Wood v. Palmer Ford, Inc.

• Decision Date: 06 February 1981
• Docket Number: No. 733,733
• Citation: 425 A.2d 671,47 Md.App. 692
• Parties: Franklin E. WOOD v. PALMER FORD, INC.
• Court: Court of Special Appeals of Maryland

Page 692

47 Md.App. 692

425 A.2d 671

Franklin E. WOOD v. PALMER FORD, INC.

No. 733.

Court of Special Appeals of Maryland.

Feb. 6, 1981.

Arthur M. Wagman, Rockville, for appellant.

Charles C. Bowie, Rockville, with whom were Brault, Graham, Scott & Brault, Rockville, on brief, for appellee.

Argued before THOMPSON and LOWE, JJ., and ORTH, CHARLES E., Jr., Retired Special Judge.

ORTH, CHARLES E., Jr., Retired Special Judge.

Franklin E. Wood filed a declaration in the Circuit Court for Prince George's County which, as amended, sought money damages from Palmer Ford, Inc. for malicious prosecution (Count I) and for malicious abuse and use of process (Count II). As to each count Palmer pleaded the general issue, limitations, and that Wood caused or contributed to the incident. As to Count I he also pleaded justification. Trial before a jury was set. The case was disposed of prior to trial by the grant of a motion for summary judgment made by Palmer. Judgment was entered in favor of Palmer for costs. A motion to strike the judgment was filed by Wood and denied. Wood appealed from the judgment and from the denial of his motion to strike it. The issue is the propriety of the court's determination, summarily, that a trial was not necessary.

The principles governing the determination of a motion for summary judgment have been set out repeatedly by the Court of Appeals and this court. The summary judgment procedure is not a substitute for trial, so the Court does not decide disputed facts but ascertains whether any real dispute as to material facts admissible in evidence exists. The burden of demonstrating clearly the absence of any genuine issue of fact is on the one moving for summary judgment, and any doubt as to the existence of such an issue is resolved against the movant. Even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. The material facts, that is those the resolution of which will somehow affect the outcome of the case, and all reasonable inferences deducible therefrom, must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Facts necessary to the determination of a motion may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations, and concessions. If there is no genuine dispute of any material fact or of any reasonable inference deducible therefrom and the moving party is entitled to judgment as a matter of law, judgment should be rendered forthwith. Conversely if there is such a genuine dispute, or judgment is not entitled as a matter of law, summary judgment should not be granted. Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-718, 382 A.2d 555 (1978) and cases therein cited.

The primary source of the facts before the trial court was a deposition by Wood and answers by Palmer to interrogatories. We give a compendium of Wood's testimony. The general background is that he took his car to Palmer for repair and received an estimate of about $400 as the cost. Upon completion of the repairs he was presented with a bill for $952 with the explanation that the difference represented additional work he had requested. Wood had $400 given him by his father, but did not have the remaining $552. The car remained at Palmer's while Wood attempted to raise the additional cash even though he disputed the charge and thought that the bill was "ridiculous." Palmer's firm position was "no money, no car." Wood received a telephone call from Palmer's service manager. Although the caller did not identify himself, Wood recognized the caller's voice. Representing himself as "a friend," the caller observed that the original estimate for the repairs was $400 and that "we did very little over (that)." He said that he was willing to give Wood the car for $400 in cash. He instructed Wood to leave the cash under the trash can in the men's room at Palmer's at noon tomorrow and "you will receive the keys to your car. You will find them there under the trash can, the keys to your car and the receipts to your car." Wood did not then follow the suggestion and received a second telephone call from the same person the next night. The proposition was repeated with the explanation: "The reason why I need $400 is ... it will pay for the parts and labor. You did kind of get screwed over on the deal, and I feel sorry for you and want to help you out." Wood told the mechanic, Steve Gore, who had worked on the car, what had occurred. Gore said that it was the service manager who called and advised Wood to "(g)o right ahead and do it." Wood did it. He left the $400 as directed and found his car keys and receipted bills for the full amount charged. He retrieved his car but after driving it around for a few hours "it started to mess up from the work they did on it.... (M)y car was in almost worse shape than when I took it in there. It was such a shoddy job." He took it back to Palmer. The service manager came running out and asked him what he was doing there. When Wood told him that he was bringing the car back because they had not fixed it right, the service manager disclaimed responsibility. He said: "I am telling you if you want to go any further you are going to have to go to court. Call your consumer agency. But we are not responsible for that work." After some argument Wood left in his car.

The same day Wood received a call from John Kirby, Treasurer of Palmer, who asked how Wood got the car since they had no record of payment for the repairs. At Kirby's request Wood went to Palmer's office, told Kirby exactly what had occurred and asked to confront the service manager. Kirby informed Wood that the manager had "quit this morning for some reason. He has gone. He doesn't work here any more." After some discussion, Wood agreed to pay Palmer $952.

A few days later "a Detective Marks from the Prince George's County Police" came to Wood's residence where he lived with his mother, and said: "I would like you to come down to the Hyattsville station and talk with me" about the Palmer incident. Wood telephoned Kirby and asked what was going on. Kirby said:

"Well, Frank, I did not want to bring any charges. I think you are a good guy. You paid us off. You showed good faith. But the president of Palmer Ford, I did not know it, but he has a strict policy of prosecuting all people that deal in fraudulent ways with the company.... It is out of my hands. I am sorry."

While Wood's car was in the possession of Palmer, it had been broken into and the transmission linkage and AM/FM cassette was stolen. Wood had reported the matter to the police. Wood told Kirby that everyone knew that an employee of Palmer was a thief. "I understand he was fired. He wasn't prosecuted." Kirby replied: "That is a different story. I cannot comment on that. I am sorry. The president of Palmer Ford has a strict policy of prosecuting anyone that deals with us in fraudulent ways." Wood went with the detective to the police station. He told Marks what had occurred. Marks said: "Okay. You are under arrest.... I am going to have to charge you with embezzlement." Wood was charged and released on his personal recognizance. The initial charge against Wood was embezzlement. subsequently, he was charged with false pretenses, grand larceny and unauthorized use of the car. Ultimately, all criminal proceedings were terminated in his favor.

In our review as an appellate court of the propriety of the trial court's grant of Palmer's motion for summary judgment, we are concerned with whether there was a dispute as to any material fact, and if not, whether Palmer was entitled to judgment as a matter of law. Washington Homes, 281 Md. at 717, 382 A.2d 555. In satisfying our concern, we need to look to the elements of malicious prosecution growing out of a criminal charge for guidance with respect to what facts are material. The necessary elements of that tort are:

"(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." Exxon Corp. v. Kelly, 281 Md. 689, 693, 381 A.2d 1146 (1978), citing Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, 122 A.2d 457 (1956), quoted in Durante v. Braun, 263 Md. 685, 688, 284 A.2d 241 (1971).

It is undisputed that all criminal proceedings were ultimately terminated in favor of Wood, thus meeting the second element of his malicious prosecution action. But, we point out again that the burden of demonstrating clearly the absence of any genuine issue of fact is here on Palmer as the moving party. Any doubt as to the existence of such an issue is resolved against the movant. The duly shown facts which would be admissible in evidence and all reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Even where underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. Applying these principles, we cannot say, on the record before us, that whether Wood met the other three elements necessary to sustain his case was for the court as a matter of law and not for the trier of fact.

What muddies the waters is the lack of definitive facts regarding the circumstances surrounding the bringing and the termination of the criminal charges against Wood. Detective Marks had died prior to the hearing on the motion for summary...