appellees brief - 8september fpo final redacted

8/20/2019 Appellees Brief - 8September FPO FINAL Redacted

1/24

In the Court of Special Appeals

of Maryland

September Term, 2014,

Nos. 1553 and 2099

September Term, 2015,

No. 365

BRETT KIMBERLIN,

Appellant,

v.

AARON J. WALKER, ET AL.,

Appellees.

Appeal from the Circuit Court of Montgomery County, Maryland

(Hon. Eric Johnson and Terrance McGann, Judges)

APPELLEES WILLIAM HOGE AND ROBERT STACY MCCAIN

APPELLEES’ MOTION TO DISMISS

BRIEF OF APPELLEES

F. Patrick Ostronic

932 Hungerford Drive, Ste. 28A

Rockville, MD 20850

[email protected]

410-440-4833

Pro Bono Counsel for Appellees


2/24

1

TABLE OF CONTENTS

Appellees’ Motion to Dismiss and Proposed Order 10

Table of Authorities 10

Statement of the Case 11

Questions Presented 12

Statement of Facts 12

Arguments 12

I. The Constitutionality of MD CODE CTS. & JUD. PROC. §9-104 Is Not At Issue

Because Appellant Was Permitted To Testify 13

II. Judge Johnson Correctly Ruled For Appellees on the Verdicts for Defamation and

False Light 14

III. Judge Johnson Correctly Ruled On Motion for Judgement Without Submitting To

The Jury 16

IV. Judge Johnson Displayed No Prejudicial Conduct Depriving Appellant of a Fair

Trial in Limiting Important Evidence 17

V. Judge McGann Correctly Granted Summary Judgment for Five of the Counts 19

Conclusion 19

Text of Cited Constitutional Provisions, Statutes And Rules 13


3/24

2

_______________________________________

BRETT KIMBERLIN, *

* IN THE

Appellant, * COURT OF SPECIAL APPEALS

* OF MARYLANDv. *

* September Term, 2014: No. 1553

AARON WALKER et al, * September Term, 2014: No. 2099


Appellees * Consolidated Appeals

_______________________________________

APPELLEES’ MOTIONS TO DISMISS APPELLANT’S APPEALS FOR

FAILURE TO COMPLY WITH RULE 8-501(c)

Appellees William Hoge and Robert Stacy McCain, by their undersigned counsel, F.

Patrick Ostronic, hereby file this Motion to dismiss the now-consolidated Appeals and

offer the following in support of this filing.

MOTION TO DISMISS THE APPEALS

1.

Appellees recognize that normally this Court is not inclined to dismiss an

appeal merely for a less-than-strict adherence to the Rules. However, the Rules do

contemplate a dismissal for noncompliance, and Appellant has been exceptionally

noncompliant.

2. Maryland Rule 8-501(a) explicitly puts the onus of preparing a record

extract on the Appellant in a civil case. Appellant is required to include this extract as


4/24

3

either an appendix to Appellant’s brief or filed as a separate volume with the brief. In this

case, Appellant filed the extract as a separate volume.

3. Rule 8-501 anticipates that the parties will coordinate, to the extent

possible, the parts of the record to be included in the extract. Rule 8-501(d) even lays out

the scenario should the parties not agree on the contents of the extract. Specifically,

Appellant is required to serve on the Appellee what Appellant proposes to include in the

extract and he is to do this within 15 days after the filing of the record with the Court.

4.

In our case, however, Appellant did not serve any semblance of a proposed

extract prior to his filing of his brief, a clear violation of Rule 8-501(c). The first time

Appellees’ attorney saw the extract was after Appellant had filed his brief with the Court.

5.

Further, there is no Agreed Statement of Facts or Stipulation (as

contemplated by Rule 8-501(g)) that would mitigate Appellant’s failure to properly

prepare the extract.

6. As a result, Appellant has produced an extract that is far removed from the

intention of the Rules.

7.

The Table of Contents is noncompliant with the requirements of Rule 8-

501(h). For example, the table should “identify each document by a descriptive phrase

including any exhibit number.” Instead, Appellant’s table is a mere 5 lines that purports

to outline well over 300 pages of his extract.

8. Item A listed in the table is simply described as “Appellant’s Complaint.”

Appellant has reproduced his Second Amended Complaint (he had filed three altogether)


5/24

4

in its entirety and then referenced it solely as a source of his original counts against

Appellees. It serves no evidentiary purpose.

9. Item B is described as “July 1, 2014, Dismissal of Four Claims by Judge

McCann.” Actually, Judge McCann granted summary judgment for five claims and also

imposed immediate sanctions on Appellant for failure to produce discovery. Further,

what Appellant has produced therein are four pages from the Docket Summary detailing

the results of the hearing. What Appellant did not produce are copies of Judge McCann’s

judgments, orders and transcripts from that hearing.

10.

Item D is the antithesis of a “descriptive phrase.” Appellant sums up some

272 pages as “Selected Trial Transcripts.” One reading that description might normally

infer that Appellant has included just a portion of the transcripts necessary to help make

his point. Instead, Appellant includes the transcript of the entire August 12, 2014,

proceedings. Rule 8-501(h) has specific instructions as to how to reference the transcript

in a Table of Contents:

The table of contents shall (1) reference the first page of the initial

examination, cross-examination, and redirect examination of each

witness and of each pleading, exhibit, or other paper reproduced…

11.

Instead, all we get is “Selected Trial Transcripts.” This Court had

previously admonished a group of litigants who submitted a Record Extract of 273 pages

with a Table of Contents of only 21 entries – over 4 times the number of entries in

Appellant’s submission:

We must comment on the condition of the joint record extract

provided to this panel by the parties. This 273 page extract


6/24

5

contained a table of contents listing only 21 entries. One forty page

portion of the extract contained under one entry consisted of

numerous unlabeled exhibits. This entry, similar to the vast

majority of the others, was simply labeled "Exhibits attached to

Memorandum of Points and Authorities" without disclosing the

identity of those exhibits. These sparse entries forced the panel toleaf constantly through the extract in search of more discrete

portions of the record. This table of contents clearly violates

Md.Rule 8-501(h), which expressly requires specific identification

of exhibits. This Rule was adopted expressly to avoid wasting an

appellate court's time.

Son v. Margolius, Mallios, Davis, Rider & Tomar , 114 Md.App. 190, 689 A.2d 645, 652

(Md. App., 1996)

12.

The final item making up the Table of Contents is E: “August 7, 2014

Transcripts of Rule 9-104 Hearing Before Judge Jordan.” That’s a bit more descriptive

than item D but, unfortunately, the description is wrong.

13.

The August 7th hearing was on Appellant’s motion for a preliminary

injunction and several of the Appellees’ motions to dismiss several counts. While Judge

Jordan did comment somewhat on the matter of CJ §9-104, he was not hearing arguments

on any motions as to its constitutionality.

14.

In fact, Appellant did not file a motion on the constitutionality (or

applicability) of CJ §9-104 until after the August 7 hearing. Judge Johnson heard

Appellant’s motion on August 11th

(and reconsidered on August 12th

at Appellees’

request) but Appellant has only included the August 12th

transcript. While Judge Johnson

did not go so far as to declare CJ §9-104 unconstitutional, he did rule, over Appellees’

objections, that Appellant could testify at his trial.


7/24

6

15.

In other words, Appellant reproduced an unrelated hearing transcript that

has snippets somewhat sympathetic to his cause; all the while leaving out the transcript of

the actual hearing on his motion that would undercut his claim to learning he could testify

“literally minutes before testimony was to begin.” (Appellant’s Brief at 10) This is

exactly the kind of behavior that this Court has previously found sufficient to warrant

dismissal of an Appellant’s appeal:

[B]ut appellant placed in the supplemental record extract only that

testimony which supported his version of the facts and his

arguments, having failed to consult with opposing counsel and

comply with the Rules as to the content of the record extract.Because of the foregoing and his failure to include the complete

opinion of the trial court, appellant has violated every subsection of

Rule 1028 b. 1 which provides what is to be included in the record

extract…

Spivey v. Harris, 64 Md.App. 619, 498 A.2d 281 (Md. App., 1985).

16. At this time, we apologize for not continuously and helpfully referencing

the appropriate docket entries in the extract, but this just highlights another error in

Appellant’s preparation of the extract.

17.

Rule 8-501(c) outlines the required contents of the record extract beginning

with “the circuit court docket entries.” Appellant ignored this requirement except for the

previously noted copies of specific docket entries included in item B.

18.

Nor should Appellant’s pro se status work in mitigation in this instance.

Appellant is an experienced litigator, well versed in the resources available to pro se

litigants. In a previous filing in these appeals by Appellant, he made reference to his use

of this Court’s A Guide for Self-Representation :


8/24

7

Because Appellant is proceeding pro se, he relied on the Court’s

“Guide for Self Representation,” which has a section on Record

Extracts that Appellant followed precisely. Nowhere in that

document does it state that Appellant has to provide a copy of the

Record Extract to counsel prior to filing with the Court.

Appellant’s Response to Appellees’ (1)Motion to Dismiss, (2) Motion to Withdraw as Counsel

for Appellee Walker, and (3) Motion for Extension of Time to File Appellee Brief (August 15,

2015), ¶ 5.

19.

His claim for “Nowhere in that document” is refuted as early as page 4 of

that document which includes this succinct note:

The appellant prepares and files the record extract with the briefs.The appellant is required to contact the appellee prior to preparing

the record extract so that the parties may agree upon the extract

contents. Review Md. Rule 8-501

A Guide to Self-Representation, p. 4.

20.

Appellant has been non-communicative throughout the appeal. Despite his

certifications that he had provided copies of the various Civil Appeal Information Reports

that he had filed, neither Appellees nor their attorney received a copy of any of them until

Appellant delivered copies to the attorney concurrent with the delivery of the brief and

extract.

21.

To sum up, dismissal of the Appeals is appropriate for a number of reasons

contemplated by Rule 8-602(a)(8): “the style, contents, size, format, legibility, or method

of reproduction of a brief, appendix, or record extract does not comply with Rules 8-112,

8-501, 8-503, or 8-504.”

WHEREFORE, Appellees respectfully requests this Court dismiss Appellant’s Appeal.


9/24

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th

September 9, 2015

9th


10/24

9

_______________________________________

BRETT KIMBERLIN, *

* IN THE


* OF MARYLANDv. *





_______________________________________

ORDER

Having reviewed the Appellees’ Motion to Dismiss Appeals, and any Opposition thereto,

it is this ____ day of ________________, 2015, hereby ORDERED, that Appellant’s

Appeals are DISMISSED.

___________________________

Judge, Court of Special Appeals


11/24

10

TABLE OF AUTHORITIES

CASES

Batson v. Shiflett, 325 Md. 684, 602 A.2d 1191 (Md., 1991) 15

Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140 (Md., 2012) 15

Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628 (2005) 16

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

MD CODE Cts. & Jud. Proc. §9-104 passim

Md. Rule 5-602 18

Md. Rule 5-802 18

Md. Rule 8-501(c) 19

Md. Rule 8-501(i) 13

Md. Rule 8-503(a)-(c) 13


12/24

11

STATEMENT OF THE CASE

Appellees do not agree with the Appellant’s statement of the case but do accept

Appellee Walker’s statement of the case with the following additions.

With respect to Mr. Hoge, the Appellant alleged that he committed the followingtorts: malicious prosecution, conspiracy to abuse process, defamation, false light invasion

of privacy, harassment, intentional infliction of emotional distress, and stalking. With

respect to Mr. McCain, the Appellant alleged that he committed the following torts:

conspiracy to abuse process, defamation, false light invasion of privacy, harassment,

intentional infliction of emotional distress, and stalking. At a July 1, 2014, hearing, Judge

McGann granted summary judgment to the Appellees on every claim but defamation and

false light. On August 11-12, 2014, a trial by jury was held on those remaining counts

before Judge Eric Johnson. Prior to the trial beginning, Judge Johnson heard Appellant’s

motion to find MD CODE Cts. & Jud. Proc. §9-104 (convicted perjurers are incompetent

to testify) either unconstitutional or inapplicable to the case. Judge Johnson ruled that

Appellant could testify despite Appellant’s prior conviction for perjury. The Appellant

ultimately chose not to testify. At the end of the Appellant’s presentation of evidence, the

Appellees moved for judgment which Judge Johnson granted. The court found that

Appellant had not introduced any evidence that Appellees’ statements were false.

Appellant filed several notices of appeal which this Court has consolidated. Appellant is

challenging the grant of summary judgment on three of the claims (abuse of

process/malicious prosecution, conspiracy, and intentional infliction of emotional

distress), judgment on the remaining two counts, and the trial court’s overall procedural

handling of the case.


13/24

12

QUESTIONS PRESENTED1

I.

Whether Courts Article 9-104, which prohibits anyone convicted of perjury from

testifying in any Maryland court, is unconstitutional as a violation of the First

Amendment’s guarantee to meaningful access to the courts, the FifthAmendment’s Due Process Clause, and the Fourteenth Amendment’s Equal

Protection, under both the United States and Maryland constitutions, and other

articles of the United States and Maryland constitutions.

II. Whether the Circuit Judge erred in his ruling for a directed verdict on the

defamation and false light counts.

III.

Whether the Circuit Court Judge erred in not following the law with regard to his

ordering a directed verdict, rather than allowing the jury to issue a verdict.

IV.

Whether the Trial Judge exhibited prejudicial conduct in the case that deprived

appellant of a fair trial.

V.

Whether the Circuit Court erred in denying pretrial appellant’s claims for abuse of

process, conspiracy and intentional infliction of emotional distress.

STATEMENT OF FACTS

Appellees do not agree with Appellant’s statement of the case but do accept

Appellee Walker’s statement of facts. Appellant has merely reproduced manydeclarations included in complaints he has filed in other courts and for which he offered

no supporting evidence at trial (not even his own testimony). Along with Appellee

Walker, we also highlight Appellant’s mischaracterization of the timeline of his

previously referenced motion concerning the testimony of convicted perjurers.

ARGUMENTS

Although Appellees Hoge and McCain are filing a combined brief, we emphasize

that their cases are separate and distinct. Appellant, in filing his appeals, needs to show

distinctly how the Circuit Court erred in respect to Appellant’s case against Mr. McCain

1 These are presented as originally included in Appellant’s brief.


14/24

13

and, separately, his case against Mr. Hoge. In short, there is no “they” in these matters.

Instead, there are two separate Appellees against which Appellant must show reversible

error as to each case. A recurring theme, then, through the body of our Brief will be

Appellant’s continual failure to describe how any perceived errors of the Circuit Courtimpacted his case specifically against Mr. McCain or specifically against Mr. Mr. Hoge.

Also, we are constrained by the Extract as we received it. Appellant did not

consult with Appellees prior to submission, so we were unaware that Appellant would

use a numbering system not in accordance with Rules 8-501(i) and 8-503 (a)-(c).

Accordingly, we will reference to the Extract using the Appellant’s Letters and Page

Numbers (i.e., E.Dxx refers to Section D of the Extract: Selected Trial Transcripts).

We will be addressing Appellant’s arguments in the order he presented them.

I.

THE CONSTITUTIONALITY OF MD CODE CTS. & JUD. PROC. §9-104 IS NOT

AT ISSUE BECAUSE APPELLANT WAS PERMITTED TO TESTIFY

Appellant fails to even mention Mr. McCain or Mr. Hoge in his argument about

the constitutionality of MD CODE Cts. & Jud. Proc. §9-104, so Appellees cannot respond

to anything he argues as it specifically applies to their cases. That said, Appellant’s

argument deserves some perspective and comment.

On August 8, 2014, three days before the scheduled start of his trial, Appellant

filed a motion to find MD CODE Cts. & Jud. Proc. §9-104 unconstitutional or,

alternatively, not applicable to Appellant’s case. On August 11th, prior to the scheduled

start of the trial, Judge Johnson did not rule on the constitutionality of the law but did rule

that Appellant could testify. In essence, then, Judge Johnson found the prohibition against

a perjurer testifying inapplicable in this case. Thus, Appellant won on his motion: he

received the relief sought, and the Court allowed him to testify.

Appellant filed his motion on the Friday before the trial, and had his successful

hearing that following Monday – a turnaround time that is almost unheard of in normal


15/24

14

court proceedings. Appellant received as quick a hearing and decision as realistically

possible and it was done on his timeline. Further, as Appellant notes in his brief,

Appellees from the very start of this case made no secret of their intent to seek

enforcement of §9-104. Yet Appellant waited until the last business day prior to the trialto file his successful motion.

Appellant claims that he “repeatedly tried to get pretrial rulings on the

constitutionality of Rule [ sic] 9-104 so he could prepare for trial but the courts refused to

make those rulings or rule whether he could testify.” (Appellant’s Brief at 32) We are

only aware of the above-referenced August 8th

motion and August 11th

hearing as it

relates is this matter and Appellant does not reference any such efforts on his part back to

the Record. We could find no record of any other related pretrial rulings and are skeptical

they exist. Prior to the actual trial, Appellant had no need to testify.

Finally, Appellant does not address just how being allowed to testify without

finding §9-104 unconstitutional prejudiced him in this case. He chose not to testify. He

did not object that the timing of the ruling unfairly prejudiced his preparation. He just

decided, presumably as a matter of trial strategy, not to testify.

Further, not only is Appellant challenging a Circuit Court ruling in his favor, he is

challenging that ruling while failing to include much of the applicable transcript in the

Record. As noted, Judge Johnson heard much of the arguments on Appellant’s motion on

the first scheduled day of the trial. However Appellant did not provide the transcript of

that day (August 11, 2015) for inclusion in the Record. This Court, therefore, has an

incomplete record to review on this matter.

II.

JUDGE JOHNSON CORRECTLY RULED FOR APPELLEES ON THE

VERDICTS FOR DEFAMATION AND FALSE LIGHT

Appellant again makes an entire argument on one of his questions for review

without once mentioning Mr. McCain or how the supposed errors applied to Appellant’s

claims against Mr. McCain. His only mention of Mr. Hoge is in reference to some


16/24

15

disallowed emails from Appellant’s wife (Appellant’s Brief at 28). In short, Appellees

have no specific arguments to respond to as applied to their individual cases.

Appellant is fixated on the classification of defamation per se or per quod, but the

classification is meaningless as applied to this case. Quite simply, Appellant does not(and cannot) cite one piece of testimony or evidence that would suggest any specific

statement made by Mr. Hoge or Mr. McCain which was both false and made with malice.

We take this standard directly from the first case Appellant references in his Brief

on this matter— Batson:

The First Amendment of the United States Constitution requires

that before a public figure may recover for defamation, clear and

convincing evidence must establish that the statements in issue

were: (1) defamatory in meaning, … (2) false, … and (3) made with“actual malice.”

Batson v. Shiflett , 325 Md. 684, 722, 602 A.2d 1191 (Md. 1991). Emphasis added.

Internal citations omitted

We agree with Appellant that Batson is an appropriate citation for this matter as

we believe Appellant is sufficiently a public figure for purposes of applying this standard.

However, even using the less-stringent standard of a “private person” would not allow

Appellant to properly argue error on the part of Judge Johnson.

This is because, no matter the standard used, it was incumbent on Appellant to

produce evidence that a specific defamatory statement made by Mr. McCain and different

specific defamatory statement made by Mr. Hoge were each false:

Piscatelli advanced two counts in his complaint: defamation and

invasion of privacy (false light). We shall address [424 Md. 306] in

greatest detail Piscatelli’s defamation claim, but need not address

the false light claim separately. An allegation of false light must

meet the same legal standards [35 A.3d 1147] as an allegation ofdefamation. We shall conclude ultimately that Respondents did not

defame Piscatelli actually, rendering superfluous a separate analysis

of his false light claim.

In order to plead properly a defamation claim under Maryland law,

a plaintiff must allege specific facts establishing four elements to


17/24

16

the satisfaction of the fact-finder: “ ‘(1) that the defendant made a

defamatory statement to a third person, (2) that the statement was

false, (3) that the defendant was legally at fault in making the

statement, and (4) that the plaintiff thereby suffered harm.’ ”

Piscatelli v. Van Smith, 424 Md. 294, 35 A.3d 1140, 1146-47, 40 Media L. Rep.

1262 (Md. 2012). That same Court then explained the element of the statement

being false:

Under the second element, a “false” statement is one “that is not

substantially correct.” Batson v. Shiflett , 325 Md. 684, 726, 602

A.2d 1191, 1213 (1992). The plaintiff carries the burden to

prove falsity.

Id . at 1147. Emphasis added.

Appellant simply failed to do that, and he cannot cite anything in the record to the

contrary. Judge Johnson made the correct call in recognizing Appellant’s failure to

properly support all the elements of his claimed torts.

III.

JUDGE JOHNSON CORRECTLY RULED ON MOTION FOR JUDGEMENT

WITHOUT SUBMITTING TO THE JURY

This Court has outlined the appropriate standard for reviewing a grant of motion

of judgment:

In reviewing the grant of a motion for judgment, we assume the

truth of all credible evidence on the issue, and all fairly deducible

inferences therefrom, in the light most favorable to the party against

whom the motion is made.... Consequently, we “may affirm the

grant of the motion for judgment only if . . . we conclude that therewas insufficient evidence to create a jury question.”

Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628, 637 (2005).

Internal quotation marks and citations omitted.

At the trial, Appellant was working on two claims against both Mr. McCain and


18/24

17

Mr. Hoge: defamation and false light. As previously noted, a crucial element of both torts

is falsity—the supposed defamatory statements must be false, and the jury can’t find the

statements false absent any relevant evidence. Appellant constantly glosses over this. He

failed to introduce any evidence that would allow the matter to go to the jury on thequestion of falsity, and this is what the Judge Johnson told him at the conclusion of the

trial: “[t]here’s not one scintilla of evidence in this case that the statements that were

made by these individuals [Mr. McCain and Mr. Hoge] were false.” (E.D 266)

Specifically, Appellant does not (and cannot) point to anywhere in the Record to

an alleged defamatory statement made by Mr. McCain and/or Mr. Hoge and then also

make reference to introduced evidence that supports his contention that the alleged

defamatory statement is false.

While we also believe any statements made by Mr. McCain and Mr. Hoge are

protected as opinions based on disclosed facts, Judge Johnson was correct in asserting

that absent evidence of falsity, there was nothing for the jury to decide. As previously

noted, the torts of defamation and false light require, as an element to prove, evidence of

falsity. Appellant failed to present the jury with any such evidence.

IV.

JUDGE JOHNSON DISPLAYED NO PREJUDICIAL CONDUCT DEPRIVING

APPELLANT OF A FAIR TRIAL IN LIMITING IMPORTANT EVIDENCE

We began our Brief discussing how Judge Johnson ruled in Appellant’s favor as to

Appellant being allowed to testify despite a previous conviction for perjury. That, if

nothing else, should have given Appellant his best chance at trial. Having failed to take

advantage of that ruling, Appellant now tries to allege prejudice because he was ruled

against on some fairly routine evidentiary matters. However, Mr. McCain and Mr. Hoge

discern no law-based argument by Appellant against any specific ruling by Judge

Johnson.

Appellant begins by saying Judge Johnson refused to allow testimony by


19/24

18

Appellant’s daughter as to “untoward interest in her, her friends or her sister.”

(Appellant’s Brief at 32). However, as previously discussed within, Appellant noted a

few pages earlier in his Brief (Appellant’s Brief at 28) that his daughter “did testify that

the allegations of pedophilia were false ...” What Judge Johnson did not allow wastestimony about which Appellant’s daughter could not credibly testify.

Appellant is also dismayed that Judge Johnson did not allow the daughter to testify

as to the travails of Appellant’s reputation (Appellant’s Brief at 32). In other words,

Judge Johnson did not allow a 15-year old girl to testify as to what “neighbors and

parents of her friends” were thinking. It should be self-evident that, at best, such

testimony would have been hearsay. Appellant’s daughter would have been unable to

directly link anything Mr. Hoge or Mr. McCain wrote or said based on any of the actions

she observed. Consistent with both Rules 5-602 (Lack of personal knowledge) and 5-802

(Hearsay), such testimony would have been speculative, and Judge Johnson properly did

not allow Appellant to introduce it.

Finally, he complains that Judge Johnson did not allow emails between

Appellant’s wife and Mr. Hoge to be entered (Appellant’s Brief at 33). But Appellant’s

citation for this point is the testimony of Appellee Walker (E.D119-123) wherein

Appellee Walker properly invoked Attorney-Client privilege as to communications with

Appellant’s wife. However, we note that during Mr. Hoge’s testimony, Judge Johnson

excluded much of the testimony about Appellant’s wife’s emails on hearsay grounds

(E.D142). Appellant fails to provide any law-based arguments to respond to as to why

Judge Johnson’s rulings were incorrect. And, once again, Appellant does not even

mention Mr. McCain in his Argument IV.

As to Mr. McCain and Mr. Hoge individually, Appellant again fails to state with

any specificity as to exactly how any of Judge Johnson’s evidentiary rulings prejudiced

Appellant as to his claims against either Appellee.


20/24

19

V.

JUDGE MCGANN CORRECTLY GRANTED SUMMARY JUDGMENT FOR

FIVE OF THE COUNTS

Appellant claims that Judge McGann’s grant of summary judgment for three of the

counts is reversible error. In support of this, he references exactly nothing in the Record,

which is appropriate because the Record does not include the transcripts from the July 1,

2014, hearing. Further, the Extract does not include the judgements appealed from as

required by Rule 8-501(c). The Extract does include the Docket Entries relating to the

July 1, 2014, hearing, but Appellant makes no reference to even them in his argument. In

short, Appellant makes his entire argument without a single reference to the Record.

Instead, he merely re-alleges elements of his complaint without explaining where Judge

McGann went wrong in his rulings. Mr. Hoge and Mr. McCain have no issue with Judge

McGann’s rulings and, accordingly, will not argue with Appellant’s lack of argument on

this matter.

CONCLUSION

Anyone who has carefully read and studied all 272 pages of the trial transcript

(E.D) and Appellant’s 35-page Brief would still be unable to answer the following query:

“Identify even one alleged defamatory statement made by either Mr. McCain or

Mr. Hoge for which Appellant produced admissible evidence as to its falsity.”

It simply can’t be done. For all the foregoing reasons, Appellees McCain and

Hoge respectfully request that this Court affirm the decisions of the Circuit Court of

Montgomery County.


21/24

9,9,9,9,9,9,9,9,9,9,9,9,9,9,9,9,


22/24

21

TEXT OF CITED CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

MD CODE Cts. & Jud. Proc. §9-104. Convicted perjurer

A person convicted of perjury may not testify.

Rule 5-602. Lack of personal knowledge

Except as otherwise provided by Rule 5-703, a witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the witness has personal

knowledge of the matter. Evidence to prove personal knowledge may, but need not,

consist of the witness’s own testimony.

Md. Rule 5-802. Hearsay rule

Except as otherwise provided by these rules or permitted by applicable constitutional

provisions or statutes, hearsay is not admissible.

Md. Rule 8-501(c). Record extract: Contents

(c) Contents. The record extract shall contain all parts of the record that are reasonably

necessary for the determination of the questions presented by the appeal and any cross-

appeal. It shall include the circuit court docket entries, the judgment appealed from, and

such other parts of the record as are designated by the parties pursuant to section (d) ofthis Rule. In agreeing on or designating parts of the record for inclusion in the record

extract, the parties shall refrain from unnecessary designation. The record extract shall

not include those parts of the record that support facts set forth in an agreed statement of

facts or stipulation made pursuant to section (g) of this Rule nor any part of a

memorandum of law in the trial court, unless it has independent relevance. The fact that a

part of the record is not included in the record extract or an appendix to a brief shall not

preclude an appellate court from considering it.

Md. Rule 8-501(i). Record extract: Style and format

(i) Style and format. The numbering of pages, binding, method of referencing, and coversof the record extract, whether an appendix to a brief or a separate volume, shall conform

to sections (a) through (c) of Rule 8-503. Except as otherwise provided in this section and

in section (g) of this Rule, the record extract shall reproduce verbatim the parts of the

record that are included. Asterisks or other appropriate means shall be used to indicate

omissions in the testimony or in exhibits. Reference shall be made to the pages of the

record and transcript. The date of filing of each paper reproduced in the extract shall be

stated at the head of the copy. If the transcript of testimony is reproduced, the pages shall


23/24

22

be consecutively renumbered. Documents and excerpts of a transcript of testimony

presented to the trial court more than once shall be reproduced in full only once in the

record extract and may be referred to in whole or in part elsewhere in the record extract.

Any photograph, document, or other paper filed as an exhibit and included in the record

extract shall be included in all copies of the record extract and may be either folded to the

appropriate size or photographically or mechanically reduced, so long as its legibility isnot impaired

Md. Rule 8-503. Style and form of briefs

(a) Numbering of pages; binding. The pages of a brief shall be consecutively

numbered. The brief shall be securely bound along the left margin.

(b) References. References (1) to the record extract, regardless of whether the record

extract is included as an attachment to the appellant’s brief or filed as a separate

volume, shall be indicated as (E ........), (2) to any appendix to appellant’s briefshall be indicated as (App ........), (3) to an appendix to appellee’s brief shall be

indicated as (Apx ........), and (4) to an appendix to a reply brief shall be indicated

as (Rep. App ........). If the case falls within an exception listed in Rule 8-501 (b),

references to the transcript of testimony contained in the record shall be indicated

as (T ........) and other references to the record shall be indicated as (R ........).

(c) Covers. A brief shall have a back and cover of the following color:

(1) In the Court of Special Appeals:

(A) appellant’s brief -- yellow;

(B) appellee’s brief -- green;

(C) reply brief -- light red;

(D) amicus curiae brief -- gray;

(E) briefs of incarcerated or institutionalized parties who are self-

represented -- white.


24/24

23

BRETT KIMBERLIN, *

* IN THE


* OF MARYLAND

v. ** September Term, 2014: No. 1553




_______________________________________

ORDER AFFIRMING JUDGMENT

Upon consideration of the Appellant’s Brief, Appellees Hoge and McCain’s Brief,

Appellee Walker’s Brief, and any other filings in support or opposition thereto, it is this

day of , 2015, hereby

ORDERED that the Judgment of the Circuit Court for Montgomery County is

AFFIRMED; and it is further

ORDERED that the Appellant shall pay costs.

__________________________________________

Judge, Court of Special Appeals