226 (1994).

What these guidelines must produce should be very clear. The narrative that follows may appear to be slanted and one-sided, but that is inevitable when the allegations of the complainants are all we have to go on. A freely acknowledged slant in support of sustaining the viability of the complaint is, moreover, mandated at this stage of the proceedings on this particular issue (the pre-trial dismissal of a complaint). A denial of a motion to dismiss a complaint says nothing about the merits of the complaint. It only establishes that the complaint states a cause of action that is entitled to a full evidentiary examination to see to what extent the allegations may be true.

The Factual Allegations in the Light Most Favorable to the Appellees

The taproot of all of the difficulty in this case was the execution of a search and seizure warrant at 2814 Taney Road in Baltimore City on July 17, 1991. The warrant, authorizing a search for illegal drugs, was issued by a judge of the Circuit Court for Baltimore City. The affiant on the warrant was one of the appellees, Officer Nicholas S. Constantine. The warrant was based, in whole or in part, on information received by Officer Constantine from a confidential police informant. The other appellees, Officer Chris Wade and Officer John Mohr, although not affiants on the warrant application, participated with Officer Constantine in the execution of the warrant.

The homeowner at 2814 Taney Road, chagrined at the police invasion, denied that there were any illegal drugs on the premises. He identified himself, moreover, as a cousin of the wife of Mayor Schmoke. He informed the three officers that "he would, in effect, solicit the Mayor's intervention into the situation." The three officers allege that they "had no knowledge whatsoever that the home they intended to search was owned and/or rented" by a cousin of the Mayor's...