               REPORTED

  IN THE COURT OF SPECIAL APPEALS

            OF MARYLAND

                 No. 1245

          September Term, 2015

______________________________________


        MICHAEL JOHNSON, JR.

                    v.

    MAYOR AND CITY COUNCIL OF
        BALTIMORE, ET AL.

______________________________________

     Wright,
     Reed,
     Sharer, J. Frederick
       (Senior Judge, Specially Assigned),

                  JJ.
______________________________________

           Opinion by Reed, J.
______________________________________

     Filed: June 1, 2017
       This appeal stems from the aftermath of this Court’s reported opinion in Francis v.

Johnson, 219 Md. App. 531 (2014), in which Michael Brian Johnson, Jr., appellant, filed

an action in the Circuit Court for Baltimore City against three detectives of the Baltimore

City Police Department (“BPD”), Tyrone S. Francis, Milton G. Smith, III, and Gregory

Hellen (collectively, the “officers”). A jury awarded compensatory and punitive damages

to Mr. Johnson for intentional torts and constitutional violations “based on the officers’

actions in 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.” Francis, 219 Md. App. at 537.

       The officers filed a motion for judgment notwithstanding the verdict (“JNOV”), a

new trial, and remittitur, which was granted in part and denied in part by the trial court.

The trial court ordered a new trial unless Mr. Johnson agreed to a remittitur in the

compensatory damages award, which he ultimately did. The officers appealed. This Court

largely affirmed the judgments of the trial court; nevertheless, we revised the compensatory

damages and remanded the case for further proceedings.

       Before those further proceedings took place, Mr. Johnson filed a Request for Writ

of Execution and Levy Upon Personal Property and a Request for Garnishment of Property

in the amount of this Court’s revised judgment, identifying the Mayor & City Council of

Baltimore City (the “City”), appellees, as “Judgment Debtors” and M&T Bank as the

“Garnishee.” After the clerk of the court issued both writs, the City filed a Motion to Quash

Writs of Execution and Garnishment of Property and to Release Property from Levy.



                                             1
       After a hearing, the motions court quashed both writs and ordered that the funds be

released by the bank. The court found (1) that there was no valid judgment to execute upon

because the judgment had not been revised by the circuit court after this Court’s remand,

(2) that the writs were not timely filed, and (3) that the City was not the judgment debtor

in this case. Mr. Johnson noted a timely appeal, and presents one question for our review:

                    Did the [circuit c]ourt err in granting the Mayor & City
              Council’s Motion to Quash Writs of Execution and
              Garnishment of Property and to Release Property from Levy[?]

       For the following reasons, we answer in the negative and, accordingly, affirm the

judgment of the circuit court.

                  FACTUAL AND PROCEDURAL BACKGROUND

                                   A. Prior Proceedings

       The following is a summary of the background as pertinent to this case. The detailed

factual background of the trial and verdict is set out in this Court’s reported opinion in

Francis, supra.

       On February 23, 2010, Mr. Johnson’s parents, on behalf of Mr. Johnson, 1 filed an

action in the Circuit Court for Baltimore City arising from his detention by the officers on

May 4, 2009. Seeking both compensatory and punitive damages, they claimed assault,




1
  At the time of the action, because Mr. Johnson was a minor, it was filed through his
mother and next friend, Kathryn McDonald, and his father and next friend, Michael Brian
Johnson, Sr. During the pendency of the case, Mr. Johnson reached the age of 19, so he
was substituted as sole plaintiff by the trial court upon motion at the end of the plaintiffs’
case.
                                              2
battery, false imprisonment, and violations of Articles 24 and 26 of the Maryland

Declaration of rights. Specifically,

                      [t]he complaint alleged that the officers were “acting . .
              . within the scope of their employment as Baltimore City Police
              Officers” when the foregoing [detention] occurred, and they
              “maliciously, intentionally, carelessly, recklessly, with gross
              negligence, wantonly, willfully, wrongfully, unreasonably,
              with reckless disregard for human life; and without
              justification assaulted, battered, and detained” Mr. Johnson.
              Mr. Johnson sought compensatory damages in the amount of
              ten million dollars ($10,000,000) and punitive damages in the
              amount of fifteen million dollars ($15,000,000).

Francis, 219 Md. App. at 539.

       A jury trial was held on January 17–25, 2013. On January 25, 2013, the jury

rendered its verdict in favor of Mr. Johnson and awarded him a total of $500,000 in

compensatory and punitive damages. The vast majority of those damages was against

Detectives Francis and Hellen.

       The officers subsequently filed a motion for JNOV, a new trial, and remittitur on

February 4, 2013, alleging, inter alia, that there was no competent evidence to support the

jury’s verdict that the injuries were committed through malice on the part of the officers,

and that the verdict was excessive and exceeded the damages cap from the Local

Government Tort Claims Act (“LGTCA”), found in Maryland Code (1974, 2013 Repl.

Vol.) § 5–301 et seq. of the Courts and Judicial Proceedings Article (“CJP”). The trial court

filed a memorandum opinion and order on May 21, 2013, granting the motion in part and

denying it in part. The court found that there was sufficient evidence to support the jury’s

finding of malice and that, while the awards against Detectives Smith and Francis were


                                              3
above the LGTCA’s statutory cap, the officers were not entitled to a reduction because of

the malice finding. The court, however, also found that the awards for compensatory

damages were “grossly excessive” and ordered a new trial as to damages only, unless Mr.

Johnson agreed to a remittitur of $165,000 on the compensatory damages award. Mr.

Johnson agreed, and the remittitur was entered May 28, 2013, revising compensatory

damages to $300,000, in addition to the $34,000 in total punitive damages.

       The officers timely appealed to this Court. Pertinent here, they alleged that the trial

court erred both in failing to further reduce the damages award and in allowing the jury to

consider the issue of malice. Ultimately, on October 6, 2014, this Court issued the opinion

in Francis, supra, reversing the damages in part, but otherwise affirming the judgments of

the circuit court. For reasons not relevant here, the damages were further revised down to

a total of $281,000 against the officers, and the case was remanded for further proceedings.

Subsequently, the officers filed a petition for writ of certiorari, and Mr. Johnson filed a

conditional cross petition for writ of certiorari, both of which were denied by the Court of

Appeals on April 20, 2015.

                                 B. Current Proceedings

       Before any further proceedings regarding this Court’s remand for revised damages,

Mr. Johnson filed the two requests for writs underlying this appeal. On June 22, 2015, he

filed a Request for Writ of Execution and Levy Upon Personal Property and a Request for

Garnishment of Property in the circuit court, seeking the revised $281,000, plus interest of

10% per annum from January 25, 2013. Both request for writs were captioned in the same



                                              4
style as before, but were specifically directed against the City itself, rather than personally

against the officers.

       On June 26, 2015, the clerk of the circuit court issued the writs, both of which named

the City as the “Judgment Debtor.” The Writ of Execution directed the Sheriff of Baltimore

City to levy upon the property of the City to satisfy a monetary judgment, and the Writ of

Garnishment of Property, addressed to M&T Bank as “Garnishee,” directed the bank to

hold the property of the City (namely, $281,000) subject to further proceedings in the

circuit court. On July 3, 2015, the City was informed by M&T Bank that the funds would

be debited that day from the City’s disbursement account and would be held until the bank

received a court order to disburse the funds.

       On July 8, 2015, the City filed a motion to quash the writs and to release the property

from levy, and Mr. Johnson filed a response on July 20, 2015. At a hearing on the motion

two days later, on July 22, 2015, the motions court made the following findings:

                     There’s [sic] so many things involved in this case here.
              And I’m not really going to go into all of them with respect to
              what the requests for the garnishment and the execution – the
              Writ of Execution – the contents of those requests. I will say
              that the City of Baltimore is not the judgment debtor in this
              case. So I do agree with the City that they are not the judgment
              debtor and there never should have been a Writ of Execution
              of garnishment [sic] issued against them. But in addition, I do
              also agree that the property of the City cannot be garnished,
              liens cannot be placed against the City property – so it’s not
              proper to request a Writ of Garnishment and/or execution
              against Baltimore City’s property. So I am going to quash the
              Writ of Execution and the Writ of Garnishment, and direct the
              Bank to unfreeze the funds, see that they’re back into the
              account of the City.



                                                5
                    There’s [sic] several things that – and I also agree that
             the Judgment – once [t]he Court of Special Appeals remanded
             this case, affirming part and reversing part [sic] – there’s no
             longer a valid Judgment to execute upon either. Until the Court
             takes action – pursuant to the decision of the Court of Special
             Appeals to enter the correct Judgment. So there is no correct
             Judgment at this time. . . .

Before concluding the hearing, the following discussion took place between Mr. Johnson’s

counsel and the motions court:

             [COUNSEL]: Your Honor, may I ask for just one clarification?

             THE COURT: Yes.

             [COUNSEL]: As I understand it, Your Honor has ruled that
             number one, the Writ is not timely, because it’s premature.

             THE COURT: Yes.

             [COUNSEL]: And if I – I don’t want to put words into the
             [c]ourt’s mouth – but even if it had been, the City property still
             cannot be attached. Is that correct?

             THE COURT: That is correct.

             [COUNSEL]: Okay, thank you.

             THE COURT: Because there’s no valid Judgment right now.
             There’s no proper Judgment in this case.

             [COUNSEL]: I’m not arguing – I just wanted clarification.

             THE COURT: No no no, that’s right, but I’m just saying that’s
             the basis for my ruling, of it being premature.

             [COUNSEL]: Yes, yes.

             THE COURT: Because the Court of Special Appeals’ decision
             has not been acted upon. . . .



                                             6
The motions court filed an order granting the City’s motions to quash both writs and

releasing the money back to the City that same day, and Mr. Johnson noted a timely appeal

on August 5, 2015.

                                      DISCUSSION

                                 A. Parties’ Contentions

       Mr. Johnson argues the motions court erred in granting the motion to quash. His

argument is essentially threefold. First, he argues that the filing of the requests for writs

was timely because the judgment was originally entered on January 31, 2013, and, since

no stay of judgment has been entered or requested, the Court of Appeals’ denial of certiorari

means that he is entitled to execute upon the judgment. Second, he argues that, pursuant to

the LGTCA and the Court of Appeals’ holding in Houghton v. Forrest, 412 Md. 578

(2010), the City is the “[a]ppropriate[]” judgment debtor and, therefore, he is entitled to

enforce the judgment against the officers’ employer—namely, the City. Finally, Mr.

Johnson claims, through an affidavit from one of his attorneys, that M&T Bank was the

“[p]roper [s]ource of the [f]unds.” The affidavit explains that the attorney represented

different plaintiffs in a separate case against a BPD officer. Mr. Johnson believes that the

affidavit, together with a copy of a redacted check from the settlement of the other case his

attorney was involved in, “served the purpose of identifying the account from which

payments are made on behalf of the [BPD] in actions against the Baltimore City Police

Department.”

       The City responds with four arguments, beginning with its “main argument in the

circuit court:” that “it has long been established that a party cannot execute a judgment

                                             7
against municipal property.” Second, the City argues that Mr. Johnson “has sought to

collect his judgment from the wrong entity” because the BPD is the “local government”

for the purposes of the LGTCA, as the BPD is: (1) a state – not City – agency; and (2) the

actual employer of Baltimore City police officers. Third, the City argues the circuit court’s

concerns over whether the writs were prematurely filed were not about a stay of the

judgment, but, rather, were about the finality of the judgment because, while the case was

remanded by this Court, no proceedings regarding the remand had taken place. Fourth, and

finally, the City contends that it cannot be subject to a judgment in this case because, “if

for no other reason,” it has never been a party to the proceedings.

                                  B. Standard of Review

       Maryland Rule 8-131(c) provides, “When an action has been tried without a jury,

the appellate court will review the case on both the law and the evidence. It will not set

aside the judgment of the trial court on the evidence unless clearly erroneous[.]” However,

                      [a]lthough the factual determinations of the circuit court
              are afforded significant deference on review, “‘the clearly
              erroneous standard for appellate review . . . does not apply to a
              trial court’s determinations of legal questions or conclusions of
              law based on findings of fact.’” Ins. Co. of N. Am. v.
              Miller, 362 Md. 361, 372, 765 A.2d 587 (2001) (citation
              omitted). Instead, “where the order involves an interpretation
              and application of Maryland statutory and case law, we must
              determine whether the lower court’s conclusions are ‘legally
              correct’ under a de novo standard of review.” Walter v.
              Gunter, 367 Md. 386, 392, 788 A.2d 609 (2002).

Jackson v. 2109 Brandywine, LLC, 180 Md. App. 535, 567 (2008) (alterations in original).

See also Friedman v. Hannan, 412 Md. 328, 335–36 (2010); Morgan Stanley & Co., Inc.



                                              8
v. Andrews, 225 Md. App. 181, 187 (2015); Montgomery County v. Fraternal Order of

Police, 222 Md. App. 278, 294 (2015).

                                        C. Analysis

      “In general, ‘[t]he LGTCA limits liability, provides for indemnification, and

establishes procedural requirements relating to suits against officials of [sic] local

government employees.’” Board of Education of Prince George’s County v. Marks-Sloan,

428 Md. 1, 30 (2012) (quoting Houghton, 412 Md. at 591). The Court of Appeals has

explained that

                    [t]he 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, while
             ensuring that the financial burden of compensation is carried
             by the local government ultimately responsible for the
             public employee’s actions. Ashton v. Brown, 339 Md. 70, 107–
             08, 660 A.2d 447, 465–66 (1995). Thus, the LGTCA requires
             Maryland counties and other entities defined therein as “local
             governments,” § 5–301(d), to pay, up to certain limits,
             judgments for compensatory damages rendered against their
             employees as a result of tortious acts committed in the scope
             of employment. Williams v. Maynard, 359 Md. 379, 380–81,
             754 A.2d 379, 380 (2000). See § 5–303(b).

Moore v. Norouzi, 371 Md. 154, 166–67 (2002) (footnotes omitted). Importantly, for our

purposes, the LGTCA specifically includes both the City and the BPD in its definition of

“Local government.” CJP § 5-301(d)(4) & (21). This distinction is important because the

BPD is a decidedly peculiar agency in the eyes of Maryland law.

      Until 1860, the police function in the City of Baltimore was under municipal control,

but was ineffectual, corrupt, and politically partisan. H.H. Walker Lewis, The Baltimore

Police Case of 1860, 26 Md. L. Rev. 215, 218-225 (1966). The problem came to a head in

                                            9
the elections of 1857, when the police were unwilling and unable to stop violence directed

at Democrats. Id. When the Democrats won control of the state legislature in the 1859

elections, the first order of business was to seize state control of the Baltimore Police

Department. Id. at 225. The Court of Appeals affirmed the constitutionality of this State

take-over, Baltimore v. State, 15 Md. 376 (1860), and it has remained a State agency

since. Over time, the State’s role in supervising the Baltimore Police Department has

lessened as power over appointment and termination of the Police Commissioner and the

budget for the Police Department were transferred to the City. See Baltimore v. Clark, 405

Md. 13 (2008). Nevertheless, the case law is absolutely clear that the Baltimore Police

Department remains a State agency. Id. And equally clearly, the Baltimore Police

Department is not an agent or instrumentality of the City.

       Logically, it follows that, for the purposes of the LGTCA, the City is not the “local

government” at issue here. As the City lays out in great detail in its brief, this has long been

firmly established in our State’s caselaw. See, e.g., Houghton, 412 Md. at 588 (“[T]he

BCPD was created as a state agency, through an act of the General Assembly, and not as a

municipal agency.”); Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 23

(2008) (“[T]he Baltimore Police Department is not an agency of the City of Baltimore and

has not been for some time.”); Clea v. Baltimore, 312 Md. 662, 668 (1988), superseded on

other grounds by statute as stated in D'Aoust v. Diamond, 424 Md. 549, 586

(2012) (“Unlike other municipal or county police departments which are agencies of the

municipality or county . . ., the Baltimore City Police Department is a State

agency.”); Ashton v. Brown, 339 Md. 70, 104 n.18 (1995); Baltimore Police Dep't v.

                                              10
Cherkes, 140 Md. App. at 303–05, 323; Williams v. Baltimore, 128 Md. App. 1

(1999), rev'd on other grounds, 359 Md. 101 (2000).

       In an attempt to circumvent that unquestionably settled principle, Mr. Johnson relies

heavily—and, as we explain, erroneously—on the Court of Appeals’ holding in Houghton,

supra. Because his reliance is misplaced, we need not set out the facts in any large detail;

rather, we feel it sufficient to say that the relevant facts of that case are similar enough to

those presented here. Mr. Johnson quotes the Court’s holding in Houghton as follows: “We

also hold that there is no reason to determine if Houghton acted with malice, as the BCPD

is liable for the judgment against Houghton regardless. Forrest is thus entitled to collect

her judgment directly from the BCPD.” Houghton, 412 Md. at 593 (emphasis added). Thus,

Mr. Johnson contradicts his own argument within the same breath in which he attempts to

support it. The Court in Houghton held that the BPD was liable for the officer’s damages,

not the City.

       We also agree with the City’s argument that plaintiffs in this State, such as Mr.

Johnson, cannot obtain municipal property by execution. This long-standing principle is

based on the fact that “all the property held by the [municipal] corporation is, . . . when

considered in an enlarged sense, held for public uses and benefits.” Darling v. City of

Baltimore, 51 Md. 1 (1879). Therefore, as the Court of Appeals explained in no uncertain

terms in Darling,

                it would be attended with the most serious consequences, and
                involve the greatest amount of inconvenience, to lay it down as
                a rule that any property belonging to a municipal corporation,
                not actually used in the discharge of its public functions, could
                be levied upon and sold under ordinary execution, as upon

                                               11
              judgment against a private corporation. Both upon principle
              and the reason of the thing therefore, we conclude that an
              execution on judgment against a municipal corporation cannot
              lie.

Id. at 14 (emphases added). See also In re Fowble, 213 F. 676, 679 (D. Md. 1914) (“In

Maryland, municipal property is not liable to be taken on execution.” (citation omitted)).

This does not mean that plaintiffs similarly situated to Mr. Johnson have no legal remedy

by which to seek payment of a judgment against the BPD. As we explained in Baltimore

Police Dep't v. Cherkes, 140 Md. App. 282, 326 (2001), if the BPD fails to pay a judgment

for compensatory damages entered against one of its officers, “it is subject to an

enforcement action” because “its common law State sovereign immunity has been waived

[with regards to its duties under the LGTCA].”

       Moreover, even if the City were the judgment debtor in this case and Mr. Johnson

could obtain a judgment against the City by execution, we hold that Mr. Johnson’s actions

to collect on the judgment were void for being both premature (further proceedings ordered

by this Court in Francis, supra had not yet occurred) and against a non-party to the case.

Therefore, Mr. Johnson’s appeal fails for these reasons as well.

                                     CONCLUSION

       For the reasons stated above, the motions court did not err in granting the City’s

motion to quash, and, accordingly, the judgment of the circuit court is affirmed.

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR BALTIMORE CITY AFFIRMED;
                                          COSTS TO BE PAID BY APPELLANT.




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