Escolar Documentos
Profissional Documentos
Cultura Documentos
of Maryland
September Term, 2014,
Nos. 1553 and 2099
September Term, 2015,
No. 365
BRETT KIMBERLIN,
Appellant,
v.
AARON J. WALKER, ET AL.,
Appellees.
Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Eric Johnson and Terrance McGann, Judges)
APPELLEES WILLIAM HOGE AND ROBERT STACY MCCAIN
APPELLEES MOTION TO DISMISS
BRIEF OF APPELLEES
F. Patrick Ostronic
932 Hungerford Drive, Ste. 28A
Rockville, MD 20850
fpolaw@fpolaw.com
410-440-4833
Pro Bono Counsel for Appellees
TABLE OF CONTENTS
Appellees Motion to Dismiss and Proposed Order
10
Table of Authorities
10
11
Questions Presented
12
Statement of Facts
12
Arguments
12
I.
The Constitutionality of MD CODE CTS. & JUD. PROC. 9-104 Is Not At Issue
Because Appellant Was Permitted To Testify
13
II.
Judge Johnson Correctly Ruled For Appellees on the Verdicts for Defamation and
False Light
14
III.
IV.
V.
Judge McGann Correctly Granted Summary Judgment for Five of the Counts
19
Conclusion
19
13
_______________________________________
BRETT KIMBERLIN,
*
*
Appellant,
*
*
v.
*
*
AARON WALKER et al,
*
*
Appellees
*
_______________________________________
IN THE
COURT OF SPECIAL APPEALS
OF MARYLAND
September Term, 2014: No. 1553
September Term, 2014: No. 2099
September Term, 2015: No. 365
Consolidated Appeals
appeal merely for a less-than-strict adherence to the Rules. However, the Rules do
contemplate a dismissal for noncompliance, and Appellant has been exceptionally
noncompliant.
2.
extract on the Appellant in a civil case. Appellant is required to include this extract as
either an appendix to Appellants brief or filed as a separate volume with the brief. In this
case, Appellant filed the extract as a separate volume.
3.
Rule 8-501 anticipates that the parties will coordinate, to the extent
possible, the parts of the record to be included in the extract. Rule 8-501(d) even lays out
the scenario should the parties not agree on the contents of the extract. Specifically,
Appellant is required to serve on the Appellee what Appellant proposes to include in the
extract and he is to do this within 15 days after the filing of the record with the Court.
4.
In our case, however, Appellant did not serve any semblance of a proposed
extract prior to his filing of his brief, a clear violation of Rule 8-501(c). The first time
Appellees attorney saw the extract was after Appellant had filed his brief with the Court.
5.
As a result, Appellant has produced an extract that is far removed from the
501(h). For example, the table should identify each document by a descriptive phrase
including any exhibit number. Instead, Appellants table is a mere 5 lines that purports
to outline well over 300 pages of his extract.
8.
Appellant has reproduced his Second Amended Complaint (he had filed three altogether)
in its entirety and then referenced it solely as a source of his original counts against
Appellees. It serves no evidentiary purpose.
9.
McCann. Actually, Judge McCann granted summary judgment for five claims and also
imposed immediate sanctions on Appellant for failure to produce discovery. Further,
what Appellant has produced therein are four pages from the Docket Summary detailing
the results of the hearing. What Appellant did not produce are copies of Judge McCanns
judgments, orders and transcripts from that hearing.
10.
272 pages as Selected Trial Transcripts. One reading that description might normally
infer that Appellant has included just a portion of the transcripts necessary to help make
his point. Instead, Appellant includes the transcript of the entire August 12, 2014,
proceedings. Rule 8-501(h) has specific instructions as to how to reference the transcript
in a Table of Contents:
The table of contents shall (1) reference the first page of the initial
examination, cross-examination, and redirect examination of each
witness and of each pleading, exhibit, or other paper reproduced
11.
previously admonished a group of litigants who submitted a Record Extract of 273 pages
with a Table of Contents of only 21 entries over 4 times the number of entries in
Appellants submission:
We must comment on the condition of the joint record extract
provided to this panel by the parties. This 273 page extract
Transcripts of Rule 9-104 Hearing Before Judge Jordan. Thats a bit more descriptive
than item D but, unfortunately, the description is wrong.
13.
injunction and several of the Appellees motions to dismiss several counts. While Judge
Jordan did comment somewhat on the matter of CJ 9-104, he was not hearing arguments
on any motions as to its constitutionality.
14.
applicability) of CJ 9-104 until after the August 7 hearing. Judge Johnson heard
Appellants motion on August 11th (and reconsidered on August 12th at Appellees
request) but Appellant has only included the August 12th transcript. While Judge Johnson
did not go so far as to declare CJ 9-104 unconstitutional, he did rule, over Appellees
objections, that Appellant could testify at his trial.
15.
has snippets somewhat sympathetic to his cause; all the while leaving out the transcript of
the actual hearing on his motion that would undercut his claim to learning he could testify
literally minutes before testimony was to begin. (Appellants Brief at 10) This is
exactly the kind of behavior that this Court has previously found sufficient to warrant
dismissal of an Appellants appeal:
[B]ut appellant placed in the supplemental record extract only that
testimony which supported his version of the facts and his
arguments, having failed to consult with opposing counsel and
comply with the Rules as to the content of the record extract.
Because of the foregoing and his failure to include the complete
opinion of the trial court, appellant has violated every subsection of
Rule 1028 b. 1 which provides what is to be included in the record
extract
Spivey v. Harris, 64 Md.App. 619, 498 A.2d 281 (Md. App., 1985).
16.
the appropriate docket entries in the extract, but this just highlights another error in
Appellants preparation of the extract.
17.
Rule 8-501(c) outlines the required contents of the record extract beginning
with the circuit court docket entries. Appellant ignored this requirement except for the
previously noted copies of specific docket entries included in item B.
18.
19.
certifications that he had provided copies of the various Civil Appeal Information Reports
that he had filed, neither Appellees nor their attorney received a copy of any of them until
Appellant delivered copies to the attorney concurrent with the delivery of the brief and
extract.
21.
contemplated by Rule 8-602(a)(8): the style, contents, size, format, legibility, or method
of reproduction of a brief, appendix, or record extract does not comply with Rules 8-112,
8-501, 8-503, or 8-504.
September 9, 2015
9th
_______________________________________
BRETT KIMBERLIN,
*
*
Appellant,
*
*
v.
*
*
AARON WALKER et al,
*
*
Appellees
*
_______________________________________
IN THE
COURT OF SPECIAL APPEALS
OF MARYLAND
September Term, 2014: No. 1553
September Term, 2014: No. 2099
September Term, 2015: No. 365
Consolidated Appeals
ORDER
Having reviewed the Appellees Motion to Dismiss Appeals, and any Opposition thereto,
it is this ____ day of ________________, 2015, hereby ORDERED, that Appellants
Appeals are DISMISSED.
___________________________
Judge, Court of Special Appeals
TABLE OF AUTHORITIES
CASES
Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191 (Md., 1991)
15
Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140 (Md., 2012)
15
Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628 (2005)
16
passim
18
18
19
13
13
10
11
QUESTIONS PRESENTED1
I.
Whether Courts Article 9-104, which prohibits anyone convicted of perjury from
testifying in any Maryland court, is unconstitutional as a violation of the First
Amendments guarantee to meaningful access to the courts, the Fifth
Amendments Due Process Clause, and the Fourteenth Amendments Equal
Protection, under both the United States and Maryland constitutions, and other
articles of the United States and Maryland constitutions.
II.
Whether the Circuit Judge erred in his ruling for a directed verdict on the
defamation and false light counts.
III.
Whether the Circuit Court Judge erred in not following the law with regard to his
ordering a directed verdict, rather than allowing the jury to issue a verdict.
IV.
Whether the Trial Judge exhibited prejudicial conduct in the case that deprived
appellant of a fair trial.
V.
Whether the Circuit Court erred in denying pretrial appellants claims for abuse of
process, conspiracy and intentional infliction of emotional distress.
STATEMENT OF FACTS
Appellees do not agree with Appellants statement of the case but do accept
12
and, separately, his case against Mr. Hoge. In short, there is no they in these matters.
Instead, there are two separate Appellees against which Appellant must show reversible
error as to each case. A recurring theme, then, through the body of our Brief will be
Appellants continual failure to describe how any perceived errors of the Circuit Court
impacted his case specifically against Mr. McCain or specifically against Mr. Mr. Hoge.
Also, we are constrained by the Extract as we received it. Appellant did not
consult with Appellees prior to submission, so we were unaware that Appellant would
use a numbering system not in accordance with Rules 8-501(i) and 8-503 (a)-(c).
Accordingly, we will reference to the Extract using the Appellants Letters and Page
Numbers (i.e., E.Dxx refers to Section D of the Extract: Selected Trial Transcripts).
We will be addressing Appellants arguments in the order he presented them.
I.
THE CONSTITUTIONALITY OF MD CODE CTS. & JUD. PROC. 9-104 IS NOT
AT ISSUE BECAUSE APPELLANT WAS PERMITTED TO TESTIFY
Appellant fails to even mention Mr. McCain or Mr. Hoge in his argument about
the constitutionality of MD CODE Cts. & Jud. Proc. 9-104, so Appellees cannot respond
to anything he argues as it specifically applies to their cases. That said, Appellants
argument deserves some perspective and comment.
On August 8, 2014, three days before the scheduled start of his trial, Appellant
filed a motion to find MD CODE Cts. & Jud. Proc. 9-104 unconstitutional or,
alternatively, not applicable to Appellants case. On August 11th, prior to the scheduled
start of the trial, Judge Johnson did not rule on the constitutionality of the law but did rule
that Appellant could testify. In essence, then, Judge Johnson found the prohibition against
a perjurer testifying inapplicable in this case. Thus, Appellant won on his motion: he
received the relief sought, and the Court allowed him to testify.
Appellant filed his motion on the Friday before the trial, and had his successful
hearing that following Monday a turnaround time that is almost unheard of in normal
13
14
disallowed emails from Appellants wife (Appellants Brief at 28). In short, Appellees
have no specific arguments to respond to as applied to their individual cases.
Appellant is fixated on the classification of defamation per se or per quod, but the
classification is meaningless as applied to this case. Quite simply, Appellant does not
(and cannot) cite one piece of testimony or evidence that would suggest any specific
statement made by Mr. Hoge or Mr. McCain which was both false and made with malice.
We take this standard directly from the first case Appellant references in his Brief
on this matterBatson:
The First Amendment of the United States Constitution requires
that before a public figure may recover for defamation, clear and
convincing evidence must establish that the statements in issue
were: (1) defamatory in meaning, (2) false, and (3) made with
actual malice.
Batson v. Shiflett, 325 Md. 684, 722, 602 A.2d 1191 (Md. 1991). Emphasis added.
Internal citations omitted
We agree with Appellant that Batson is an appropriate citation for this matter as
we believe Appellant is sufficiently a public figure for purposes of applying this standard.
However, even using the less-stringent standard of a private person would not allow
Appellant to properly argue error on the part of Judge Johnson.
This is because, no matter the standard used, it was incumbent on Appellant to
produce evidence that a specific defamatory statement made by Mr. McCain and different
specific defamatory statement made by Mr. Hoge were each false:
Piscatelli advanced two counts in his complaint: defamation and
invasion of privacy (false light). We shall address [424 Md. 306] in
greatest detail Piscatellis defamation claim, but need not address
the false light claim separately. An allegation of false light must
meet the same legal standards [35 A.3d 1147] as an allegation of
defamation. We shall conclude ultimately that Respondents did not
defame Piscatelli actually, rendering superfluous a separate analysis
of his false light claim.
In order to plead properly a defamation claim under Maryland law,
a plaintiff must allege specific facts establishing four elements to
15
16
Mr. Hoge: defamation and false light. As previously noted, a crucial element of both torts
is falsitythe supposed defamatory statements must be false, and the jury cant find the
statements false absent any relevant evidence. Appellant constantly glosses over this. He
failed to introduce any evidence that would allow the matter to go to the jury on the
question of falsity, and this is what the Judge Johnson told him at the conclusion of the
trial: [t]heres not one scintilla of evidence in this case that the statements that were
made by these individuals [Mr. McCain and Mr. Hoge] were false. (E.D 266)
Specifically, Appellant does not (and cannot) point to anywhere in the Record to
an alleged defamatory statement made by Mr. McCain and/or Mr. Hoge and then also
make reference to introduced evidence that supports his contention that the alleged
defamatory statement is false.
While we also believe any statements made by Mr. McCain and Mr. Hoge are
protected as opinions based on disclosed facts, Judge Johnson was correct in asserting
that absent evidence of falsity, there was nothing for the jury to decide. As previously
noted, the torts of defamation and false light require, as an element to prove, evidence of
falsity. Appellant failed to present the jury with any such evidence.
IV.
JUDGE JOHNSON DISPLAYED NO PREJUDICIAL CONDUCT DEPRIVING
APPELLANT OF A FAIR TRIAL IN LIMITING IMPORTANT EVIDENCE
We began our Brief discussing how Judge Johnson ruled in Appellants favor as to
Appellant being allowed to testify despite a previous conviction for perjury. That, if
nothing else, should have given Appellant his best chance at trial. Having failed to take
advantage of that ruling, Appellant now tries to allege prejudice because he was ruled
against on some fairly routine evidentiary matters. However, Mr. McCain and Mr. Hoge
discern no law-based argument by Appellant against any specific ruling by Judge
Johnson.
Appellant begins by saying Judge Johnson refused to allow testimony by
17
18
V.
JUDGE MCGANN CORRECTLY GRANTED SUMMARY JUDGMENT FOR
FIVE OF THE COUNTS
Appellant claims that Judge McGanns grant of summary judgment for three of the
counts is reversible error. In support of this, he references exactly nothing in the Record,
which is appropriate because the Record does not include the transcripts from the July 1,
2014, hearing. Further, the Extract does not include the judgements appealed from as
required by Rule 8-501(c). The Extract does include the Docket Entries relating to the
July 1, 2014, hearing, but Appellant makes no reference to even them in his argument. In
short, Appellant makes his entire argument without a single reference to the Record.
Instead, he merely re-alleges elements of his complaint without explaining where Judge
McGann went wrong in his rulings. Mr. Hoge and Mr. McCain have no issue with Judge
McGanns rulings and, accordingly, will not argue with Appellants lack of argument on
this matter.
CONCLUSION
Anyone who has carefully read and studied all 272 pages of the trial transcript
(E.D) and Appellants 35-page Brief would still be unable to answer the following query:
Identify even one alleged defamatory statement made by either Mr. McCain or
Mr. Hoge for which Appellant produced admissible evidence as to its falsity.
It simply cant be done. For all the foregoing reasons, Appellees McCain and
Hoge respectfully request that this Court affirm the decisions of the Circuit Court of
Montgomery County.
19
9,
21
(b)
References. References (1) to the record extract, regardless of whether the record
extract is included as an attachment to the appellants brief or filed as a separate
volume, shall be indicated as (E ........), (2) to any appendix to appellants brief
shall be indicated as (App ........), (3) to an appendix to appellees brief shall be
indicated as (Apx ........), and (4) to an appendix to a reply brief shall be indicated
as (Rep. App ........). If the case falls within an exception listed in Rule 8-501 (b),
references to the transcript of testimony contained in the record shall be indicated
as (T ........) and other references to the record shall be indicated as (R ........).
(c)
Covers. A brief shall have a back and cover of the following color:
(1)
(B)
(C)
(D)
(E)
22
BRETT KIMBERLIN,
*
*
Appellant,
*
*
v.
*
*
AARON WALKER et al,
*
*
Appellees
*
_______________________________________
IN THE
COURT OF SPECIAL APPEALS
OF MARYLAND
September Term, 2014: No. 1553
September Term, 2014: No. 2099
September Term, 2015: No. 365
Consolidated Appeals
, 2015, hereby
ORDERED that the Judgment of the Circuit Court for Montgomery County is
AFFIRMED; and it is further
ORDERED that the Appellant shall pay costs.
__________________________________________
Judge, Court of Special Appeals
23