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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1480 September Term, 2000

BALTIMORE POLICE DEPARTMENT, ET AL.

v. CHARLES H. CHERKES

Sonner, Eyler, Deborah S., Adkins, JJ.

Opinion by Eyler, Deborah S.

Filed: September 6, 2001

This is an interlocutory appeal in a police brutality case brought by Charles Cherkes, the appellee, against the Baltimore City Police Department Thomas ("the BCPD") ("the and former Police the

Commissioner

Frazier

Commissioner"),

appellants, and two officers of the BCPD, in the Circuit Court for Baltimore City. The circuit court granted a motion to dismiss filed by the BCPD and denied a motion to dismiss or for summary judgment filed by the Commissioner. The order granting the BCPD's motion

was not entered on the docket, however, and a docket entry referring to the motion stated, incorrectly, that it had been denied. About a year later, the BCPD and the Commissioner re-

filed their motions on the same grounds and, for the BCPD, one additional ground. This time, the court denied both motions.

This appeal followed. We have divided and recast the questions presented by the BCPD and the Commissioner as follows: I. Was the circuit court's first order granting the BCPD's motion to dismiss conclusive, so that the court could not subsequently deny its second motion? Did the circuit court err in denying the BCPD's second motion to dismiss? Did the circuit court err in denying the Commissioner's second motion to dismiss or for summary judgment?

II.

III.

For the following reasons, we answer "no" to question I and "yes" to questions II and III. Accordingly, we shall vacate the

pertinent orders of the circuit court and remand the case for judgment to be entered in favor of the appellants.

FACTS AND PROCEEDINGS
On December 14, 1998, Cherkes filed suit in the Circuit Court for Baltimore City against the Mayor and City Council of Baltimore (the "City"), the BCPD, the Commissioner, and Officers Charles Sparenberg and Robert E. Briscoe, of the BCPD. complaint alleged the following facts. On March 1, 1998, at around 5:30 a.m., Cherkes was standing on the sidewalk in front of the Windsor Club on East Fayette Street, in Baltimore City. Officers Sparenberg and Briscoe His

arrived at the Windsor Club location, purportedly to investigate a citizen's complaint of a liquor law violation. approached sidewalk. Cherkes from behind, as he was The officers on the

standing

One of them said, "Motherfucker, if you touch that When Cherkes turned to see what he

door, I'll arrest your ass."

had done to provoke that statement, one of the officers pushed him and punched him in the face. Both officers tackled Cherkes The him

and threw him against the glass vestibule of the building. officers then threw Cherkes to the ground and beat

repeatedly about the head and body. -2-

More BCPD officers arrived

and joined in the beating.

At one point, Officer Briscoe

wrapped his handcuffs around his fist and used them to beat Cherkes. The officers continued to beat Cherkes as he was lying

on the ground, trying to cover himself. The officers placed Cherkes under arrest, put him in a BCPD vehicle, and transported him to Mercy Medical Center, where they caused him additional injury by dragging him out of the vehicle and dropping him to the pavement from a height of several feet. Officer Briscoe went before a court commissioner and had Cherkes charged with criminal assault on both himself and

Officer Sparenberg.

Officer Briscoe also charged Cherkes with

violating article 2B, section 19-101 of the Baltimore City Code. According to Cherkes, Officer Briscoe falsely swore in the charging papers that Cherkes had been intoxicated and had

endangered the officers' safety during the encounter. On June 11, 1998, the criminal case against Cherkes was called for trial. The State nolle prossed the assault charges pertaining to Officer Sparenberg, after he failed to appear. The charges respecting Officer Briscoe were tried and Cherkes was acquitted. According to Cherkes, Officer Briscoe testified

falsely about the March 1, 1998 incident. Cherkes's complaint in this case sets forth twenty claims, in twenty separate counts. The following torts are alleged in -3-

ten

separate

counts:

battery,

assault,

false

arrest,

false

imprisonment,

malicious

prosecution,

defamation,

intentional

infliction of emotional distress, violation of article 24 of the Maryland Declaration of Rights,1 violation of article 26 of the Maryland Declaration of Rights,2 and negligent hiring and

supervision.

The remaining ten counts seek punitive damages on All of the counts except negligent are predicated on the acts of the

each of those claims. hiring and supervision

individual police officers, with the liability of the City, the BCPD, and the Commissioner resting on a general allegation that the officers were at all times acting as their agents employees. and

The negligent hiring and supervision count alone

alleges direct (as opposed to vicarious) liability against the City, the BCPD, and the Commissioner.

1Article

24 of the Maryland Declaration of Rights provides:

That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the Law of the Land.
2Article

26 of the Maryland Declaration of Rights provides:

That all warrants, without oath and affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

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On January 21, 1999, the City moved to dismiss all counts against it, arguing that as a matter of law the officers were not its agents. Cherkes opposed the City's motion. On March 5,

1999, the motion was granted and the City was dismissed, without prejudice. In the meantime, on February 17, 1999, the BCPD moved to dismiss all counts against it on the ground that it has no existence separate from the State of Maryland and therefore lacks capacity to be sued. At the same time, the Commissioner

filed a motion to dismiss or for summary judgment for failure to state a claim for which relief may be granted and on the grounds of sovereign immunity and public official immunity. filed oppositions to these motions. He then Cherkes his

amended

complaint, by interlineation, to add the State of Maryland (the "State") as a defendant. Discovery ensued and then was stayed for a period of time pending rulings on the outstanding motions. On September 15,

1999, the circuit court (Cannon, J.) issued two orders, one granting the BCPD's motion to dismiss and the other denying the Commissioner's motion to dismiss or for summary judgment. order denying the Commissioner's motion was docketed The on

September 24, 1999, and was mailed to the parties.

For reasons

that are not clear, the order granting the BCPD's motion to

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dismiss was not docketed and appears not to have been mailed to the parties. Also for reasons that are not clear, the computer-

generated docket sheet stated, incorrectly, that the BCPD's motion was denied. Discovery resumed. The scheduled May 9, 2000 trial date was postponed at the joint request of the parties, and trial was reset for September 18, 2000. On June 29, 2000, the following three motions were filed: 1) a motion to dismiss by the State on the ground of sovereign immunity; 2) a second motion to dismiss by the BCPD, on the same ground raised in its first motion and also on the ground of sovereign immunity; and 3) a second motion to dismiss or for summary judgment by the Commissioner, on the same grounds raised in his first motion. Cherkes filed oppositions to these

motions. On July 27, 2000, the circuit court (Cave, J., specially assigned), issued two orders. The first granted the State's

motion to dismiss "as not responsible for the Baltimore City Police." The second denied the BCPD's motion, citing the Local Both orders were docketed on July

Government Tort Claims Act. 31, 2000.

On August 8, 2000, the circuit court (Berger, J.)

issued an order denying the Commissioner's motion to dismiss or

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for summary judgment. 2000.3

That order was docketed on August 9,

The BCPD and the Commissioner filed notices of appeal within thirty days of the docketing of the orders pertaining to their respective motions. On December 18, 2000, the day the record

was transmitted from the circuit court to this Court, Judge Cannon's September 15, 1999 order granting the BCPD's motion to dismiss was entered on the docket.

DISCUSSION
The procedural posture of this case is such that before reaching the merits of the appellants' contentions, we first shall address the issue of subject matter jurisdiction. Section Article of 12-301 Md. of the Courts Repl. and Vol., Judicial 2000 Proceedings (?CJ")

Code

(1998

Supp.)

provides, in pertinent part: Except as provided in

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