Pitman, Judy v. McDonnell

*This is an unreported opinion. 	This opinion may not be cited as precedent within the
rule of stare decisis. It may be cited for its persuasive value only if the citation conforms
to Rule 1-104(a)(2)(B).
Circuit Court for Garrett County
Case No.: C-11-CV-23-000131
UNREPORTED
IN THE APPELLATE COURT
OF MARYLAND*
No. 2478
September Term, 2024
______________________________________
JUDY PITMAN
v.
DEBRA MCDONNELL
______________________________________
Graeff,
Leahy,
Kenney, James A., III
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Kenney, J.
______________________________________
Filed: October 14, 2026

‒Unreported Opinion‒
A jury sitting in the Circuit Court for Garrett County found in favor of appellant,
Debra McDonnell, the sole owner of A-Plus HOA Management, LLC (“A-Plus”), against
appellee, Judy Pitman, a resident of Highline, a residential community managed by A-Plus
in Garrett County, on four counts: defamation; invasion of privacy; trespass; and
wiretapping. The jury awarded Ms. McDonnell $50,000 on each of the four counts, in
addition to $50,000 in punitive damages on the invasion of privacy count, for a total of
$250,000. On appeal, Ms. Pitman presents thirteen issues, which we have modified
slightly 1 :
1 As presented in appellant’s brief, the questions are:
1. 	Whether the [c]ircuit [c]ourt erred in denying [a]ppellant’s [m]otion
to [d]ismiss the [s]econd [a]mended [c]omplaint for failure to state a
claim?
2. 	Whether the [c]ircuit [c]ourt erred in denying [a]ppellant’s [m]otion
to [d]ismiss under Maryland’s SLAPP statute?
3. 	Whether the [c]ircuit [c]ourt erred in failing to recognize McDonnell
as a limited-purpose public figure requiring proof of actual malice?
4. 	Whether the jury instructions misstated Maryland defamation law by
permitting presumed damages?
5. 	Whether the trial court erred in admitting unauthenticated emails?
6. 	Whether 	the 	verdict 	impermissibly 	punished 	constitutionally
protected speech on matters of public concern?
7. 	Whether the verdict was against the weight of the evidence for lack of
actual damages?
8. 	Whether punitive damages were unsupported by proof of actual
malice?
(continued…)

‒Unreported Opinion‒
2
I. 	Whether the circuit court erred in denying Ms. Pitman’s motion to
dismiss the SAC for failure to state a claim.
II. 	Whether the circuit court erred in denying Ms. Pitman’s motion to
dismiss the SAC because it violated Maryland’s anti-SLAPP statute.
III. 	Whether the circuit court erred in failing to recognize Ms. McDonnell
was a limited-purpose public figure requiring proof of actual malice.
IV. 	Whether the jury instructions misstated Maryland defamation law by
permitting presumed damages.
V. 	Whether the circuit court erred in admitting unauthenticated emails.
VI. 	Whether 	the 	verdict 	impermissibly 	punished 	constitutionally
protected speech on matters of public concern.
VII. 	Whether the circuit court erred in denying Ms. Pitman’s motion for a
new trial because the verdict was against the weight of the evidence
on actual damages.
VIII. 	Whether the punitive damage award was supported by actual malice.
IX. 	Whether Ms. Pitman was unfairly prejudiced by Ms. McDonnell’s
improper reference to Ms. Pitman’s wealth and home value.
9. 	Whether [a]ppellant was unfairly prejudiced by improper reference to
wealth and home value?
10. 	Whether [a]ppellee’s closing argument improperly invoked criminal
statutes, prejudicing the jury?
11. 	Whether the trial court erred in refusing to allow argument on a Rule
2-519 motion for judgment?
12. 	Whether 	the 	statements 	at 	issue 	were 	protected 	under 	the 	fair
comment privilege and not defamatory as a matter of law?
13. 	Whether [a]ppellee failed to prove reputational harm, a required
element of defamation?

‒Unreported Opinion‒
3
X. 	Whether the circuit court erred in denying Ms. Pitman’s new trial
motion when Ms. McDonnell’s closing argument prejudiced the jury
by invoking criminal statutes.
XI. 	Whether the circuit court erred by refusing to hear argument on Ms.
Pitman’s Md. Rule 2-519 motion for judgment.
XII. 	Whether the defamatory statements were protected under the fair
comment privilege.
XIII. 	Whether Ms. McDonnell was required to prove reputational harm to
recover damages for defamation.
For the reasons that follow, we shall affirm. 2
FACTS AND LEGAL PROCEEDINGS
Debra McDonnell owns A-Plus, a property management company that serves
homeowner associations in Garrett County, one of which is the Highline HOA. Highline is
a “ski-in/ski-out” community of about 120 residents. Most property owners in Highline do
not live there full time, but Ms. Pitman has been a full-time resident for about twenty years,
and is a member of the Highline Home Owner’s Association (“Highline HOA”). Highline
HOA’s governing documents give its Board of Directors (the “Board”) the power to hire a
property manager to manage the day-to-day running of the HOA. Under the Board’s
authority, A-Plus has been the Highline HOA’s property manager since 2014.
In September 2023, Ms. McDonnell sued Ms. Pitman. Her second amended
complaint (“SAC”) alleged six-counts: defamation per se; invasion of privacy (false light);
intentional 	infliction 	of 	emotional 	distress; 	trespass; 	harassment; 	and 	violation 	of
2 In this litigation, Ms. McDonnell has been self-represented, and Ms. Pitman has
been represented by counsel.

‒Unreported Opinion‒
4
Maryland’s Wiretap Act. Ms. Pitman, arguing that she was immune from suit based on the
conditional privilege of fair comment, moved to dismiss the SAC for failure to state a
claim. She subsequently amended her motion to dismiss to add that the SAC violated
Maryland’s “anti-SLAPP” statute. See Md. Code Ann., Cts. & Jud. Proc. (“CJP”) Art. § 5-
807(a) (defining a “SLAPP suit” as a “strategic lawsuit against public participation”).
After a hearing on Ms. Pitman’s first motion to dismiss, the circuit court dismissed
the intentional infliction of emotional distress and harassment counts for failure to state a
claim. After a separate hearing on the anti-SLAPP statute, the circuit court found the
evidence insufficient to support a finding that Ms. McDonnell’s lawsuit was brought in bad
faith or with “constitutional malice” and denied the amended motion on those grounds.
A two-day trial followed. During that trial, Ms. McDonnell, Ms. Pitman, current
Board members of the Highline HOA, and HOA members of neighboring communities
testified. The evidence centered around three time periods: (1) Ms. Pitman’s Board
candidacy statement and related emails in September 2019; (2) Ms. Pitman’s audio/video
recording and related emails in November 2022; and (3) Ms. Pitman’s emails in October
2023. We view the evidence presented in the light most favorable to Ms. McDonnell as the
prevailing party.
Ms. Pitman’s September 2019 Candidacy Statement and the Related Emails.
Ms. Pitman submitted to the Board a “Declaration of Candidacy” form for a position
on the Board. In that candidacy statement, she wrote that the Board had threatened to seek
an injunction against a resident if the resident did not remove the river rock he used to line
his driveway. She included in all caps: “OUR PROPERTY MANAGER WAS ALSO

‒Unreported Opinion‒
5
SEEN SNEEKING [sic] AROUND THAT MEMBER[’]S HOUSE FOR SOME REASON
AND 	HIDING 	WHENEVER 	A 	VEHICLE 	DROVE 	BY. 	THIS 	IS 	VERY
DIST[UR]BING.” After receiving the Declaration, the Board, by email, asked Ms. Pitman
to remove the bolded remarks and resubmit the Declaration because the remarks could
expose the HOA to a defamation claim.
In response, Ms. Pitman emailed Ms. McDonnell and the Board that if her
Declaration was not distributed to the members, she would email it to all the homeowners
with additional allegations that Ms. McDonnell “STOLE service from PromCom [sic] and
found guilty for that crime in court” and that she “repeatedly broke into” a resident’s home.
Ms. Pitman added: “The members need to know how you [Ms. McDonnell] have used your
position with this Association as your BULLY PULPIT.” Ms. Pitman concluded: “[I]f my
form is not included I WILL email it to everyone and explain why you refused to send it.”
A few days later, Ms. Pitman sent an email to about 100 homeowners in the community
stating: “Most of you, if not all of you have received the Annual meeting mailing with all
the documents from the Highline Board. When I opened mine today, I saw that the Board
had deleted my Candidacy [S]tatement without my permission or knowledge.” Attached
was her original Candidacy Statement form.
At trial, Ms. Pitman stated that the remarks in her Declaration were based on seeing
Ms. McDonnell walking along the river rock-lined driveway of her neighbor and then
running around to the back of the house when a car drove by. She testified her statement
in her later email that the Board had deleted her Candidacy Statement without her
knowledge was not “an intentional lie” because “[t]here was nothing malic[ious] about” it.

‒Unreported Opinion‒
6
Ms. McDonnell testified that she did not “sneak and hide” around anyone’s home because,
as a property manager, she is required and permitted to inspect properties in the community
when directed by the Board. As to stealing from ProCom, records admitted into evidence
established that a small-claims contract dispute in the District Court resulted in an $84 civil
judgment against Ms. McDonnell.
The November 2022 Video/Audio Recording and Related Emails.
On November 8, 2022, Ms. Pitman sent an email request to the Board to review the
books/records of the Highline HOA. Two days later, at 10:23 a.m., Ms. McDonnell emailed
Ms. Pitman that she could review the community’s books/records on either November 15
or 16, and to confirm which of the two dates she wanted through the Contact Us tab on the
HOA’s website. Within an hour, Ms. Pitman responded to Ms. McDonnell stating that she
was “tried [sic] of your games and the control you think you have within the [H]OA,” and
“I WILL BE AT YOUR HOUSE AT 4 PM TODAY TO PICK UP” the requested
documents. At 2:25 p.m., Ms. Pitman again emailed Ms. McDonnell, stating: “You have
never been member friendly. Again I will be there at 4 pm[.]”
At trial, Ms. Pitman admitted entering on Ms. McDonnell’s property around 4 p.m.,
despite seeing six “No Trespassing” signs. She testified that she did not think the signs
were meant for her. She audio/video recorded her entry onto the property with her phone.
The recording was entered into evidence and played for the jury. On the video, Ms.
McDonnell, who had opened her front door, can be heard telling Ms. Pitman that she would
call the police if she did not leave, and Ms. Pitman responded, “go ahead . . . . I’m not
leaving.” Eventually, however, she did leave.

‒Unreported Opinion‒
7
Shortly thereafter, Ms. Pitman emailed the Board: “I HAVE HAD ENOUGH. You
all know that I made the appointment for today @ 4pm and no where in the email
communications with Ms. McDonnell did she say I can NOT trespass onto her property.”
Ms. Pitman admitted to seeing the no trespassing signs on Ms. McDonnell’s property. She
then stated in bolded, larger print:
If you as a board come together and fire her by Monday November 14,
2022 I will send the attached video from today to all the members and
also tell them that this board [h]as NO idea how Debi has used OUR
money to pay for her to use our PO Box and could be double dipping on
the website and that I don’t believe that this board approved our budget
before sending it to the members and that she gave herself a $4,200 raise
with the possibility that you even knew about it. [3]
She added:
If I don’t have the [H]ighline directory or her contract via electronic
transmission . . . by end of work day tomorrow, I will send Karen
Straug[h]n [4] the video and all the emails that I have sent to this board and
Debi. Attached is the video from today. It is at the bottom of this email.
Ms. Pitman subsequently sent a letter to Garrett County Commissioner Jim
Hinebaugh, stating:
We are having issues with Debi cooperating with having hours that allows
us to get HOA documents. We are not sure where our documents are being
kept and when I did make an appt to get copies of documents . . . I arrived
[at Ms. McDonnell’s home] after making an appt and there were No
Trespassing signs all over her property . . . . I never got the documents that I
have been asking for[.]
3 It appears that the words “don’t” or “do not” is missing before “come together” in
the first line.
4 Karen Straughn is an Assistant Attorney General for the State of Maryland in the
Consumer Protection Division.

‒Unreported Opinion‒
8
At trial, Ms. Pitman testified that she had requested access to review the HOA’s
books/records for over three years but never received a response. She admitted, however,
that she did not have approval nor an appointment to review the HOA’s books/records
when she arrived at Ms. McDonnell’s house at 4 p.m. on November 10, 2023. Ms.
McDonnell testified that since 2015, neither she nor the Board has received any requests
from Ms. Pitman to review the records through the Contact Us tab on the Highline HOA
website. Ms. McDonnell testified that after her encounter with Ms. Pitman on her property,
she cried because it was “very tough.” She also testified Ms. Pitman had threatened her in
the past, and that for her safety, at least one other Board member is required to be present
when Ms. Pitman reviews the books and records.
Bob Knochel, the then-current president of the Highline HOA, testified that any
member of the Highline HOA can request to review the HOA’s books/records by using the
“Contact Us” tab on the HOA’s website, and that all requests are automatically sent to the
Board president and Ms. McDonnell. According to Mr. Knochel, he never refused a written
request for books/records. He further stated that all members are invited to attend and ask
questions at the Board’s quarterly meetings and the annual meeting at the end of the year.
The August 2023 Emails From Ms. Pitman.
On August 23, 2023, Ms. Pitman emailed the Board complaining that the Highline
community sign, which had fallen, had not been timely repaired. She further stated that A-
Plus has been “harassing members”; that Ms. McDonnell was telling members “she doesn’t
get paid enough to deal with this shit”; and that Ms. McDonnell does not respond to
members when they send complaints to “Contact Us.” According to her email: “A[-]Plus

‒Unreported Opinion‒
9
Management Company has been fired, removed, force[d] to resign from the 3RD HOA 2
months ago”; Ms. McDonnell and A-Plus had been employed by “Villages of Wisp,
Boulder Ridge POA [5] and Deep Creek Highlands and Highline [H]OA”; and all but
Highline “has removed her for many reasons.” Two days later, Ms. Pitman sent the same
email to about 100 other individuals, including past residents of the Highline HOA.
At trial, Ms. Pitman testified that she thought that what she said in the August emails
was a “fair statement.” She explained having been “given . . . information” from
“somebody” that the Villages of Wisp HOA had not renewed Ms. McDonnell’s contract
and had taken bids from someone else and were trying to “get [her] removed” as their
management company. Ms. Pitman also heard that Ms. McDonnell was no longer the
management company for the Boulder Ridge POA. She did not know why, but she assumed
it was for the same reasons as the Villages of Wisp. Mike Piersante, president of Deep
Creek Highlands POA, testified that Ms. McDonnell had not been fired, forced to resign,
or removed from their POA. In fact, he has never had a problem with Ms. McDonnell or
A-Plus for the ten or so years she was their property management company.
Ms. McDonnell testified that she had never been fired, never removed for any
reason, and never forced to resign from the HOAs managed by A-Plus. She did not continue
her contract with the Villages of Wisp because dealing with Ms. Pitman had overwhelmed
her and “taken so much of [her] life, [her] time, in the last ten years.” Not only had dealing
with Ms. Pitman been bad for her mental health, her reputation and business had been
5 “POA” stands for “property owner’s association.”

‒Unreported Opinion‒
10
injured and harmed. According to Ms. McDonnell: “I have had to put so much of my energy
and my anxiety that came from all of this, that I removed myself from other associations”
because it became “too hard for me to handle [a] certain group of people.”
After the hearing, the jury returned a verdict in favor of Ms. McDonnell on the four
counts and awarded her a total of $250,000 in damages. Ms. Pitman subsequently moved
to alter/amend the judgment and for a new trial under Md. Rules 2-533 and 2-534. The
court denied both motions, and Ms. Pitman filed this timely appeal. Additional facts may
be provided in the following Discussion.
DISCUSSION 6
I. & II. Motions to Dismiss.
The first two questions relate to the circuit court’s denial of Ms. Pitman’s motions
to dismiss the SAC. In her first question, she contends that the court erred in denying her
motion because the SAC failed to state a claim. In the second question, she contends that
the court erred in denying her motion to dismiss because the SAC is not allowed under
Maryland’s anti-SLAPP statute. We will address each in turn.
Failure to State a Claim Contention.
Ms. Pitman’s first argument, “Denial of Motion to Dismiss the Second Amended
Complaint,” has a broad title, but the argument relates only to the defamation per se count.
6 Before addressing the errors alleged by Ms. Pitman on appeal, we note that
arguments in her brief often consist of bald or near-bald allegations that an error occurred.
As we stated in von Lusch v. State, 31 Md. App. 271, 282 (1976), litigants cannot simply
allege an error and then rely on the Court to flesh out the error and the argument for them.
To the extent we can, we will address the questions presented, which sometimes overlap
with others, in the order presented.

‒Unreported Opinion‒
11
Md. Rule 8-504(a)(6) requires an “[a]rgument in support of the party’s position on each
issue.” See also Wallace v. State, 142 Md. App. 673, 684 n.5 (“[A]rguments not presented
in a brief or not presented with particularity will not be considered on appeal.” (quotation
marks and citation omitted)), aff’d, 372 Md. 137 (2002), cert. denied, 540 U.S. 1140
(2004).
Citing Fairbanks Publishing Co. v. Pitka, 376 P.2d 190, 195 (Alaska 1962), Ms.
Pitman asserts that her statement that Ms. McDonnell had been “fired, removed, or forced
to resign” from other HOAs was not defamatory per se. Because she directs her argument
at the defamation count, we address it only to that count. Ms. McDonnell responds that the
SAC was sufficiently pleaded.
Law.
Under Md. Rule 2-322(b)(2), a complaint may be dismissed if it fails to state a claim
upon which relief may be granted. The well-established standard under which we review a
circuit court’s denial or grant of a motion to dismiss:
is whether the trial court was legally correct. In reviewing the ruling on the
motion to dismiss, we accept all well-pled facts in the complaint, and
reasonable inferences drawn from them, in a light most favorable to the non-
moving party. When examining the pertinent facts, the Court limits its
analysis to the four corners of the complaint[.] The pleader must set forth a
cause of action with sufficient specificity – bald assertions and conclusory
statements by the pleader will not suffice.
Davis v. Frostburg Facility Operations, LLC, 457 Md. 275, 284-85 (2018) (quotation
marks, footnote, and citations omitted).
Md. Rule 2-303 on pleading requirements provides:

‒Unreported Opinion‒
12
(b) Contents. – Each averment of a pleading shall be simple, concise, and
direct. No technical forms of pleadings are required. A pleading shall contain
only such statements of fact as may be necessary to show the pleader’s
entitlement to relief. . . . It shall not include argument, unnecessary recitals
of 	law, 	evidence, 	or 	documents, 	or 	any 	immaterial, 	impertinent, 	or
scandalous matter.
As our Supreme Court has observed, this rule serves four important purposes. It (1)
provides notice to the parties as to the nature of the claim or defense; (2) states the facts
upon which the claim or defense allegedly exists; (3) defines the boundaries of litigation;
and (4) provides for the speedy resolution of frivolous claims and defenses. Woolridge v.
Abrishami, 233 Md. App. 278, 296, cert. denied, 456 Md. 96 (2017).
A claim for private defamation in Maryland ordinarily requires the plaintiff to state
that: (1) the defendant made a defamatory statement to a third person; (2) the statement
was false; (3) the defendant was legally at fault in making the statement; and (4) the
plaintiff suffered harm. Seley-Radtke v. Hosmane, 450 Md. 468, 471 n.1 (2016). A
statement that “tends to expose a person to public scorn, hatred, contempt or ridicule,
thereby discouraging others in the community from having a good opinion of, or
associating with, that person” is defamatory. Id. (quotation marks and citation omitted).
From a pleading perspective, the “distinction between defamation per se and
defamation per quod” is important. Royall v. Dicks, 270 Md. App. 1, 14 (2026) (quotation
marks and citation omitted). A defamation per se claim does not require a plaintiff to plead
or prove an injury because the “injurious character” of what was said is a “self-evident fact
of common knowledge[.]” Id. at 28 (quotation marks and citation omitted). In other words,
“the words themselves impute the defamatory character so that no . . . allegation or proof

‒Unreported Opinion‒
13
of extrinsic facts [] is necessary[.]” Id. (quotation marks and citation omitted). On the other
hand, a defamatory per quod claim requires the plaintiff to plead and prove reputational
injury because the harmful meaning of the statement is to be determined in the context in
which it was made. Id. at 16.
In regard to damages, when the statement is defamatory per se, “damages are
presumed[.]” Id. at 15 (quotation marks and citations omitted). And a defamatory per se
statement made with malice permits a plaintiff to recover actual (economic) damages;
presumed (non-economic damages); and punitive damages. Id. Damages are not presumed
for defamation per quod. Id. at 16. Whether statements are defamatory per se is a question
of law for the circuit court. We review that determination de novo by asking whether it
“was legally correct based on the well-pleaded facts in the complaint and all reasonable
inferences drawn from those allegations.” Id. at 16-17.
Words that are defamatory per se fall generally into four categories. They impute
that a person has: (1) committed a crime; (2) a loathsome or communicable disease; (3)
committed conduct or has a characteristic or condition that would adversely affect his
fitness to conduct his business, trade or profession; and (4) committed “‘serious sexual
misconduct.’” Id. at 29 (quoting Restatement (Second) of Torts §§ 570, 574 (1977)). Here,
the words at issue invoke the first and third category. The Royall Court recently
summarized cases that fall into the third category:
[A] college president’s statement that a professor was discharged for “poor
performance[,]” Samuels [v. Tschechtelin], 135 Md. App. [483,] 544, 550
[(2000)]; and a union agent’s statement insinuating that a union member
“was untrustworthy and not a fit person to perform the type of work in which
he specialized; that is, the installation of safes, bank vaults, safe deposit

‒Unreported Opinion‒
14
boxes, and other similar items.” Nistico v. Mosler Safe Co., 43 Md. App. 361,
367 	(1979). 	Likewise, 	a 	law 	firm 	principal’s 	statements 	regarding 	a
discharged attorney were defamatory per se because they “impute[d] . . .
incapacity or lack of due qualification” that “would disqualify him or render
him less fit for the practice of law.” Shapiro [v. Massengill], 105 Md. App.
[743,] 775, 777 [(1995)] (citations and quotation marks omitted). Similarly,
statements to a national database regarding a physician’s “substandard care”
resulting in patient safety risks could be defamatory per se because they
impugned his professional competence. See Adventist Healthcare, Inc. v.
Behram, 488 Md. 410, 429 n.13 (2024) (affirming this Court’s uncontested
decision that such allegedly false statements were defamatory per se).
Id.
In her defamation per se count, Ms. McDonnell alleged:
13. In August 2023, the Defendant made defamatory communications to
members and non-members of Highline regarding the Plaintiff’s personal
and business actions.
14. The Defendant made false statements in the publication of emails to third
parties that “Debi McDonnell/A-Plus HOA Management, LLC was fired,
removed, force to resign from the third HOA 2 months ago.” And all other
associations have “removed” Debi McDonnell/A-Plus HOA Management
for many other reasons.
15. In September 2022 and January 2023, the Defendant made false
defamatory 	statements 	to 	[the] 	Maryland 	Office 	of 	Attorney 	General,
Maryland state delegate and Garrett County commissioners alleging the
Plaintiff was mismanaging associations.
16. The Defendant was at fault and responsible for the defaming statements.
17. The Defendant’s statements caused injury to the Plaintiff’s personal and
professional reputation.
18. The Plaintiff has suffered emotional harm in loss of sleep and appetite,
anxiety, and fear for her safety.
19. 	The 	Plaintiff 	has 	suffered 	financial 	harm 	from 	the 	Defendant’s
defamatory statements. A potential client has discontinued discussions of
contracting after the Defendant published libelous emails about the Plaintiff.

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15
Contrary to Ms. Pitman’s argument that her defamation count failed to allege
“falsity with particularity” and to identify the specific communications, Ms. McDonnell
alleged defamatory statements that were false, when they were made, the mode of the
communication, and to whom the statements were made. Additionally, the statements
alleged 	impugned 	Ms. 	McDonnell’s 	competence 	and 	fitness 	to 	manage 	her 	HOA
management business.
Pitka, supra, the Alaskan case cited by Ms. Pitman, is distinguishable. In that case,
Elizabeth Pitka sued a newspaper publishing company for defamation. 376 P.2d at 191.
When Mrs. Pitka, a schoolteacher, resigned, but later withdrew her resignation, a dispute
arose as to what would be her last teaching day. She insisted on teaching another thirty
days from when she resigned; the School Board insisted she stop immediately. When Mrs.
Pitka continued teaching, the school board sent her a notice relieving her of any school
duties. When she continued to teach, the Board sent another notice not to enter school
property, and if she did, she would be arrested. Mrs. Pitka again entered school property
and refused to leave when asked to do so. She was arrested for disturbing the peace. Id. at
192. A newspaper ran a headline that stated: “Territorial Police Called To Expel Fired
Schoolmarm. Dispute at Outlying Community Finds Teacher Defying School Board; She
Is Arrested for Disorderly Conduct.” Mrs. Pitka sued the publishing company for
defamation. The trial court ruled that the statements were defamatory per se, and a jury
returned a verdict in her favor. Id. at 191. The newspaper appealed. Id.
In affirming the trial court’s decision that the statements were defamatory per se,
the Supreme Court of Alaska reasoned that the statements that Mrs. Pitka was engaged “in

‒Unreported Opinion‒
16
a fight” with her employer, and “was fired,” that the police were called to expel her, and
that “she was arrested for disorderly conduct, would have a natural tendency to diminish
the esteem in which she was held and to result in a lack of confidence in her professional
competency.” 	Id. 	at 	194 	(quotation 	marks 	omitted). 	The 	court 	distinguished 	these
statements from statements published a year later: “Ray wasn’t the first head teacher to be
fired by the board. In October, 1957 Mrs. Betty Pitka also departed by a similar route.” Id.
at 195 (quotation marks omitted). The court held that the later statements were “simply a
statement that she had been fired” and not defamatory per se because “[t]he right to hire
implies the right to fire[.]” Id. Therefore, a statement that the right to fire “has been
exercised by one’s employer does not necessarily have a tendency to injure or discredit the
employee who has been discharged.” Id.
Pitka has no precedential and little persuasive value because the facts before us fall
more within the first published statements than the second. Ms. Pitman’s statements that
Ms. McDonnell had been fired from multiple HOAs, which was apparently not the case,
was not an isolated statement challenging Ms. McDonnell’s management style and ability.
There were also related statements regarding breaking into a resident’s home and being
convicted of theft. In addition, she contacted governmental parties about Ms. McDonnell’s
“mismanaging associations.” Drawing all reasonable inferences from the allegations in the
SAC in favor of Ms. McDonnell, we are persuaded that Ms. Pitman’s statements impugned
both Ms. McDonnell’s character and fitness to manage HOAs and could reasonably be
determined defamatory per se. Therefore, it follows that it was not necessary to plead actual
or punitive damages. Factually, however, the jury did not award punitive damages on the

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17
defamation per se count. We hold that the allegations in count 1 of the SAC were sufficient
to survive a motion to dismiss for failure to state a claim.
Anti-SLAPP Statute.
Ms. Pitman contends Ms. McDonnell’s suit was not allowed under Maryland’s anti-
SLAPP statute because “HOA management and elections are quintessential matters of
community interest.” Noting that Ms. Pitman failed to show that her suit was filed in bad
faith, Ms. McDonnell contends that the circuit court did not err in denying the dismissal of
her suit based on the anti-SLAPP statute.
In Maryland, a SLAPP suit is a suit (1) brought in bad faith; (2) against a party who
has made communication to a “government body or the public on a matter within the
authority of [a] government body or on an issue of public concern”; (3) materially related
to the communication; and (4) intended to inhibit or has inhibited the exercise of free
speech rights of the United States Constitution or the Maryland Declaration of Rights. MCB
Woodberry Dev., LLC v. Council of Owners of Millrace Condo., Inc., 253 Md. App. 279,
297 (2021) (emphasis omitted) (citing CJP § 5-807(b)).
The general purpose of the statute is “to weed out and deter lawsuits brought for the
improper purpose of harassing individuals who are exercising their protected right to
freedom of speech.” Id. at 296 (quotation marks and citation omitted). “Bad faith,” which
is not defined in the statute, has been defined by case law as “the pursuit of litigation
vexatiously, for the purpose of harassment or unreasonable delay, or for other improper
reasons[,]” with an emphasis on “dishonest motivation.” Id. at 307 (quotation marks and
citation omitted). When all the statutory criteria are satisfied, the defendants in the suit are

‒Unreported Opinion‒
18
entitled to civil immunity for the protected communications made without constitutional
malice. Id. at 297. When “bad faith” can be determined on the face of the pleadings, it may
be decided by a motion to dismiss. Id. at 307-08. Here, the burden to show that the lawsuit
is in violation of the anti-SLAPP statute was on Ms. Pitman. Id. at 312.
Ms. Pitman contends that her statements were protected under the anti-SLAPP
statute because they were matters of community interest. After a separate hearing on Ms.
Pitman’s anti-SLAPP argument, the circuit court found that Ms. Pitman had not satisfied
her burden that Ms. McDonnell’s suit was brought in bad faith. We agree, and Ms. Pitman
does not argue to the contrary. Accordingly, we hold that the circuit court did not err in
denying her motion to dismiss based on the anti-SLAPP statute.
III. Limited-Purpose Public Figure/Privileged Communication.
Ms. Pitman contends that Ms. McDonnell, as the manager of the Highline HOA,
was a “limited-purpose public figure” who placed herself “at the center of an HOA election
dispute,” which was a “matter of public controversy.” For that reason, she argues the
burden was on Ms. McDonnell to prove Ms. Pitman had acted with “malice,” and that Ms.
McDonnell failed to do so. Ms. McDonnell contends that a private HOA manager is not a
limited-purpose public figure, and she did not voluntarily insert herself into a public
controversy. In addition, she argues that the dispute involved internal HOA governance
and was not a public controversy.
Although Ms. Pitman never specifies the counts to which her argument is directed,
we understand that she is asserting a “fair comment” privilege to the defamation claim.
Privilege “is an affirmative defense that is required to be set forth separately in the answer.”

‒Unreported Opinion‒
19
Gooch v. Maryland Mech. Sys., Inc., 81 Md. App. 376, 384 (1990). See Md. Rule 2-
323(g)(19) (providing that a party “shall” set forth in an answer all privilege(s) claimed).
When a party fails to plead any of the affirmative defenses enumerated in Rule 2-323(g) in
the answer, a plaintiff “may usually assume there is no issue with respect to those defenses,
and the case will proceed accordingly.” Paul V. Niemeyer & Linda M. Schuett, Maryland
Rules Commentary 365 (5th ed. 2019). See also Gooch, 81 Md. App. at 383 (holding that
appellees waived the question of whether they had a conditional privilege to write the letter
that formed the basis for the libel suit because “appellees . . . fail[ed] to plead specially this
affirmative defense in their answer”).
Two categories of privileged communications that operate as a defense against a
defamation claim are absolute privilege and conditional privilege, which is sometimes
referred to as qualified. Hosmane v. Seley-Radtke, 227 Md. App. 11, 24, aff’d, 450 Md.
468 (2016). Absolute privilege “provides immunity regardless of the purpose or motive of
the defendant or the reasonableness of the conduct[,]” such as statements by “judges or
lawyers in judicial proceedings or legislators in legislative proceedings.” Id. Absolute
privilege does not apply here. Conditional privilege “arises . . . where a person is seeking
to further an interest that society regards as sufficiently important to justify some latitude
for making a mistake[.]” Id. Four forms of conditional privileges recognized by Maryland
common law are:
(1) The public interest privilege, to publish materials to public officials on
matters within their public responsibility; (2) the privilege to publish to
someone who shares a common interest, or, relatedly, to publish in defense
of oneself or in the interest of others; (3) the fair comment privilege; and (4)
the privilege to make a fair and accurate report of public proceedings.

‒Unreported Opinion‒
20
Gohari v. Darvish, 363 Md. 42, 57 (2001) (quotation marks and citation omitted). 7
Here, Ms. Pitman is asserting a limited-purpose public figure privilege, but that
privilege was not asserted in her answer. The privilege asserted was the fair comment
privilege. See Gooch, 81 Md. App. at 385 (holding that appellees are barred from raising
privilege as a defense in a defamation suit because appellees could have amended their
answer under the liberal rules allowing amendment but failed to do so). In addition, Ms.
Pitman did not assert that privilege at trial, and the circuit court did not instruct the jury on
it. In short, this argument is not preserved for our review. See Md. Rule 8-131(a)
(“Ordinarily, an appellate court will not decide any other issue unless it plainly appears by
the record to have been raised in or decided by the trial court[.]”); see also DiCicco v.
Baltimore Cnty., 232 Md. App. 218, 224-25 (2017) (stating that a contention not raised or
considered below is not properly before an appellate court).
7 The United States Supreme Court has acknowledged a federal conditional
privilege when alleged defamatory statements relate to a public official or a public figure
and the defamation implicates the First Amendment of the United States Constitution.
Hosmane, 227 Md. App. at 22. Federal case law includes three types of public figures:
(1) “involuntary public figures,” who become public figures through no
purposeful action of their own; (2) “all-purpose public figures,” who achieve
such pervasive fame or notoriety that they become public figures for all
purposes and in all contexts; and (3) “limited-purpose public figures” who
voluntarily inject themselves into a particular public controversy and thereby
become public figures for a limited range of issues.
Wells v. Liddy, 186 F.3d 505, 532 (4th Cir. 1999) (quotation marks and citation omitted)
(interpreting Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)).

‒Unreported Opinion‒
21
IV. Jury Instructions.
As framed in Ms. Pitman’s brief, the issue is whether the instructions “misstated
Maryland defamation law” by “permit[ting] presumed damages[.]” She begins by stating
that during a bench discussion between the court and the parties about jury instructions,
“defense counsel wanted to argue about presumed[] Malice and Punitive damages” but was
not given the opportunity. She directs us to the following passage at the close of the case
during the discussion of possible jury instructions on punitive damages in defamation per
se actions:
[DEFENSE COUNSEL]: Your Honor, I made a note on mine, um, that I
believe 12:1, 12:2, and 12:4 would accurately cover what we need to have
for defamation.
MS. MCDONNELL: But it’s not punitive damages when ‒
[DEFENSE COUNSEL]: And I think 12:4 actually might be exemplary. I
don’t want it in there. I don’t think she made that case either.
She then states “Maryland law does not permit presumed damages against public figures
absent actual malice” and concludes by urging reversal because the given instructions
“lowered [Ms.] McDonnell’s burden of proof” and “deprived [Ms.] Pitman of First
Amendment protections.” Otherwise, she does not direct us to any specific error by the
circuit court, or to what jury instructions were given or were not given in error. Nor was
there any objection to any of the instructions. See Md. Rule 8-504(a)(6) (stating that
appellant’s brief “shall” include “[a]rgument in support of the party’s position on each
issue” raised); Md. Rule 8-504(c) (stating that an “appellate court may dismiss the appeal
or make any other appropriate order with respect to the case” for noncompliance with this

‒Unreported Opinion‒
22
Rule); see also Oak Crest Vill., Inc. v. Murphy, 379 Md. 229, 241 (2004) (“An appellant is
required to articulate and adequately argue all issues the appellant desires the appellate
court to consider in the appellant’s initial brief[,]” and when a point “germane to the appeal
is not adequately raised in a party’s brief, the court may, and ordinarily should, decline to
address it.” (quotation marks and citation omitted)). We decline to do so here.
V. Failure to Authenticate Emails.
Ms. Pitman contends that the circuit court erred in admitting Plaintiff’s Exhibits 3,
4, and 5 into evidence. She argues these emails were not authenticated because Ms.
McDonnell “was not the sender or recipient and could not verify authorship.” She also
contends that Ms. McDonnell published Plaintiff’s Exhibit 10 to the jury “without its
admission[.]” Ms. McDonnell contends the emails were sufficiently authenticated, but,
even if not, their admission was harmless.
Analysis.
Under Md. Rule 5-901(a), authentication is a condition precedent to admissibility.
It is satisfied by evidence “sufficient to support a finding that the matter in question is what
its proponent claims[,]” id., but the burden of proof is not particularly great. The court does
not need to find that “the evidence is necessarily what the proponent claims, but only that
there is sufficient evidence that the jury ultimately might do so.” Johnson v. State, 228 Md.
App. 27, 59 (quotation marks, citation, and emphasis omitted), cert. denied, 450 Md. 120
(2016). In other words, once there is a prima facie showing of authenticity, the ultimate
question of authenticity is left to the jury. See 2 McCormick on Evidence § 227 (John W.
Strong ed., 5th ed. 1999). We review a trial court’s authenticity decision for an abuse of

‒Unreported Opinion‒
23
discretion. Miller v. State, 421 Md. 609, 622 (2011). “A trial court abuses its discretion
only when no reasonable person would take the view adopted by the [trial] court, or when
the court acts without reference to any guiding rules or principles.” Easter v. State, 223
Md. App. 65, 75 (quotation marks and citation omitted), cert. denied, 445 Md. 488 (2015).
The emails at issue were admitted during the direct examination of Ellen Paugh. Ms.
Paugh is a twenty-year resident of Highline who was a former and then-current Board
member of the Highline HOA. She identified Exhibit 3 as a copy of an email sent to Ms.
Pitman by the Board that she received from the Board. She identified Exhibit 4 as an email
from Ms. Pitman that was sent to her and many others. She identified Exhibit 5 as an email
Ms. Pitman sent to the Board and about ninety others. Because each of the emails were
either sent directly to Ms. Paugh or to the Board, on which she was a member, a prima
facie showing of authenticity was shown, and their admission was not an abuse of
discretion. Moreover, Ms. Pitman did not object to the admission of Plaintiff’s Exhibit 5.
Therefore, its admission was not preserved for our review. Md. Rule 8-131(a), supra. 8
8 Exhibit 10 was a letter dated December 28, 2022, from the Board and A-Plus to
Karen Straughn. As to Ms. Pitman’s contention regarding its publication to the jury, Ms.
McDonnell did attempt to offer it into evidence during the examination of Ms. Pitman, and
defense counsel objected on grounds that it was heavily redacted. Before the court ruled
on the objection, Ms. McDonnell asked the court “Okay, to publish it?” to which defense
counsel again objected, stating, “And it’s just been published, Your Honor.” The court
sustained the objection. Ms. McDonnell then asked Ms. Pitman whether she had “seen this
before,” to which Ms. Pitman responded that she had not. Defense counsel, at a bench
conference, told the court that Ms. Pitman had no knowledge of the letter. When the parties
returned to their trial tables, Ms. McDonnell resumed questioning Ms. Pitman without ever
mentioning Exhibit 10 again. Notwithstanding Ms. Pitman’s claim that the exhibit was
published to the jury, it was not read into the record, and the transcript does not support its
admission into evidence, although it appears on the Exhibit List. In any event, the content
(continued…)

‒Unreported Opinion‒
24
VI. The Verdict Violates Free Speech Protections.
On this issue, Ms. Pitman contends that the jury’s verdict punished her for speaking
out about “HOA governance,” which “lies at the core of constitutional protection.” She
asserts that “[v]erdicts imposed without clear and convincing proof of actual malice cannot
stand.” It is difficult to distill from these bald statements any error or abuse of discretion
by the circuit court. These assertions appear to harken back to her limited-purpose public
figure/privilege arguments previously addressed in question III and how the jury weighed
the parties’ credibility and the evidence that was presented. That recurring theme arises
through many of the questions presented. For that reason, we decline to address this
argument further. See Md. Rules 8-131(a), 8-504(a)(6), supra; see also Rohrbeck v.
Rohrbeck, 318 Md. 28, 38 n.4 (1989) (declining to address an issue that had “not been
adequately briefed and argued”); Tallant v. State, 254 Md. App. 665, 689 (2022)
(“Maryland courts have the discretion to decline to address issues that have not been
adequately briefed by a party.”).
VII. & VIII. Damages.
These two presented questions relate to the jury’s damages award. We shall address
each in turn.
Jury’s Damages Award Against the Weight of the Evidence.
On this issue, Ms. Pitman asserts Ms. McDonnell “testified vaguely with references
to stress, humiliation and hurt feelings” but presented no specific evidence of harm to her
of the letter is generally consistent with other evidence presented by Ms. McDonnell and
thus, in our view, is harmless if it inadvertently went to the jury.

‒Unreported Opinion‒
25
reputation by way of “lost contracts, financial records, or witnesses attesting to reputational
harm.” Noting the jury’s return of “uniform awards” on each count, she cites Yiallouros v.
Tolson, 203 Md. App. 562, 571 (2012) for the proposition that “identical awards across
claims indicate verdicts based on passion, not evidence.” 9 For these reasons, she states that
the trial court “abused its discretion in refusing to grant a new trial.” Ms. McDonnell
contends that the verdict in this case was “supported by ample evidence” and was “not
excessive.”
What is discussed on the Yiallouros page cite is the new trial motion arguments
about the jury’s damage awards being “excessive and disproportionate.” To the extent Ms.
Pitman makes a fact-based argument, it is the jury’s award of uniform damages on each
count and the lack of evidence of reputational damages. Her one case citation involves a
different fact background. Here, the trial court denied the request for a new trial and to alter
or amend the judgment, indicating that it did not find the verdict to be “grossly excessive.”
We decline to address the merits of her claim further. HNS Dev., LLC v. People’s Couns.
for Baltimore Cnty., 425 Md. 436, 459 (2012) (declining to consider merits of position
asserted by a party through “sweeping accusations and conclusory statements” without
9 The Yiallouros Court affirmed the trial court’s determination that the jury’s award
of non-economic was “grossly excessive.” 203 Md. App. at 580. In so doing, it noted the
“non-economic damages include [the] alleged loss of consortium[,]” id. at 579 n.10 (citing
Oaks v. Connors, 339 Md. 24, 37 (1995)), and that, for each, the jury awarded “precisely
$224,010.16 for each[.]” Id. at 580 (emphasis omitted). It did not see how the jury could
determine that “pain and suffering” from physical injury could be precisely the same as the
loss of consortium, which needed to be considered separately. Id.

‒Unreported Opinion‒
26
“any constitutional or common law authority”). See also Md. Rules 8-131(a), 8-504(a)(6),
and cases cited supra.
Punitive Damages Not Supported By Malice.
Ms. Pitman, citing Hearst Corp. v. Hughes, 297 Md. 112, 125 (1983), contends that
the jury’s punitive damages award must be vacated. She quotes Ms. McDonnell’s closing
statement that, “[t]o succeed in a claim for punitive damages, the plaintiff must show that
the defendant’s conduct was characterized by actual malice.” Her argument that there was
no evidence that she acted with malice rests on her uncontradicted testimony that she
believed her statements to be true. Ms. McDonnell responds that the punitive damages
award was supported by clear and convincing evidence of actual malice and that the trial
court’s denial of a remittitur “merits strong deference.”
The page in the record where Ms. Pitman allegedly testifies that she believed her
statements to be true, to which she directs us, does not reflect that testimony. But even
assuming that she did testify that she believed her statements to be true, that would not
necessarily carry the day for her.
The jury awarded punitive damages on the invasion of privacy–false light count,10
which requires a showing of actual knowledge of the falsity of a statement. Bowden v.
10 The definition of false light invasion of privacy tort is:
[G]iving publicity to a matter concerning another that places the other before
the public in a false light . . . if (a) the false light in which the other person
was placed would be highly offensive to a reasonable person, and (b) the
(continued…)

‒Unreported Opinion‒
27
Caldor, Inc., 350 Md. 4, 23 (1998). But as previously stated, the credibility and the weight
to be given a witness’s testimony are determinations solely for the jury. Est. of Blair v.
Austin, 469 Md. 1, 18 (2020) (“We have long held that [n]either the [circuit] court nor this
Court is permitted to substitute its evaluation of [the] evidence for that of the jury. . . . To
do so would be an invasion of the jury’s province[.]” (quotation marks and citation
omitted)). Here, the circuit court, without objection, instructed the jury on punitive
damages, stating that they are recoverable for invasion of privacy if Ms. Pitman made her
false light statements “with actual knowledge that it was false.” Considering all the
evidence in the light most favorable to Ms. McDonnell, we hold the evidence supported a
finding of malice in Ms. Pitman’s long standing and ongoing campaign against Ms.
McDonnell.
IX. Reference to Ms. McDonnell’s Financial Status.
Ms. Pitman contends that Ms. McDonnell’s statement that Ms. Pitman lives in a
neighborhood where the average home is worth 1.5 million dollars was prejudicial and
improperly influenced the jury’s damages awards. Ms. McDonnell responds that the
actor had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.
Lindenmuth v. McCreer, 233 Md. App. 343, 367 (2017) (quotation marks and citations
omitted).

‒Unreported Opinion‒
28
reference was harmless because the statement was “brief, cured by instructions, and
dwarfed by overwhelming record support for liability and damages.” 11
During Ms. McDonnell’s examination of Ms. Pitman, the following exchange
occurred:
[MS. MCDONNELL]: You have a paper handwritten For Sale sign on your
house. What were you selling it for?
[DEFENSE COUNSEL]: Objection; relevance, Your Honor.
MS. MCDONNELL: Well, it ‒
[DEFENSE COUNSEL]: Objection; relevance.
THE COURT: Go ahead. What’s your response?
MS. MCDONNELL: It’s a paper sign.
THE COURT: How is it relevant?
MS. MCDONNELL: Pardon me?
THE COURT: Is it relevant?
MS. MCDONNELL: Yes.
THE COURT: How?
MS. MCDONNELL: Well, it’s in a neighborhood that’s [sic] the average
are $1.5 million homes.
11 We note that “a defendant’s ability to pay is ‘a limiting factor which must be
considered by the . . . trial court upon its review of the jury’s award.’” Bowden, 350 Md. at
28 (quoting Fraidin v. Weitzman, 93 Md. App. 168, 212-13 (1992)). Therefore, “evidence
of a defendant’s financial condition is relevant in determining whether a jury’s award of
punitive damages is excessive.” Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md.
249, 275 (2004) (citing Bowden, 350 Md. at 28-29). However, “a plaintiff has no obligation
to establish a defendant’s ability to pay punitive damages.” Id. Accord Khalifa v. Shannon,
404 Md. 107, 143-45 (2008).

‒Unreported Opinion‒
29
[DEFENSE COUNSEL]: Objection; move to strike, Your Honor.
THE COURT: How’s that relevant?
MS. MCDONNELL: Pardon me?
THE COURT: How is that relevant?
MS. MCDONNELL: They have a specific sign that has to be used because
of the Association.
THE COURT: I’m going to sustain the objection.
(Emphasis added.)
Ms. McDonnell then resumed examining Ms. Pitman on other topics without
defense counsel bringing to the court’s attention that a motion to strike had not been ruled
on.
Ms. Pitman does not argue that the court erred or abused its discretion by not
granting the motion to strike. Cf. Braxton v. State, 123 Md. App. 599, 650 (1998) (stating
that where the court reserved on a ruling and was never asked to rule on it, the issue is not
preserved for our review). In addition, Ms. McDonnell testified, without objection, that the
Highline community has 144 members with property values totaling $90 million and that
Ms. Pitman owns a second nearby property that she rents out. Even if preserved and had
the circuit court erred or abused its discretion by not ruling on the motion to strike, we
would hold it was harmless.
X. New Trial Motion.
Ms. Pitman contends that the circuit court should have granted a new trial based on
Ms. McDonnell’s reference in closing argument to Maryland’s criminal wiretapping
statute. Ms. McDonnell contends that the court properly exercised its discretion during

‒Unreported Opinion‒
30
closing argument, but had it erred or abused its discretion, the jury instructions and the
weight of evidence rendered it harmless.
It is unlawful, under Maryland’s Wiretapping and Electronic Surveillance statute,
for someone to willfully “intercept,” “disclose,” or use “any wire, oral, or electronic
communication,” CJP § 10-402(a)(1)-(3), without “prior consent of all the parties to [the]
communication.” Standiford v. Standiford, 89 Md. App. 326, 334 (1991), cert. denied, 325
Md. 526 (1992). In non-criminal situations, it seeks to prevent “unauthorized interception
of conversations where one of the parties has a reasonable expectation of privacy.” Id. at
333. The statute provides civil liability for wrongful interceptions and permits the recovery
of “(1) Actual damages . . . ; (2) Punitive damages; and (3) A reasonable attorney’s fee and
other litigation costs reasonably incurred.” CJP § 10-410(a).
Ms. Pitman directs us to the following during Ms. McDonnell’s closing argument:
[MS. MCDONNELL]: Okay, so the wiretap, do you want to ‒ I was just
going to read the law of the wiretap. Under Maryland’s Wiretapping and
Electronic Surveillance Act, it’s unlawful to tape record a conversation
without the permission of all the parties, and clearly, she did not have
permission to tape me.
[DEFENSE COUNSEL]: Your Honor, with respect to the statute, this is the
criminal statute. The statute does recognize a civil action, but I would object
to containing additional ‒
THE COURT: Overruled.
MS. MCDONNELL: It says civil.
THE COURT: Overruled.
MS. MCDONNELL: Yes, it says civil here.
THE COURT: Go ahead.

‒Unreported Opinion‒
31
MS. MCDONNELL: We’ll get to civil. So, under the wiretapping law, it’s
unlawful to tape record a conversation without a person ‒ without permission
of all parties. Additionally, recording with criminal or tortious purpose is
illegal, regardless of consent. So, she did tape me. She voice-videotaped me
to use it to send to the Board of Directors to say, and evidence showed she
said if you don’t fire her in four days, I am going to publish this to everybody.
So she used that tape recording for a tortious purpose.
Disclosing the contents of intercepted communication with reason to
know they were obtained unlawfully is a crime as well, and she clearly
disclosed it. She’s admitted it. She’s disclosed it to many people. Violations
‒ I’m not going to go any more with that. I don’t want to get in trouble.
Ms. Pitman argues that Ms. McDonnell’s closing argument allowed the jurors to
“conflate civil liability with criminality[,]” without alleging with any specificity as to how
she was prejudiced by it. Presumably, she is arguing that the trial court erred or abused its
discretion by permitting Ms. McDonnell to refer to the wiretapping statute in her closing
argument. But because the statute clearly provides a civil remedy, we perceive neither error
nor abuse of discretion.
XI. Md. Rule 2-519 Motion for Judgment.
Ms. Pitman contends that the circuit court’s denial of an opportunity to argue “a
motion for judgment” denied her due process. Ms. McDonnell contends that there was no
due process violation.
Ms. Pitman directs us to the following exchange at the end of the last defense
witness’s testimony when jury instructions, and, in particular, damages for defamation per
se were being discussed:
THE COURT: . . . I am going to go out on a limb and change this up so that
they can consider the issue of punitive damages only on the issue of
defamation per se. That’s what you’re looking for?

‒Unreported Opinion‒
32
MS. MCDONNELL: Yes.
THE COURT: Oh, shoot.
[DEFENSE COUNSEL]: I would make an argument for that, Your Honor,
of a directed verdict. There’s a ‒
THE COURT: Well, we’ll get into ‒
[DEFENSE COUNSEL]: Okay.
THE COURT: ‒ the ‒ you know, ‒ we have not ‒ there’s no evidence ‒
[DEFENSE COUNSEL]: I know we’re not there yet.
The discussion of punitive damages and other jury instructions continued without defense
counsel raising a motion for judgment with the court. See Md. Rule 2-519 (discussing
motions for judgment).
It appears that after saying “Okay” to the court’s statement that they would “get
into” it and “I know we’re not there yet,” defense counsel abandoned the motion or failed
to advance it. Whatever the reason, such a motion was never offered. See Grandison v.
State, 305 Md. 685, 765 (“By dropping the subject and never again raising it, [appellant]
waived his right to appellate review[.]”); cert. denied, 479 U.S. 873 (1986); see also
Gilliam v. State, 331 Md. 651, 691 (1993) (“As Gilliam did not object to the course of
action proposed by the prosecution and taken by the court, and apparently indicated his
agreement with it, he cannot now be heard to complain that the court’s action was wrong.”),
cert. denied, 510 U.S. 1077 (1994). Clearly, the court did not refuse to hear Ms. Pitman’s
argument on a motion for judgment.

‒Unreported Opinion‒
33
XII. Defamation – Fair Comment Privilege.
Ms. Pitman titles this issue in her brief: 	“Statements not Defamatory; Fair
Comment.” She contends that her statements were not defamatory for two reasons. First,
she asserts her statement that Ms. McDonnell was “fired” did not “inherently impute
dishonesty, crime, or incompetence.” Second, citing A.S. Abell Co. v. Kirby, 227 Md. 267,
272 (1961), she asserts that her statements were fair comment and privileged because they
concerned HOA governance and thus were a “fair and reasonable opinion or comment on
matters of legitimate public interest.” (Emphasis omitted.) She concludes with a single
sentence: “The trial court erred in refusing to apply this privilege.” Ms. McDonnell
contends 	Ms. 	Pitman’s 	statements 	were 	not 	protected 	“opinion 	or 	fair 	comment.”
(Quotation marks omitted.)
We have addressed the first part of Ms. Pitman’s argument, i.e., whether her
statements were defamatory per se, above and need not repeat it here. As to the refusal to
apply the fair comment privilege, the circuit court instructed the jury on the conditional
privilege of fair comment, and Ms. Pitman takes no issue with the instructions. She simply
claims the circuit court “erred in refusing to apply this privilege.” What this means or how
and when the refusal occurred is not provided.
To be sure, “any member of the community may, without liability, honestly express
a fair and reasonable opinion or comment on matters of legitimate public interest.” Kirby,
227 Md. at 272. Whether a particular statement is protected by the fair comment privilege
most “often turns on whether or not it contains misstatements of fact as distinguished from
expressions of opinion.” Id. at 273. It is sometimes difficult to distinguish between fact and

‒Unreported Opinion‒
34
opinion, but as a practical matter, it can be determined by asking whether “an ordinary
person, reading the matter complained of, [is] likely [to] understand it as an expression of
the writer’s opinion or as a declaration of an existing fact?” Id. at 274. In Piscatelli v. Van
Smith, 424 Md. 294, 307 (2012), our Supreme Court stated that “[w]hether a conditional
privilege exists is a question of law, and the defendant bears the burden of proof to establish
the privilege.” Once a defendant establishes a prima facie case supporting the privilege, the
question of whether the privilege was abused is for the jury. Woodruff v. Trepel, 125 Md.
App. 381, 402, cert. denied, 354 Md. 332 (1999). That requires the plaintiff to prove the
defamatory statement “was made for a purpose other than furthering the applicable societal
interest[.]” Id.
Here, it appears that the circuit court concluded that Ms. Pitman provided a prima
facie case to support the conditional fair comment privilege because it instructed the jury
on that defense. It then fell to the jury to determine whether Ms. Pitman abused the privilege
by statements made with malice for a purpose other than furthering an applicable societal
interest. “Malice” is defined as “a person’s actual knowledge that his [or her] statement is
false, coupled with his [or her] intent to deceive another by means of that statement.”
Piscatelli, 424 Md. at 307-08 (quotation marks and citation omitted). Clearly, the court did
not refuse to apply the privilege as Ms. Pitman claims.
XIII. Defamation – Proof Of Damages.
Ms. Pitman further contends that “the verdict cannot stand” because “defamation
requires proof of reputational injury[,]” and “[Ms.] McDonnell presented none.” Ms.
McDonnell contends the evidence established reputational harm, and Ms. Pitman’s

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defamatory per se statements permitted damages for loss of reputation and distress
“without itemized proof of dollar loss.” (Emphasis omitted.)
As we discussed above, defamatory per se statements presume an injury to
reputation. Hanlon v. Davis, 76 Md. App. 339, 351 (1988); Hearst Corp., 297 Md. at 127.
According to Professors Prosser and Keeton:
General damages, as that term is used in defamation actions, refer to losses
sustained which are normal and usual and are to be anticipated when a
person’s reputation is impaired. When one’s reputation is impaired, this
affects one’s relations with others, including business, social, religious, and
family. The impairment of one’s relations does interfere in a variety of
unpredictable and unknowable ways with the enjoyment of life. Under the
English and American common law . . . harm to reputation was presumed
from the publication of a libel or slander per se. Therefore, actual damages
were normally assessable by the jury without proof by the plaintiff that there
had been any impairment of reputation. Thus, general damages at common
law were an estimate, however rough, of the probable extent of actual loss a
person had suffered and would suffer in the future, even though the loss could
not be identified in terms of advantageous relationships lost, either from a
monetary or enjoyment-of-life standpoint. Since some of the interest served
by way of protecting a good reputation are of a peace-of-mind and dignitary
nature rather than economic in character, such losses are not readily
measurable in monetary terms. However, it is often not necessary for the jury
to believe that the plaintiff has suffered or will suffer pecuniary or economic
loss, even though some types of defamatory imputations are by their very
nature calculated to result in economic loss, and can be presumed to have
caused such.
Hanlon, 76 Md. App. at 351-52 (quotation marks omitted) (quoting Prosser & Keeton on
Torts, § 116A at 843 (5th ed. 1984) (footnotes omitted)).
Here, the jury was instructed, without objection, as follows: “A person who is a
subject of a defamatory statement that was not made with actual malice must show actual
damages in the form of financial loss, injury to reputation, mental anguish, or some other
tangible injury in order to obtain relief.” This mirrors MPJI-Cv 12:6. The court also

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36
instructed the jury: “When a person is the subject of a defamatory statement that was made
with actual malice, there is a presumption that the statement causes that person harm, and
relief may be awarded, even in the absence of any evidence of actual damages.” This
mirrors MPJI-Cv 12:7. The court also instructed the jury on MPJI-Cv 10:17, stating: The
“person who is the subject of a defamatory statement may be allowed punitive damages if
the [d]efendant published the defamatory statement with actual knowledge that it was
false.”
The unobjected to verdict sheet did not distinguish between defamatory per se or
per quod defamation. It appears that the jury found Ms. Pitman’s statements to be
defamatory per se as count 1 was designated in the SAC. Therefore, Ms. McDonnell did
not have to prove injury to her reputation, as harm is presumed, and emotional distress is
sufficient to warrant compensatory damages. See Hearst Corp., 297 Md. at 125-27. In
addition, Ms. McDonnell testified to a potential client with whom she was negotiating who
stopped the negotiation after Ms. Pitman’s emails and the multiple clients she was unable
to continue representing because of Ms. Pitman’s actions. She also testified to the average
annual charge for representing HOAs as $10,000. We hold that the defamation award was
supported by the evidence.
JUDGMENT 	OF 	THE 	CIRCUIT 	COURT
FOR GARRETT COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.