Michael Johnson, Jr. v. Tyrone S. Francis, et al.
Nos. 1425 & 2500
IN THE COURT OF SPECIAL APPEALS OF MARYLAND
November 28, 2018
September Term, 2017
Michael Johnson, Jr. v. Tyrone S. Francis, et al., Nos. 1425 & 2500, September Term, 2017. Opinion by Fader, J.
DISCOVERY – DISCOVERY IN AID OF ENFORCEMENT OF A JUDGMENT – INTERROGATORIES
Limitations on interrogatories contained in Rule 2-421 apply to interrogatories propounded under Rule 2-633(a)(1). Thus, a judgment creditor may not propound interrogatories in aid of enforcement of a money judgment to non-parties.
DISCOVERY IN AID OF ENFORCEMENT OF A JUDGMENT – LIMITATION ON SCOPE OF DISCOVERY
The discovery authorized by Rule 2-633 is limited to that which may aid in enforcement of a judgment creditor’s existing money judgment. Such discovery must be relevant to, and reasonably calculated to lead to the discovery of admissible evidence regarding, enforcement of that money judgment.
LOCAL GOVERNMENT TORT CLAIMS ACT – STATUTORY INTERPRETATION – LIABILITY FOR JUDGMENTS AGAINST EMPLOYEES – SCOPE OF EMPLOYMENT
Under the Local Government Tort Claims Act, a local government is liable to a plaintiff for the amount of the judgment against its employee if and only if the employee who committed the tortious acts or omissions at issue was acting within the scope of his or her employment with the local government.
LOCAL GOVERNMENT TORT CLAIMS ACT – ENFORCEMENT OF A JUDGMENT AGAINST LOCAL GOVERNMENT
A plaintiff who obtains a judgment against an employee of a local government can establish the local government’s liability through an enforcement action against the local government. In such a proceeding, the local government can raise as a defense that the employee was not acting within the scope of his or her employment.
Circuit Court for Baltimore City
Case No. 24-C-1000-1382
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
Nos. 1425 & 2500
September Term, 2017
MICHAEL JOHNSON, JR.
v.
TYRONE S. FRANCIS, et al.
Leahy,
Reed,
Fader,
JJ.
Opinion by Fader, J.
Filed: November 28,
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
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. 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. 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. 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 (2017) (“Johnson II”). At the City’s request, the trial court quashed the writs. Id. at 51. 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. 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 (citing Balt. Police Dep’t v. Cherkes, 140 Md. App. 282, 326 (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.”
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 (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
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.
Mr. Johnson filed his first motion for reconsideration within ten days from the entry of the protective order relating to his interrogatories. Pursuant to
Mr. Johnson did timely appeal the court’s orders quashing both subpoenas. We also review those decisions “under an abuse of discretion standard.” Larocca v. Creig Northrop Team, P.C., 217 Md. App. 536, 547 (2014), rev’d in part on other grounds by Windesheim v. Larocca, 443 Md. 312 (2015). An abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court” or where the court acts “without reference to any guiding rules or principles.” Powell v. Breslin, 430 Md. 52, 62 (2013)
(internal quotation marks and citations omitted). Moreover, “where an order involves an interpretation and application of Maryland statutory and case law,” we must determine whether the trial court’s conclusions are ‘legally correct’ under a de novo standard of review.” Johnson II, 233 Md. App. at 53 (quoting Walter v. Gunter, 367 Md. 386, 392 (2002)).
II. THE CIRCUIT COURT DID NOT ERR IN DENYING THE SECOND MOTION FOR RECONSIDERATION BECAUSE THE RULES DO NOT PROVIDE FOR INTERROGATORIES TO NON-PARTIES.
The Department was not a party to the underlying action and is not a judgment debtor. Although Mr. Johnson concedes that he would therefore not be permitted to propound interrogatories to the Department under
fully answer each interrogatory or “state fully the grounds for refusal to answer any interrogatory”; (8) the response must set forth each interrogatory and answer separately; (9) the response must “include all information available to the party directly or through agents, representatives, or attorneys”; (10) the response must be signed by the party making it; (11) under certain identified circumstances, the responding party may produce business records as a sufficient answer to an interrogatory; and (12) answers “may be used at the trial or a hearing to the extent permitted by the rules of evidence.”
in
Our conclusion is bolstered by the committee note accompanying
Moreover, considering that we presume the Rules “operate together as a consistent and harmonious body of law,” Fuster v. State, 437 Md. 653, 664 (2014) (quoting Lowery v. State, 430 Md. 477, 496 (2013)), we further observe that nothing in
In sum, we agree with the Department and the circuit court that interrogatories—whether issued pre-trial or in aid of enforcement—may only be propounded to parties. The circuit court was thus correct to deny Mr. Johnson’s second motion for reconsideration, as well as to grant the Department’s motion for protective order in the first place.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN QUASHING THE SUBPOENAS, WHICH DID NOT SEEK INFORMATION REASONABLY CALCULATED TO AID IN ENFORCEMENT OF A JUDGMENT AGAINST THE OFFICERS.
Mr. Johnson next contends that the circuit court erred in quashing the subpoenas and notices of depositions of the Department’s then-commissioner and then-chief of fiscal affairs. The Department responds that these subpoenas were properly quashed because they did not seek discovery in aid of enforcement of a judgment against the three
Discovery in aid of enforcement is, of course, necessarily limited to discovery that will “aid enforcement of a money judgment.”
hypothetical or potential money judgment. And, as always, such discovery must be “relevant to the subject matter involved in the action” and “appear[] reasonably calculated to lead to the discovery of admissible evidence.”
Here, the problem with Mr. Johnson’s deposition subpoenas is not to whom they were issued but that the information sought was neither relevant to, nor reasonably calculated to lead to the discovery of admissible evidence regarding, enforcement of a money judgment against the three officers. See generally Sabol v. Brooks, 469 F. Supp. 2d 324, 328 (D. Md. 2006) (“Maryland Rule 2-633 also contains protections for non-parties by requiring proof that the nonparty bears a probable relation to the judgment debtor and the enforcement action before the court may order attendance at an examination.”). The subpoenas did not seek any information about the officers’ assets; about any debts or obligations owed to the officers; or about any concealment, fraudulent transfer, or withholding of assets of the officers. Instead, Mr. Johnson sought information regarding only assets of the Department, an entity against which he has no judgment. The circuit court was thus correct to quash those subpoenas.
Mr. Johnson argues that he should be permitted to seek this discovery from the Department notwithstanding that he does not have a judgment against it. He contends that Houghton v. Forrest, 412 Md. 578, 592 (2010) and Cherkes, 140 Md. App. at 326, establish that he has a right to collect from the Department without the need for a judgment or any additional proceedings. His reliance on those cases is misplaced.
In Houghton, the primary issue the plaintiff raised with respect to the Local Government Tort Claims Act (“LGTCA”) was whether this Court had erred in holding that there was insufficient evidence to support a finding that the officer had acted with malice. 412 Md. at 591. The Court of Appeals determined that whether the officer acted with malice was irrelevant to whether the underlying plaintiff could recover from the Department. Id. at 591-92. That is because the LGTCA
In Cherkes, we held that the Department enjoyed sovereign immunity that prevented it from being sued directly based on the alleged tortious acts of its employees. 140 Md. App. at 323. Although the Department did have potential liability under the LGTCA to pay a judgment against the individual police officer defendants, that liability would come to pass if and only if such a judgment were entered. Id. at 303, 326. As there was not yet
a judgment against anyone, we held that the circuit court erred when it did not dismiss the Department from that suit. Id. Contrary to Mr. Johnson’s argument here, however, our decision in Cherkes made clear that the appropriate course of action in the event the Department failed to pay a future judgment against one of its officers would be to file “an enforcement action” against the Department. Id. at 326. Our decision in Cherkes does not even suggest, much less hold, that a plaintiff can initiate enforcement proceedings against the Department without taking that step. Notably for our purposes here, the Department would have the opportunity to contest scope-of-employment in the course of defending an enforcement action.
Unlike in Houghton and Espina, the scope-of-employment question here is not settled or sufficiently obvious that we can resolve it as a matter of law. Mr. Johnson argues that the officers were acting within the scope of their employment; the Department disagrees. It is the plaintiff’s burden to establish its right to collect from the Department, either through an enforcement action or some other permissible mechanism. If Mr. Johnson were to pursue such an action successfully and obtain a money judgment against the Department that was not promptly paid, then he would have satisfied the necessary precondition to seeking discovery into the Department’s assets under
At present, the only money judgment he has obtained is against the three officers. The discovery authorized by
IV. IF THE OFFICERS ACTED WITHIN THE SCOPE OF THEIR EMPLOYMENT, THE DEPARTMENT IS LIABLE TO MR. JOHNSON FOR THE COMPENSATORY DAMAGES COMPONENT OF THE JUDGMENT.
The parties dispute the nature of the Department’s obligation to Mr. Johnson, if
The nature of the Department’s obligation to Mr. Johnson, if any, is a question of statutory interpretation. As such, our goal is to discern the intent of the legislature; “[w]e begin our analysis by looking to the normal, plain meaning of the language of the statute.” Wash. Gas Light Co. v. Md. Pub. Serv. Comm’n, et al., 460 Md. 667, 682 (2018) (quoting Shealer v. Straka, 459 Md. 68, 84 (2018)). We “read[] the statute as a whole to ensure that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory.” Id. We also read the plain language “within the context of [its] statutory scheme,” and “consider[] the purpose, aim, or policy of the Legislature in enacting the
statute . . . .” Espina, 442 Md. at 322 (quoting Bd. of County Comm’rs v. Marcas, LLC, 415 Md. 676, 685-86 (2010)). If the language is unambiguous and clear, “our inquiry as to the legislative intent ends” and “we apply the statute as written.” Id. Only if the plain language is ambiguous will we look for intrinsic and extrinsic indicia of intent. Wash. Gas Light Co., 460 Md. at 683 (citing Shealer, 459 Md. at 84).
The LGTCA provides that “a local government shall be liable for any judgment against its employee for damages resulting from tortious acts or omissions committed by the employee within the scope of employment with the local government.”8
The Department’s statutory argument relies primarily on § 5-303(b)(2), which prohibits a local government from asserting immunity “to avoid the duty to defend or
indemnify an employee established in this subsection.”9 Thus, the Department
just imposes on the local government an obligation of indemnification running to the employee, not liability running to the underlying plaintiff. Although that word choice could perhaps be enough to create an ambiguity in a vacuum as to the nature of the indemnification obligation, we “do not read statutory language in a vacuum, nor do we confine strictly our interpretation of a statute’s plain language to the isolated section alone.” Espina, 215 Md. App. at 630. When read in context with the rest of the statute, the local government’s obligation under
Section 5-303(a) draws an express distinction between the “liability” provided for in subsection (b) and the separate “indemnification” provision in subsection (c).
hand, and when it merely provides for a possibility of indemnification that would run to the employee, on the other.
Other relevant pieces of the interconnecting puzzle of the relationship among
hand, the employee acted with malice, the plaintiff can also enforce the judgment against the employee, in full, pursuant to
That, however, is not the end of the story, as § 5-302 goes on to give the local government a right, only where the employee is found to have acted with malice, to “seek indemnification [from the employee] for any sums [the local government] is required to pay under
The case law the Department cites in support of its alternative interpretation is also unavailing. The Department contends that Wolfe v. Anne Arundel County, 135 Md. App. 1 (2000), and Brown v. Mayor & City Council of Balt., 167 Md. App. 306 (2006), both stand for the proposition that a plaintiff cannot proceed directly against a local government under the LGTCA in the absence of an assignment of claim from the employee. Neither does so. In Wolfe, the plaintiff had prevailed in federal court in a suit claiming that an Anne Arundel County police officer had raped her during a routine traffic stop. 135 Md. App. at 5. She obtained a judgment against the officer that exceeded the LGTCA cap. Id. After the County’s self-insurance fund denied the officer’s indemnification claim on the ground that rape was not within the scope of his employment duties, the officer assigned his claim against the fund to the plaintiff. Id. at 5-6. The plaintiff then sought a declaratory
judgment that, among other things, she was entitled to payment of the judgment under the County’s insurance policy. Id. at 6.
The local government employee in Brown, a Baltimore police officer, similarly assigned any rights he might have against the Department to the plaintiffs who had obtained a $27 million judgment against him. 167 Md. App. at 310-16. Based on our conclusion that the officer’s murder of his wife’s lover was outside the scope of his employment as a matter of law, we held that the LGTCA was inapplicable and so imposed no obligation on the Department. Id. at 326-27. Once again, the opinion contains no suggestion that the plaintiffs’ claims under the LGTCA, at least up to the limits provided in that statute, required an assignment.
The Department’s theory that an assignment by the officer is required for a plaintiff to pursue the Department directly also runs contrary to common sense. Where a judgment is entered against an employee who is found to have acted without malice, the plaintiff is forbidden from collecting against the employee under
presumably leave the plaintiff without recourse. A purpose of the LGTCA is to “provide a remedy for those injured by local government officers and employees acting without malice and in the scope of employment.” Rios v. Montgomery County, 386 Md. 104, 125-26 (2005) (quoting Faulk v. Ewing, 371 Md. 284, 298 (2002)). For that purpose to be effective, a plaintiff must be able to recover from a local government without the need to first obtain an assignment from the employee who wronged him or her. Any other conclusion would render the application of the statute illogical, which is a result that we avoid. Wash. Gas Light Co., 460 Md. at 682 (“We will not read a statute in a way that is inconsistent with, or ignores, common sense or logic.”) (quoting Office of People’s Counsel v. Md. Pub. Serv. Comm’n, 355 Md. 1, 23 (1999)).12
In summary, where a money judgment is entered against an employee of a local government arising from tortious acts or omissions committed by the employee:
- The local government is liable to the plaintiff for the amount of the judgment, up to the limits provided in
§ 5-303(a)(1) , if and only if the employee was acting within the scope of his or her employment with the local government; and - A plaintiff who obtains a judgment against a local government’s employee can establish the local government’s liability by filing an enforcement action against the local government. In such a proceeding, the local government
can raise as a defense that the employee was not acting within the scope of his or her employment.
Of course, as set forth above, in this case the parties are not all the way there yet. Although we are able in appropriate cases to assess whether an officer acted within the scope of employment as a matter of law based on undisputed facts in the record, Houghton, 412 Md. at 592; Brown, 167 Md. App. at 326, or based on a stipulation, Espina, 442 Md. at 347, the record and briefing here are not sufficient for us to do so. It may be that all of the evidence necessary to make that determination was presented at the original trial and already exists, or it may be that further evidentiary proceedings are necessary. If an enforcement action is filed, that determination will need to be made by the circuit court. In the absence of a judgment against the Department, however, the circuit court was right to preclude discovery into the Department’s assets.
ORDERS AFFIRMED. COSTS TO BE PAID BY APPELLANT.