Houghton v. Forrest

959 A.2d 816

183 Md. App. 15

Arnold HOUGHTON v. Cheryl FORREST.

No. 2042, September Term, 2007.

Court of Special Appeals of Maryland.

October 31, 2008.

William Phelan (George A. Nilson, City Solicitor, on brief), for Appellant.

James L. Rhodes, Baltimore, for Appellee.

Panel: EYLER, JAMES R., WOODWARD, LAWRENCE F. RODOWSKY, (Ret., specially assigned), JJ.

EYLER, JAMES R., J.

Cheryl Forrest, appellee, filed a tort action in the Circuit Court for Baltimore City against Baltimore City Police Officer Arnold Houghton, appellant, arising out of appellee's arrest. In her complaint, appellee alleged assault, battery, false arrest, false imprisonment, and violations of Articles 24 and 26 of the Maryland Declaration of Rights. Appellant asserted, inter alia, immunity from liability. The court submitted appellee's causes of action to a jury by a verdict sheet that required the jury to determine whether appellant had committed each tort and whether he had acted with actual malice in doing so. The jury found that appellant lacked probable cause to arrest appellee, that he committed all of the torts, and as to each, that he acted with actual malice.¹ The jury awarded compensatory, but not punitive, damages.

On appeal, appellant contends that the evidence is legally insufficient to sustain the finding of actual malice. Appellee disagrees and, alternatively, contends that the trial court should not have required her to prove that appellant acted with actual malice, to establish liability, because appellant was not immune from intentional and constitutional torts. Appellant counters by arguing that appellee may not raise the alternative argument on appeal because it was not properly preserved.

We hold that the evidence is legally insufficient to sustain the finding of actual malice. Additionally, we hold that appellee preserved her objection to the trial court's ruling that appellee had to prove actual malice in order to establish liability. We also hold that appellant does not enjoy immunity from liability, but enforcement of the judgment against him is subject to the Local Government Tort Claims Act (LGTCA), Maryland Code (2006 Repl.Vol.), § 5-507 of the Courts & Judicial Proceedings Article ("C.J."). Under the LGTCA, appellee's failure to prove actual malice prevents her from enforcing her judgment against appellant, but the statute permits appellee to collect the amount of the judgment from the Baltimore City Police Department.

Factual Background

On May 25, 2005, appellant was in a covert location watching a video monitor. The video monitor showed images produced by several different cameras monitoring an area on Eutaw Street south of Saratoga Street, near Lexington Market.

During appellant's surveillance, he observed a female, wearing a white shirt, buy what he believed were prescription drugs from a seller. Appellant radioed Officer Timothy Williams, a Baltimore City Police Officer, and told him to arrest the seller.

While Officer Williams was moving to arrest the seller, appellant observed the female buyer, wearing a white shirt, hug another female who was dressed in black and carrying a red umbrella. Relying on his training and experience, appellant interpreted this hug as another illegal drug transaction. After observing the hug, appellant switched the view on his monitor to another angle because he wanted to watch Officer Williams arrest the original seller.

Following Officer Williams' arrest of the original seller, appellant returned the view on his monitor to its original location where he had witnessed the hug that he interpreted as a drug transaction. The female wearing a white shirt was no longer in the view of the camera. A female wearing a dark jacket and carrying a red umbrella was in the view of the camera. According to appellant, he did not realize that this female was not the original female wearing black and carrying a red umbrella who engaged in the hug with the female wearing white. Actually, this female was appellee, waiting for the bus to take her to work. According to appellant, he instructed Officer Williams to arrest appellee because he believed that she was the same person who had engaged in a drug transaction with the female wearing white.

Officer Williams approached appellee and informed her that she had been video recorded purchasing illegal drugs. Appellee told Officer Williams that she had not purchased any drugs. Officer Williams searched appellee's pockets and checked the ground around appellee, but he found no evidence of drugs. Officer Williams did not see appellee toss, swallow, or destroy any evidence. Nevertheless, Officer Williams detained appellee and transported her to the location of the hug.

At that point, Officer Williams advised appellant that appellee did not have any drugs and asked appellant to check the video to verify that appellee was the correct suspect. Appellant and Officer Williams testified that, after a pause, appellant responded by stating that appellee was the correct suspect. Appellee testified that she heard an unidentified voice— presumably appellant—tell Officer Williams to arrest appellee anyway.

Appellant testified that he instructed Officer Williams to arrest appellee despite the lack of drugs because "when people purchase narcotics, especially prescription pills, they usually eat them right away." In addition, appellant testified that he did not heed appellee's protests because in his experience "virtually everyone says that they weren't involved or they didn't do it. So once I made my identification.... she was going to be arrested based on ... what I thought was going on at the time." In any event, Officer Williams arrested appellee and took her to Central Booking. Appellee spent the night at Central Booking and was released the next day.

On December 8, 2006, appellee sued Officer Williams for damages arising from her arrest.² On May 24, 2007, appellee added appellant as a defendant.

On September 20 and 21, 2007, the case was tried before a jury, on claims of assault, battery, false arrest, false imprisonment, and violations of Articles 24 and 26 of the Maryland Declaration of Rights. At trial, appellant moved for judgment and argued that appellant was protected by immunity, and that appellee could overcome appellant's immunity only by showing that appellant acted with actual malice.

The parties submitted proposed jury instructions to the trial judge just before closing argument. Appellant's proposed jury instruction number three required appellee to prove that appellant acted with actual malice, with respect to all torts, to overcome appellant's immunity. Appellee's counsel objected to appellant's proposed jury instruction number three, stating:

I have an objection to [defendant's] three and it's the same argument that I was makin' in summary judgment, that I don't believe that's the state of the law. The public official immunity, I noticed in his instruction, [Lee v. Cline, 384 Md. 245, 863 A.2d 297 (2004)] is not even mentioned in there at all and that's the case that I believe says that there is no public official immunity for the counts that are left, intentional torts and constitutional torts.

The trial judge then read aloud the portions of Lee on which appellee's counsel relied. Subsequently, the parties argued their positions in detail, after which the following colloquy occurred.

[APPELLANT'S COUNSEL]: So, Your Honor, ... three is in?

THE COURT: Yes. Go on.

[APPELLEE'S COUNSEL]: I'm sorry. What was your response, Judge?

THE COURT: My response was yes.

[APPELLEE'S COUNSEL]: My objection is noted.

THE COURT: All right.

At this point, counsel and the trial judge discussed various other objections to the jury instructions and verdict sheet. Just prior to the finalization of the jury instructions, the following discussion occurred.

[APPELLANT'S COUNSEL]: Your Honor, your, you've made your decision with respect to the jury instructions?

THE COURT: Yes.

[APPELLANT'S COUNSEL]: Okay.

THE COURT: You'll hear them when I give them.

[APPELLANT'S COUNSEL]: Will there be an opportunity for objections?

THE COURT: No. No. You had the opportunity. You told me how you felt. You told me what you objected to. You told me what you wanted and I'm going to give them.

The judge then brought the jury into the courtroom. Appellant rested his case, and the judge instructed the jury. After completing the instructions, the judge called counsel to the bench, and the following dialogue transpired.

THE COURT: That's it. That's all you asked for; is that right?

[APPELLEE'S COUNSEL]: That's correct.

[APPELLANT'S COUNSEL]: Subject to what—

THE COURT: Hmm?

[APPELLANT'S COUNSEL]:—we've already—I think subject to—

[APPELLEE'S COUNSEL]: Our objections to the principle—

[APPELLANT'S COUNSEL]: Yeah, our objections earlier.

THE COURT: What you're objecting to.

[APPELLEE'S COUNSEL]: What we did earlier when we were both objecting to which instructions we didn't want you to give.

THE COURT: I read it the same you ordered.

[APPELLEE'S COUNSEL]: Right. That—

THE COURT: Oh, okay.

[APPELLANT'S COUNSEL]: Some of the things that we didn't, Your Honor.

THE COURT: All right. Thank you very much.

Subsequently, the jury found that appellant committed all torts and acted with actual malice. The jury awarded $180,171.60 in compensatory damages. Appellant moved for judgment notwithstanding the verdict on the ground that the evidence was legally insufficient to sustain the finding of actual malice. The trial court denied the motion. Appellant filed a notice of appeal on October 30, 2007.

Discussion

I. Actual Malice³

Appellant moved for judgment, and post-trial judgment notwithstanding the verdict, on the ground that the evidence was legally insufficient to create a jury question with respect to actual malice. The standard of review when assessing either motion is whether the trial court was legally correct. See, e.g., Shabazz v. Bob Evans Farms,...