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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 689 SEPTEMBER TERM, 1998 ___________________________________

CARL GREEN v. ANGELO BROOKS et al. ___________________________________ Davis, Hollander, Smith, Marvin (Ret., specially assigned) JJ. ___________________________________ Opinion by Hollander, J. ___________________________________ Filed: March 2, 1999

This appeal stems from a case of mistaken identity.

On June

20, 1995, appellant, Carl Green, was arrested at his home by Baltimore City Police Officer Angelo Brooks, appellee, pursuant to a bench warrant issued for appellant by the District Court for Baltimore County. The bench warrant was issued after Green failed

to appear for trial in connection with a shoplifting offense that occurred on March 9, 1995, at a supermarket in Baltimore County. At that time, Kenneth McKlary,1 appellant's cousin, was apprehended in the store for shoplifting and claimed he was Carl Green. Although he had no identification, McKlary provided the police with Green's address. Following appellant's arrest, Green was incarcerated for five days before it was discovered that he was not the man who committed the shoplifting offense. Subsequently, appellant instituted suit

in the Circuit Court for Baltimore City against two of the officers involved in his arrest.2
1

In his amended complaint, appellant sued

The name is also spelled as "McClary" in the transcript and briefs. In appellant's original complaint, filed on November 21, 1996, he sued the Baltimore City Police Department, the Mayor and City Council of Baltimore City, the Baltimore County Police Department, and the Baltimore County Executive. On April 9, 1997, the Circuit Court (Mitchell, J.) issued a series of four orders dismissing the complaint as to each defendant. One of the orders, granting the Baltimore County Executive's motion to dismiss, allowed appellant "leave to amend within 15 days to correctly identify the party Defendant." On May 5, 1997, appellant filed a motion to alter or amend, claiming that "through a consequence of irregularity or mistake in the Clerk's office" he had not received the orders until May 1, 1997. As a (continued...)
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Officer Brooks and Baltimore County Police Officer Timothy Murphy, appellee, who responded to the supermarket and arrested McKlary under the name "Carl Green."3 Counts I, III, and V of the amended complaint alleged false arrest, false imprisonment, and malicious prosecution on the part of Brooks and other unnamed officers. Counts II, IV, and VI

alleged the same intentional torts against Murphy. Each count sought $200,000.00 damages. On August 11, 1997, the circuit court (Rombro, J.) signed an order granting Brooks's Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment. 9, 1997, appellant filed a motion to revise On September the judgment.

Thereafter, on December 9, 1997,

Murphy filed a motion for summary

judgment. After a hearing held on February 6, 1998, the circuit court (Byrnes, John Carroll, J.) granted Murphy's motion for

summary judgment, and denied appellant's motion to revise the previous judgment entered in favor of Brooks. Appellant timely

noted his appeal and presents two issues for our review, which we

(...continued) result, he asked the court for "sufficient time to amend his Complaint in accordance with the Court's apparent intention." On May 7, 1997, the court granted appellant's motion to alter or amend, allowing him until May 28, 1997, to amend his complaint. Appellant filed his amended complaint on that date. Appellant also sued the unnamed officers who accompanied Brooks. The "other" officers were never served with process and are not a part of the case. Although not pertinent to the issues on appeal, we note that Officer Murphy filed a third-party complaint against Kenneth McKlary on August 21, 1997. The record does not reflect whether McKlary was ever served, however. 2
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have condensed: Did the court err in granting appellees' motions to dismiss or for summary judgment? We answer in the negative and shall affirm. Factual Summary At 3:00 p.m. on the afternoon of March 9, 1995, an employee of a Mars Supermarket, located at the corner of York and Ridgley Roads in Baltimore County, observed a man attempting to steal ten bottles of Lubriderm lotion and a bottle of Advil by hiding the items in his coat. The items were valued at $67.00. The Mars

employee apprehended the suspect and contacted the County police. Although the suspect had no identification, he told the store employee that his name was Carl Green and that he lived at 1705 Lorman Street in Baltimore City. That is appellant's address.

At 3:32 p.m., Officer Murphy responded to the scene. Based on the information obtained at the scene, Murphy placed appellant under arrest and charged him with petty theft. He listed the man's name in the "Application for Statement of Charges" as "Carl Green (NMN)."4 In the narrative section of the Crime Report, Officer

Murphy wrote that "Carl Green could produce no I.D. and was taken back to PC7 for processing." booked.5
4

At 5:00 p.m. on March 9, "Green" was

A notation on the Baltimore County Police Department's

We assume "NMN" is an acronymn for "no middle name." In his brief, Officer Murphy asserts that, in addition to (continued...) 3

5

"Arrest

Report"

indicates

that

the

suspect

was

subsequently

"[r]eleased to Det Vaught Balto City -- Fugitive."

Bail was set at

$5,000.00. The record does not otherwise disclose the circumstances under which McKlary, posing as Green, was released from jail. A Mars Supermarket "Shoplifting Apprehension Report" described the shoplifter as a 6'2" black man weighing 160 pounds, with black hair and brown eyes. as "11-26-67." The form listed the suspect's date of birth

An "Incident Report" completed by employees of the In

Mars Supermarket described the thief as having a "thin" build.6

the Crime Report, Murphy described the suspect as a black man, 6'2" tall, 160 pounds. complexion complaint, and he In addition, he said the suspect had a "dark" black a dark hair. According to appellant's man,

short "is

skinned

African-American

approximately 6'2", 165 lbs."

But, contrary to the descriptions

given by the Mars employee and Officer Murphy, Green alleged in the Amended Complaint that McKlary is a "light-skinned African-American man, approximately 5'9", 140 lbs."7
5

(...continued) asking for the suspect's personal information, he "pulled the rap sheet for Carl Green and began asking questions of the suspect to see if he was who he said he was. The suspect knew all there was to know about Carl Green's criminal history...." Murphy does not cite to the record for this contention, however, and we have not found anything to substantiate it. The "Incident Report" differs from the "Shoplifting Apprehension Report" in that the man's date of birth is listed as "11/2/67," as opposed to "11/26/67."
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We note that appellant never furnished the court below with (continued...) 4

Using the name "Carl Green," the suspect was scheduled to be tried for misdemeanor theft on May 15, 1995. McKlary did not appear for trial, however. Not surprisingly, the real Carl Green did not Presumably, Green had no idea that his

appear for trial either.

cousin had given the police Green's name at the time of his arrest. As a result of the failure to appear, on May 15, 1995, the District Court for Baltimore County (Boone, J.), issued a bench warrant for Green. The warrant ordered "any peace officer" to "arrest the

above-named defendant who is to answer unto the State of Maryland concerning certain contempt committed by him by: Failing to appear in [the District] Court on 05/15/95 for hearing or trial after being notified to do so." It also identified Green's address as

1705 Lorman Street, Baltimore, Md, 21217," and described him as having the following characteristics: "Race: 1 Sex: M Ht. 6 02 St: 160 Hair: BLK DOB: 11/26/67".

On June 20, 1995, Officer Brooks, together with other unnamed police officers, arrested appellant, the real Carl Green, at his home on Lorman Street. At his deposition, appellant said that

"between five and six" police officers participated in the arrest, which he described as follows: Best as I can recall, I heard a knock -- we locks [sic] our screen door. You have the door, then you have the screen door. And to knock on the door, he used his flashlight by the way he knocked. So I got up, put on my (...continued) an affidavit or other documentation as to McKlary's physical appearance. 5
7

shorts and a baseball shirt, went to the door, opened the door and wind [sic] the window open, so I was like, "Yes, can I help you?" He was like, "Yo, Carl Green live here?" I said, "I'm Carl Green." So he said, "Can you open the door?" So I opened the screen door, and he came in, and he was like, "I have a warrant for your arrest," so I was like, "For What?" And he was like, "For failure to appear in court." * * * So I'm like, "Failure to appear in court?" You know, I said, "I ain't got no letters telling me to come to court." * * * And they was like, "We have you for a failure to appear in court." And I was like, "What's the charge?" And he said, "For shoplifting at Owings Mills." I was like, "Owings Mills? I never been to Owings Mills." * * * So I'm trying to say, "Well, do you all have a picture of this Carl Green?" because now I'm telling him that, you know, "You have the wrong guy," you know, I never been in Owings Mills." You know, they was like no, no. Based on this piece -- the subjects -- they was going on subjects that they had. * * * So I'm telling them, you know, "You all have the wrong Carl Green." * * * You know, at that time, they had cuffed me, so my little niece had to put my socks and my shoes on. As they was taking me out, you know, my moms is telling me, "Don't worry about it." As we're going out, the officer that had me handcuffed, I'm asking him, you know, "When we get down to the police station, can you please contact the county and tell them to send you a picture of this Carl Green because you all have the wrong Carl Green." Unfortunately, Green was mistakenly incarcerated for five days. According to appellant's complaint, the police subsequently 6

learned that McKlary was the one who failed to appear for the theft charge and who had told the police, at the time of his arrest, that he was Green.8 The docket of the Baltimore District Court

indicates that on November 20, 1995, the charge against Carl Green was "disposed." On July 17, 1997, Officer Brooks filed a Motion to Dismiss Or, in the Alternative, Motion for Summary Judgment. A certificate of service affixed to the motion claimed that it was mailed to appellant's counsel on July 16, 1997. Although an answer to the

motion was due on August 4, 1997, appellant failed to respond to Brooks's motion. Thereafter, on August 11, 1997, the circuit court The order provided:

signed an order granting Brooks's motion.9 ORDER OF COURT

The motion to dismiss or, alternatively, the motion for summary judgment heretofore filed by Off. Angelo Brooks, on the defendants, having been read and considered, and the Court also having considered the memorandum of law in support of the motions and exhibits which were attached as part of plaintiff's amended complaint and attached as part of defendant Brook's [sic] memorandum of law, and the Court having considered

The record does not make clear how it was discovered that Green was not the right man. At the motions hearing on February 6, 1998, Murphy's counsel told the court that when Officer Murphy was "contacted in the courtroom by Mr. Kaplan [counsel for Carl Green], Murphy helped release the man saying that's not the guy I arrested, I arrested Kenneth McClary." We have been unable to locate the order in the court file. A copy was provided in the appendix to Officer Murphy's brief, however. 7
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plaintiff's opposition thereto,[10] it is this 11th day of August, 1997, ORDERED, that the motion to dismiss filed by defendant Off. Angelo Brooks BE and the same hereby IS GRANTED; and, it is further, ORDERED, that the motion for summary judgment heretofore filed by defendant Off. Angelo Brooks BE and the same hereby IS GRANTED; and it is further, ORDERED, that judgment be entered in favor of defendant Off. Angelo Brooks against plaintiff for costs. (Strike-outs in original). The docket contains two entries relating to the order. The first, dated August 13, 1997, says: "FILE RETURNED FROM J. ROMBRO, ORDER SIGNED AND DELIVERED TO ORDER'S [sic] CLERK." The docket indicates, however, that the order was not filed until September 8, 1997. An entry on that date provides: "ORDER OF COURT DATED 8-1197, THAT THE MOTION TO DISMISS FILED BY DEFT (ANGELO BROOKS) IS HEREBY "GRANTED" & MOTION FOR SUMMARY JUDGMENT IF [sic] HEREBY "GRANTED" FD. (J. ROMBRO) FD. (19B). On September 9, 1997, appellant filed a Motion to Revise Judgment. He asserted, inter alia, that "through inadvertence, Plaintiff's counsel was unaware of Defendant Brooks' Motion to Dismiss and Defendant Brook's [sic] Motion for Summary Judgment, and as such, failed to respond to Defendant Brooks' motion in a timely manner." He asked the court, in the interest of justice, to reverse its order granting Brooks's motions.
10

Meanwhile, on July

A review of the court's docket reveals that, in fact, Green had filed no opposition to Brooks's motion. 8

22, 1997, Officer Murphy answered appellant's complaint. later moved for summary judgment.

Murphy

At the motions hearing on February 6, 1998, the court noted that the officers "did take reasonable steps" to resolve the situation. He queried whether uncovering the falsity of McKlary's statement would have "require[d] an effort, an energy level that the law doesn't demand?" Appellant suggested that the police

department should have made an "arrest packet" available to the arresting officers, so that they would have a photograph at their disposal to verify appellant's identity. The court commented that

appellant's suggestion was a good one but, in the court's view, appellant's complaint about the lack of an arrest packet "[gave appellant] a credible complaint to the Baltimore City Police Department, and to this Officer, but it [did not] give [appellant] a cause of action, given that you are dealing with public

officers." The court also indicated that appellees were entitled to immunity because Green had failed to show malice. The court said:

You don't have constitutional malice in these cases. I don't think you could ever find it unless you had some personal vendetta or something going on. You don't have that in this case. I really think your cause of action is against the evil doer here. The name stealing. Holding up in false light. The court concluded: [T]here are no disputed facts that are material to the law here. That is the difficulty. There may be some disputed facts, probably dozens of them. But they don't -- they are not material in the sense that they won't if 9

resolved in your favor lead to a favorable result for you [appellant] in the end. That's the bottom line. Accordingly, the court denied appellant's Motion to Revise Judgment, and granted Officer Murphy's motion for summary judgment. On March 3, 1998, appellant filed his appeal "from the orders entered in this action on February 6, 1998 by Judge John Carroll Byrnes." We shall include additional facts in our discussion of the issues. Discussion I. Preliminarily, we must address several procedural matters that the parties have not explored, involving the status of the appeal as it relates to Brooks. expressly noted an appeal With respect to Brooks, appellant only from Judge Byrnes's order of

February 6, 1998, which denied his motion to revise Judge Rombro's order of August 11, 1997; that order had granted Brooks's motions to dismiss and for summary judgment. The question, then, is

whether appellant is entitled to challenge the underlying order of August 11, 1997. This issue is important, because "[a]n appeal

from the denial of a motion asking the court to exercise its revisory power is not necessarily the same as an appeal from the judgment itself. Rather, the standard of review is whether the

trial court abused its discretion in declining to revise the judgment." Blitz v. Beth Isaac Adas Israel Congregation, 115 Md. 10

App. 460, 469 n.4, rev'd on other grounds, 332 Md. 31 (1998).

We

conclude that appellant's appeal includes the underlying order of August 11, 1997. We explain.

A lengthy delay ensued between the date Judge Rombro signed his order on August 11, 1997, and the date that his order was docketed; it was not docketed until September 8, 1997. Thus, when

appellant filed his revisory motion on September 9, 1997, it was, by good fortune for him, filed within ten days of September 8, 1997. To be sure, we have no reason to believe that the delay in docketing corresponded with a delay in notice to appellant about the order of August 11, 1997. To the contrary, it seems clear that

appellant received a copy of the order of August 11, 1997, well before it was docketed. Indeed, if the clerk's office had first

mailed a copy of the August order on September 8, 1997, when it was docketed, the filing of the revisory motion the next day, September 9, 1997, would have been remarkably fast. Nevertheless, the ten-

day period in which to file a post-trial motion is triggered by the day the judgment was "entered" on the court's docket, not the day the trial judge actually signed the order. See Estep v. Georgetown

Leather Design, 320 Md. 277, 287 (1990)(stating that "a final judgment disposing of all claims or parties was not in existence until the judgment...was entered on the docket...."); Warehime v. Dell, 124 Md. App. 31, 40-41 (1998).

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Although appellant's timely notice of appeal referred only to the court's order of February 6, 1998, and not the August 11, 1997 order, we are satisfied that we are not precluded from reviewing the underlying order. Because appellant's motion to revise was

filed within the ten-day tolling period, the revisory motion stayed the appeal period until resolution of the motion to revise. See Unnamed Attorney v. Attorney Grievance Comm'n, 303 Md. 473

(1986)(holding that motion filed under Md. Rule 2-535 within 10 days of judgment is treated as a motion to alter or amend under Md. Rule 2-534, thereby staying the appeal period). Moreover, that

appellant's notice of appeal mentioned only the court's order of February 6, 1998, which denied the motion to revise, does not bar us from considering the order of August 1997. It is clear that the

language used in appellant's notice of appeal does not determine what we may review. See B & K Rentals and Sales Co. v. Universal Leaf Tobacco Co., 319 Md. 127, 133-38 (1990); Institutional

Management Corp. v. Cutler Computer Concepts, Inc., 294 Md. 626, 632-33 (1982); cf. In Re Levon A., 124 Md. App. 103, 125-26 (1998). What the Court said in B & K Rentals, 319 Md. at 133-34, is pertinent here: Maryland cases usually have construed notices of appeal liberally and have ignored limiting language in notices of appeal, deeming it surplusage. The cases have taken the position that the purposes of a notice or order of appeal is not to designate or limit the issues on appeal. Instead, the designation of issues on appeal is a function of the information report required by Rule 8205, the prehearing conference under Rule 8-206(b), and 12

the briefs. Therefore, notwithstanding the language in appellant's notice of appeal, we shall consider it as an appeal from the underlying judgment. Our decision to reach the underlying judgment as it relates to Brooks raises yet another question: In the underlying order of August 11, 1997, did the court grant Brooks's motion to dismiss or his motion for summary judgment? order expressly granted both. In literal terms, Judge Rombro's

We shall, however, treat the court's Again, we

order as to Brooks as a grant of summary judgment. explain.

Maryland Rule 2-322(c) provides that "[i]f, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 2501...." See Williams v. Prince George's Cnty., 112 Md. App. 526,

537-39 (1996)(holding that when the lower court "had before it facts that went beyond the pleadings," the appellate court would treat the lower court's grant of a motion to dismiss, or in the alternative a motion for summary judgment, as a motion for summary judgment); Hrehorovich v. Harbor Hospital Ctr., Inc., 93 Md. App. 772, 782, cert. denied, 330 Md. 319 (1993). In his Motion to

Dismiss, or in the Alternative, Motion for Summary Judgment, Brooks

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appended the exhibits that had been attached to Green's amended complaint. In Murphy's summary judgment motion and Green's

response to Murphy's summary judgment motion, the parties attached exhibits containing information obtained during discovery,

including the "Shoplifting Apprehension Report," the Baltimore County "Crime/Incident Report" and "Application for Statement of Charges," and excerpts from Green's deposition. It is also clear that when Judge Byrnes reconsidered Judge Rombro's order, he looked at it anew, in light of all the documents and testimony that had been generated during discovery. The

motions hearing of February 6, 1998, was replete with references to matters outside the pleadings, including statements taken from appellant's deposition. Moreover, comments made by appellant's

counsel during the motions hearing indicate that, in his view, the hearing was meant to decide whether summary judgment was

appropriate.

Appellant's counsel said: "I want to just bring out

the point, at this level we have to discuss whether there are disputed facts or not, not on the issue of the law, but on summary judgment." We also note that appellant's counsel has not

complained, either before the trial court or on appeal, that it was improper to consider the matter as a motion for summary judgment. Therefore, based on Rule 2-322(c), we conclude that, on review, summary judgment analysis is appropriate as to the motions of both appellees. Maryland Rule 2-501 establishes a two part test In order to

for determining when summary judgment is warranted. 14

grant summary judgment, the trial court must determine that no genuine dispute exists as to any material fact, and that one party is entitled to judgment as a matter of law. See Bagwell v.

Peninsula Regional Medical Ctr., 106 Md. App. 470, 488 (1995), cert. denied, 341 Md. 172 (1996). A material fact is one that will "alter the outcome of the case depending upon how the factfinder resolves the dispute over it." Id. at 489; see also King v. Bankerd, 303 Md. 98, 111 (1985). In this regard, all factual disputes are resolved in favor of the non-moving party. "even where the facts are undisputed, if those Moreover, facts are

susceptible to inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper. Those inferences, however, must be reasonable ones." Clea v. Mayor and City Council of Baltimore, 312 Md. 662, 677 (1988) (internal citations omitted); see De Grazia v. County Exec. for Mont. Co., 288 Md. 437, 445 (1980). All reasonable inferences drawn from the facts must be resolved in favor of the non-moving party. Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 387 (1997); see also Berkey v. Delia, 287 Md. 302, 304-05 (1980). II. Appellant argues that two genuine issues of material fact precluded summary judgment. First, he contends that a material factual dispute existed as to whether the officers acted with "due diligence" in making the arrests. 15 Second, appellant asserts that

a jury should have been allowed to decide whether the officers' behavior demonstrated "actual malice," thereby "waiving" the

qualified immunity bestowed on them as officials of a municipal corporation under Md. Code (1974, 1995 Repl. Vol.)

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