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Bozman v. Bozman9/4/2002
bringing the plaintiff to justice." Okwa v. Harper, 360 Md. 161, 183 (2000).
As its second element suggests, the "tort of malicious prosecution includes not only the initiation of criminal proceedings against the plaintiff, but also the termination of those proceedings in the [plaintiff's] favor as a necessary element of the cause of action." Heron, 361 Md. at 265. In other words, termination of the criminal proceeding in the plaintiff's favor "`is a condition precedent to the institution of the action.'" Id. at 268 (quoting Pisano v. City of Union City, 198 N.J. Super. 588, 487 A.2d 1296, 1299 (Law Div. 1984)). Heron thus lays to rest appellee's contention that the cause of action arises at the filing of criminal charges.
In the case at bar, the allegation of malicious prosecution contained in Count II did not arise until the State's Attorney entered a nolle prosequi of the criminal charge that underlay the claim of malicious prosecution. For inter-spousal immunity to bar that count from going forward, the parties would have had to have been married at the time the malicious prosecution cause of action arose, i.e., when the charges were nolle prossed.
Inter-spousal immunity is an affirmative defense. Doe, 358 Md. at 121. Accordingly, it was not appellant's burden to plead the inapplicability of this defense, as appellee suggests. Instead, it was appellee's obligation not only to raise the defense in her motion to dismiss but to support it with proper affidavit. Cf. Kee v. State Highway Admin., 313 Md. 445, 460 (1988)("The absence of governmental immunity need not be pleaded by a plaintiff; rather, governmental immunity is a non-waivable defense, to be raised by a motion to dismiss, a motion for summary judgment, or any other pleading.").
Appellee's affidavit in support of her motion to dismiss the amended complaint does not state that the parties were married at the time the cause of action in Count II arose. This alone forecloses dismissal of that count on the ground of inter-spousal immunity. We also note that, not only did the court have no sworn statement by appellee that the parties were married when the cause of action arose, the court had a proffer from appellant's counsel that the parties were divorced by that time. We mention this not to suggest that appellant, as the complainant below, had the obligation of coming forward with evidence to rebut, anticipatorily, a possible affirmative defense, but to suggest that the court had been alerted to the defense's inapplicability to Count II. In any case, as we have said, it was appellee's burden as the proponent of the motion to dismiss to demonstrate that the affirmative defense applied. She failed to do this with respect to Count II of the second amended complaint, and the court erred in dismissing it on that basis.
CONCLUSION
In sum, we hold that the doctrine of inter-spousal immunity barred appellant's suit against appellee for the intentional tort of malicious prosecution. The tort, at least as alleged here, is not so outrageous as to bring it within the exception to the doctrine recognized by the Court of Appeals in Lusby. The parties in this case were married at the time the cause of action alleged in the first count arose. They were not married at the time the cause of action alleged in the second count arose. Accordingly, the circuit court was correct in dismissing the first count as barred by inter-spousal immunity, but erred in dismissing the second count on that basis.
ORDER DISMISSING COUNT I OF THE SECOND AMENDED COMPLAINT IS AFFIRMED. ORDER DISMISSING COUNT II OF THE SECOND AMENDED COMPLAINT IS VACATED AND THE CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTE
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