text:
    GENE THOMAS MEYER v. STATE OF MARYLAND
    [No. 699,
    September Term, 1980.]

      Decided February 6, 1981.

      The cause was argued before Thompson, Wilner and Couch, JJ.

      John T. Bell and Elbert R. Shore, with whom were Frank S. Cornelius, Alfred L. Rehder, James R. Clifford, Richard S. Ulf, Andrew Askland and Bell, Cornelius & Shore on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph C. Sauerwein, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

On April 26, 1978, a jury in the Circuit Court for Prince George’s County found appellant guilty of the first degree murder of Carol Lewis and the second degree murder of Heather Lewis. The victims were, respectively, the wife and infant daughter of one Lon Alec Lewis; and it was alleged that, the murders were committed pursuant to an agreement with Mr. Lewis — that they were, in colloquial terms, "contract murders.” Appellant ultimately was sentenced to consecutive terms of life and thirty years imprisonment for those crimes, and the convictions were affirmed on appeal. See Meyer v. State, 43 Md. App. 427 (1979), cert. den. 286 Md. 750, cert. den. 446 U.S. 938, 64 L. Ed. 2d 792 (1980). Lewis was also tried and convicted for his complicity. See Lewis v. State, 285 Md. 705 (1979).

Appellant was not sentenced on April 26. The court deferred sentencing pending (possibly among other things) receipt of a presentence investigation report; and appellant was lodged at the Prince George’s County Detention Center during the interim.

While at the Center awaiting sentencing, appellant attempted to set in motion a plan for four more killings. Specifically, according to the record before us, he sought to arrange for the killing of his wife, Mr. Lewis, and two police officers who had investigated the Lewis killings and succeeded in extracting a confession from him (Detectives Hatfield and Morrissette). Fortunately for the intended victims, but unfortunately for appellant, the person he solicited to carry out or arrange for these executions was an undercover State policeman, Frank Mazzone, who recorded the two conversations he had with appellant pertaining to this scheme.

By reason of these activities, appellant was charged with four counts of solicitation of murder — one count for each intended victim. He was convicted on all four counts, given four consecutive sentences of twenty years each (consecutive to the life plus thirty already being served), and now appeals. He claims:

"1. The Trial Judge Erred In Denying Appellant’s Motion For Judgment Of Acquittal Where The Evidence Indicated That The Appellant Solicited Mazzone Not To Murder The Intended Victim As Charged But Rather To Solicit Others To Carry Out The Intended Murder And In Instructing The Jury That The Appellant Should Be Found Guilty If It Was Proven That He Solicited Mazzone To Have The Murders Committed.
2. The Trial Judge Erred In Imposing Four (4) Consecutive Twenty (20) Year Sentences Upon The Appellant Where The Criminal Act Of The Appellant Was One Continuous Series Of Conversations Wherein He Made The Solicitation.
3. The Trial Judge Erred In Denying Appellant’s Motion To Suppress The Tapes Recording The Conversations Between Himself And Mazzone Where The Statements Of The Appellant Were Obtained By The Police In Violation Of Appellant’s Constitutional Right To Counsel.”

We find no merit in any of these contentions.

Appellant’s initial contact with regard to his plan was with Joseph Walker, a co-inmate at the Detention Center. He asked whether Walker knew "anyone who did contract killings or hits.” Walker responded in the affirmative, whereupon, according to Walker, appellant "asked me if I could arrange for a killing.” He did not tell Walker who the victim or victims were to be. Walker passed this information on to a Prince George’s County policeman, for whom he had served as an informant. With the concurrence of the State’s Attorney’s Office, it was arranged for Captain Mazzone, of the State Police, to play the role of Vince Rinaldo, an agent for two "hit men” and, wearing a secret transmitter, to meet with appellant at the Detention Center and find out more about what he had in mind.

. Two meetings took place, and in both instances the conversation was recorded and transcribed. At the first meeting, on May 8,1978, appellant very clearly importuned Mazzone to kill, or to arrange for others to kill, appellant’s wife. At the second conversation, on May 15,1978, there was further discussion about the liquidation of the wife and additional importunings of Mazzone to kill, or to arrange for others to kill, the two police officers and Lon Alec Lewis.

The conversations tended to ramble a bit, but what essentially came through was this:

(1) As to the wife, appellant explained that he was upset with her because she failed to testify in his behalf. She was then living in Puerto Rico, and, in order to facilitate the execution, appellant told Mazzone in some detail what her living arrangements were. He described his wife’s appearance and also made arrangements for Mazzone to obtain a picture of her from appellant’s apartment.

(2) There was a great deal of discussion about the fee for murdering the wife, the parties finally agreeing on $40,000. Appellant promised a deposit of $1,000 "up front,” to be taken from an existing bank account in Minnesota, with the balance to be paid from the proceeds of a $100,000 insurance policy on the wife’s life. Indeed, as that policy was about to lapse because of nonpayment of premiums, appellant insisted that the killing take nlace before May 15. He told Mazzone that he didn’t care what method was used, but would leave that up to the actual executioner. Appellant did, in fact, later procure a $1,000 money order payable to Vince Rinaldo which he caused to be sent to Mazzone.

(3) The scheme to kill the two officers and Lewis came up in the second conversation, which was initially prompted by the fact that Mazzone had not yet received the $1,000 deposit. After some discussion about that and some further conversation about the execution of the wife, appellant broached the subject of killing the two officers. He told Mazzone that he didn’t want them around as witnesses in the event of a second trial. There was no rush about doing away with the officers; as appellant put it, "I suppose anytime, they say a year before the appeal, so anytime within the next year, so its [sic] not really pushing it.”

Notwithstanding the permissible delay in implementation, appellant and Mazzone did arrive at a definite agreement as to their ultimate disposition. Appellant gave Mazzone the names of the officers and told him where they worked. They agreed on a fee of $80,000 for the two officers, over and above the $40,000 for the wife.

(4) Lewis was almost an afterthought. Near the end of the second conversation, appellant indicated a desire to be rid of him as well. This part of the conversation is most relevant:

"FRANK (MAZZONE): All right, what do you want to do with him?

GENE (APPELLANT): Um, same thing with Hatfield or Morrisette [the two officers] if that’s... .

FRANK: Is he on the street right now

GENE: No, he’s up here — second floor

FRANK: Does he know your [sic, you’re] here?

GENE: Disappears or if he dies, people collect_ .people ask too many questions here.

FRANK: You, you do want him dead, or you don’t.

GENE: I do.”

Ultimately, it was agreed that Mazzone should wait until Lewis was transferred from the Detention Center to the State prison where the killing would be easier to accomplish. Appellant promised an additional fee of $9,000 for Lewis.

Walker had told appellant that Mazzone was a "legal representative of . . . two professional hitmen.” Mazzone never represented himself as a lawyer, and in fact never made clear to appellant what his supposed relationship was with whomever was to commit the murders. Indeed, there is nothing in the transcript of the conversations to foreclose the possibility that Mazzone himself would be the actual "hitman.” Throughout the conversations, when referring to the killings, Mazzone used the plural pronoun "we” — "Then we do the job,” "if we got to go to Pureto Rico . . .,” "what do you want to show that we did the job? We bring you something back?” ”we got a standard way we do things.” By way of contrast, when referring to things he individually would do, such as retrieve the picture of appellant’s wife from his apartment, Mazzone used the singular pronoun, "I.” In short, although he said nothing directly to dispel any notion that he was merely an agent for others, Mazzone, in his own conversations with appellant, clearly portrayed himself as an integral part of a group willing to carry out contract murders, without indicating who would actually "do the job.”

With this background, we may dispose of appellant’s complaints.

(1)

Appellant’s first challenge, both as to the sufficiency of the evidence and the jury instructions, rests upon the premise that Mazzone was acting solely as an agent for others rather than as the "hitman” himself, and that his entreaties to Mazzone were made upon that understanding. His argument is a technical one, proceeding from this syllogism: (i) In Maryland, the common law crime of solicitation requires as its object the commission of a felony; (ii) the evidence here establishes at best (or worst) an importuning of Mazzone to enter into a conspiracy to have other persons commit the murders and not to commit the murders himself; (iii) the entering into a conspiracy in Maryland is a misdemeanor; (iv) ergo, as the sole object of his entreaties to Mazzone was the commission of a misdemeanor, he cannot be adjudged guilty of common law solicitation.

We need not examine in any detail the correctness of appellant’s asserted legal propositions because his factual predicate for them is incorrect. For one thing, Mazzone’s testimony and the transcript of the conversations with appellant permit a fair and reasonable inference that Mazzone/Rinaldo was negotiating as a potential "hitman” himself or as one who would not only arrange the killings but be present at the scene of their commission. Even accepting appellant’s view that Mazzone was merely an agent not intending to commit the murders (or be present at their commission), he nevertheless would clearly have been an accessory before the fact had the murders actually been committed by his "clients.” At the very least, Mazzone/Rinaldo’s role was to aid, counsel, command, or encourage the commission of the killings. In either case, whether his role was that of actual participant or accessory before the fact, he would have been culpable as a principal had the murders been committed by reason of his efforts. See State v. Ward, 284 Md. 189 (1978).

It is clear, therefore, that the object of appellant’s solicitation was for Mazzone to commit murder, a felony; and thus, even under the Cherry dicta, the evidence sufficed to establish the crime of criminal solicitation.

(2)

Appellant next asserts, in a somewhat confused fashion, that the imposition of four consecutive sentences was inappropriate since, at best (or worst) only one criminal solicitation was involved. The object or thrust of his argument is clear — he seeks to vacate at least three of the sentences — but the argument itself is ambiguous in terms of both the precise nature of the complaint and the legal theory offered in support of it.

The contention is initially framed in his brief, and was expounded at oral argument, as an attack only upon the multiple sentences and not upon the underlying multiple convictions. Yet the basis of his complaint is the assertion that only one criminal act occurred, which, if true, would impact as much, if not more, upon the validity of the several convictions as upon the sentences imposed on them. In laying out his theory, he weaves back and forth between the argument that only one incitement took place and the contention that the doctrine of merger, as laid down in Newton v. State, 280 Md. 260 (1977), is applicable, which presupposes the existence of separate crimes that, under common law, or Constitutional double jeopardy strictures, have to be merged one into the other.

In order to address the issue, we first have to define it. Ordinarily, if an appellant limits his attack to the sentence, we will not consider any non-jurisdictional defect in the underlying conviction. Maryland Rule 1085. Here, however, given the nature of appellant’s complaint, it would be impossible for us to consider his objection solely in the context of the multiple sentences; it so obviously relates to the multiple convictions as well that we must, of necessity, consider and resolve the broader question of whether it was proper to charge, convict, and sentence appellant on four separate counts of solicitation upon the evidence in this case. Consecutive sentences are permissible only for distinct violations of law. Kaylor v. State, 285 Md. 66 (1979).

Having set the question for review, we turn to the legal issue which, as we have observed, is also a bit muddled. Appellant’s most elemental position is that the gist of a criminal solicitation is the incitement, and that the evidence here established but one such incitement, notwithstanding that multiple victims were involved. He draws an analogy in this regard to the crime of conspiracy, the gist of which is the unlawful agreement among the conspirators; and, pointing to cases such as Braverman v. United States, 317 U.S. 49 (1942), he argues that a single agreement to commit more than one unlawful act is still but one conspiracy for which but one punishment may be imposed. The same rule, he claims, applies to a criminal solicitation.

This does seem to be the real issue here — not whether there are separate crimes that should be merged, but whether there were, in the first place, separate crimes established by the evidence. If, assuming arguendo the validity of appellant’s analogy to the crime of conspiracy, the evidence showed only one act of incitement, there would arise only one act of criminal solicitation and thus nothing to merge. If, on the other hand, thé evidence sufficed to establish separate and distinct acts of incitement, there would arise several act of solicitation, and they would not be mergeable under the concepts enunciated in Newton, supra. Each solicitation would stand entirely on its own under the "required evidence” or any other cognizable test. The issue, then, is not one of merger, but of evidentiary sufficiency in light of the nature of the crime of criminal solicitation.

We are, to some extent, in truly virgin territory. We have been neither directed to nor able to locate any reported decision in the United States or in the common law nations of the British Commonwealth precisely on point — determining whether an entreaty to kill more than one person constitutes distinct incitements and thus permits conviction and punishment for more than one act of criminal solicitation. Compare State v. Furr, 235 S.E.2d 193 (N.C. 1977), cert. denied, 434 U.S. 924, in which the issue was mentioned but not decided, and see also Regina v. Most, 7 Q.B.D. 244 (1881), involving a converse situation — a solicitation placed in a newspaper (i.e., a solicitation of many people to perform one act).

We start with the nature of the crime itself. As we pointed out in Cherry v. State, supra, quoting from Clark and Marshall, Law of Crimes (7th Ed., 1967), the forbidden act in a criminal solicitation is "the accused person’s parol or written efforts to activate another to commit a criminal offense.” 18 Md. App. at 258. See also In Re Appeal No. 180, Sept. Term 1976, 278 Md. 443 (1976). We see no reason why, on the one hand, in a single conversation (much less in two separate conversations as occurred here), a person cannot make successive and distinct incitements, each having a separate object; and we therefore reject the notion that merely because there is but one solicitor, one solicitee, and one conversation, only one solicitation can arise. We similarly reject, however, as being equally simplistic, the "per capita” theory that there are necessarily as many solicitations as there are victims.

Accepting the analogy (although not precisely appellant’s interpretation of it) to the allied crime of conspiracy and to the view of it set forth in Braverman v. United States, supra, the question of whether there is but one solicitation or several depends upon the circumstances. What, in other words, is the solicitor asking the solicitee to do?

Braverman involved a collaboration among several people, extending over a continuing period of time, to unlawfully manufacture, transport, and distribute distilled spirits. Their agreement was to carry on that activity. It so happened that that activity contravened a number of different Federal tax laws, and the conspirators were charged, convicted, and sentenced for multiple conspiracies, one for each specific statute violated. The Court reversed, holding, in effect, that if there is a single agreement, there can be but one conspiracy, even if the overt acts done pursuant to it violate several laws. "The single agreement,” said the Court at p. 54 of 317 U.S., "is the prohibited conspiracy, and however diverse its objects it violates but a single statute....”

Braverman, of course, but begs the question here. At best, it reinforces the requirement that we focus on the number of incitements and not solely on the number of victims. The number of victims is important only as it may be evidence of the number of incitements. By way of example, an entreaty made by a solicitor to blow up a building in the hope that two or more particular persons may be killed in the blast could be characterized as one solicitation, notwithstanding that implementation of the scheme might violate several different laws or, because of multiple victims, constitute separate violations of the same law. The multiple criminality of the implementation would not, in that instance, pluralize the incitement, which was singular. That is the thrust of Braverman. But that is quite different from the situation in which the solicitee is being importuned directly to commit separate and distinct acts of murder — to kill, individually, several different specified victims — possibly at different times and places and by different means and executioners. In the latter case, there is not a single incitement but multiple ones, each punishable on its own.

That is the framework within which we must judge this case; and, from the record before us, we find the evidence sufficient to show four separate criminal solicitations based upon four distinct incitements. In point of time, at least three of the incitements were clearly distinct. The deal for the wife was made on May 8; that for Lewis and the two officers was made a week later but in different parts of the conversation. The executions were to occur at different times and places, and possibly by different means and executioners; different (and cumulative) fees were to be paid for these acts. Different motives were involved. Even as between the two officers, the evidence permitted a fair inference that most of these distinguishing attributes were present. In short, the evidence sufficed to permit a finding that it was not a "lump sum” singular deal, but separate and independent incitements to commit four separate and distinct acts of murder against specific named individuals; and thus, neither the separate convictions nor the separate and consecutive sentences were inappropriate.

(3)

Appellant’s last challenge is to the admissibility of the tape recordings made by Mazzone. He asserts that Massiah v. United States, 377 U.S. 201 (1964), prevents the admission into evidence of any conversations between a prisoner and an agent of the State.

This Fifth and Sixth Amendment claim is totally without merit. Massiah, and its descendants Brewer v. Williams, 430 U.S. 387 (1977), and United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183 (1980), involved attempts by the government to gain incriminating evidence from the mouth of an accused with respect to crimes with which he was then charged and upon which he had not been tried. The object, in other words, was to enhance the prosecution already commenced against the accused. This, of course, was not the situation here. In the first place, there were no charges then pending against appellant; he had already been found guilty and was merely awaiting sentence. Moreover, Mazzone was very careful to avoid getting into any discussion pertaining to those offenses, and the record does not reveal that the tapes had any effect whatever on them. Appellant asked a friend to arrange a conversation with a "hitman” for the purpose of committing new crimes, and it was his bad luck that his friend informed the police.

There is no protection afforded under Massiah to plans initiated by the appellant for the commission of future crimes. The tapes were properly admitted into evidence.

Judgments affirmed; appellant to pay the costs.

      . Because the policy had a “double indemnity” provision, appellant assumed that he would receive $200,000 upon his wife’s demise.

      . Appellant seemed optimistic that his convictions would be overturned on appeal and was looking ahead to the likelihood of a retrial.

      . At the time, Lewis was either awaiting trial or he had already been tried and was awaiting sentence. See Lewis v. State, supra, 285 Md. 705.

      . In his trial testimony, Mazzone expressly denied representing himself as an attorney. This colloquy, on cross-examination, is illustrative:
      "Q. Did you in your activities and conversations with Meyer lead him to believe that you were in fact an attorney?
      A. Well, I guess I can’t really say what he believed but I led him to believe that I would commit a murder for him. If he felt that I was an attorney, I couldn’t say.
      Q. That you would commit a murder or that you would get someone to commit a murder?
      A. Well, again, I guess I don’t know what he was thinking, but probably that I would do it or I would have someone to do it. I don’t know which way he was taking it.
      Q. You do not know which way he was taking it?
      A. No, sir.
      Q. Well, you did note on your prior testimony then that you would appear for him to other people as an attorney to seek their services?
      A. I never said anything about being an attorney to Mr. Meyer.”

      . Appellant’s first premise — that to constitute common law criminal solicitation the object of the entreaty must be the commission of a felony —• is based upon obiter dicta used in Cherry v. State, 18 Md. App. 252, 259 (1973). Cherry involved a prosecution under a statutory solicitation charge — Md. Ann. Code art. 27, § 15 (e), prohibiting the procuring or soliciting for purposes of prostitution, lewdness or assignation — and therefore did not directly involve the more general common law offense. Cherry argued that the statute was unconstitutional under the First Amendment in that it abridged his freedom of communication. In addressing that issue, the Court described the general nature and history of solicitation offenses, and it was in that context that we viewed the vintage case of Lamb v. State, 67 Md. 524 (1887), as requiring that the object of the solicitation be the commission of a felony. Such an interpretation was not necessary to the decision in Cherry.

      . Appellant has not challenged the validity of the sentences by reason of their length, and we therefore do not consider that matter.


source: Caselaw Access Project

author: Orth, J.,

license: Public Domain

text:
    FRANKLIN E. WOOD v. PALMER FORD, INC.
    [No. 733,
    September Term, 1980.]

      Decided February 6, 1981.

      The cause was argued before Thompson and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Arthur M. Wagman for appellant.

      Charles C. Bowie, with whom were Brault, Graham, Scott & Brault on the brief, for appellee.
   Orth, J.,

delivered the opinion of the Court.

Franklin E. Wood filed a declaration in the Circuit Court for Prince George’s County which, as amended, sought money damages from Palmer Ford, Inc. for malicious prosecution (Count I) and for malicious abuse and use of process (Count II). As to each count Palmer pleaded the general issue, limitations, and that Wood caused or contributed to the incident. As to Count I he also pleaded justification. Trial before a jury was set. The case was disposed of prior to trial by the grant of a motion for summary judgment made by Palmer. Judgment was entered in favor of Palmer for costs. A motion to strike the judgment was filed by Wood and denied. Wood appealed from the judgment and from the denial of his motion to strike it. The issue is the propriety of the court’s determination, summarily, that a trial was not necessary.

The principles governing the determination of a motion for summary judgment have been set out repeatedly by the Court of Appeals and this Court. The summary judgment procedure is not a substitute for trial, so the Court does not decide disputed facts but ascertains whether any real dispute as to material facts admissible in evidence exists. The burden of demonstrating clearly the absence of any genuine issue of fact is on the one moving for summary judgment, and any doubt as to the existence of such an issue is resolved against the movant. Even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. The material facts, that is those the resolution of which will somehow affect the outcome of the case, and all reasonable inferences deducible therefrom, must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Facts necessary to the determination of a motion may be placed before the court by pleadings, affidavit, deposition, answers to interrogatories, admission of facts, stipulations, and concessions. If there is no genuine dispute of any material fact or of any reasonable inference deducible therefrom and the moving party is entitled to judgment as a matter of law, judgment should be rendered forthwith. Conversely if there is such a genuine dispute, or judgment is not entitled as a matter of law, summary judgment should not be granted. Washington Homes v. Inter. Land Dev., 281 Md. 712, 716-718, 382 A.2d 555 (1978) and cases therein cited.

The primary source of the facts before the trial court was a deposition by Wood and answers by Palmer to interrogatories. We give a compendium of Wood’s testimony. The general background is that he took his car to Palmer for repair and received an estimate of about $400 as the cost. Upon completion of the repairs he was presented with a bill for $952 with the explanation that the difference represented additional work he had requested. Wood had $400 given him by his father, but did not have the remaining $552. The car remained at Palmer’s while Wood attempted to raise, the additional cash even though he disputed the charge and thought that the bill was "ridiculous.” Palmer’s firm position was "no money, no car.” Wood received a telephone call from Palmer’s service manager. Although the caller did not identify himself, Wood recognized the caller’s voice. Representing himself as "a friend,” the caller observed that the original estimate for the repairs was $400 and that "we did very little over [that].” He said that he was willing to give Wood the car for $400 in cash. He instructed Wood to leave the cash under the trash can in the men’s room at Palmer’s at noon tomorrow and "you will receive the keys to your car. You will find them there under the trash can, the keys to your car and the receipts to your car.” Wood did not then follow the suggestion and received a second telephone call from the same person the next night. The proposition was repeated with the explanation: "The reason why I need $400 is . .. it will pay for the parts and labor. You did kind of get screwed over on the deal, and I feel sorry for you and want to help you out.” Wood told the mechanic, Steve Gore, who had worked on the car, what had occurred. Gore said that it was the service manager who called and advised Wood to "[g]o right ahead and do it.” Wood did it. He left the $400 as directed and found his car keys and receipted bills for the full amount charged. He retrieved his car but after driving it around for a few hours "it started to mess up from the work they did on it. . .. [M]y car was in almost worse shape than when I took it in there. It was such a shoddy job.” He took it back to Palmer. The service manager came running out and asked him what he was doing there. When Wood told him that he was bringing the car back because they had not fixed it right, the service manager disclaimed responsibility. He said: "I am telling you if you want to go any further you are going to have to go to court. Call your consumer agency. But we are not responsible for that work.” After some argument Wood left in his car.

The same day Wood received a call from John Kirby, Treasurer of Palmer, who asked how Wood got the car since they had no record of payment for the repairs. At Kirby’s request Wood went to Palmer’s office, told Kirby exactly what had occurred and asked to confront the service manager. Kirby informed Wood that the manager had "quit this morning for some reason. He has gone. He doesn’t work here any more.” After some discussion, Wood agreed to pay Palmer $952.

A few days later "a Detective Marks from the Prince George’s County Police” came to Wood’s residence where he lived with his mother, and said: "I would like you to come down to the Hyattsville station and talk with me” about the Palmer incident. Wood telephoned Kirby and asked what was going on. Kirby said:

"Well, Frank, I did not want to bring any charges. I think you are a good guy. You paid us off. You showed good faith. But the president of Palmer Ford; I did not know it, but he has a strict policy of prosecuting all people that deal in fraudulent ways with the company. ... It is out of my hands. I am sorry.”

While Wood’s car was in the possession of Palmer, it had been broken into and the transmission linkage and AM/FM cassette was stolen. Wood had reported the matter to the police. Wood told Kirby that everyone knew that an employee of Palmer was a thief. "I understand he was fired. He wasn’t prosecuted.” Kirby replied: "That is a different story. I cannot comment on that. I am sorry. The president of Palmer Ford has a strict policy of prosecuting anyone that deals with us in fraudulent ways.” Wood went with the detective to the police station. He told Marks what had occurred. Marks said: "Okay. You are under arrest.... I am going to have to charge you with embezzlement.” Wood was charged and released on his personal recognizance. The initial charge against Wood was embezzlement. Subsequently, he was charged with false pretenses, grand larceny and unauthorized use of the car. Ultimately, all criminal proceedings were terminated in his favor.

In our review as an appellate court of the propriety of the trial court’s grant of Palmer’s motion for summary judgment, we are concerned with whether there was a dispute as to any material fact, and if not, whether Palmer was entitled to judgment as a matter of law. Washington Homes, 281 Md. at 717. In satisfying our concern, we need to look to the elements of malicious prosecution growing out of a criminal charge for guidance with respect to what facts are material. The necessary elements of that tort are:

"(a) a criminal proceeding instituted or continued by the defendant against the plaintiff, (b) termination of the proceeding in favor of the accused, (c) absence of probable cause for the proceeding, and (d) 'malice’, or a primary purpose in instituting the proceeding other than that of bringing an offender to justice.” Exxon Corp. v. Kelly, 281 Md. 689, 693, 381 A.2d 1146 (1978), citing Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, 122 A.2d 457 (1956), quoted in Durante v. Braun, 263 Md. 685, 688, 284 A.2d 241 (1971).

It is undisputed that all criminal proceedings were ultimately terminated in favor of Wood, thus meeting the second element of his malicious prosecution action. But, we point out again that the burden of demonstrating clearly the absence of any genuine issue of fact is here on Palmer as the moving party. Any doubt as to the existence of such an issue is resolved against the movant. The duly shown facts which would be admissible in evidence and all reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Even where underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact. Applying these principles, we cannot say, on the record before us, that whether Wood met the other three elements necessary to sustain his case was for the court as a matter of law and not for the trier of fact.

What muddies the waters is the lack of definitive facts regarding the circumstances surrounding the bringing and the termination of the criminal charges against Wood. Detective Marks had died prior to the hearing on the motion for summary judgment and his version of what occurred is unknown. The charging documents were alluded to during the deposition of Wood but were not produced at that time. Wood testified that he had been arrested three times:

"I was charged with three different crimes. At first, I was arrested for embezzlement; went to court. I was found not guilty by the judge. Then I was rearrested and charged with grand larceny and false pretenses, and I went to court. The judge dropped the charges. Then I was arrested again, this time charged with unauthorized use of a motor vehicle. Went to court. and the charges were dropped. And, at that time, they did not re-charge me.”

To Wood’s knowledge, Kirby, an officer of Palmer, made application for "these various warrants.” Wood’s counsel attempted to clarify the matter, stating: "There was only one arrest. And. the charges were kicked around three different times because they tried to make something that would fit.” Wood added: "Iwas only formally charged once.” Later in his testimony on deposition, Wood stated that Marks arrested him and said: "I am going to have to charge you with embezzlement.” What type of charging document was utilized to bring the charge was not shown.

Wood was examined by Palmer on what occurred during his various court appearances. Apparently the case was in the District Court. Wood said he did not testify on the embezzlement charge. "The prosecution made their case. [My lawyer] ... made a motion of dismissal, and it was granted.” At the suggestion of Palmer’s counsel Wood’s counsel elucidated:

"First charge was embezzlement. When we came up, they refused to bring it up for trial because they realized embezzlement was not a proper ground. So they went and kicked it over and changed it to false pretenses. . . . Then they took the false pretenses out, finally, after two dates on that .... [When it came up at the second hearing] they re-did the information for two charges of grand larceny and unauthorized use. It came up for a brief hearing and it was put off — put over by the judge, because it just didn’t make any sense, and, finally, it came up in February again on those two charges, when it was dismissed because there were no statutory grounds for any charge against Mr. Wood.”

It seems that no testimony was ever taken at any of the court appearances, although the State’s Attorney made a proffer of the facts at some of them.

Palmer’s answer to interrogatories propounded by Wood asserted that no representative of Palmer had made and signed the application for the criminal complaint against Wood. It stated that $952.25 for the repairs was paid on 3 May 1977. Repair bills attached were receipted as paid on 13 April 1977, apparently about the time Wood left the $400 and took the car. (It was later developed that the first charging document against Wood was issued 27 April 1977.)

At the hearing on the motion for summary judgment, the first charging document against Wood was shown to the court. It was not filed as an exhibit, however, and is not included in the record before us. From the judge’s comments it seems that it was a statement of charges. Maryland District Rules 710 and 720. Whether it was issued before or after the arrest of Wood is not clear. M. D. Rule 720 a and b. The judge observed that the embezzlement charge in the document had been amended by him "to section 140, which was obtaining property by false pretenses.” See M. D. Rule 713. The change in the charge was in the judge’s handwriting. He said: "If it was amended by me it was because some State’s Attorney was making that motion in open Court and there would be a transcript of that record.” If there was such a transcript it was not produced and is not in the record before us.

After extensive argument the court expressed its view: "In this case all you have is the report of what appears to be an alleged crime to the police authorities and the police authorities apparently caused the prosecution to be instituted.” (emphasis supplied). The report referred to was not before the court, and Wood’s counsel brought to the court’s attention that he had not seen it — "I don’t know what the report says.” He argued that the facts showed that Palmer had "instigated the arrest.” As far as the court could see there was "no genuine dispute of the facts in the case.” Nevertheless, he expressly found "as a matter of fact, that all the Defendant, Palmer Ford, did was report to the police authorities what was an apparent crime and subsequently thereafter showed up in Court for purposes of prosecution.” The court summed up the reasons for granting the motion for summary judgment:

"There is no showing on the record that they instituted the affidavit before the Commissioner of the District Court or that they ever gave any sworn testimony against the plaintiff, and for this reason, and only because of the reporting of an apparent crime the Court feels that there was sufficient showing of probable cause to cause them to do their action and that the Court also finds by their actions alone that there is no malice shown on the part of the Defendant, Palmer Ford, and for that reason I am going to grant the motion for summary judgment to both counts because the Court feels that they, are both styled on both counts and they, both counts have to rise and fall by both situations.”

As we construe this reasoning, the court found as a matter of law that Palmer had not instituted or continued the criminal proceedings against Wood because it was the police and not Palmer who swore to the charges. This view followed the argument advanced by Palmer and was contrary to the urging of Wood who claimed that the facts indicated that Palmer had "instigated” the proceedings whether or not it had sworn out the charges.

"The defendant may be liable either for initiating or for continuing a criminal prosecution without probable cause. But he cannot be held responsible unless he takes some active part in instigating or encouraging the prosecution. He is not liable merely because of his approval or silent acquiescence in the acts of another, nor for appearing as a witness against the accused, even though his testimony is perjured, since the necessities of a free trial demand that witnesses are not to be deterred by fear of tort suits, and shall be immune from liability. On the other hand, if he advises or assists another person to begin the proceedings, ratifies it when it is begun in his behalf, or takes any active part in directing or aiding the conduct of the case, he will be responsible. The question of information laid before prosecuting authorities has arisen in many cases. If the defendant merely states what he believes, leaving the decision to prosecute entirely to the uncontrolled discretion of the officer, or if the officer makes an independent investigation, or prosecutes for an offense other than the one charged by the defendant, the latter is not regarded as having instigated the proceeding; but if it is found that his persuasion was the determining factor in inducing the officer’s decision, or that he gave information which he knew to be false and so unduly influenced the authorities, he may be held liable.” Prosser, Law of Torts pp. 836-837 (4th ed. 1971) (footnotes omitted).

This reflects the law of Maryland. A person may be the moving cause of a criminal proceeding even though he does not swear out any criminal charge. "One who instigates or aids and assists in a criminal prosecution may be liable regardless of whether he swears out a warrant.” Safeway Stores, Inc. v. Barrack, supra, at 174. "While mere passive knowledge and consent to the acts of another, is not sufficient to render a party liable, ... yet voluntary aid and assistance undoubtedly will.” Stansbury v. Fogle, 37 Md. 369, 384 (1873). See Nance v. Gall, 187 Md. 656, 668, 51 A.2d 535 (1946); Fertitta v. Herndon, 175 Md. 560, 566-567, 3 A.2d 502 (1939); Angelozzi v. Cossentino, 160 Md. 678, 683, 155 A. 178 (1931); McNamara v. Pabst, 137 Md. 468, 474-475, 112 A. 812 (1921); Mertens v. Mueller, 119 Md. 525, 537, 87 A. 501 (1913); Gittinger v. McRae, 89 Md. 513, 516, 43 A. 823 (1899). In Banks v. Montgomery Ward & Co., 212 Md. 31, 38, 128 A.2d 600 (1957) the Court spoke in terms of a "criminal proceeding instituted or abetted by the defendant....” In Brewer v. Mele, 267 Md. 437, 298 A.2d 156 (1972) the Court, in deciding that the first element of malicious prosecution had not been shown, said, at 443: "[The defendant] was not shown to have instituted, instigated or inspired in any fashion a criminal proceeding against the [plaintiff] within the contemplation of the law of torts.”

In our opinion Palmer did not meet its burden of demonstrating clearly the absence of any genuine issue of fact concerning the institution of the criminal proceedings. On the state of the record here, even assuming that the material facts before the court were undisputed, we believe that they were susceptible of more than one permissible inference. Thus, there was a disputed issue of material fact, to be determined by the trier of fact on the weight of the evidence: whether Palmer instituted, instigated, abetted, aided, assisted or inspired the criminal proceeding within the contemplation of the law of malicious prosecution. The Court of Appeals said in Mertens v. Mueller, 122 Md. 313, 321, 89 A. 613 (1914), quoting Mertens v. Mueller, 119 Md. at 537: "[I]f 'there was any evidence tending to show that the swearing out of the warrant was directed or authorized’ by the defendant,’ or that he voluntarily aided or assisted in the prosecution, a case was made out for submission to the jury.’ ”

The necessary elements of malicious prosecution must be in concert for Wood to prevail. There remains for consideration the absence of probable cause for the proceeding and malice. In Exxon, 281 Md. at 697, the Court of Appeals, quoting Banks, 212 Md. at 39, found the law quite clear as to the definition of probable cause: " 'Probable cause is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing that the accused is guilty.”’ Equally clear, said the Court, is that "if the facts, and the inferences to be drawn therefrom, relied on to constitute probable cause are clear and undisputed, the question is one of law for the court; where the facts are contested, however, whether they are proved is a question for the jury. . .. Thus when contested facts generate a jury issue 'the jury, after being instructed as to what constitutes "probable cause,” . . . should be left to determine its presence or absence.’ ” Exxon at 697-698, quoting W. T. Grant Co. v. Guercio, 249 Md. 181, 187, 238 A.2d 855 (1968).

The nature of the termination of the proceedings in favor of the accused has definitive bearing on the existence or absence of probable cause. An acquittal by a jury is not evidence of want of probable cause, since the acquittal "may be based on a mere lack of proof beyond a reasonable doubt, and throws no light on the sufficiency of the evidence on which the instigator acted at the time the proceedings were instituted. ...” Norvell v. Safeway Stores, 212 Md. 14, 20, 128 A.2d 591 (1957). However, the discharge of an accused at the preliminary hearing of a criminal charge is evidence of lack of probable cause, since, "it is the function of [a magistrate] to pass upon the sufficiency of the case against the accused to justify prosecution.” Banks v. Montgomery Ward & Co., 212 Md. 31, 40, 128 A.2d 600 (1957), quoting Prosser, Law of Torts at 656 (2d ed. 1955).

The facts and inferences to be drawn therefrom, pertinent to the element of probable cause, are in this case not so clear and undisputed as to allow the existence of want of probable cause to be a question of law for the court. It is by no means plain from the record before us how and why the changes in the charges were from time to time made. It is undisputed that the proceedings terminated in favor of Wood, but the nature of the terminations is unknown. We think that it is a permissible inference from the record that Wood was discharged in proceedings comparable to a preliminary hearing, the judge passing on the sufficiency of the case to justify prosecution and finding it lacking. This inference supplies evidence of lack of probable cause and would defeat the motion for summary judgment. The short of it is that we conclude that the facts relied upon to constitute probable cause are in dispute, and the trier of fact must determine them on evidence adduced at trial. We point to what the Court said in Exxon, 281 Md. at 698-699:

"Furthermore, under conflicting evidence 'the issues as to probable cause and malice, however great the preponderance of probability may [seem] to be on the side of [the] defendant, [are] issues of fact, not law, and under our theory and system of trials their submission to the jury [is] necessary.’ Veid v. Roberts, 200 Ala. 576, 76 So. 934 (1917); see Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, 122 A.2d 457, 459-460 (1956) (weight and preponderance of evidence is for the trier of fact). If more support for this conclusion is desired, the reader is referred to our decision in Durante v. Braun, 263 Md. 685, 690-691, 284 A.2d 241, 244 (1971) where 'despite the compelling recitation of exculpatory facts tending to show the existence of probable cause for the act of the defendants,’ we concluded that the trial court erred in ruling that the plaintiff had not produced sufficient evidence on the issue to go to the jury.”

It follows ineluctably from our decision that the jury is permitted under the evidence here to find a lack of probable cause, that it may also, if it chooses, infer the existence of malice. Hence it was error to withdraw the question of malice from consideration of the jury. Exxon, 281 Md. at 699-700.

We hold that the trial court erred in granting Palmer’s motion for summary judgment with respect to the first count (malicious prosecution) of Wood’s amended declaration.

We now consider the summary disposition by the trial court in favor of Palmer on the second count (abuse of process) in Wood’s amended declaration. Malicious prosecution, malicious use of process, and abuse of process are three separate and distinct torts.

"An action for abuse of process differs from actions for malicious prosecution and malicious use of process in that abuse of process is concerned with the improper use of criminal or civil process in a manner not contemplated by law after it has been issued, without the necessity of showing lack of probable cause or termination of the proceeding in favor of the plaintiff, while actions for malicious prosecution and malicious use of process are concerned with maliciously causing criminal or civil process to issue for its ostensible purpose, but without probable cause.” Walker v. American Security Co., 237 Md. 80, 87, 205 A.2d 302 (1964).

Actions for malicious prosecution and malicious use of process are essentially synonymous, with most cases referring to malicious prosecution as arising out of a criminal proceeding and malicious use of process as arising out of a civil proceeding. Malicious use of process has the four necessary elements of malicious prosecution plus the additional element that the damages were inflicted on the plaintiff by seizure of his property or other special injury. Exxon at 693, n. 5.

"Abuse of process differs from malicious prosecution [and malicious use of process] in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing, or misapplying process justified in itself for an end other than that which it was designed to accomplish.” Prosser, Law of Torts 856 (4th ed. 1971) (footnotes omitted).

The Court of Appeals defined it in Bartlett v. Christhilf, 69 Md. 219, 229, 14 A. 518 (1888) as the "malicious misuse or misapplication of [legal] process to accomplish some purpose not warranted or commanded by the writ. In brief, it is the malicious perversion of a regularly issued process whereby a result not lawfully or properly attainable under it, is secured.” The Court quotes 2 Addison, Torts § 868: "Whoever makes use of the process of the court for some private purpose of his own, not warranted by the exigency of the writ or the order of the court, is amenable to an action for damages for an abuse of the process of the court.” Id. Bartlett speaks of the tort in terms of malice, but Professor Prosser explains:

"It is often said that proof of'malice’ is required; but it seems well settled that, except on the issue of punitive damages, this does not mean spite or ill will, or anything other than the improper purpose itself for which the process is used, and that even a pure spite motive is not sufficient where process is used only to accomplish the result for which it was created. Thus if the defendant prosecutes an innocent plaintiff for a crime without reasonable grounds to believe him guilty, it is malicious prosecution; if he prosecutes him with such grounds to extort payment of a debt, it is abuse of process.” Prosser, Law of Torts 856-857 (4th ed. 1971) (footnotes omitted).

Thus, the purpose for which the process is used, once it is issued, is the only thing of importance. "Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding terminated in his favor, or that the process was obtained without probable cause or in the course of a proceeding begun without probable cause.” Id. at 856. The essential elements of abuse of process are (1) an ulterior motive, and (2) a wilful act in the use of the process not proper in the regular conduct of the proceeding.

"Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required. ... The improper purpose usually takes the form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money, by the use of the process as a threat or a club. There is, in other words, a form of extortion, and it is what is done in the course of negotiation, rather than the issuance of any formal use of process itself, which constitutes the tort.” Id. at 857.

Such extortion may be by, among other means, the arrest of the person or criminal prosecution. "The ulterior motive or purpose may be inferred from what is said or done about the process, but the improper act may not be inferred from the motive.” Id. at 858. See Krashes v. White, 275 Md. 549, 555-556, 341 A.2d 798 (1975); Wesko v. G.E.M., Inc., 272 Md. 192, 194-196, 321 A.2d 529 (1974); Delisi v. Garnett, 257 Md. 4, 7-8, 261 A.2d 784 (1970); James v. Goldberg, 256 Md. 520, 530, 261 A.2d 753 (1970).

We think that there was a disputed issue of material fact sufficient to go to the jury: whether Palmer had an ulterior purpose and committed a wilful act in the use of the process not proper in the regular conduct of the proceeding. We believe that the facts as in the record permitted a reasonable inference that Palmer reported the incident to the police to coerce payment of the repair bill. Although in Wood’s recounting of the telephone conversation with Kirby upon the arrival of the police, there was indication that the bill had then been paid, other facts presented showed that it had not. Kirby told Wood that he was going to be prosecuted. The charges and arrest were made on 27 April 1977, and the bill was paid on 3 May. The circumstances of the payment were proffered by Wood at the hearing on the motion for summary judgment. About the middle of April 1977 Kirby telephoned Wood’s mother and told her that "there was a very serious situation concerning her son.” Mrs. Wood went immediately to see Kirby. He told her that she would have to pay the sum of $952 "or else he would press charges.” She asked what that meant, and Kirby declared that he would file charges against Wood and "it meant further that [her son] could go to jail.” Wood was arrested on 27 April 1977, and on 3 May Mrs. Wood, who had borrowed the money after the conversation with Kirby, paid the bill in full.

Applying the principles governing the determination of a motion for summary judgment, we conclude that the trial court also erred in granting Palmer’s motion as to the second count.

In the light of our decision, there is no need for us to reach Wood’s challenge to the grant of the motion for summary judgment on procedural grounds or his appeal from the denial of his motion to strike the judgment.

Wood claims in his brief that the motion for summary judgment was made by Palmer in bad faith and solely for the purposes of delay. He asks this court to award him counsel fees and costs incurred by him thereby as authorized by § e of Md. Rule 610 (Summary Judgment). The section provides:

"Should it appear to the satisfaction of the court at any time that any motion or affidavit presented pursuant to this Rule is presented in bad faith or solely for the purpose of delay, the court shall forthwith order the offending party to pay to the other party the amount of the reasonable expenses which the filing of the motion or affidavit caused him to incur, including reasonable attorney’s fees.”

The Rules of Chapter 600 do not apply to proceedings dealt with in Chapter 1000, Appeals to the Court of Special Appeals. "Court” as used in Rule 610 e does not include the Court of Special Appeals. Rule 5 i. Any such award would have to be made by the trial court. The record before us does not show that request for expenses was made to the court below or that any action pursuant to the Rule was taken by that court. We have no authority to act under the Rule in the first instance, and there is nothing before us to review. The request is, of course, denied.

Judgment reversed; costs to be paid by appellee.

      . It seems that the trial court in "finding as a matter of fact, that all [Palmer] did was to report to the police authorities what was an apparent crime and subsequently showed up in Court for purposes of prosecution,” implicitly recognized a conflict and resolved it by weighing the evidence. If so, it was, of course, improper.

      . In Nance v. Gall, 187 Md. 656, 669, 50 A.2d 120 (1947) the Court of Appeals expressly adopted the definition of probable cause in Munns v. DeNemours, Fed. Cas. No. 9926, 3 Wash. D.C. 31, which added "of the offense of which he is charged.” It modified the opinion in other respects, 187 Md. 674, but refused to modify it with respect to the element of probable cause. Id. at 677. Prosser, Law of Torts 841 (4th ed. 1971), speaks in terms of "guilty of the offense.”


author: Gilbert, C. J.,

text:
    ROSS J. HUNTER et al. v. BOARD OF EDUCATION OF MONTGOMERY COUNTY ET AL.
    (No. 713,
    September Term, 1980.]

      Decided February 9, 1981.

    The cause was argued before Gilbert, C. J., and Wilner, J., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Browne L. Kooken, with whom were Charles A. Dukes, Jr., and Dukes & Kooken on the brief, for appellants.

      Paul V. McCormick, with whom were Mclnerney, Layne, McCormick, Sullivan & Rice on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

The case before us asks that we hold the Montgomery County Board of Education and certain named teachers liable to the appellant, Ross J. Hunter, for failure to provide him with a quality education.

Young Hunter, acting through his parents, sued the appellees for educational malpractice. The essence of the action is that the Board of Education and the teachers failed to teach him properly, and that they knew or should have known of his inability to comprehend that to which they had exposed him. In short, the teachers have been sued for failure to see that Hunter drank from the well of knowledge.

The record discloses that the appellants, Hunter and his parents, Joseph and Phyllis Hunter, filed a six-count declaration in the Circuit Court for Montgomery County. The complaint sought recovery for "educational malpractice” from the Board of Education of Montgomery County and three of its employees *** (hereinafter collectively referred to as the Board). The Board demurred to the complaint, and Judge Plummer M. Shearin, after hearing argument, concluded that the maintenance of such a suit would not be permitted in this State. The judge opined that "public policy” barred the action, and he sustained the appellee’s demurrer without leave to amend.

The Hunters urge us to reverse the judgment of the circuit court, thus enabling them to pursue their claim for damages against the appellees. The Hunters have raised three issues, but we shall dispose of the matter by dealing with but one, namely, was the hearing judge correct in sustaining the demurrer without leave to amend?

To answer that question, we must travel a route that is unmapped in this State. Neither of the two appellate tribunals has heretofore faced a suit founded in educational malpractice. Consequently, we look for guidance to the courts in other jurisdictions that have had the occasion to discuss the subject.

In Peter W. v. San Francisco Unified School District, 60 Cal. App. 3d 814, 131 Cal. Rptr. 854 (1976), the First District Court of Appeal considered a case in which it was alleged, inter alia, that the school district negligently deprived the plaintiff of an adequate education. By way of a demurrer the school district challenged the legal sufficiency of the claim, asseverating that the suit failed to allege a cognizable duty of care.

The California appellate court observed that in form the pleading properly alleged negligence. The court, in its opinion, noted, however, that "judicial recognition of. . . [a] duty [of care] in the defendant, with the consequence of his liability in negligence for its breach, is initially to be dictated or precluded by considerations of public policy.” Id. at 822, 131 Cal. Rptr. at 859. The court concluded that no workable rule of care could be articulated. The court, in declining to recognize the neoteric tort of educational malpractice, said:

"On occasions when the [California State] Supreme Court has opened or sanctioned new areas of tort liability, it has noted that the wrongs and injuries involved were both comprehensible and assessable within the existing judicial framework. This is simply not true of wrongful conduct and injuries allegedly involved in educational malfeasance. Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might — and commonly does — have his own emphatic views on the subject. The 'injury’ claimed here is plaintiffs inability to read and write. Substantial professional.authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.” (Footnote omitted.) (Citations omitted.) Id. at 824, 131 Cal. Rptr. at 860-61.

Three years later, in Smith v. Alameda County Social Services Agency, 90 Cal. App. 3d 929, 153 Cal. Rptr. 712 (1979), a plaintiff alleged that the school district had negligently placed him in remedial classes for the mentally retarded when, in fact, he was not retarded. The plaintiff asserted that by so doing the school district breached its duty of providing appropriate educational training. The California court applied the rule as set out by it in Peter W., supra, and held that no valid claim for the recovery of damages was stated.

The Court of Appeals of New York was presented, in Donohue v. Copiaque Union Free School District, 47 N.Y.2d 440, 413 N.Y.S.2d 375, 391 N.E.2d 1352 (1979), aff'g 64 A.D.2d 29, 407 N.Y.S.2d 874 (1978), with a claim almost identical to that in Smith v. Alameda County Social Services Agency, supra. Donohue sought redress for the alleged failure of the school district to educate him properly. In concluding that the tort of "educational malpractice” was not cognizable in New York, the court opined:

"The fact that a complaint alleging 'educational malpractice’ might on the pleadings state a cause of action within traditional notions of tort law does not, however, require that it be sustained. The heart of the matter is whether, assuming that such a cause of action may be stated, the courts should, as a matter of public policy, entertain such claims. We believe they should not.
Control and management of educational affairs is vested in the Board of Regents and the Commissioner of Education....
... To entertain a cause of action for 'educational malpractice’ would require the courts not merely to make judgments as to the validity of broad educational policies — a course we have unalteringly eschewed in the past — but, more importantly, to sit in review of the day-to-day implementation of these policies. Recognition in the courts of this cause of action would constitute blatant interference with the responsibility for the administration of the public school system lodged by Constitution and statute in school administrative agencies.” (Citations omitted.) 47 N.Y.2d at 444-45, 418 N.Y.S.2d at 377-78, 391 N.E.2d at 1354.

The court further said that in New York an administrative forum for grievances was provided by statute.

The following year the court, in Hoffman v. Board of Education of the City of New York, 49 N.Y.2d 121, 424 N.Y.S.2d 376, 400 N.E.2d 317 (1979), rev’g 64 A.D.2d 369, 410 N.Y.S.2d 99 (1978), reversed the New York Supreme Court, Appellate Division, and on the authority of Donohue, supra, held that public policy precluded recovery for an alleged failure to evaluate properly the intellectual capacity of a student.

The Hunters, appellants in the instant case, contend that we should not follow the lead of the New York and California courts because, in appellants’ words, those decisions are "the produces] of the entire body of law of the borrowed jurisdiction^].” To hold that public policy precludes such a suit as that initiated by the Hunters would, they say, place this Court astride a " 'very unruly horse’ ” that would carry us astray. We do not, however, perceive "public policy” to be a mustang, running wild and unbridled.

We had before us, in Berg v. Merricks, 20 Md. App. 666, 318 A.2d 220, cert. denied, 272 Md. 737 (1974), a question of a teacher’s liability for physical injury to a student. Judge Lowe, writing for the Court, declared:

"As delicate a balance exists in attempting to develop a child’s body as in attempting to develop his mind. How to maintain that balance is largely a matter of judgment. To the extent that each child is given personal attention, thirty-nine others may be deprived. Which need is given preference upon a given time is a decision made hundreds of times a day by a teacher. The problems are multiplied as a teacher comes to know his students and their various needs and differences. All of these decisions occur repeatedly every fifty minutes daily with classes of various sizes.
In making sensitive 'judgment calls’ a teacher must not be made aware of the precariousness of his position, as was Damocles, beneath some economic falchion suspended by the hair of hindsight.” Id. at 675-76, 318 A.2d at 227.

Judge Lowe’s cogent observation as to the decisions of the California and New York courts, as well as that of the United States District Court (District of Connecticut), portends some of the problems which courts would face were we to embark upon the undelineated path that the appellants would have us travel.

To adopt the position that appellants urge upon us would place all teachers under judicial scrutiny. Courts would sit in judgment not only of educational policies and matters entrusted by the General Assembly to the Department of Education, Md. Educ. Code Ann. § 2-106 (1978), and to the local school boards, Md. Educ. Code Ann. § 4-101 (1978), but also of day-to-day implementation of those policies.

It is conceivable that, if allowed, suits for educational malpractice might arise every time a child failed a grade, subject, or test, with the result that teachers could possibly spend more time in lawyers’ offices and courtrooms than in the classroom. That happening could give rise to claims of educational malpractice predicated on the teacher’s failure to devote sufficient time to teaching. The opposite side of the matter is that if, to avoid suits arising from a student’s failing a grade, subject, or test, the teacher "passed” the child, the teacher would likely find himself or herself defending a malpractice suit because the child was promoted when promotion was not warranted.

We are aware that a serious social problem exists when, as here, a student is "promoted” through the school system, from grade to grade, and, yet, he or she has not been taught to read. We are equally cognizant of criticisms of the teaching profession. The situation is even more serious when one recalls to mind the words of Thomas Jefferson, that a nation cannot be ignorant and free, in a state of civilization, at one and the same time.

The seriousness of a matter, however, does not mean that a solution may be found, or redress obtained, through the use of the court. Courts cannot solve every societal problem. The courts, on constitutional grounds, can decide that all schools must afford equal protections of the laws, but courts may not decide the curriculum, nor the degree of proficiency needed to advance from grade to grade through the school system. The field of education is simply too fraught with unanswered questions for the courts to constitute themselves as a proper forum for resolution of those questions.

We reject the appellants’ invitation to create a new tort of educational malpractice, and we hold that the "public policy” of this State bars an action for "educational malpractice.”

Incorporated into the appellants’ brief is the statement: "The remaining counts [of the appellants’ declaration] alleged conspiracy (Count II); corporate responsibility (Count III); statutory violations (Count IV); and breach of contract (Count V). Allegations in each of these counts, it is submitted, were sufficient to support actions on the respective theories. Md. Rule 301.”

That brief comment is the only "argument” advanced by the appellants with respect to the hearing court’s not ruling on those particular counts. It is not enough! Merely informing this Court of what the "remaining counts” alleged, without argument or citation of authorities, if any, as to why the hearing court should be affirmed or reversed, as the case may be, is not sufficient. We cannot be expected to act in the role of appellants’ counsel, seek out and cite authority for the appellants’ position, and then doff the role, reassume our judicial duties and weigh, discuss, analyze those authorities, and render a decision.

Because the "other issues” as to Counts II, III, IV, and V were not briefed or argued in this Court, we do not consider them.

Order sustaining demurrers without leave to amend affirmed.

Costs to be paid by appellants.

      . In addition to the Board of Education of Montgomery County, Mabel L. McGirr, William Balant, and James F. Miller were named as defendants. Mrs. McGirr died after litigation was commenced. A suggestion of death was filed oii October 30, 1978, and her estate, through the personal representative, was substituted as a party. While the Hunters’ claim against Mrs. McGirr’s estate was still pending, Balant and Miller demurred to the amended declaration. The circuit court judge entered an order sustaining the demurrer, and an appeal was taken. Because the order had been entered as to less than all defendants, the appeal was premature under the provisions of Md. Rule 605 a. We, therefore, dismissed the appeal in an unreported per curiam opinion, Hunter v. Board of Education of Montgomery County, No. 1102, Sept. Term, 1979 (filed April 25,1980). The defect having been corrected, the appeal was resurrected.

      . Jim Oigan was once heard to remark that an education is sort of like depositing money in a building and loan association; the dividend you receive is exactly the same as your interest.” See Gilbert, "Goldilocks a/k/a Goldy Locks v. State,” Vol. X, U. of Balt. L. Forum 17, 18 (1979). Because this case was decided on demurrer, we do not know the extent of young Hunter’s interest.

      . Count I alleged "educational malpractice” in traditional negligence form. Count II realleged the averments of Count I and added that the acts were wilful and deliberate. Count III alleged that the Board was negligent in evaluating its personnel and programs. Count IV was identical to Count I but alleged a statutory duty. Count V alleged a breach of an implied contract. The first five counts constituted the suit of the minor Hunter against the appellees. In the sixth and final count Mr. and Mrs. Hunter "incorporate by reference all of ... the allegations of the prior counts.”

      . Mabel L. McGirr was the principal of the appellant’s grammar school; William Balant, according to the declaration, "engaged in diagnostic testing” of young Hunter; and James F. Miller was Hunter’s sixth grade teacher.

      . Md. Educ. Code Ann. spells out in detail the duties and functions of school boards, school superintendents, and teachers. The Code of Bylaws of the Maryland State Board of Education provides a way for parents to challenge decisions of school officials. The Educ. Art. does not, however, provide for an award of monetary damages for alleged malpractice. See Md. Educ. Code Ann. § 7-304; § 8-306; § 8-404; § 8-415 and Public School Laws of Md. § 13.04.01.07; § 13.07.05.14; § 13.07.05.15.

      . In Loughran v. Flanders, 470 F. Supp. 110 (1979), the plaintiff, a learning disabled minor, brought an action against members of the school board for alleged negligence in failing to implement an appropriate educational program earlier in his school career. The Federal Court in Connecticut dismissed the action on the basis that the Education for All Handicapped Children Act of 1975, § 602 et seq., 20U.S.C.A. § 1401 et seq., did not sanction such a claim.

      . See Time, June 16, 1980, Help! Teacher Can’t Teach.

      . Id. at 63.

      . Given today’s sophisticated weaponry, education may prove to be our first line of defense.


author: Lowe, J.,

text:
    RICHARD BROWN et ux. v. PRINCE GEORGE’S COUNTY, MARYLAND et al.
    [No. 743,
    September Term, 1980.]

      Decided February 9, 1981.

      The cause was argued before Thompson and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Louis Fireison, with whom were Fireison & Olshonsky, P.A. on the brief, for appellants.

      Alan E. D’Appolito, Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney for Prince George’s County, and Michael Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

The briefs in this appeal tell us that the appellants sued Prince George’s County, its Acting Chief of Police, and two of its police officers for assault. The two officers filed a countersuit; the County and Chief of Police demurred. Appellants also demurred to the counter-claim.

Although we are told that

"... the Court verbally granted the Demurrer of defendant Prince George’s County and denied plaintiffs’ demurrer to the counter-claim,”

appellants supplied no extract of the record and included in its appendix only the counter-claim of the two officers and a Memorandum of the Court dated May 12, 1980, denying a motion to reconsider and certifying "that there is no just reason to delay appeal of the matters decided at the hearing on this matter held March 27, 1980. See Rule 605 (a).”

If that is all that was done by the court, it is questionable whether there is a final judgment from which to appeal in either of the two issues raised by appellants. It is certainly clear that the overruling of appellants’ demurrer to the counter-claim is not a final judgment from which an appeal may be taken. Inter-City Co. v. Balto. County, 218 Md. 80, 84-85 (1958); Montgomery County, Etc. v. Donnally, 195 Md. 442, 449 (1950); See, also, Md. Rule 345 (d). There is no authority by rule or otherwise for a trial judge to make such a ruling a final, appealable judgment. That alone is reason to dismiss appellants’ second issue asserting error by the court in overruling their demurrer.

We note further, however, that the rule upon which appellants rely for this appeal in its entirety has not been complied with, as seemingly required by its precise language.

"Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.” Md. Rule 605 (a).

In this case it appears from the docket entry that the clerk entered final judgment on behalf of Prince George’s County and Chief Vasco on April 2, 1980, which was over a month before the court certified on May 12,1980 that there was "no just reason to delay appeal” in its memorandum denying reconsideration. There is notably absent, however, "an express direction for the entry of judgment” as to Prince George’s County and the Chief of Police under the authority provided the court by the rule. The perfunctory entry of final judgment, pursuant to Md. Rule 345 (e), does not amount to an "express direction” by the trial court as required by Md. Rule 605 (a). Parish v. Milk Producers Ass’n, 250 Md. 24, 96-98 (1969), aff'd, 261 Md. 618, cert. denied, 404 U.S. 940 (1971). If such "express direction” is elsewhere in the record it is not indicated in the extract.

Since there is a "final judgment” indicated by docket entry and a certification by the judge substantially complying with the rule, we will not address sua sponte an issue not raised on appeal — despite our concern with from when appellants’ appeal time should have been counted. Because we will dismiss for other reasons, we will assume without deciding that his order of appeal on May 23, 1980 was punctual.

Pursuant to Md. Rule 1035 (b) (5), we shall dismiss this appeal as moved by appellees for appellants’ failure to comply with Md. Rule 1028. That rule requires that appellants provide record extracts and that they contain such parts of the record as may reasonably be necessary for the determination of the questions presented by the appeal. Other than their query relating to an overruled demurrer to the counter-claim, which is not an immediately appealable judgment, the only question asked by appellants is:

"May Prince George’s County be held liable for the malicious acts of its police officers?”

That rhetorical question underlay the granting of a demurrer to appellants’ declaration without leave to amend, but appellants did not provide us either with the declaration or the demurrer, contrary to Md. Rule 1028 (b) (1) (b) which calls for all pleadings material to the determination of the issue before us.

More importantly, appellants did not provide us with the judgment appealed from, as indicated above, nor with the opinion of the court, which we are told was orally expressed giving reasons for having sustained appellees’ demurrer. Md. Rule 1028 (b) (1) (a). The opinion of the court was extremely crucial in this case, as indeed were the arguments at the hearing, in light of appellees’ contention that a line of reasoning relied on by appellants contains an issue of law never presented to or decided by the court below. It appears, furthermore, that appellants’ failure to comply with the extract rule on appeal was compounded by their failure to have had transcribed the hearing below which culminated in the oral opinion of the court, which Md. Rule 1028 (b) (1) (a) expressly requires to be extracted. That is a failure to sustain the appellate burden of producing a record of any proceeding the result of which one attacks on appeal. Langrall, Muir & Nopp’r. v. Gladding, 282 Md. 397, 401 (1978).

In regard to the failure to provide adequate contents in the record extract, Rule 1028 (b), appellants responded to appellees’ motion to dismiss by saying that:

"If Appellees really believe that the extract does not contain some part of the record which they deem material, they could have printed such parts of the record as an appendix to their brief together with a statement of the reasons therefor. (See: Rule 1028(e)).”

In Sunshine Laundry Corp. v. White, 197 Md. 582, 586 (1951) that identical argument was submitted to the Court of Appeals, which responded:

"The appellee might have printed in his appendix the remainder of the testimony thereby supplying the deficiencies in appellant’s appendix, and permitting a decision of the question raised. He was, however, under no obligation to supplement appellants’ record in this way, and he did not do so. On the contrary, he filed a motion to dismiss, and his motion will be granted.”

Appellees here have done the same. They were forced to elect whether to supplement the record or to stand upon their right not to do so but chance our waiving the rigidity of the rules which the Court of Appeals continues to admonish as being "precise rubrics” to be followed. Isen v. Phoenix Assurance Co., 259 Md. 564, 570 (1970). Had we waived the rules, appellees would have been at a decided disadvantage, working as they were without the record or transcript of the opinion, as is indicated by their brief.

"The resolution of this issue before this Court has been made difficult, if not impossible, by appellants’ failure to include in their appendix a copy of the declaration, the demurrer of appellees Prince George’s County, Maryland and Joseph Vasco, or the transcript of the lower court’s oral rationale for its sustaining without leave to amend of the demurrer. Appellees, in responding to this argument, are compelled to rely on notes taken of the trial court’s oral opinion of March 27, 1980, which notes indicate that the trial court based its ruling on appellees’ demurrer to the declaration on the theory that the commission of the tort of an assault and battery and the commission of the tort of false imprisonment by appellees Ercoline and Willis would be intentional torts, outside the scope of their employment, for which the County cannot be held liable.”

Finally, appellants’ Opposition to the Motion to Dismiss contained an appended "Record Extract Supplement” and a prayer that we receive it by granting an appended Motion to Supplement. For the reasons set forth in Sunshine, supra, we are not so inclined, but if we had been, we note that even the supplement itself did not contain the opinion of the court which is expressly mandated by Md. Rule 1028 (b) to be part of an extract. This time its absence was excused because it would add an unnecessary expense of appeal.

"Appellees argue that the transcript of the court’s oral opinion and ruling on the Demurrer to the Declaration and Demurrer to the Counterclaim are material to the determination of the questions presented in this appeal. Appellee’s argument is frivolous and without merit because the transcript of the court’s oral opinion and rulings will show only that appellee’s Demurrer to the Declaration was granted and Appellant’s Demurrer to the Counterclaim was overruled. Inclusion of the transcript in the record extract is clearly an unnecessary expense that would not aid this court in determining the questions presented by this appeal.”

Appellants’ recollection of what was said is completely contrary to appellees’, and it is for that reason that the rules require such crucial matter to be before us. The real reason for its absence in either the original or proposed supplemental extract, we suspect, is that appellants did not have the foresight to have either the argument or the opinion following it transcribed. The record they provided us, in any event, contains not one word of transcription, which was precisely the reason the Court of Appeals faulted Mr. Gladding, despite our willingness to reason from the record in his favor, in Langrall, Muir & Nopp’r. v. Gladding, supra at 401. See Gladding v. Langrall, Muir & Nopp’r., 36 Md. App. 225 (1977). We will deny the Motion to Supplement and grant appellees’ Motion to Dismiss.

Motion to dismiss granted.

Costs to be paid by appellants.