2478/24•Pitman, Judy v. McDonnell
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*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.
‒Unreported Opinion‒ 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
‒Unreported Opinion‒ 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
‒Unreported Opinion‒ 35 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
‒Unreported Opinion‒ 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.
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