Balt. City Police Dept. v. Esteppe

236 A.3d 808, 247 Md. App. 476

• Court: Court of Special Appeals of Maryland
• Decided: August 27, 2020
• Docket: 3128/18
• Status: Published

Opinion

Baltimore City Police Department v. David Esteppe, et al., No. 3128, September Term, 2018. Opinion by Fader, C.J.

LOCAL GOVERNMENT TORT CLAIMS ACT — SCOPE OF EMPLOYMENT — PROCEEDINGS TO ESTABLISH LIABILITY OF LOCAL GOVERNMENT TO PAY JUDGMENT

A plaintiff who seeks to establish a local government’s liability under the LGTCA for a judgment entered against its employee must initiate a proceeding that (1) joins the local government entity as a party and (2) offers the parties an opportunity to litigate whether the tortfeasor employee committed the relevant tort while acting within the scope of employment. A plaintiff may initiate such a proceeding either within the underlying tort action or as a separate action.

LOCAL GOVERNMENT TORT CLAIMS ACT — SCOPE OF EMPLOYMENT — ACTIONS BY LAW ENFORCEMENT OFFICERS

The circuit court erred in concluding that police officer’s conduct fell within the scope of that officer’s employment as a matter of law where the record (1) contained evidence that the officer’s conduct was motivated by personal reasons, and (2) is devoid of any factual support for the contention that the officer acted, even in part, in furtherance of the police department’s interests. Circuit Court for Baltimore City Case No. 24-C-13-001297 REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 3128

September Term, 2018 ______________________________________

BALTIMORE CITY POLICE DEPARTMENT

v.

DAVID ESTEPPE, ET AL. ______________________________________

Fader, C.J., Leahy, Eyler, Deborah S. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Opinion by Fader, C.J. ______________________________________

Filed: August 27, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-08-27 15:20-04:00

Suzanne C. Johnson, Clerk Appellee David Esteppe, the plaintiff below, obtained a judgment against appellee

Adam Lewellen, the defendant below. Mr. Esteppe then sought to recover the judgment

from the appellant, the Baltimore City Police Department (the “Department”), which is

Mr. Lewellen’s former employer. The Department’s appeal raises two separate issues—

one a matter of procedure and the other of substance—relating to a local government’s

liability under the Local Government Tort Claims Act (“LGTCA”), § 5-303 of the Courts

& Judicial Proceedings Article (Repl. 2013; Supp. 2019).

First, the Department contends that the circuit court erred in ruling on the basis of

the “Motion for Declaratory Relief to Enforce Judgment” Mr. Esteppe filed in the same

action in which he obtained his judgment against Mr. Lewellen. We hold that a plaintiff

who seeks to hold a local government liable under the LGTCA for a judgment entered

against its employee must initiate a proceeding that (1) joins the local government entity

as a party and (2) offers the parties an opportunity to litigate whether the tortfeasor

employee committed the relevant tort while acting within the scope of employment. Here,

although Mr. Esteppe did not formally join the Department as a party to the proceeding,

the Department participated without objecting on that ground and, therefore, waived that

objection. Accordingly, we conclude that the circuit court did not err procedurally in ruling

on Mr. Esteppe’s motion.

Second, the Department argues that the circuit court erred in determining that

Mr. Lewellen acted within the scope of his employment when he engaged in the tortious

conduct that gave rise to the judgment against him. That tortious conduct included

submitting an affidavit in support of a search warrant for Mr. Esteppe’s home in which Mr. Lewellen falsely claimed that a confidential informant had purchased drugs from

Mr. Esteppe. The Department first contends that serious criminal conduct can never fall

within the scope of an officer’s employment. The Court of Appeals recently rejected that

argument in Baltimore City Police Department v. Potts, 468 Md. 265, 274, 305-06 (2020).1

The Department also contends that even if serious criminal conduct can fall within the

scope of an officer’s employment, the circuit court erred as a matter of law in concluding

that it did based on the record in this case. We agree with the Department that the record

is devoid of any factual support for Mr. Esteppe’s present contention that Mr. Lewellen’s

perjury was committed, even in part, in furtherance of the Department’s interests.

Accordingly, we will reverse the circuit court’s judgment and remand for further

proceedings.

BACKGROUND

The Underlying Criminal Case

In early 2012, Mr. Esteppe ended a romantic relationship with Brandi Chelchowski

that had begun in late 2011. Subsequently, Ms. Chelchowski stalked and threatened

Mr. Esteppe, called and texted him dozens of times each day, and, he suspected, damaged

his vehicle. Mr. Esteppe changed his phone number and sought multiple peace orders. In

March 2012, Ms. Chelchowski threatened Mr. Esteppe to the effect that she had “cop

friends” and that he was “going down.” Mr. Lewellen was one such “close” friend, whom

Ms. Chelchowski had known “for years.”

1 We stayed this case pending the outcome of the Court of Appeals’s decision in Potts. 2 On March 19, Ms. Chelchowski “said something to the effect of, ‘You’re going

down next week.’” Eight days later, on March 27, then-Officer Lewellen applied for a

warrant to search Mr. Esteppe’s home on the pretext that Mr. Esteppe was a drug dealer.

In the affidavit supporting the warrant application, Mr. Lewellen stated, among other

things, that he recently had orchestrated a controlled purchase in which Mr. Esteppe sold

drugs to a confidential informant. Specifically, Mr. Lewellen averred that he had the

confidential informant set up the buy via telephone, searched the confidential informant to

ensure that he was “free of any contraband,” dropped off the informant at Mr. Esteppe’s

residence, and “took a covert position with a clear and unobstructed view of” the location

as the confidential informant “approached the door and knocked.” Then, according to

Mr. Lewellen’s affidavit:

The front door opened, and I observed a white male whom I recognized to be David Esteppe . . . . [The confidential informant] entered the location and the door closed behind [him]. About 2 minutes later [the confidential informant] exited the location and met me nearby at a predetermined location.

[The confidential informant] then provided me with 1 green ziplock bag containing a white powder substance, suspected cocaine. I then searched [the confidential informant] and [he] was found free of any other contraband.

[The confidential informant] advised me upon entering the location [that the confidential informant] asked Mr. Esteppe if he could get “one,” which is street terminology for one unit of cocaine. [The confidential informant] then gave Mr. Esteppe $20.00 in US Currency and Mr. Esteppe provided [the confidential informant] with 1 green ziplock bag containing a white powder substance.

In what appears to be a boilerplate portion of the affidavit, Mr. Lewellen identified

a number of things that, in his experience, drug dealers commonly keep in connection with

3 their trafficking activities, including “large amounts of . . . currency”; “paraphernalia used

in the manufacture, packaging, preparation, and weighing of [controlled dangerous

substances] in preparation for trafficking”; “firearms and ammunition”; “financial records

and financial instruments”; “records of their drug transactions”; “books, records and other

documents that identify” the names of associates; telephones and pagers; photographs and

videos of themselves and their associates; “identification and travel documents”; and

vehicles. The search warrant application sought permission to seize any of those items, as

well as any illegal drugs.

Based on Mr. Lewellen’s affidavit, the court issued a warrant authorizing the search

of Mr. Esteppe’s home and seizure of items found there. Later that day, Mr. Lewellen and

several other officers “busted in” through Mr. Esteppe’s front door and executed the search

warrant. During the search, the officers repeatedly accused Mr. Esteppe of being a drug

dealer and asked him to identify the location of the drugs in his home. The officers did not

uncover any illegal drugs. They did, however, find and seize a black powder rifle and a

shotgun that Mr. Esteppe kept for hunting. Mr. Esteppe was arrested and charged for

unlawful possession of a firearm based on a relatively new law—of which Mr. Esteppe had

been unaware—that disqualified him from possessing firearms.2 When he was arrested,

Mr. Esteppe heard Mr. Lewellen say that “Brand[i] led us to it.”

2 Mr. Esteppe was convicted of assault in 2008, a fact that Mr. Lewellen listed under the “Criminal History” section of his warrant application. Unknown to Mr. Esteppe at the time, just months before his arrest the General Assembly had made it illegal for anyone convicted of a crime of violence to possess a rifle or shotgun. See 2011 Md. Laws, ch. 164, codified at Md. Code Ann., Pub. Safety § 5-206 (Repl. 2018; Supp. 2019). 4 After his arrest and release awaiting trial, Mr. Esteppe, along with other witnesses,

informed the Department of their suspicions that he may have been set up. The

Department’s Internal Affairs Division began an investigation, during which the

confidential informant listed in the warrant application stated that he had never seen or met

Mr. Esteppe, nor had he ever set foot in Mr. Esteppe’s house or called him on the phone.

Investigators obtained phone records for the confidential informant and Mr. Esteppe,

which verified that the two had not had any phone contact.

After he was interviewed for the investigation, the confidential informant contacted

Mr. Lewellen, who met with the confidential informant and pressured him to recant the

information he had provided to the investigators. Mr. Lewellen had the informant call the

investigators over speakerphone in Mr. Lewellen’s presence and “direct[ed] him what to

say.” The informant complied at the time, but then subsequently reported that interaction

to the Internal Affairs investigators.

Subsequently, the State entered a nolle prosequi in the criminal case against

Mr. Esteppe, thereby dropping all charges.

In two separate charging documents, the State charged Mr. Lewellen with perjury

as to the affidavit, misconduct in office, and obstruction, among other crimes. He pleaded

guilty to perjury and misconduct in office, and resigned from the Department as part of his

plea deal. At the plea hearing, the prosecutor recited a statement of facts to which

Mr. Lewellen agreed, with no modifications or objections. The statement included, among

other things, that Mr. Lewellen had been “close” friends with Ms. Chelchowski “for years”;

the affidavit he had submitted in support of the warrant application was “bogus,”

5 “fraudulent,” and “perjurious”; he “was the lead on th[e] execution of that search warrant”;

and he had directed the confidential informant “to recant what he told Internal Affairs.”

The Civil Action

In March 2013, Mr. Esteppe filed a complaint for damages against Mr. Lewellen,

the Department, the Mayor and City Council of Baltimore (the “City”), and the State of

Maryland. Mr. Esteppe brought counts for assault, battery, false arrest, false

imprisonment, intentional infliction of emotional distress, malicious prosecution,

negligence, violations of the Maryland Declaration of Rights, and civil conspiracy. The

circuit court dismissed the claims against all defendants but Mr. Lewellen.

In November 2014, the court held a bench trial. During his opening statement,

counsel for Mr. Esteppe advanced his theory that Mr. Lewellen’s actions were motivated

not by malice toward Mr. Esteppe, but rather by Mr. Lewellen’s “desire to please and

remain in a relationship with Brand[i] Chelchowski.” Counsel explained that “subsequent

to Mr. Esteppe breaking up with Ms. Chelchowski, she got involved in a relationship with

the Defendant, Adam Lewellen. And then she encouraged him – as we understand it – to

basically bring down Mr. Esteppe. So, the motivation was to please her, and not to get

Mr. Esteppe. That’s our position.”

Mr. Esteppe’s case-in-chief consisted only of his testimony and the transcript of

Mr. Lewellen’s guilty plea, which the Court admitted as substantive evidence.3 After

3 At the time, § 9-104 of the Courts and Judicial Proceedings Article rendered Mr. Lewellen incompetent to testify as a result of his perjury conviction. See Md. Code Ann., Cts. & Jud. Proc. § 9-104 (Repl. 2013). In 2016, the General Assembly repealed § 9-104, and amended § 10-905 of the Courts Article to provide that “[e]vidence that a 6 hearing Mr. Esteppe’s case-in-chief, the court granted Mr. Lewellen’s motion for judgment

regarding the counts of assault, battery, false arrest, false imprisonment, and malicious

prosecution, as well as the request for punitive damages.4 The court denied Mr. Lewellen’s

motion concerning the counts for intentional infliction of emotional distress, negligence,

constitutional tort, and civil conspiracy.

During his closing argument, Mr. Esteppe’s counsel argued that Mr. Lewellen’s

“conduct was intentional” and his purpose singular:

As a matter of fact, that was why he did it. He knew, he knew that this woman – who he knew, he was friends with – had broken up with David Esteppe, and . . . in fact, what maybe she knew or didn’t know at that time was that Lewellen was trying to make headway with her. So, for all of the wrong motives, he was using his power – he was abusing his authority – to try to cause pain, which he succeeded in doing to someone else. . . . [H]is real motive was the intentional infliction of emotional distress.

On rebuttal closing, Mr. Esteppe’s counsel returned to the same theme:

Mr. Lewellen[] entered into an illegal agreement with this woman who was the former girlfriend of Mr. Esteppe—and whom he was trying to court to become his girlfriend . . . .

He wanted to get in tight with her – he, through his agreement with her, led to conduct on his part that he was so, so trying to impress her that he was willing to put his career on the line. And in fact, he did put his career on the line, and destroyed it by going to a judge and lying under oath . . . .

witness has been convicted of perjury shall be admitted for the purpose of attacking the credibility of the witness.” See 2016 Md. Laws, ch. 530. 4 At the outset of the trial, Mr. Esteppe abandoned his request for punitive damages, although the court later stated that it would have awarded them. The court entered judgment in favor of Mr. Lewellen on the assault, battery, and malicious prosecution counts because Mr. Esteppe disclaimed any malice on Mr. Lewellen’s part. The court also entered judgment for Mr. Lewellen on the malicious prosecution count, as well as the false arrest and false imprisonment counts, for the separate reason there was a legal basis to arrest and prosecute Mr. Esteppe after the police found the firearms he unlawfully possessed. 7 After closing arguments, the trial court ruled in favor of Mr. Lewellen on the

intentional infliction of emotional distress count because the court was “not convinced by

a preponderance of the evidence” that Mr. Esteppe’s embarrassment and humiliation were

sufficiently “severe” and “extreme.” The court then found in favor of Mr. Esteppe on all

three of his remaining claims and awarded him $166,007.67 in damages.

This Court affirmed in an unreported opinion. See Lewellen v. Esteppe, No. 2009,

Sept. Term 2014, 2015 WL 7941110 (Dec. 4, 2015). Among other rulings, this Court held

that the circuit court had properly admitted and considered the statement of facts from

Mr. Lewellen’s plea agreement as substantive evidence, id. at *6-*11, and that sufficient

evidence supported the court’s ruling that Mr. Lewellen and Ms. Chelchowski had engaged

in a civil conspiracy, with Mr. Lewellen’s act of perjury “committed in furtherance of that

agreement,” id. at *16. We stated:

The evidence before the circuit court indicated that Ms. Chelchowski and [Mr. Esteppe] had been in a relationship, that Ms. Chelchowski was angered when [Mr. Esteppe] ended that relationship, that Ms. Chelchowski threatened [Mr. Esteppe] by telling him that “I have cop friends and you’re going down,” that Ms. Chelchowski told [Mr. Esteppe] that he was “going down next week” on March 19, 2012 – approximately one week before [Mr. Esteppe] had been surprised by police at his house, and that [Mr. Lewellen] told [Mr. Esteppe] while searching his house that “Brandi led us to it.” In light of this evidence, the court was justified in circumstantially finding an agreement between Ms. Chelchowski and [Mr. Lewellen], and [Mr. Lewellen]’s fraudulent application for the search warrant was surely an act committed in furtherance of that agreement.

Id.

8 Mr. Esteppe’s Attempt to Enforce the Judgment Against the Department

In April 2016, Mr. Esteppe sent two letters requesting that the City pay the judgment

entered against Mr. Lewellen. The City refused, replying by letter that (1) because the City

and the Department had been dismissed from the case, “the issue of whether Mr. Lewellen

was acting within the scope of his employment was not, nor could it have been,

adjudicated” in the underlying case, and (2) the LGTCA did not obligate the City or the

Department to pay the judgment because Mr. Lewellen was not acting within the scope of

his employment when he “obtain[ed] the perjured warrant against Mr. Esteppe . . . for

personal reasons having nothing to do with the lawful objectives of the [Department].”

Mr. Esteppe then filed a “Motion for Declaratory Relief to Enforce Judgment”

against both the Department and the City. Mr. Esteppe, who filed his motion in the same

civil case in which he had obtained his judgment against Mr. Lewellen, sought “a written

declaration specifying that (a) Mr. Lewellen’s conduct, on which the underlying tort

judgment was based, occurred in the scope of Mr. Lewellen’s employment, and (b) that the

City and the Department are required to pay the judgment that Mr. Esteppe obtained against

Mr. Lewellen.” Mr. Esteppe argued that “[t]he City and the Department [we]re necessary

parties” at that juncture of the proceedings based on their “interest in the declaratory relief

sought.” Therefore, he contended, their prior dismissal from the case “ha[d] no effect on

[their] responsibility to comply with the LGTCA at the post-judgment stage” or their

obligation “to pay judgments against their employees.”

Mr. Esteppe also argued that “Mr. Lewellen’s criminal conduct, though not

expressly authorized by the [City and the Department], was within the scope of [his]

9 employment.” Specifically, Mr. Esteppe contended that Mr. Lewellen’s conduct had

involved routine police work—investigating potential crime, swearing out an affidavit,

executing a warrant, and making an arrest—that benefited his employer, and thus was

within the scope of his employment, notwithstanding any mixed or entirely improper

motive. The motion relied entirely on the record developed in Mr. Esteppe’s case against

Mr. Lewellen; Mr. Esteppe sought no new discovery, nor did he add to the evidentiary

record. According to the certificate of service attached to his motion, Mr. Esteppe served

the motion personally on the City Solicitor and the Department’s chief solicitor.

The Department filed a written response in opposition to Mr. Esteppe’s motion in

which it argued that he lacked standing to seek indemnification from the Department, that

the Department had sovereign immunity from his claim, and that Mr. Lewellen had acted

outside the scope of his employment. The Department did not request discovery, nor did

it seek to introduce any new evidence in opposition to Mr. Esteppe’s motion. Instead, for

its factual defense based on scope of employment, the Department’s responsive brief relied

exclusively on the transcript from Mr. Lewellen’s guilty plea hearing and the judgment

against Mr. Lewellen for conspiring with Ms. Chelchowski. Notably, the Department did

not assert a defense based on Mr. Esteppe’s failure to join it as a party.

The City separately opposed Mr. Lewellen’s motion. Unlike the Department, the

City did argue that Mr. Esteppe’s motion was improperly filed against it, as a non-party.

The City also argued that: (1) Mr. Esteppe lacked any right of enforcement against the

10 City, which was not Mr. Lewellen’s employer;5 (2) Mr. Lewellen had acted outside the

scope of his employment; and (3) Mr. Lewellen had acted with malice.

Mr. Esteppe’s motion for declaratory relief to enforce the judgment was heard by a

different judge than the trial judge. At oral argument on his motion—in stark contrast to

his arguments during his case against Mr. Lewellen—Mr. Esteppe argued that the

Department was “asking us to assume facts that aren’t here, namely that [Mr. Lewellen]

did this solely to please the woman.” According to Mr. Esteppe, the record contained only

“innuendo” and “speculation” that Mr. Lewellen had acted to please Ms. Chelchowski.6

Mr. Esteppe contended that Mr. Lewellen had acted within the scope of his employment

because it was undisputed that, at the time of Mr. Lewellen’s tortious conduct, he “was

working,” had obtained a search and seizure warrant, and “went through the ministerial

duties of filling out the probable cause statement and filling out the affidavit and going to

[the issuing judge].” In other words, Mr. Esteppe argued, Mr. Lewellen was “doing things

that police officers do.”

5 Unlike other local police departments in Maryland, the Department “was created as a state agency, through an act of the General Assembly, and not as a municipal agency.” Houghton v. Forrest, 412 Md. 578, 588 (2010). Thus, the City is “not . . . the employer of members of the [Department] for purposes of tort liability.” Id. at 588-89 (quoting Clea v. Mayor & City Council of Baltimore, 312 Md. 662, 668 (1988), superseded by statute on other grounds as stated in Houghton, 412 Md. at 589). 6 In its opposition to Mr. Esteppe’s motion, the Department cited Vogel v. Touhey, 151 Md. App. 682, 718-19 (2003), for the proposition that “Mr. Esteppe is judicially estopped from contesting any of the facts of this case or asserting any legal position . . . inconsistent” with those “he advanced in the earlier trial, and that were accepted by the trial court and this Court on appeal.” 11 The motions judge took the matter under advisement. Nine months later, having

not yet received a ruling, Mr. Esteppe filed a supplement to his motion to call the court’s

attention to two recently decided cases. Specifically, Mr. Esteppe averred that under

Johnson v. Mayor & City Council of Baltimore, 233 Md. App. 43 (2017), (1) the

Department “is the responsible ‘local government’ under the LGTCA when a judgment is

rendered against a Baltimore City police officer”; and (2) “[w]hen the [Department] fails

to pay a judgment for which it is responsible, the plaintiff may bring an enforcement

proceeding to collect from the [Department].” Mr. Esteppe also argued that under Prince

George’s County v. Morales, 230 Md. App. 699 (2016), Mr. Lewellen’s exertion of police

authority put his conduct within the scope of his employment as a police officer. The

Department filed an opposition to the supplement in which it argued that Mr. Esteppe’s

reliance on Johnson and Morales was misplaced.

In December 2018, the motions court issued a three-page memorandum and order

in which it found that “[a]t the time of the tortious conduct, . . . Lewellen was clearly within

his scope of employment.” The court reasoned:

Executing a search warrant to seize an illegal firearm is exactly the type of conduct for which Lewellen was employed. As the search was executed whilst Lewellen was on duty, and in a jurisdiction for which Lewellen had police powers, the conduct occurred in an authorized area. A primary goal of the [Department] in recent years is the seizure of illegal firearms and the arrest of those in possession of those weapons, and therefore the search, however motivated, furthered a purpose of Lewellen’s master, the [Department].

Indeed, when considering the issue at trial, [the trial judge] similarly concluded:

12 And it’s undisputed that [Mr. Lewellen] was working. It’s undisputed that it was a search and seizure warrant. It’s undisputed that he went through the ministerial duties of filling out the probable cause statement, and filling out the Affidavit, and going to [the issuing judge].

Thus, the motions court held, “the [Department] is liable for the judgment held by Esteppe

against Lewellen.”7 The Department timely appealed.

DISCUSSION8

Mr. Esteppe’s motion was styled as a “Motion for Declaratory Relief to Enforce

Judgment,” which is not a permissible mechanism to raise a claim for declaratory relief.

7 The circuit court denied Mr. Esteppe’s motion as to the City. Mr. Esteppe has not raised the denial of that motion on appeal, and so it is not before us. 8 Before addressing the merits, we must first resolve a preliminary matter. Although this is the Department’s appeal, shortly before oral argument, the Department filed a Suggestion of Lack of Jurisdiction and Motion for Remand for Entry of Final Appealable Order. The Department stated that it had discovered that the order granting Mr. Esteppe’s motion for declaratory relief against the Department was not a final appealable order because (1) the court had not satisfied the separate document requirement of Rule 2-601 and (2) the docket entry did not identify the court’s resolution of the motion as to the Department. Although the Department’s arguments might be better taken if they had been raised earlier, it waived this issue by affirmatively appealing the court’s order and proceeding with the appeal without raising the issue until the eve of oral argument. See URS Corp. v. Fort Myer Constr., 452 Md. 48, 70 (2017) (holding that “the separate document requirement was waived” and this Court “had jurisdiction to consider the appeals” when “[n]o party objected to the absence of a separate document, . . . [t]he Circuit Court ‘clearly intended [the docket entry] to be a final judgment,’” and remand would merely produce unnecessary delay (quoting Suburban Hosp. v. Kirson, 362 Md. 140, 156 (2000))); see also Lee v. Lee, 466 Md. 601, 631 n.9 (2020) (“Nothing in this opinion should be read to override case law on waiver of the separate document requirement.” (citing Fort Myer, 452 Md. at 67-70)). Remanding now on this basis would cause unnecessary delay in resolving this fully briefed appeal. See Fort Myer, 452 Md. at 70 (“[R]emand[ing] to the Circuit Court . . . [to] simply file and enter the separate judgment, from which a timely appeal would then be taken[,] . . . would be a classic example of wheels spinning for no practical purpose.”). Instead, we will address the merits. Moreover, if we thought it necessary for the circuit court to correct its order by issuing a separate declaratory 13 Mr. Esteppe’s motion was more akin to a motion for summary judgment on the question

of the Department’s liability under the LGTCA to pay the judgment rendered against

Mr. Lewellen. See State Farm Mut. Auto Ins. v. Crisfulli, 156 Md. App. 515, 520 (2004)

(“The ‘motion for declaratory judgment’ . . . was not a separate declaratory judgment

action; rather, it was a motion for partial summary judgment on the issue of liability in

[plaintiff’s] contract claim . . . .”); Wittel v. Baker, 10 Md. App. 531, 544 (1970) (where

plaintiffs filed a “motion for declaratory relief pursuant to the Uniform Declaratory

Judgments Act[,] . . . [t]he [circuit] court accepted the motion as an application to decide a

question of law pursuant to Maryland Rule 502,” the predecessor of Rule 2-502).

“Accordingly, the issue that is before us on appeal is whether the court erred in granting

summary judgment on [the Department’s] liability.” Crisfulli, 156 Md. App. at 521.

“An appellate court reviews without deference a trial court’s grant of a motion for

summary judgment, ‘review[s] the record in the light most favorable to the nonmoving

party[,] . . . and construe[s] any reasonable inferences that may be drawn from the facts

against the moving party.’” Baltimore City Police Dep’t v. Potts, 468 Md. 265, 282 (2020)

(quoting Kennedy Krieger Inst. v. Partlow, 460 Md. 607, 632-33 (2018)). “Summary

judgment is appropriate where ‘there is no genuine dispute as to any material fact and [ ]

the [moving] party is entitled to judgment as a matter of law.’” Potts, 468 Md. at 282

(quoting Md. Rule 2-501(a)).

judgment, we could order it to do so after we decide the merits of this appeal. See Md. Cas. Co. v. Hanson, 169 Md. App. 484, 524-25 (2006). 14 “If there is a material factual dispute as to whether an employee’s actions were taken

within the scope of employment, the question is one of fact. If there is not, the question is

one of law.” Clark v. Prince George’s County, 211 Md. App. 548, 570 (2013). “Even

when the parties’ versions of events are in conflict, however, if the facts adduced to show

that the defendant was acting within the scope of his employment are not legally sufficient

to support such a reasonable finding by the trier of fact, any dispute of fact is not material,

as it will not affect the outcome of the case.” Id. at 570-71. “Where there is no conflict in

the evidence relating to the question [of whether an employee is acting within the scope of

employment] and but one inference can be drawn therefrom, the question is one of law for

the court.” Id. at 571 (alteration in Clark) (quoting Rusnack v. Giant Food, 26 Md. App.

250, 265 (1975)); see also Brown v. Mayor & City Council of Baltimore, 167 Md. App.

306, 323 (2006) (noting that although “whether [the employee] was, in fact, acting within

the scope of his employment . . . is ordinarily a question of fact for the fact-finder, when

the facts are undisputed, it becomes a question of law”). We review “a trial court’s

determinations of legal questions or conclusions of law based on findings of fact” without

deference. L.W. Wolfe Enters. v. Md. Nat’l Golf, 165 Md. App. 339, 344 (2005) (quoting

Ins. of N. Am. v. Miller, 362 Md. 361, 372 (2001)).

I. THE CIRCUIT COURT DID NOT ERR IN ADDRESSING THE MERITS OF MR. ESTEPPE’S MOTION.

The Department contends that Mr. Esteppe’s “Motion for Declaratory Relief to

Enforce Judgment” was procedurally improper and that Mr. Esteppe should instead have

filed a separate action against the Department to enforce his judgment against

15 Mr. Lewellen. Mr. Esteppe responds that his motion served the same purpose as a separate

action and is similar to the procedure mandated by the Court of Appeals to litigate a private

insurer’s coverage obligation following a tort suit. See Allstate Ins. v. Atwood, 319 Md.

247, 262, 265-66 (1990).

We agree in part, and disagree in part, with both parties. This Court recently has

analyzed a tort victim’s efforts to enforce a local government’s obligation under the

LGTCA in two different opinions issued in the same underlying case. First, in Johnson v.

Mayor & City Council of Baltimore, 233 Md. App. 43 (2017) (“Johnson II”),9 a tort victim

who had prevailed in a suit for damages against three Department officers sought to execute

the judgment against the City. Id. at 50. The trial court quashed the writs of execution,

and we affirmed. Id. at 51, 57. In addition to pointing out deficiencies in the tort victim’s

collection efforts (which are not relevant here), we observed that “if the [Department] fails

to pay a judgment for compensatory damages entered against one of its officers, ‘it is

subject to an enforcement action’” by the tort victim. Id. at 56 (quoting Baltimore Police

Dep’t v. Cherkes, 140 Md. App. 282, 326 (2001)).

On remand, Mr. Johnson did not heed our suggestion. Instead, without filing a claim

against the Department or otherwise seeking to join it as a party to the action—and

notwithstanding that his only judgment was against the three officers—he propounded

discovery in aid of enforcement directly to the Department. Johnson v. Francis, 239 Md.

9 The same underlying case has led to three reported opinions from this Court. In Francis v. Johnson, 219 Md. App. 531 (2014) (“Johnson I”), we affirmed the underlying tort judgments against the three Department officers who were found liable for violating the tort victim’s rights. Johnson I is not otherwise relevant here. 16 App. 530, 538 (2018) (“Johnson III”), cert. denied, 463 Md. 155 (2019). The circuit court

quashed the discovery propounded to the non-party Department, and Mr. Johnson again

appealed. Id. at 538-39. In affirming, we held that before engaging in collection activity

against a local government under the LGTCA, a tort victim must first establish the local

government’s liability. Id. at 542-48. Doing so, we held, requires the tort victim to prove

that the tortfeasor employee had acted within the scope of employment when committing

the tort. Id. at 547-48. We observed that in some cases, scope of employment can be

resolved without filing a new action, particularly when the parties “stipulat[e] that the

officer [] acted within the scope of employment,” id. at 547 (discussing Espina v. Jackson,

442 Md. 311, 347 (2015)), or otherwise leave the issue “not really in dispute,” Johnson III,

239 Md. at 547 (discussing Houghton v. Forrest, 412 Md. 578, 592 (2010)). But

conversely, when “the scope-of-employment question [] is not settled or sufficiently

obvious that we can resolve it as a matter of law, . . . [i]t is the plaintiff’s burden to establish

its right to collect from the Department, either through an enforcement action or some other

permissible mechanism.” Johnson III, 239 Md. App. at 548.

We did not expound on what “some other permissible mechanism” would look like

in Johnson III, because that question was not before us.10 We did, however, give some

indication as to what would be necessary:

10 In dicta, to provide guidance for the circuit court on remand, we also addressed the Department’s contention that a tort victim may not seek payment of a judgment directly from a local government under the LGTCA unless it first receives an express assignment of the tortfeasor employee’s claim to indemnification from the local government. Id. at 549. We rejected that argument based on the plain language of the LGTCA, which makes a local government “‘liable for any judgment against its employee[s]’ . . . [p]rovided the 17 [W]here 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) [of the Courts Article], if and only if the employee was acting within the scope of [] 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 [] 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.

Id. at 555-56.

Both the Department and Mr. Esteppe claim support from our opinions in Johnson

II and III. Mr. Esteppe contends that his “motion for declaratory relief” was a “permissible

mechanism” to pursue his claim directly against the Department. The Department

disagrees and argues that a separate enforcement action was required. This case thus

requires us to carry forward our analysis from the Johnson opinions to identify how a tort

employees acted within the scope of their employment.” Id. at 550 (quoting Md. Code Ann., Cts. & Jud. Proc. § 5-303(b)(1)). In its opposition to Mr. Esteppe’s motion for declaratory relief—which was filed before our decision in Johnson III—the Department made the same argument. The Department has not pursued that argument in this appeal. 18 victim may seek to enforce a claim against a local government under the LGTCA to pay a

judgment awarded against a tortfeasor employee.

As we observed in Johnson III, there is not always a genuine dispute regarding

whether a tortfeasor employee’s tortious actions were undertaken within the scope of

employment. In some cases, such as Houghton, that issue can be readily settled by

undisputed facts in the record of the underlying case. 412 Md. at 592. In others, such as

Espina, it may already have been settled by the local government’s stipulation.11 442 Md.

at 347. In those cases, we would expect that the local government will pay the judgment

without the need for any further litigation.

Where there is a genuine dispute, however, the plaintiff bears the burden to

“establish the local government’s liability.” Johnson III, 239 Md. App. at 555. Here, the

parties raise two different questions regarding how a tort victim may do so: (1) What type

of proceeding is required? and (2) May such a proceeding be brought as part of the

underlying tort action, or must it be filed as a separate action?

11 A stipulation binds the local government only if, as in Espina, the local government was a party to the stipulation. Stipulations as to scope of employment entered by a tort victim and tortfeasor employee cannot bind the local government absent its assent to the stipulation. Under the LGTCA, it is nearly always to the benefit of both the tort plaintiff and the tortfeasor employee to agree that the employee was acting within the scope of employment. Such a finding does not disadvantage either party and, if ultimately established, provides: (1) the tort plaintiff with a deep pocket from which to recover; and (2) immunity from the judgment for the tortfeasor employee, unless he or she is found to have acted with malice. See Johnson III, 239 Md. App. at 552-53 (Under the LGTCA, where an employee is found to have acted without malice, “only the local government is liable to pay the judgment.” If the employee is found to have acted with malice, both the employee and the local government are liable. (citing Cts. & Jud. Proc. § 5-302(b)(1))). 19 A. A Tort Victim May Establish the Local Government’s Liability to Pay a Judgment Under the LGTCA by Filing an Action Against the Local Government to Resolve the Scope of Employment Issue.

As we explained in Johnson II and Johnson III—and, indeed, as we earlier

suggested in Baltimore Police Department v. Cherkes, 140 Md. App. 282, 326 (2001)—a

tort victim may file “an enforcement action” against a local government to compel it to pay

a judgment awarded against its tortfeasor employee. In such an action, the tort victim seeks

a judgment against the local government for payment of the underlying judgment against

the tortfeasor employee.

Mr. Esteppe contends that a declaratory judgment proceeding is also a permissible

mechanism for settling the disputed issue of the local government’s liability. A declaratory

judgment proceeding “is a vehicle by which a person may obtain a judicial declaration to

‘afford relief from uncertainty and insecurity with respect to rights, status, and other legal

relations.’” Hanover Invs. v. Volkman, 455 Md. 1, 15 (2017) (quoting Md. Code Ann., Cts.

& Jud. Proc. § 3-402). Under § 3-409(a) of the Courts Article,

a court may grant a declaratory judgment or decree in a civil case, if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if:

(1) An actual controversy exists between contending parties;

(2) Antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or

(3) A party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it.

In other words, “[t]he ‘uncertainty or controversy[]’ . . . must be justiciable.” Volkman,

455 Md. at 15.

20 Importantly, “[a] party may obtain a declaratory judgment or decree

notwithstanding a concurrent common-law, equitable, or extraordinary legal remedy,

whether or not recognized or regulated by statute.” Cts. & Jud. Proc. § 3-409(c); see also

id. § 3-403(a) (“Except for the District Court, a court of record within its jurisdiction may

declare rights, status, and other legal relations whether or not further relief is or could be

claimed. An action or proceeding is not open to objection on the ground that a declaratory

judgment or decree is prayed for.”). “[T]he General Assembly added this proviso to the

Declaratory Judgments Act to make clear that a party is not precluded from seeking

declaratory relief simply because that party has the option of pursuing some other remedy.”

Volkman, 455 Md. at 16. Thus, “[t]he existence of other potential causes of action or

remedies is not a bar to pursuit of a declaratory judgment.”12 Id.; see also Allied Inv. Corp.

v. Jasen, 354 Md. 547, 556-57 (1999) (“That a separate claim exists upon which suit could

be brought . . . ordinarily does not defeat a party’s right to seek and obtain a declaratory

judgment prior to filing the other claim.”); Post v. Bregman, 349 Md. 142, 160 (1998) (We

have not . . . generally blessed the dismissal of a proper action for declaratory judgment

because of a ruling on an alternative claim in the same action.”). Therefore, the availability

of an enforcement action to pursue a claim against a local government is not a bar to

seeking declaratory relief.

12 It would, of course, be improper to “entertain an action for declaratory relief . . . when there is already a pending action ‘involving the same parties and in which the identical issues that are involved in the declaratory action may be adjudicated.’” Volkman, 455 Md. at 17 (quoting Sprenger v. Pub. Serv. Comm’n, 400 Md. 1, 26 (2007)); Waicker v. Colbert, 347 Md. 108, 113 (1997) (same). But that is not the case here: the Department’s liability was not before the court in the underlying civil action against Mr. Lewellen. 21 Regardless of whether a tort victim seeks to establish a local government’s

obligation to pay an underlying judgment through an enforcement action, a declaratory

judgment action, or a combination of the two, however, any such action must be brought

directly “against the local government.” Johnson III, 239 Md. App. at 555. At that point,

the tort victim’s claim is no longer against the tortfeasor employee for the underlying tort,

but against the local government he or she contends has become liable to pay the judgment

under the LGTCA. That local government must, therefore, be made a party and given the

opportunity to be heard.13 See Md. Rule 2-101(a) (“A civil action is commenced by filing

a complaint with a court.”); Md. Rule 2-211(a) (requiring joinder of “a person who is

subject to service of process . . . if in the person’s absence (1) complete relief cannot be

accorded among those already parties, or (2) disposition of the action may impair or impede

the person’s ability to protect a claimed interest relating to the subject of the action . . . .”);

13 In addition to the practical aim of judicial economy, the primary purpose of our joinder rules is “to assure that a person’s rights are not adjudicated unless that person has had his ‘day in court.’” See Serv. Transp. v. Hurricane Express, 185 Md. App. 25, 39 (2009) (quoting Mahan v. Mahan, 320 Md. 262, 272 (1990)). That “day in court”—i.e., a person’s “opportunity to be heard”—is a “fundamental requisite of due process of law.” Grannis v. Ordean, 234 U.S. 385, 394 (1914). Indeed, “there can be no doubt that at a minimum [the Due Process Clause] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Canaj, Inc. v. Baker & Div. Phase III, LLC, 391 Md. 374, 424 (2006) (alterations in Canaj) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)); see also, e.g., Superior Court v. Ricketts, 153 Md. App. 281, 336-37 (2003) (citing cases for the proposition “that procedural due process requires that litigants must receive notice, and an opportunity to be heard” (quoting Pickett v. Sears, Roebuck & Co., 365 Md. 67, 81 (2001))). “It is a violation of due process for a judgment to be binding on a litigant who was not a party or a privy and therefor[e] has never had an opportunity to be heard.” Bryan v. State Farm Mut. Auto. Ins., 205 Md. App. 587, 606 (2012) (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 327 n.7 (1979)). 22 see also Cts. & Jud. Proc. § 3-405(a)(1) (“If declaratory relief is sought, a person who has

or claims any interest which would be affected by the declaration, shall be made a party.”);

Serv. Transp., 185 Md. App. at 37-38 (“[T]here is no difference in a necessary parties

analysis whether the Declaratory Judgment Act or Md. Rule 2-211 is invoked.” (citing

Gardner v. Bd. of County Comm’rs, 320 Md. 63, 76 (1990))).

As we observed in Johnson III, resolving the scope of employment issue will not

necessarily require the parties to take discovery and present new evidence. 239 Md. App.

at 555-56. “It may be that all of the evidence necessary to make that determination was

presented at the original trial and already exists,” id. at 556, in which case the parties may

choose to rely partially or entirely on that existing record. But a local government must

have the opportunity to present an evidentiary defense if it seeks, in good faith, to present

one. See id.; cf. Brown, 167 Md. App. at 320-21 (stating, in collateral estoppel context,

that the City and the Department “had no ‘full and fair opportunity’ to litigate the scope of

employment issue” in the underlying wrongful death case because “[t]hey had been

dismissed from that case on other grounds”). Similarly, of course, the tort victim should

also have the opportunity to present evidence relevant to that issue. And, to the extent

either side invokes the right, “the issue of whether a servant is acting within the scope of

his employment is ordinarily a question for the jury[.]” Prince George’s County v.

Morales, 230 Md. App. 699, 716 (2016) (quoting Cox v. Prince George’s County, 296 Md.

162, 170 (1983)); see also Cts. & Jud. Proc. § 3-404 (“The fact that a proceeding is brought

under [the Declaratory Judgment] subtitle does not affect a right to jury trial which

otherwise may exist.”).

23 B. An Action to Enforce a Local Government’s Obligation to Pay a Judgment Under the LGTCA May Be Filed as a Separate Action or Within the Underlying Tort Action.

Identifying a requirement to file a claim for recovery “against the local government”

does not resolve whether such a claim must be filed as a separate action or instead may be

filed within the underlying tort action. Relying on the Court of Appeals’s decision in

Allstate Insurance v. Atwood, 319 Md. 247 (1990), Mr. Esteppe contends that there is

precedent for allowing such a proceeding to be brought within the underlying tort action in

what he deems the analogous circumstance of establishing an insurer’s obligation to pay a

tort judgment awarded against its insured. We agree that the situations are partially

analogous, although differences between a local government’s obligation under the

LGTCA and a private insurer’s contractual obligation cause us to conclude that such an

action against a local government also may be brought as a separate action.

The question answered in Atwood arose from the decision of the Court of Appeals

15 years earlier in Brohawn v. Transamerica Insurance, 276 Md. 396 (1975). In Brohawn,

the Court held “that an insurer, prior to trial of a tort suit against its insured, ordinarily

could not obtain a declaratory judgment concerning policy coverage, where the coverage

issue was essentially the same as an issue to be decided in the pending tort case.” See

Atwood, 319 Md. at 249 (describing holding in Brohawn). The insurer’s incentive in such

circumstances is to prove that its insured acted intentionally—and thus is excluded from

coverage under the policy—which creates a conflict of interest with its insured. See

Brohawn, 276 Md. at 409. Permitting the insurer to litigate that issue before resolution of

24 the underlying tort suit would be contrary to the interests of the insured, and, therefore,

would violate its duties to its policyholder. See id. at 405-06, 409.

Brohawn left unanswered when and how an insurer laboring under such a conflict

of interest could litigate its coverage defense. Those questions were resolved by Atwood.

There, the insurer filed a separate declaratory judgment action following the tort verdict,

naming its insured (the tortfeasor) and the tort victim as defendants. 319 Md. at 250. The

insurer sought a declaration that an exclusion in its policy precluded coverage. Id. On

appeal, this Court upheld the circuit court’s dismissal of the declaratory judgment action

and held that the insurer should instead have intervened in the underlying tort suit to press

its coverage defense. Id. at 251.

The Court of Appeals reversed. Id. at 255-63. In doing so, the Court explained that

“in the conflict of interest situation presented in Brohawn,” an insurer that has contracted

to provide coverage for an insured’s negligent actions will generally be bound by a jury’s

determination of negligence in the underlying tort action. Id. at 261. That applies,

however, only if the issue of whether the underlying act was negligent (and so covered by

insurance) or intentional (and so excluded) “was fairly litigated in the tort trial.” Id. Thus,

an insurer that contends that the issue was not fairly litigated must be permitted “to bring

a post-tort trial declaratory judgment action” to resolve that issue. Id. at 262. In such a

proceeding, the trial judge is first charged with “determin[ing], as a legal matter, whether

the issue, which was resolved in the tort trial and which determines insurance coverage,

was fairly litigated in the tort trial.” Id. If so, the issue may not be relitigated, the inquiry

ends, and the insurer is bound by the result at trial. Id. If not, however, “then the insurer

25 should be permitted to relitigate the matter in the declaratory judgment action.” Id. In

explaining the rationale for permitting such a challenge, the Court observed that

while the insurance company promised to pay in accordance with the legal obligations resulting from the tort action, it did not undertake to be the victim of fraud or collusion. It is not fair to require that an insurer pay when the finding of negligence was the product of an unfair trial and when the insurer has no opportunity to litigate the matter.

Id. at 263.

The Court then considered whether the required declaratory judgment action was

properly filed separately or should have been brought within the underlying tort suit. Id.

at 263-64. The Court held that, going forward, such actions must be filed within the

underlying tort action, primarily for reasons of efficiency. Id. at 264. Allowing “two

separate suits involving the same parties and the same issue,” the Court reasoned, “may

lead to conflicting final judgments.” Id. at 263. Moreover, there would be obvious benefits

in having the same judge who presided over the tort trial “review[] whether the critical

issue was fairly litigated” in that proceeding. Id. at 264. Thus, the Court held, “[t]he best

procedure to resolve coverage disputes like the one in this case is a declaratory proceeding,

as part of the tort case, initiated after the rendition of the jury’s verdict or court’s decision

regarding liability.” Id. To accomplish that, “no later than ten days after the entry of

judgment in the tort suit,” an insurer must file a motion to intervene, an appropriate post-

trial motion for reconsideration, “and a complaint for declaratory relief regarding its duty

to pay the damages assessed against its insured.” Id.

We agree with Mr. Esteppe that the procedure outlined in Atwood provides guidance

for how a tort plaintiff may proceed to establish a local government’s liability under the

26 LGTCA. Because the obligations of private insurers differ in important respects with those

of local governments under the LGTCA, however, a few tweaks are necessary. Whereas

an insurer’s obligation generally derives from the finding of negligence itself, see id. at

260-61, a local government’s obligation under the LGTCA requires an additional finding

that the tortfeasor employee was acting within the scope of employment, see Johnson III,

239 Md. App. at 550. Thus, although an insurer is appropriately bound by the jury’s verdict

of negligence, absent a showing of fraud or collusion, Atwood, 319 Md. at 259, a local

government’s liability under the LGTCA depends on proof of a fact that is not an element

of the underlying tort, Johnson III, 239 Md. at 555. Because the local government is not

liable until the tort plaintiff establishes that fact, it should not be required to intervene

immediately in an underlying tort action against its employee to establish its non-liability

for the judgment. Cf. Wilkerson v. Michael, 104 Md. App. 730, 739 (1995) (holding that

where an insurer’s coverage defense is based on an issue that was not litigated in the

underlying tort case, the insurer need not comply with the Atwood procedure).14

Furthermore, a statute, the LGTCA—and not a private insurance contract—

establishes whether the local government is liable for any judgment. Nothing in the statute

indicates that the local government’s liability should either evaporate or be established

conclusively if neither party raises the issue within ten days of an underlying verdict, nor

14 Of course, although a local government is not obligated to intervene in the underlying case to file a declaratory judgment action challenging its obligation to pay an underlying judgment, neither is it prohibited from doing so. If a local government is aware that a demand will be forthcoming, then it is not precluded from raising the issue promptly (post-verdict) in the forum in the manner set forth in Atwood. 27 is it our place to add such a requirement to the statutory scheme. Although the plaintiff

appropriately bears the burden to establish that the tortfeasor defendant acted within the

scope of employment, we do not think it necessary to require either party to initiate a

proceeding to resolve that issue as promptly as an insurer must pursue its coverage defense

under Atwood. Indeed, because the scope of employment issue will not generally have

been resolved in the underlying action, it is possible that neither party will know

immediately after a verdict is rendered whether the local government’s liability will be

disputed and, consequently, whether an enforcement action will be necessary. Thus, while

it may be more efficient to address a local government’s liability for a judgment within the

underlying action promptly after the resolution of that action, the claim is neither lost nor

established if it is not raised on the schedule set forth in Atwood. Such a claim may be

brought in a separate action at a later date.

C. The Department Waived Any Objection to Mr. Esteppe’s Failure to Join It as a Party by Appearing in the Action and Defending Against His Claim on the Merits Without Raising that Defense.

Mr. Esteppe did not file an action against the Department either within the

underlying tort action or as a separate action. Instead, he filed in the underlying tort action

a “Motion for Declaratory Relief to Enforce Judgment”—which, as discussed above, is

appropriately treated as a motion for summary judgment as to the Department’s liability.

In that motion, he requested: (1) “a ‘speedy hearing’ to resolve this controversy,” as

permitted by the Declaratory Judgment Act, § 3-409(e) of the Courts Article; (2) a written

declaration stating that “Mr. Lewellen’s conduct, on which the underlying tort judgment

was based, occurred in the scope of Mr. Lewellen’s employment” and “that the City and

28 the Department are required to pay the judgment that Mr. Esteppe obtained against

Mr. Lewellen”; and (3) “that th[e] [c]ourt order the City and the Department to pay the

costs of this declaratory judgment proceeding.”

The Department contends that the circuit court erred in reaching the merits of

Mr. Esteppe’s motion because Mr. Esteppe could only make his claim in a separately filed

enforcement action, not within the underlying tort action. For the reasons already stated,

we disagree. Moreover, although Mr. Esteppe did not file a new complaint and serve the

Department with process as a defendant, the Department did not object to Mr. Esteppe’s

enforcement motion on that basis. Instead, the Department appeared in the action without

contesting the court’s jurisdiction over it, filed an opposition, and raised defenses. The

Department argued that, absent an assignment from Mr. Lewellen, Mr. Esteppe had no

standing to pursue a claim against it at all, and could only pursue recovery from

Mr. Lewellen. As discussed above, we rejected a similar argument in Johnson III (albeit

in dicta), and the Department has not pursued it on appeal. The Department also argued

that Mr. Lewellen was not acting within the scope of his employment at the time of his

tortious act against Mr. Esteppe and, therefore, the Department maintained its defense of

sovereign immunity to Mr. Esteppe’s claim. We will address that defense below in Part II.

The Department also failed to raise any objection to the manner in which

Mr. Esteppe raised his claim either at oral argument or in its written opposition to

Mr. Esteppe’s supplemental filing. That the City did raise that defense makes the

Department’s failure to do so particularly noteworthy. As noted, Mr. Esteppe filed his

29 motion against both the Department and the City. In its opposition, the City argued that

Mr. Esteppe’s motion was improper because

the City is no longer a party to the case. The City is aware of only very limited circumstances in which a motion may be filed against a non-party, such as a motion to compel information requested by subpoena, which is not applicable to the motion here. For this reason, Plaintiff’s Motion must be denied.[15]

By appearing in this action and defending against Mr. Esteppe’s enforcement claim

on the merits without raising any objection that it was not properly joined as a party, the

Department waived that defense.16 See LVI Envtl. Servs. v. Acad. of IRM, 106 Md. App.

699, 707-08 (1995) (holding that a party “waived [its] defense” of lack of personal

jurisdiction and “voluntarily submitted to the jurisdiction of the Circuit Court” by raising

only merits contentions in the circuit court and waiting until appeal to object to personal

jurisdiction); cf. Caucus Distribs. v. Md. Sec. Comm’r, 320 Md. 313, 336-37 (1990)

(holding that voluntary “appearance and participation in [administrative] proceedings . . .

waived any deficiency in the alleged failure of service of process”). We therefore discern

15 The Department contends that it argued that it was “not a party” in both its initial opposition and its reply to Mr. Esteppe’s supplemental brief. Although the Department stated in those filings that it was not a party, it did so only in the context of arguing that no judgment was entered against it and so Mr. Esteppe could not pursue recovery directly from the Department—at all. The Department did not argue that Mr. Esteppe was required to file an action naming it as a defendant; to the contrary, the Department’s argument was that Mr. Esteppe could not do so—either in the tort action or in a separate action—absent an assignment from Mr. Lewellen of his right to indemnification. 16 “[A] general appearance by an individual is a submission to the personal jurisdiction of the court over that person.” Caucus Distribs. v. Md. Sec. Comm’r, 320 Md. 313, 337 (1990). “Once a party speaks to the merits of a case, the individual has made ‘a voluntary appearance, submitting himself to the jurisdiction of the court for all subsequent proceedings.’” LVI Envtl. Servs, 106 Md. App. at 707 (quoting Guen v. Guen, 38 Md. App. 578, 587 (1978)). 30 no reversible error in the circuit court’s decision to address the merits of Mr. Esteppe’s

motion.

II. THE CIRCUIT COURT ERRED IN GRANTING MR. ESTEPPE’S MOTION.

We now reach the Department’s principal contention on appeal: that the motions

court committed reversible error in finding that Mr. Lewellen acted within the scope of his

employment. The Department presents three different grounds for its assertion of error.

First, the Department contends that because Mr. Lewellen’s tort was a serious criminal

violation, it was not within the scope of his employment as a matter of law. Second, the

Department argues that the record does not support the circuit court’s conclusion that

Mr. Lewellen’s conduct was motivated by a purpose to serve the Department’s interests,

even in part. Third, the Department contends that Mr. Esteppe was estopped from even

arguing that Mr. Lewellen’s tort was motivated by a purpose to serve the Department’s

interests because of positions he took in successfully litigating his claim against

Mr. Lewellen. We begin by reviewing the Court of Appeals’s recent decision in Baltimore

City Police Department v. Potts, 468 Md. 265 (2020), which will control our analysis of

the Department’s first two contentions.

A. Baltimore City Police Department v. Potts

In Potts, the Court of Appeals reaffirmed the standard for determining whether a

tortfeasor employee’s actions were undertaken within the scope of employment, as

previously set forth in Sawyer v. Humphries, 322 Md. 247 (1991). In Sawyer, the Court

had restated “[t]he general test set forth in numerous Maryland cases for determining if an

employee’s tortious acts were within the scope of his employment.” 322 Md. at 255. That

31 general test “is whether the[] [acts] were in furtherance of the employer’s business and

were ‘authorized’ by the employer.” Id.

Because Potts is dispositive of the Department’s primary argument and sets the

standard by which we must assess the Department’s secondary argument, we will discuss

it in some detail. The decision in Potts disposed of two separate cases in which tort

plaintiffs were seeking to collect from the Department judgments they had obtained against

former Department officers who were part of the now-notorious Gun Trace Task Force

(“GTTF”).17 468 Md. at 271. In one case, the tort plaintiff, Mr. Potts, was walking when

GTTF officers, acting without reasonable articulable suspicion, stopped him, “beat him,

searched him, and found no contraband.” Id. at 272. They then “planted a handgun on

Potts, arrested him, and falsely stated in police reports that he had possessed the handgun.”

Id. They also “falsely testified that they had recovered the handgun from him.” Id. “The

officers did not steal or take anything of value from Potts,” who ended up receiving a

sentence of eight years’ imprisonment, of which he served 19 months before his conviction

was vacated. Id. In the other case, the tort plaintiff, Mr. James, was driving when GTTF

officers, without reasonable articulable suspicion, stopped his vehicle and “demanded that

James provide the name of a person who possessed drugs or a gun.” Id. When he did not

provide a name, “the officers falsely alleged that a handgun, that they had provided,

17 The GTTF was “a specialized unit” within the Department “charged with interdicting illegal firearm activities in Baltimore City.” Potts, 468 Md. at 318. In 2017, members of the GTTF were discovered to “ha[ve] engaged in what has been described as ‘a wide-ranging, years-long racketeering conspiracy,’ which resulted in the officers being prosecuted and convicted in the United States District Court for the District of Maryland.” Id. at 271; see id. at 278-81. 32 belonged to James and arrested him.” Id. As with Mr. Potts, “[t]he officers did not steal

or take anything of value from James,” who spent seven months in custody awaiting trial

before being released. Id.

Both tort plaintiffs settled lawsuits against the GTTF officers for $32,000, and the

officers assigned the plaintiffs their “right to indemnification from the City under [Courts]

§ 5-303(b)(1) and the collective bargaining agreement between the Department and its

officers’ union.”18 Id. at 272-73. Both cases eventually came before the Court of Appeals

based on agreed-upon factual stipulations. Id. at 273. The primary issue before the Court

was whether the GTTF officers were acting within the “scope of employment,” for

purposes of the LGTCA, at the time of their tortious conduct. Id. at 273-74. The

Department contended that the officers were not acting within the scope of employment,

as a matter of law, because “their actions were outrageous, personally motivated, and

willfully criminal.” Id. at 274. Conversely, the tort plaintiffs argued “that the officers

acted within the scope of employment as there is no evidence that the officers personally

benefitted from their actions—i.e., the officers’ actions were designed to further the

interests of the Department, not the officers.” Id.

The Court of Appeals first conducted an extensive review of the LGTCA and the

meaning of “scope of employment” under Maryland law. In doing so, the Court focused

in particular on its opinion in Sawyer. Id. at 283-84, 286-91. There, the Court had

explained that

18 Presumably because of these assignments, these cases did not present any of the issues we addressed above in Part I. 33 To be within the scope of [ ] employment[,] the [employee’s] conduct must be of the kind [that] the [employee] is employed to perform[,] must occur during a period [that is] not unreasonably disconnected from the authorized period of employment[, must occur] in a locality [that is] not unreasonably distant from the authorized area, and [must be] actuated[,] at least in part[,] by a purpose to serve the [employer].

Id. at 289 (alterations in Potts) (quoting Sawyer, 322 Md. at 255).

In establishing the framework for its analysis, the Court in Potts explained that in

Sawyer it had set forth “a two-pronged ‘general test’ for whether an employee acted within

the scope of employment.” Potts, 468 Md. at 271. “The first prong of the Sawyer test is

whether the employee’s actions ‘were in furtherance of the employer’s business[,]’ and the

second prong is whether the employer ‘authorized’ the employee’s actions.” Id. (quoting

Sawyer, 322 Md. at 255). “[A]n employee’s actions are outside the scope of employment

where they are ‘personal, [ ] where they represent a departure from the purpose of

furthering the employer’s business, or where the employee is acting to protect [the

employee’s] own interests, even if during normal duty hours and at an authorized

locality.’”19 Id. at 290 (quoting Sawyer, 322 Md. at 256-57).

The Court in Potts discussed several appellate cases in which it and this Court had

applied the Sawyer test. In Sawyer itself, the Court held that a law enforcement officer’s

actions in throwing rocks at the plaintiff during the first of two encounters, when the officer

19 The Court in Sawyer made this point in the specific context of police conduct, citing numerous cases across jurisdictions for the proposition that “[e]ven though a police officer may be said to be ‘on duty’ all of the time, . . . a police officer acts outside the scope of [] employment where [the officer] acts for [the officer’s] own personal reasons and not in furtherance of [the] employer’s law enforcement function.” 322 Md. at 259 (citing cases). 34 “was acting from personal motives,” were not within the scope of employment. Potts, 468

Md. at 290-91 (quoting Sawyer, 322 Md. at 257-58). The officer’s actions during a second

encounter—which involved stopping the plaintiff and attempting to make an arrest—were

less clear and so should have been resolved by a jury. Potts, 468 Md. at 291. The Court

then discussed other cases that had adhered to this same framework. See id. at 291-302

(discussing Houghton v. Forrest, 412 Md. 578, 582-83, 592-93 (2010) (holding that a

defendant officer acted within the scope of employment in directing other officers to arrest

the tort plaintiff, who the defendant believed had been involved in a drug deal); Wolfe v.

Anne Arundel County, 374 Md. 20, 22, 34 (2003) (concluding that an officer was not acting

in the scope of employment when he raped a woman during a traffic stop); Ennis v. Crenca,

322 Md. 285, 288, 294-96 (1991) (concluding that a county councilwoman who allegedly

defamed the plaintiff by publicly reporting his alleged bribe was not acting in the scope of

her public duties because those duties did not encompass that act); Prince George’s County

v. Morales, 230 Md. App. 699, 705, 727 (2016) (holding that scope of employment was a

jury issue where an off-duty law enforcement officer who had been hired to work security

at a college fraternity party allegedly “punched [a partygoer] in the face, pinned him on the

ground,” and put him in a chokehold); Clark v. Prince George’s County, 211 Md. App.

548, 578-79, 590 (2013) (holding that an officer acted outside the scope of employment in

shooting delivery people at the officer’s residence); Brown v. Mayor & City Council of

Baltimore, 167 Md. App. 306, 310, 324-27 (2006) (concluding that an officer who

murdered his wife’s lover had not acted within the scope of employment because his

actions “were completely personal”).

35 Turning back to the cases before it, the Court in Potts determined that, in each, the

conduct of the GTTF officers “satisfie[d] the test for conduct within the scope of

employment that this Court set forth in Sawyer.” 468 Md. at 305. Drawing on the

principles enunciated in Sawyer—which the Court confirmed to be “the framework for

analyzing whether an officer acted within the scope of employment”—the Court engaged

in the required “case-specific analysis,” id. at 306, as to which “there are few, if any,

absolutes,” id. (quoting Sawyer, 322 Md. at 255).

Regarding the first prong of Sawyer, the Court “conclude[d] that the officers’

actions were in furtherance of the Department’s business because they were at least

partially motivated by a purpose to serve the Department, and because there [wa]s no

indication that the officers were ‘acting to protect [their] own interests.’” Potts, 468 Md.

at 306 (second alteration in Potts) (quoting Sawyer, 322 Md. at 257). The Court observed

that the actions the officers engaged in—“includ[ing] stopping, searching, questioning, and

arresting individuals, authoring police reports, and testifying against criminal

defendants”—were all standard police activities. Potts, 468 Md. at 306. Thus,

notwithstanding that the officers’ conduct was “egregious,” and even though they “lacked

probable cause or an arrest warrant,” the nature of the conduct itself “favor[ed] concluding

that the officers acted within the scope of employment.” Id. at 307.

Furthermore, and as will be particularly relevant to our analysis, the factual

stipulations “include[d] no evidence that in these two instances . . . the officers attempted

to plant the handguns to serve their own interests, or that the officers’ motives were

anything other than to arrest. In the absence of such evidence, we cannot say that the

36 officers acted outside the scope of employment.” Id. at 309. Reviewing the cases in which

the Court (and this Court) had previously found that employees were acting outside the

scope of employment, the Court noted a common thread “that the government employees

were serving their own interests, not those of the governments that employed them.” Id. at

309-10. The Court emphasized once again that the factual “stipulations in Potts and James

contain no indication that the officers were serving their own interests in arresting Potts

and James.” Id. at 309.

The Court then turned to, and rejected, the Department’s argument that

“unprovoked, highly unusual, and quite outrageous” conduct is always outside the scope

of employment. Id. at 311 (quoting Sawyer, 322 Md. at 257). The Court did not disavow

its statement in Sawyer that “courts tend to hold that” such conduct “in itself is sufficient

to indicate that the motive was a purely personal one,” id. (quoting Sawyer, 322 Md. at

257), but reaffirmed that “[t]his language does not establish a hard-and-fast rule,” id. at

312.

In assessing the second prong of the Sawyer test, the Court observed that “the

Department did not expressly authorize the officers’ misconduct.” Id. However, “conduct

may nonetheless be considered authorized where it was ‘incident[al] to the performance of

the duties’ that the employer entrusted to the employees.” Id. (quoting Sawyer, 322 Md.

at 255). To determine whether that was the case, the Court considered each of ten factors

it had laid out in Sawyer “for determining whether an employee’s actions were incidental

[to] those that the employer authorized.” Potts, 468 Md. at 312. Those factors are:

(a) whether or not the act[ions are] commonly done by such [employee]s;

37 (b) the time, place[,] and purpose of the act[ions];

(c) the previous relations between the [employer] and the [employee];

(d) the extent to which the business of the [employer] is apportioned between different [employee]s;

(e) whether the act[ions are] outside the enterprise of the [employer] or, if within the enterprise, ha[ve] not been entrusted to any [employee];

(f) whether or not the [employer] has reason to expect that such [ ] act[ions] will be done;

(g) the similarity in quality of the act[ions that were] done to the act[ions that were] authorized[ by the employer];

(h) whether or not the instrumentality by which the harm is done has been furnished by the [employer] to the [employee];

(i) the extent of departure from the normal method of accomplishing an authorized result[;] and

(j) whether or not the act[ions are] seriously criminal.

Id. at 289-90 (paragraph breaks added) (other alterations in Potts) (quoting Sawyer, 322

Md. at 256).

After assessing each factor individually, the Court ultimately concluded that, on

balance, they “weigh[ed] in favor of determining that the officers’ misconduct is to be

considered authorized.” Potts, 468 Md. at 318. The Court deemed it “[m]ost notabl[e]”

that “the officers were part of a specialized unit charged with interdicting illegal firearm

activities in Baltimore City, and there was no indication that they were acting for their own

personal benefit in stopping and arresting Potts and James and in engaging in the associated

misconduct.” Id. (emphasis added). On that basis, the Court held that the GTTF “officers’

actions were within the scope of employment, and, under [Courts] § 5-303(b)(1), the City

and the Department are liable for the settlements.” Id. at 320. The Court reiterated that 38 future questions regarding scope of employment, even as to former GTTF officers, would

require “courts [to] engage in a case-specific analysis and take into account all relevant

considerations—including, if necessary, the ten factors that this Court set forth in Sawyer,

for determining whether an employee’s actions were incidental to those that the employer

authorized.” Potts, 468 Md. at 319 (citing Sawyer, 322 Md. at 255-56).

B. Mr. Lewellen’s Conduct Was Not Outside the Scope of His Employment Based Solely on Its Illegal and Tortious Nature.

In briefs filed before the Court of Appeals decided Potts, the Department’s lead

argument was that Mr. Lewellen’s conduct was outside the scope of his employment as a

matter of law because it was “unprovoked, highly unusual, and quite outrageous.” (quoting

Sawyer, 322 Md. at 257). The Court of Appeals rejected that argument in Potts, holding

that “[t]he illegality or tortious nature of the employee’s actions alone does not establish

that the conduct was outside the scope of employment.” 468 Md. at 318. The unprovoked,

unusual, and outrageous character of Mr. Lewellen’s actions is thus a relevant

consideration, but not a dispositive one.

C. The Motions Court Erred in Determining that the Record Established that Mr. Lewellen’s Conduct Was Within the Scope of His Employment.

We turn, therefore, to the first prong of the Sawyer test: “whether the employee’s

actions ‘were in furtherance of the employer’s business.’” Potts, 468 Md. at 271 (quoting

Sawyer, 322 Md. at 255). Here, the only evidence before the Court in assessing

Mr. Esteppe’s motion was the record developed in the underlying tort action against

39 Mr. Lewellen. Neither party offered or sought the opportunity to present any additional

evidence at that stage.

In assessing whether Mr. Lewellen acted within the scope of his employment, the

motions court provided the following analysis:

For an act/omission to be considered within the scope of employment, an employee’s conduct, a) must be of a kind the employee is employed to perform, b) must occur during a period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distant from the authorized area, and c) must be actuated at least in part by a purpose to serve the master. Fidelity First Home Mortgage Co. v. Williams, 208 Md. App. 180, 203 (2012).

By that gauge, Lewellen was clearly within the scope of employment. Executing a search warrant to seize an illegal firearm is exactly the type of conduct for which Lewellen was employed. As the search was executed whilst Lewellen was on duty, and in a jurisdiction for which Lewellen had police powers, the conduct occurred in an authorized area. A primary goal of the [Department] in recent years is the seizure of illegal firearms and the arrest of those in possession of those weapons, and therefore the search, however motivated, furthered a purpose of Lewellen’s master, the [Department].

Indeed, when considering the issue at trial, [the trial judge] similarly concluded:

And it’s undisputed that this officer [Lewellen] was working. It’s undisputed that it was a search and seizure warrant. It’s undisputed that he [Lewellen] went through the ministerial duties of filling out the probable cause statement, and filling out the Affidavit, and going to [the issuing judge] . . . .

Therefore, I conclude that the [Department] is liable for the judgment held by Esteppe against Lewellen, and Esteppe’s motion for a declaratory judgment as to the [Department] is GRANTED.

(Internal footnote omitted) (emphasis added).

In stating that Mr. Lewellen’s conduct in seeking and executing a search warrant

was “the type of conduct for which [he] was employed,” the motions court was

40 undoubtedly correct, as it was in observing that one of the Department’s “primary goal[s]”

generally “[wa]s the seizure of illegal firearms and the arrest of those in possession of those

weapons.” But the motions court was incorrect in dismissing Mr. Lewellen’s motivation

for his actions as irrelevant in the scope of employment inquiry. As reaffirmed in Potts,

whether an officer’s actions “were at least partially motivated by a purpose to serve the

Department,” Potts, 468 Md. at 306, as opposed to “acting to protect [the officer’s] own

interests,” id. (quoting Sawyer, 322 Md. at 255-57), is the very heart of the first prong of

the Sawyer test.20 It is thus notable that the motions court did not identify any evidence in

the record that Mr. Lewellen’s actions were motivated by a purpose to serve the

20 Courts in other states that have held that government entities can be liable in respondeat superior for tortious acts committed by police officers with purely personal motives generally either: (1) apply different principles of vicarious liability that do not consider whether the tortious acts were committed within the scope of employment, see, e.g., Sherman v. State Dep’t of Pub. Safety, 190 A.3d 148, 154, 180-81 (Del. 2018) (en banc) (owing to the unique “coercive power that distinguishes [police officers] from most employees,” treating vicarious liability for their actions under the principles of § 219 of the Restatement (Second) of Agency, which addresses “‘situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment’” (quoting Restatement (Second) of Agency § 219 cmt. e (1958))); or (2) apply a test for scope of employment that does not consider the employee’s motivation, see, e.g., Mary M. v. City of Los Angeles, 814 P.2d 1341, 1349 (Cal. 1991) (in bank) (in applying California law, not considering employee’s motivation in determining whether to extend vicarious liability); Cox v. Evansville Police Dep’t, 107 N.E.3d 453, 461 (Ind. 2018) (Under Indiana law, “the scope of employment . . . may include acts “that the employee commits for self-gratification or self-benefit . . . .”). In Maryland, however, the LGTCA conditions the local government’s liability on the employee acting within the “scope of employment,” Cts. & Jud. Proc. § 5-303(b)(1), and the Court of Appeals in Potts has just reaffirmed adherence to the Sawyer test, 468 Md. at 271, which provides that, to fall within the scope of employment, a police officer’s tortious conduct must be “actuated at least in part by a purpose to serve the [employer],” id. at 289 (quoting Sawyer, 322 Md. at 255). 41 Department. Mr. Lewellen also has not identified any such evidence, nor have we found

any.

To the contrary, the only evidence in the record before the motions court regarding

Mr. Lewellen’s motive indicates that he was acting to further his own interests. In that

regard, the record reflects:

• “[Mr. Lewellen] knew a young lady by the name of Ms. Brandi Chelchowski. He had been friends with her for years and their relationship was a close one.”

• After Mr. Esteppe ended his relationship with Ms. Chelchowski, “[s]he became more aggressive and threatening towards Mr. Esteppe to include saying things to the effect, ‘I have cop friends and you’re going down.’ Most specifically, on March 19, 2012, . . . she . . . said again something to the effect of, ‘You’re going down next week.’”

• On March 27, 2012, Mr. Lewellen applied for and obtained a search warrant for Mr. Esteppe’s home by swearing out an affidavit in which he stated, falsely, that he had a confidential informant complete a drug buy from Mr. Esteppe, and that Mr. Lewellen had witnessed the transaction.

• On March 27, Mr. Lewellen “was the lead on th[e] execution of that search warrant.”

• Mr. Esteppe testified that “a bunch of men . . . with guns pointed at [him]” and “yelling, ‘Police’ . . . bust[ed] in” his front door. The officers, including Mr. Lewellen, searched Mr. Esteppe’s home, seizing two firearms and a scale.

• At some point during the search, Mr. Lewellen said in Mr. Esteppe’s presence, “Brand[i] led us to it.”

This evidence led the trial court to conclude, by a preponderance of the evidence, that

Mr. Lewellen had conspired with Ms. Chelchowski, and this Court agreed that his

“fraudulent application for the search warrant was surely an act committed in furtherance

of that agreement.” Lewellen v. Esteppe, No. 2009, Sept. Term 2014, 2015 WL 7941110, 42 at *16 (Dec. 4, 2015). The record contains no countervailing evidence that his actions were

actuated, even in part, by a purpose to serve the interests of the Department.

Notably, Mr. Esteppe’s characterizations of the evidence throughout the underlying

tort action are to the same effect, as his attorneys successfully argued:

• “And we submit, Your Honor, that this conduct of the Defendant, Mr. Lewellen, was . . . motivated by his desire to please and remain in a relationship with [Ms.] Chelchowski.”

• “[S]ubsequent to Mr. Esteppe breaking up with Ms. Chelchowski, she got involved in a relationship with the Defendant, Adam Lewellen. And then she encouraged him – as we understand it – to basically bring down Mr. Esteppe. So the motivation was to please her, and not to get Mr. Esteppe.”

• “[H]e knew that this woman – who he knew, he was friends with – had broken up with David Esteppe, and . . . in fact, what maybe she knew or didn’t know at that time was that Lewellen was trying to make headway with her. So, for all of the wrong motives, he was using his power – he was abusing his authority – to try to cause pain, which he succeeded in doing to someone else. . . . [His] real motive was the intentional infliction of emotional distress.”

• “Mr. Lewellen[] entered into an illegal agreement with this woman who was the former girlfriend of Mr. Esteppe – and whom he was trying to court to become his girlfriend. . . .

“[Mr.] Lewellen and [Ms. Chelchowski] entered an agreement to in essence, destroy Mr. Esteppe. And based upon that agreement – which he was all too willing to do, because he wanted to get in tight with her – he, through his agreement with her, led to conduct on his part that he was so, so trying to impress her that he was willing to put his career on the line. And in fact, he did put his career on the line, and destroyed it by going to a judge and lying under oath and obtaining a Warrant and going to Mr. Esteppe’s house.”

• “Imagine going outside this courthouse, and running into somebody, and ask what their reaction was to a Baltimore City Police Officer – who was trying to get in good with a girl to become his girlfriend – and he did all this stuff. . . . I think the average person on the street

43 would be outraged that a Baltimore City Police Officer could get away with that.”

At no point during the underlying proceeding did either party identify a motive for

Mr. Lewellen’s conduct other than his purely personal desire to please Ms. Chelchowski.

Mr. Esteppe argues that even if we conclude that Mr. Lewellen’s actions were driven

in part by personal motives, the record reflects that his actions were also motivated at least

in part by a desire to further the Department’s purposes because: (1) he was performing

police activities before and during the search; (2) he conducted the search in a manner

consistent with the furtherance of law enforcement objectives; (3) he achieved a law

enforcement purpose by successfully recovering firearms that Mr. Esteppe possessed

unlawfully; and (4) there was no conclusive proof that he acted for purely personal reasons.

Regarding the first two points, although many of Mr. Lewellen’s actions appeared to be

police activities of the type police officers working within the scope of employment would

ordinarily perform, that is not dispositive. If it were, the Court of Appeals in Potts would

not have repeatedly emphasized the absence of evidence of a personal motive on the part

of those officers. See 468 Md. at 274-75, 309-10, 313, 318. Here, the only evidence before

the motions court indicates that Mr. Lewellen’s motives were personal.

Regarding the third point, the scope of employment analysis does not turn on

serendipity. The circuit court concluded that the perjured affidavit and subsequent search

of Mr. Esteppe’s home served a purpose of the Department because it resulted in the seizure

of illegally possessed firearms. But that seizure was entirely fortuitous because the warrant

was authorized only as a result of Mr. Lewellen’s false allegation that Mr. Esteppe was a

44 drug dealer. The record is devoid of any reason to believe that Mr. Lewellen thought

Mr. Esteppe possessed illegal firearms.21 It cannot be the case that the determinant of

whether a police officer was acting within the scope of his employment when carrying out

a personal vendetta is whether the officer fortuitously discovers that the object of the

vendetta has engaged in some criminal act.

Finally, Mr. Esteppe bore the burden to prove that Mr. Lewellen acted, even in part,

to further the Department’s interests; the law does not require the Department to disprove

that beyond all doubt. It is therefore enough that the record submitted in connection with

Mr. Esteppe’s motion contains evidence of only one motive for Mr. Lewellen’s actions—

a personal desire to please Ms. Chelchowski. Because Mr. Esteppe failed to establish,

based on undisputed facts in the record before the motions court, that Mr. Lewellen’s

actions were actuated at least in part by a purpose to serve the Department, he failed to

satisfy the first prong of the Sawyer test.22 As a result, the motions court erred in entering

21 In Mr. Lewellen’s search warrant affidavit, firearms and ammunition were included in the list of items to be seized based only on Mr. Lewellen’s boilerplate attestation that firearms and ammunition, among many other items, were generally maintained by drug-traffickers “in connection with their drug-trafficking activities.” Tellingly, as the Department points out, had Mr. Lewellen had knowledge sufficient to establish probable cause that Mr. Esteppe illegally possessed firearms, he would have had no reason to make his false allegations about the confidential informant and drug dealing. 22 Because we conclude that Mr. Esteppe could not satisfy the first prong of the Sawyer test based on the factual record before the motions court, we need not address the second prong of that test. We also decline to address the Department’s alternative argument that Mr. Esteppe was estopped from arguing that Mr. Lewellen was motivated by a desire to further the Department’s interests because of positions Mr. Esteppe had taken previously in the litigation. Before the circuit court, the Department made that argument only in a footnote and the circuit court did not decide the issue. If the Department raises 45 what was, in effect, summary judgment in favor of Mr. Esteppe. We will, therefore, reverse

the circuit court’s judgment and remand for further proceedings consistent with this

opinion.23

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY REVERSED. CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY APPELLEES.

the issue on remand, the circuit court will have the opportunity to consider it in the first instance. 23 As we noted at the outset of our discussion, we treat Mr. Esteppe’s “Motion for Declaratory Relief to Enforce Judgment” as a motion for summary judgment on the issue of the Department’s liability. The Maryland Rules do not contemplate a “motion for declaratory relief,” neither party filed a complaint for declaratory judgment, and the court did not conduct a trial. The Department also did not file its own motion for summary judgment. In the current procedural posture, we do not think the question of whether the record would have supported a judgment in favor of the Department is properly before us. On remand, it will be appropriate for the court to direct Mr. Esteppe to file an appropriate pleading on which further proceedings may take place. 46