Abbott et al v. Gordon et al, No. 8:2009cv00372 - Document 59 (D. Md. 2011)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 3/7/11. (sat, Chambers)
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Abbott et al v. Gordon et al Doc. 59 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : PAUL ABBOTT, et al. : v. : Civil Action NO. DKC 09-0372 : CHERYL R. GORDON, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this case involving a claim of tortious interference with prospective advantage are motions filed by Plaintiffs Paul Abbott and Dr. Elaine Barker to compel deposition testimony and for leave to request production of documents (ECF No. 39), and by Defendants Cheryl R. Gordon-Zupancic and John M. Zupancic, III, for summary judgment (ECF No. 40). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Plaintiffs motion will be denied and Defendants motion will be granted. I. Background Following the court s prior grant of Defendants motion to dismiss (ECF Nos. 10, 11), the only remaining claim in this case is one for tortious interference with prospective advantage relating to conduct alleged to have occurred after February 17, 2006. Although a discussion of the factual background occurring Dockets.Justia.com prior to that date is necessary to frame the relevant issues, the proper focus of the litigation, at present, is on events occurring from February 18, 2006, through February 17, 2009, the date the complaint was filed. A. Factual Background 1. On or Before February 17, 2006 The following facts are undisputed, uncontroverted, construed in a light most favorable to Plaintiffs. or On April 24, 2004, Plaintiffs Paul Abbott and Dr. Elaine Barker entered into a contract with Catherine Bartos to purchase a parcel of real property in Scotland, Maryland ( the Property ). The Property is located on the Potomac waterfront in an area designated by the State of Maryland as environmentally critical. In September 2003, an existing cottage on the Property was severely damaged by Hurricane Isabel and condemned by St. Mary s County ( the County ). Plaintiffs agreed to purchase the Property, in as is condition, for $75,000 and paid a $3,000 down payment. The contract described the Property as Lot 15 and one-half (1/2) of Lot 14, Section 1, plat 2/66, Cornfield Harbor (13945 Cornfield Harbor Dr., Scotland, MD). (ECF No. 40, Ex. 6).1 1 The seller, Dr. Barker testified at a prior proceeding that Ms. Bartos and a neighbor had jointly purchased the lot between their properties and agreed to split it so that no one would ever build a cottage between their two cottages. (ECF No. 45, Ex. 1, at E. 0048). Ms. Bartos half of that lot was the one half of lot fourteen . . . referenced in [the] contract. (Id.). 2 Ms. Bartos, applicable warranted health contract was approved building that and [w]ell and environmental contingent on permit acceptable to purchasers. meet property obtaining of all and requirements, Plaintiffs for septic the an similar [a]n size (Id.). Even before the contract was signed, Plaintiffs spoke with the County s Department of Land Use and Growth Management ( LUGM ) and Health Department regarding obtaining a permit to rebuild on the Property. at 42-43). (ECF No. 45, Ex. 1, at E. 0048; Ex. 5, Dr. Barker s primary contact at LUGM was with Yvonne Chaillet, a planning and zoning administrator, related to the requirements for rebuilding in an environmentally critical area. (ECF No. 45, Plaintiffs Ex. 5, contracted at 45). with a In mid to surveying late June company, 2004, Nokleby Surveying, Inc., to draw a plat and represent on that plat the property as it had been . . . and the property for purposes of rebuilding. (ECF No. 45, Ex. 1, at E. 0056). The contract called for settlement to take place within one hundred twenty days, but it soon became apparent to Plaintiffs that they would not be able to obtain a building permit within that time frame. Consequently, extension of the settlement date. Plaintiffs requested an On June 24, 2004, Plaintiffs and Ms. Bartos executed an addendum to the contract, extending the settlement to [seven] months from the date of this signed 3 agreement [i.e., to January 24, 2005] or as soon as [Plaintiffs] are able to obtain diligently pursue. provided that a building permit, (ECF No. 40, Ex. 7). Seller understands the which they shall The addendum further need for and grants permission to the Purchasers to arrange for soil tests to be conducted for pilings, which St. Mary s County requires rebuilding or for any new construction on the property. for (Id.) On or about July 13, 2004, Defendant Cheryl R. GordonZupancic contacted Ms. Bartos, by telephone, expressing the interest of herself and her husband, Defendant John M. Zupancic, III, in purchasing the Property. Zupancic of the existing Ms. Bartos advised Ms. Gordon- contract with Plaintiffs. The following day, Ms. Gordon-Zupancic sent a letter to Ms. Bartos suggesting that it might be a good idea to do a back up contract with Defendants, which would be more favorable than [her] current offer and would not require contingency studies and the like. Defendants (ECF retained No. the 45, Ex. services 14). of an Soon attorney, Finkelstein, to assist them in drafting a contract. September 13, 2004, Mr. Finkelstein thereafter, contacted Ms. Nathan On or about Bartos on behalf of Defendants, and followed-up with a letter requesting a copy of the original contract so that we can make certain that our back-up contract conforms with the terms of that Agreement. (ECF No. 45, Ex. 16). On or about September 19, 2004, Ms. 4 Gordon-Zupancic sent Ms. Bartos a copy of Defendants contract ( the back-up contract ) along with a cover letter indicating that she might have some news to report on the building permit progress of the primary couple, referencing a publicly- available website that would allow her to monitor the status of any building permit application on the Property. (ECF No. 45, Ex. 18). On September 30, 2004, Plaintiffs submitted their building permit application to the County s LUGM office, which shared the application, electronically, with the County s Health Department and Soil Conservation District. to issue, required to all three approve of the In order for a building permit these governmental application. divisions Moreover, because were the Property was located in an environmentally critical area, the State of Maryland s Critical Area Commission was required to approve any variance from existing zoning regulations. Glynnis Plaintiffs Schmidt, application who for was responsible the County s began her review on October 5, 2004. for processing Health Department, She observed that the application was missing required documentation, discovered that there was no record on file of the septic system and well on the Property, and determined that a site visit was necessary to check [septic] tank construction. M HD 000033). (ECF No. 40, Ex. 9, at St. On October 15, Ms. Schmidt contacted Dr. Barker 5 and requested certain drawings showing the existing cottage and proposed house, with measurements, and placed Plaintiffs application on hold until [a] drawing is provided. (Id.). At around this time, Plaintiffs began experiencing delays in obtaining information from building permit application. that the Health regarding the Ms. system, related to their After learning from Ms. Schmidt Department septic Bartos needed further Plaintiffs asked provide a copy of a utility bill. documentation Ms. Bartos to It took Ms. Bartos over a month to provide the requested bill, as opposed to a week or so for the provided. other information that she [had (ECF No. 40, Ex. 1, at E. 0071). previously] In her frequent discussions with Dr. Barker at around this time, Ms. Bartos began inquiring as to whether Plaintiffs wanted to rescind the contract. (Id. at 0082-83). Dr. Barker assured her that they did not. On or about October 19, 2004, unbeknownst to Plaintiffs, Ms. Bartos and Defendants executed the back-up contract for the sale of the Property to Defendants in the event that the primary contract between Plaintiffs and Ms. Bartos failed to settle. (ECF No. 45, Ex. 6). at settlement, Defendants agreed to pay $100,000 in cash without contingency, and paid a $5,000 payment, which was held in escrow by Mr. Finkelstein. down Under the back-up contract, settlement was to occur at the earlier of 6 Forty Five (45 days) after Notice is given to [Plaintiffs] that the Primary Contract herein has been voided and released, or Forty Five (45) Days after January 24, 2005 when the Primary Contract has lapsed and a release has been obtained. 3). (Id. at ¶ It also precluded Ms. Bartos from agreeing to any further extension of the closing date with Plaintiffs beyond January 24, 2005. (Id. at ¶ 11.3). On or about October 26, 2004, Plaintiffs received a letter, purportedly from Jerry P. Blackburn, Esq., on behalf of an organization called Friends of Cornfield Harbor, LLC, expressing concern with regard to their plans to rebuild on the Property and vowing to do everything within [its] power, legally and otherwise, to block such new construction. No. 45, Ex. 19).2 (ECF Citing the commitment of this organization to preserving the habitat of local wildlife, and its long-standing record of success destruction/development in in slowing the and/or Chesapeake Bay preventing region, the letter threatened aggressive action against Plaintiffs if they did not reconsider their plans to rebuild. At around the same time, (Id.). Plaintiffs learned that they needed to obtain a critical area variance from the St. Mary s 2 Plaintiffs contend that this letter, and all others purportedly sent by community groups, was actually sent by Defendants. They attach the report of a linguistic expert in support of this claim. (ECF No. 45, Ex. 23). 7 County Board of Appeals ( Board of Appeals ) in order to be eligible for a building permit. When they advised Ms. Bartos of this fact, she offered to rescind the contract, refund their deposit, and pay Plaintiffs declined. a portion of their subsequent expenses. Instead, on November 1, 2004, they filed with the LUGM office a request for an administrative variance to allow them to construct a replacement single family home on the Property. (ECF No. 40, Ex. 4, at PAEB004077; Ex. 3, at 7-17). Ms. Chaillet reviewed Plaintiffs variance request and, on or about November 10, 2004, drafted a memorandum containing a recommended motion in favor of it, which LUGM staff would make before the Board of Appeals at a hearing on November 18. No. 40, Ex. 4, at PAEB004067). Plaintiffs complied (ECF with a requirement that they post notice of the variance request and the upcoming hearing on the Property. Also on November 10, Ms. Chaillet and Susan Mahoney, another LUGM employee, received a letter from Concerned Citizens of the Cornfield Harbor Neighborhood complaining that the posting on the Property was misinforming and misleading, that the variance seeker had not complied with certain notification requesting that the hearing be rescheduled. requirements, and (ECF No. 45, Ex. 21). On November 15, 2004, Ms. Schmidt performed her planned site visit and learned from a neighbor that he had helped Ms. 8 Bartos late husband install an unapproved, tank on the Property in the 1980s. HD 000033). Upon inspecting the hand-made septic (ECF No. 40, Ex. 9, at St. M septic tank, Ms. Schmidt determined that it would be necessary to review a surveyed site plan and that the bootlegged septic tank would need to be replaced before the Health Department could approve a building permit. Barker (Id. at St. M HD 00034). the Department following was existing day requiring house, septic, Ms. Schmidt spoke with Dr. and advised a surveyed well, her and that site the plan drainfield, Health showing proposed footprint moved to 10 from the existing drainfield, location of new 2,000g septic tank, and possibly a new well. followed-up with a memorandum to Dr. Barker (Id.). She explaining the reasons why, at this time, the St. Mary s Health Department cannot offer approval of the proposed house replacement on the Property and the review process is currently on hold. (ECF No. 40, Ex. 9, at St. M HD 000024). After explaining the problems drainfield, with the septic system, the and the necessity of a surveyed site plan, Ms. Schmidt opined that the house replacement plans may not be feasible due to limitations imposed by the location of the existing well and critical area requirements. Upon (Id. at St. M HD 000025). learning of the Health Department s findings, Ms. Chaillet contacted Dr. Barker and advised her that the problems 9 with the septic system would necessitate postponement of the hearing before the Board of Appeals. removed from the November 18 The variance hearing was docket, and Ms. Chaillet told Plaintiffs that it could not be rescheduled until February 2005, at the earliest.3 To date, it has not been rescheduled. On November 23, 2004, Plaintiffs met with Ms. Schmidt to discuss their plans going forward. In a follow-up letter dated November 30, Ms. Schmidt summarized what was discussed at that meeting, stating, [i]n order for our review to resume, you need to have a Maryland-registered surveyor submit a site plan to our office. (ECF No. 40, Ex. 9, at St. M HD 000022). further indicated the items necessary for The letter building permit approval as being submission of an appropriate surveyed site plan and submitted a to septic our tank office replacement from a application licensed septic and fee contractor. (Id.). On November 30, Ms. Chaillet and another LUGM employee received an email from James Brownley, Jr., on behalf of The Citizens of Cornfield Harbor Drive. (ECF No. 45, Ex. 22). The letter stated that Mr. Abbott had been aggressive and rude to 3 At her deposition, Dr. Barker testified that the problem with the septic system had been misrepresented by Mrs. Bartos. She conceded that this problem knocked everything off the Board of Appeals process and that Defendants conduct did not tie into [Plaintiffs ] . . . case having been removed from the Critical Area Board of Appeals docket. (ECF No. 40, Ex. 1, at 223-24). 10 neighbors and dishonestly presented himself as the owner of the property, that he was preying on elderly property owners, and that he planned to rebuild on the Property and illegally sell it for profit. (Id. at 2). The portion of the email relating to Mr. Abbott another developer was also targeted concluded by asking, How are you planning to prevent this from happening? (Id.). In early December, Plaintiffs contacted Ms. Bartos to advise her that the critical area variance hearing could not be rescheduled until at least February 2005. Ms. Bartos refused to extend the settlement date beyond January 24, 2005. Plaintiffs, contract buyers for and the first that would time, her that she had [a] back up Finkelstein [Mr.] sue She told told her the back up if she extended her contract with [Plaintiffs] past January [24, 2005], because the back up buyers had the right to purchase settlement by that date. the property if we didn t go to (ECF No. 45, Ex. 1, at E. 0084). Concerned that they might lose the Property to Defendants, Plaintiffs they decided obtain settlement. a to waive building the permit contractual and contingency proceed immediately that to Following a discussion with Ms. Bartos on January 12, 2005, settlement was scheduled for Friday, January 21, at 4:00 p.m., at the California, Maryland. Law Office of Harris & Capristo, in On January 13, Plaintiffs sent a letter 11 to Mr. Finkelstein advising that they were closing on the Property the following week in light of the fact that Ms. Bartos was being pressured by the people with the back-up contract to go to settlement as soon as possible and to avoid any potential litigation, with either [Ms.] Bartos or [Defendants]. (ECF No. 45, Ex. 26).4 Upon arriving at the law office on the settlement date, Plaintiffs learned that their attorney, F. Michael Harris, had received a facsimile earlier on the same date from Jerry P. Blackburn and Friends of Cornfield Harbor, LLC, alleging, inter alia, the existence of a lis pendens on the Property. (ECF No. 45, Ex. 27).5 the letter presented Mr. Harris explained to Plaintiffs that a potentially serious issue requiring further investigation, but that he would be unable to check the relevant land records until the next business day Monday, January 24, 2005, the deadline for settlement of Plaintiffs contract with Ms. Bartos. He suggested that Plaintiffs sign the settlement documents and provide him with the purchase funds, which he would hold in escrow until the lis pendens allegation 4 The letter references a prior conversation between Dr. Barker and Mr. Finkelstein taking place on December 29, 2004. 5 A lis pendens is a notice, recorded in the chain of title to real property . . . to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome. Black s Law Dictionary 1335 (8th ed. 2004). 12 could be investigated. Plaintiffs agreed to do so. When Ms. Bartos arrived, Mr. Harris explained the situation to her and suggested that she sign the deed, which he would also hold in escrow pending further investigation. Ms. Bartos refused, stating that she wasn t interested in being in the same room with Plaintiffs and wasn t settling unless she received her check. (ECF No. 45, Ex. 1, at E. 0096-97). Plaintiffs were nevertheless determined to close on the Property. They signed all necessary paperwork and submitted two checks to Mr. Harris for the full amount of the purchase price. On the morning of January 24, 2005, Mr. Harris made a final attempt to settle. He called Ms. Bartos and asked her to meet him at the courthouse, suggesting that he could then confirm his suspicion that there was no lis pendens action, she could sign the deed, and he could record it and distribute the purchase funds to her.6 Ms. Bartos again refused, telling Mr. Harris that the ship had left the dock and she had a back up contract and she wasn t going to be pushed around anymore. (ECF No. 45, Ex. 1, at E. 0220). Later on the same date, Plaintiffs filed a complaint against Ms. Bartos in the Circuit Court for St. Mary s County 6 It is undisputed that there was no lis pendens action against the Property. Plaintiffs contend that the letter from Friends of Cornfield Harbor was a ploy by Defendants to delay settlement beyond the deadline. 13 ( the Abbott/Bartos litigation ). Plaintiffs requested specific performance of their contract and a declaratory judgment that they were not required to settle on the Property before the issuance of a building permit. In the cover letter accompanying the copy of the complaint that he sent to Ms. Bartos, Mr. Harris indicated that the most recent another Friends of stumbling Cornfield block for Harbor letter Plaintiffs had identified rebuilding efforts namely, that the one half of lot fourteen, section one was an illegal subdivision of land. acknowledged correction, that which [t]his my (ECF No. 40, Ex. 27).7 fact, clients are in and of willing The letter itself, to requires undertake, and further affirmed that Plaintiffs remain ready, willing and able to settle with you prior to the issuance of a building permit. (Id.). On February 10, 2005, Ms. Gordon-Zupancic sent a letter to Ms. Bartos expressing Defendants support of her position in the pending law previously suit, in aid referencing of her a package defense, addendum to the back-up contract. and of material attaching a sent proposed (ECF No. 45, Ex. 38, at 2). On or about February 13, Ms. Bartos executed the addendum, which 7 Ms. Chaillet testified at her deposition that a property subdivided by deed after March 19, 1978, has no building rights until it goes through the process to become a lot of record . . . [by] the subdivision review process and recording a plat[.] (ECF No. 40, Ex. 3, at 94-95). 14 provided, in relevant part, that the back-up contract will remain effective from the date of the signing of this addendum until a court of law in the State of Maryland has judged that the Primary Contract is either VOIDED, EXPIRED or it has been determined that Seller does not have to settle with Primary Contract Holders. of the addendum, (ECF No. 45, Ex. 39). Ms. Bartos was Thus, under the terms required to obtain a final determination on the merits of the Abbott/Bartos litigation. On November 3, 2005, Ms. Bartos filed a separate declaratory judgment action against Defendants in the Circuit Court for St. Mary s County ( the Bartos/Zupancic litigation ), asking the court to: Declare that [Ms. Bartos], regardless of any language contained in the Back-up Contract and Addendum to the contrary, has the right to enter into settlement negotiations and, if fruitful, to enter into a settlement agreement with [Plaintiffs] to sell them the Bartos Property, and that [she] will suffer no liability of any kind to Defendants if [she] does. (ECF No. 45, Ex. 41, at 4). filed a third-party On November 17, 2005, Plaintiffs complaint against Defendants in the Bartos/Zupancic litigation, naming Ms. Bartos as co-plaintiff and seeking a declaratory judgment that the back-up contract was unenforceable. (ECF No. 45, Ex. 43). 15 2. After February 17, 2006 On February 27, 2006, Defendants filed a counterclaim against Ms. Bartos in the Bartos/Zupancic litigation seeking a declaratory judgment that the back-up contract was valid and enforceable and demanding specific enforcement. moved to intervene consolidate that in case the with Abbott/Bartos the Defendants also litigation Bartos/Zupancic Those motions were granted on March 30, 2006. and to litigation. Soon thereafter, Defendants filed a counterclaim against Plaintiffs, asking that Plaintiffs contract with Ms. Bartos be declared null and void. On July 12, 2006, following a three-day bench trial, the circuit court ruled in favor of Plaintiffs, finding: [The purchasers] did nothing wrong. They did everything they were suppose [sic] to do. They were ready, able and willing to settle. They had their money ready to pay. They had a right to have their attorney check the title to determine whether there was a cloud on it or not. They did not even have to go past the date of the settlement within the contract, within the addendum of the contract to do so. . . . Mrs. Bartos made up her mind to demand her check in spite of the title issues, and to not come back, not to sign anything and put it in escrow and not to come back on Monday. And basically . . . the sale didn t go through because of Mrs. Bartos [sic] behavior. Zupancic, III, et al. v. Abbott, et al., No. 916, September Term, 2006, slip op. at 18 (Md.App. Oct. 18, 2007) (quoting the 16 circuit court s oral decision). The court granted Plaintiffs request for specific performance, ordering Ms. Bartos to sign all documents business days effectuating of same the being sale . . presented . to within [her] three attorney [3] by Plaintiffs, and directing Plaintiffs to tender the proceeds of the sale . documents. . . immediately upon (ECF No. 40, Ex. 23). receipt of the signed The order further provided that upon exchange of the signed documents and proceeds of the sale by and between Plaintiffs and Ms. Bartos, back-up contract would be rendered null and void. Defendants (Id.). On July 17, 2006, Defendants filed a notice of appeal to the Court of Special Appeals of Maryland, along with a motion to stay the trial court s judgment. court granted a temporary stay On July 19, the appellate pending denied the motion to stay on July 28. notice of appeal on August 11. further review, but Ms. Bartos filed her Throughout the state court proceedings, Defendants were in regular contact with Ms. Bartos and, on or about October 2, 2006, they loaned [her] $5,000.00 to pay attorney s fees for the appeal, which was not repaid and subsequently forgiven by Defendants. Ex. 46, at Ans. to Int. No. 9). (ECF No. 45, Ex. 44; On October 18, 2007, the Court of Special Appeals issued an unpublished opinion affirming the circuit court s decision. The appellate court s mandate was 17 issued on February 4, 2008. (ECF No. 45, Ex. 36, at Dkt. No. 136). While the appeal was pending, Plaintiffs resumed efforts to obtain a building permit on the Property. 13, 2006, Nokleby Surveying, Inc., on behalf of their On October Plaintiffs, submitted an application for a confirmatory plat to LUGM in attempt to correct the illegal subdivision. LUGM determined that the confirmatory plat was not the proper type of plan to submit for what the applicant wanted to do. 3, at 130). advised By a Plaintiffs memorandum surveyor dated that a (ECF No. 40, Ex. February boundary plat was necessary. (ECF No. 40, Ex. 28). adjustment submitted plat was on behalf 2, 2007, line LUGM adjustment A boundary line of Plaintiffs on September 12, 2007, and was approved by LUGM on November 28, 2007. (ECF No. 40, Ex. 3, at 129). On November 5, 2007, after the case on appeal had been decided, Mr. Zupancic sent a letter to LUGM Director Denis Canavan ( the Zupancic Letter ), asserting that the litigation was still ongoing and that the subject matter of the case centers around the acquiring of a building permit, and the fact that the [P]roperty contains a portion that is an illegal parcel of record[.] (ECF No. 45, Ex. 49, at 1). stated: 18 The letter further An important part of the lawsuit that is ongoing revolves around the fact that the property in question contains an illegal parcel of record (Lot 14). . . . The plaintiffs in the lawsuit s original attorney, F. Michael Harris, who conducts real estate settlements in St. Mary s County[,] has stated on numerous occasions that the one half of lot fourteen, section one, Cornfield Harbor[,] is an illegal subdivision of land. . . . We also ask that a great deal of care be taken and that LUGM procedures and policies are followed as closely as possible, as this entire process may eventually endure a microscopic level audit by the courts and/or the attorneys involved in this litigation. . . . St. Mary s County LUGM is front and center within the theatre of the ongoing litigation regarding 13945 Cornfield Harbor Drive, and in light of this, we want to ensure that the policies and procedures regarding this property s building permit and [boundary line adjustment plat] processes are clearly defined, and strictly adhered to. (Id. at 2, 4). In or around January 2008, Defendants also published a website dedicated to the state court litigation, www.theretainercheck.com, on which they posted, inter alia, a copy of the retainer check written by Dr. Bartos to Mr. Harris and a copy of the deed to the Property. Ex. 23, at 196). (ECF No. 45, Ex. 50; The website also contained an online message board, SoMa eCommunity Board, where Defendants posted opinions and articles related to the litigation and the Property. No. 45, Ex. 13, at 171-72; Ex. 23, at 195; Ex. 51). 19 (ECF On March attorney, 14, 2008, Christopher Longmore, transfer of the Property. same date, Mr. Plaintiffs Longmore with presented documents Ms. Bartos effecting (ECF No. 40, Ex. 14, at 88). executed the deed on the On the behalf of Ms. Bartos, pursuant to a Power of Attorney. Because their 2004 building permit application expired in 2006, Plaintiffs submitted a new application to the County on May 13, 2008. LUGM started a new file for this application and assigned it to Jennifer Ballard, an Environmental Planner who handled critical area building permits. On May 16, 2008, Nokleby submitted a surveyed site plan to the Health Department on Plaintiffs behalf. After conducting an initial review and a site inspection, Ms. Ballard prepared two reports listing items that needed to be addressed in order for the rebuilding project to meet critical area and flood plain requirements. 40, Ex. 30, 31). (ECF No. Thereafter, Nokleby submitted a series of revised site plans, the last of which was approved for signature on October 8, 2008. To date, however, Plaintiffs have not addressed the problem with the Property s septic system, nor have they resolved the critical area variance issue. Consequently, they have not obtained a building permit.8 8 At his April 2010 deposition, Mr. Abbott testified that Plaintiffs haven t decided what to do with [the Property] now, and [i]t s up in the air whether [they] will rebuild. (ECF No. 40, Ex. 11, at 23-24). 20 B. Procedural Background On February 17, 2009, Plaintiffs commenced this diversity action by filing a complaint alleging tortious interference with contract, tortious interference with prospective advantage, and defamation under Maryland Defendants moved to law. dismiss, (ECF No. contending, 1). inter In response, alia, that Plaintiffs claims were barred by the applicable statutes of limitations. (ECF No. 3).9 On August 6, 2009, the court issued a memorandum opinion and order granting in part and denying in part Defendants motion. (ECF Nos. 10, 11). Specifically, the court found that the only claim not time-barred was one for tortious events interference alleged to with have prospective occurred after advantage February related 17, to 2006.10 9 In their papers opposing this motion, Plaintiffs conceded that their defamation claim could not be sustained. (ECF No. 8, at 9). 10 On October 8, 2009, Plaintiffs filed a malpractice action in this court against Daniel Guenther, the attorney who represented them in the state trial court. Their complaint alleged, in pertinent part: [D]espite Plaintiffs having instructed [Mr. Guenther] to sue [Ms.] Bartos and the third party (Gordon and Zupancic) for tort[i]ous interference . . . [Mr. Guenther] advised Plaintiffs to drop any and all actions regarding tortious interference until after the final outcome of the lawsuit against [Ms.] Bartos was determined. 21 Defendants then answered the complaint (ECF No. 13), a scheduling order was issued (ECF No. 17), and the discovery process commenced. On March 30, 2009, Defendants moved for a protective order seeking to preclude Plaintiffs from taking the deposition of Mr. Finkelstein, the attorney retained by Defendants to draft the back-up contract and addendum thereto. (ECF No. 32). The court denied that motion by an order dated April 9, 2010 (ECF No. 35); accordingly, Mr. Finkelstein s deposition proceed. Plaintiffs subsequently testimony from Finkelstein Mr. moved and to for was permitted compel leave to additional to request production of documents related to his communications with third parties. (ECF No. 39). That motion is presently pending, as is [Mr. Guenther] failed to tell Plaintiffs, as was his duty, that the statute of limitations for the breach of contract regarding Plaintiffs contract with [Ms.] Bartos began on the date the contract was breached (January 21, 2005) and Defendant further failed in his duty by telling Plaintiffs that any statute applicable to tortious interference would only come into effect when the case had been finally determined. Motion for Judgment, Abbott, et al. v. Guenther, Civ. No. RWT 09cv2642 (D.Md. Oct. 9, 2009), ECF No. 1. Judge Titus granted summary judgment in favor of Mr. Guenther on March 9, 2010. Plaintiffs appeal of that decision is presently pending before the United States Court of Appeals for the Fourth Circuit. 22 Defendants motion for summary judgment (ECF No. 40), which was filed shortly thereafter. II. Plaintiffs Motion to Compel Deposition Testimony and for Leave to Request Production of Documents The ongoing discovery dispute with regard to Defendants former attorney, Nathan Finkelstein, arises from Defendants production of a May 18, 2006, letter sent by Mr. Finkelstein to his former clients ( the Finkelstein Letter ). The states, in relevant part: I am responding to your inquiry as to whether or not I made a threat to [Plaintiff] Ellen Barker regarding the contract for your purchase of 13945 Cornfield Harbor Drive, Scotland, Maryland. On or about December 29, 2004, I received a telephone call from Ms. Barker. She told me that there was a septic system problem that had come up with the purchase of the property, and that it was necessary for them to get a variance from the board of appeals. The septic system problem was impeding their ability to get the variance. I then asked[] if a closing date had been set. She indicated no, but went on to say that they were going to settle on January 24, 2005, or as soon as they were able to get building permits. She furthermore indicated that they had hired an attorney because the Health Department had indicated that the septic system did not meet any of the requirements for St. Mary s County. I subsequently received a letter from Ms. Barker and Mr. Abbott dated January 13, 2005. . . . As you can see from the [attached] letter, Ms. Barker had indicated that they were going to settlement on the above referenced property, which is 13945 23 letter Cornfield Harbor Drive. She further advised that the settlement was arranged for the next week. She understood that Ms. Bartos was being pressured by you to go to settlement as soon as possible and understood that I represented you. . . . Clearly, in that letter she did not make any statement . . . that I had indicated that we would be filing a lawsuit against Ms. Bartos. I, of course, never made such threats because of the strategy that we had discuss[ed]. As I understood it, we expected that the settlement with Ms. Barker and Mr. Abbott would not take place on or before January 24, 2005, and that their contract would then be voided by their inability to settle. Your contract would then become the primary contract, and you were prepared to go forward with it as soon as possible. Accordingly, the litigation that was threatened was by Ms. Barker and Mr. Abbott, when they said that they were prepared to pursue whatever legal remedies maybe 11 available for them. [ ] I understand that they were not able to go to settlement on January 24, 2005, and there is pending litigation regarding that issue. According to my recollection and based on my review of the file, there is no indication at any point that I represented to Ms. Barker and Mr. Abbott that you and Mr. Zupancic were prepared to file suit against Ms. Bartos. Further, that is not something that I would have discussed with Ms. Barker. 11 Plaintiffs letter of January 13, 2005, concludes by stating, we reserve our rights to take whatever actions are necessary to fulfill the contract for the sale of the property and to pursue whatever legal remedies may be available to us. (ECF No. 45, Ex. 26). 24 (ECF No. 32, Attach. 3). Plaintiffs subsequently issued a notice of deposition and subpoena to Defendants former attorney. not specify deposition, the nor topics did it designated command While the notice did for the Mr. witness Finkelstein s to bring any documents with him, Plaintiffs orally represented to Defendants that they sought his testimony in relation to the conversations referenced in the Finkelstein Letter. further advised Defendants Defendants production of Counsel for Plaintiffs counsel the of letter his in position response to that their discovery request constituted a waiver of the attorney-client privilege between Defendants and Mr. Finkelstein. On March 30, 2010, Defendants filed a motion for protective order seeking to preclude[] Mr. Finkelstein s deposition because the inquiry sought would either be privileged, or, if not privileged, pertains to a conversation that occurred in December 2004, which is outside of the period relevant to this case[.] (ECF No. 32, Attach. 1, at 2). In opposing that motion, Plaintiffs asserted: Mr. Finkelstein s deposition is important for several reasons. One, Mr. Finkelstein, by Defendants[ ] own admission, had numerous conversations with Ms. Bartos about Defendants attempt to purchase the Property, despite the existence of Plaintiffs Sale Contract. These conversations are highly relevant and not at all protected by the attorney-client 25 privilege. Two, Defendants have raised the fact that Mr. Finkelstein had conversations with Plaintiff Elaine Barker. Plaintiffs have a right to know what Mr. Finkelstein claimed was being discussed during the calls. Again, this information is relevant and non-privileged. Third, Defendants produced a letter from Mr. Finkelstein dated May 18, 2006[,] and discussed its significance in Defendant Gordon-Zupancic s deposition. Defendants admit that this disclosure was not inadvertent and, thus, they have intentionally waived their attorney-client privilege as to issues raised in that letter. (ECF No. 34, at 1-2). motion for protective Plaintiffs further asserted that the order should be denied because while Defendants claimed that all of [Mr. Finkelstein s] testimony will be subject to the attorney-client privilege, . . . the privilege only protects communications between an attorney and his or her clients. (Id. at 2 (emphasis in original)). Thus, according to Plaintiffs, the privilege could not be invoked to protect communications between parties[,] as in this case. In court denying found, in Defendants essence, the attorney for protective and third (Id.). motion that the dispute was order, based misunderstanding between the parties: Notably, Plaintiffs do not argue that production of the May 18 letter constitutes a blanket waiver, permitting inquiry into all matters that would otherwise be protected by the attorney-client privilege, as Defendants had anticipated. Rather, they essentially present alternative arguments 26 the on a that they are permitted to question Mr. Finkelstein about his communications with third parties while he represented Defendants. The first argument i.e., that Mr. Finkelstein s communications with Plaintiffs while he represented Defendants are not subject to the attorney-client privilege is not contested by Defendants. Because the substance of the letter . . . relates exclusively to conversations Mr. Finkelstein had with third parties, the testimony sought by Plaintiffs involves communications that neither party claims is privileged. In that sense, there appears to be no real dispute, at least insofar as the scope of the scheduled deposition is concerned. (ECF No. 35, at 7-8). Following a brief discussion of relevant case determined law, the court that the letter from Mr. Finkelstein to Defendants was not protected by the attorneyclient privilege, and its production during the discovery process could not constitute a waiver of the privilege. (Id. at 10). Upon further finding that Defendants had failed to cite extraordinary any circumstances that would justify the issuance of an order precluding Mr. Finkelstein s deposition, and that the attorney s testimony, though related to conduct that itself was time-barred, may nevertheless provide context for similar acts alleged to have occurred [within the relevant time frame], the court declined to issue a protective order. (Id. at 11). [I]n light of Plaintiffs representations in opposing the instant motion, the court deemed it unnecessary to 27 issue an order limiting the scope of the Defendants had requested in the alternative. deposition, as (Id.). Plaintiffs conducted Mr. Finkelstein s deposition on April 22, 2010. On May 4, they filed the pending motion to compel further deposition testimony and for leave to request production of documents, numerous complaining questions about that Finkelstein Finkelstein the Mr. Letter was to asked which refused to answer on attorney-client privilege grounds. No. 39, at 2). he (ECF Despite the court s prior, unequivocal ruling as to waiver of the attorney-client privilege i.e., the letter from Mr. Finkelstein to Defendants was not protected by the attorney-client privilege, discovery process privilege (ECF Defendants could No. 35, and not at its constitute 10) attorney-client production a waiver Plaintiffs privilege . . during . now was the of the argue that waived by [their] production of Mr. Finkelstein[ s] Letter (ECF No. 39, at 10). Thus, they contend that Mr. Finkelstein could not properly invoke the privilege in response to their questions. Because Mr. Finkelstein also essentially claimed to have no memory as to any discussions he had with third parties, Plaintiffs argue that he effectively and improperly thwarted [their] efforts to discover facts and circumstances surrounding the Finkelstein Letter and his conversations with [a] critical, 28 otherwise unavailable third-party in this case. those grounds, Finkelstein Finkelstein to Plaintiffs answer Letter Finkelstein s and seek questions memorand[a] and addition to order directly provid[ing] . . other conversations with third-parties. In an . compelling related leave notes (Id.).12 to On Mr. to the seek Mr. concerning his (Id.). misconstruing the plain language of the court s prior memorandum opinion and ignoring their own prior representations as to the scope of the deposition, Plaintiffs motion also fails to comply with the relevant regarding the filing of a discovery motion. local rule Local Rule 104.7 provides: Counsel shall confer with one another concerning a discovery dispute and make sincere attempts to resolve the differences between them. The Court will not consider any discovery motion unless the moving party has filed a certificate reciting (a) the date, time and place of the discovery conference, and the names of all persons participating therein, or (b) counsel s attempts to hold such a conference without success; and (c) an itemization of the issues requiring resolution by the court. See also Local Rule 104.8 ( as to disputes concerning discovery directed to a non-party, unless otherwise directed by the Court, the Court will not consider the motion until a conference has 12 The unavailable witness is Ms. Bartos, who died at some point after the deed was executed, but prior to the time Plaintiffs commenced this action. 29 been held under L.R. 104.8.b and a certificate has been filed under L.R. 104.8.c ). Plaintiffs have failed to attach the required certificate. Instead, they attach to their motion a printed email to counsel for Defendants, dated April 30, 2010, stating their objections to Mr. Finkelstein s refusal to answer questions based on the attorney-client privilege and requesting that he produce any memoranda, notes, or other documentation he has that memorialize his conversations with third-parties, impressions, which may be redacted. this email, Plaintiffs counsel minus any mental (ECF No. 39, Ex. D). advises defense counsel In that they should let [him] know if they believe that this issue can be resolved without court intervention, and further states, my intention is to file a Motion to Compel on Tuesday, May 4, 2010, if (Id.). accordance there While with Nevertheless, is no prior Plaintiffs Local because agreement cite Rule the 104, Plaintiffs as to email as it arguments the issues. being [i]n clearly is may readily not. be dispensed with on the merits, the court declines to deny relief on procedural grounds. See Local Rule 604. The transcript excerpts provided by Plaintiffs in support of their motion reveal that Mr. Finkelstein refused to respond to five questions based on the attorney-client privilege: 30 (1) In the context of a discussion regarding Mr. Finkelstein s contact with Ms. Bartos related to the purchase price of the back-up contract, Plaintiffs counsel asked, Do you recall how you determined to make an offer price of $100,000? (ECF No. 39, Ex. C, at 4); (2) During a discussion about Mr. Finkelstein s May 18, 2006, letter to Defendants, Plaintiffs counsel pointed to a sentence in which Mr. Finkelstein wrote, I, of course, never made such threats because of the strategy that we had discuss[ed], and asked, What is the strategy referred to in that sentence? (Id. at 9); (3) Referring to a sentence in the next paragraph of the same letter, in which Mr. Finkelstein recalls the strategy as [he] understood it, Plaintiffs counsel asked, When you say as I understood it, what was that understanding based upon? (Id.); (4) Referring to language in the penultimate paragraph of the letter in which Mr. Finkelstein wrote, I understand that [Plaintiffs] were not able to go to settlement on January 24, 2005, and there is pending litigation regarding that issue, Plaintiffs counsel asked, How did you know . . . to write that in the letter? (Id. at 10); and (5) Plaintiff s if you had any or Mr. Zupancic wrote it? (Id. counsel asked, Do you know discussions with Ms. Gordon about this letter after you at 11). Mr. Finkelstein properly invoked the privilege in response to these questions. that they sought Despite Plaintiffs prior representations information regarding only non-privileged communications between Mr. Finkelstein and third parties, they 31 clearly asked for more during the deposition. counsel asked substance Defendants of his former discussions with Indeed, their attorney to Defendants reveal the regarding the subject-matter of his representation and specifically inquired as to Defendants discussed in the strategy acquire prior court s to the opinion, Property. under As Maryland law, only those attorney-client communications pertaining to legal assistance and made with the intention of confidentiality are within the ambit of the privilege. Newman v. State, 384 Md. 285, 302 (2004) (quoting E.I. du Pont de Nemours & Co. v. FormaPack, Inc., 351 Md. 396, 416 (1998)) (emphasis removed). Plainly, the above-cited questions by Plaintiffs counsel sought responses Accordingly, that were Mr. privileged Finkelstein under properly that invoked the standard. attorney- client privilege and Plaintiffs motion to compel his testimony will be denied. Insofar as Plaintiffs seek leave to request production of documents i.e., memoranda and/or notes that Mr. Finkelstein may have written while questioning third party witnesses that motion will also be denied. counsel issued to Mr. Initially, the subpoena Plaintiffs Finkelstein was not a subpoena duces tecum; thus, the documents Plaintiffs now request, to the extent they were not privileged or protected work product, could have been inspected at the time of the deposition. 32 Plaintiffs failed to take advantage of that opportunity, however, and now seek to correct this apparent oversight after the fact. The discovery deadline in this case expired long ago; indeed, it was extended to permit Plaintiffs to take Mr. Finkelstein s deposition in the first place. Mr. Considering also that any memoranda prepared by Finkelstein related to his representation of Defendants necessarily related to events occurring prior to February 17, 2006, the documents sought by Plaintiffs would little relevance to the litigation at present. likely have Thus, to the extent that the requested documents exist and constitute nonopinion work product, Plaintiffs cannot establish a substantial need for them. See National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992). Accordingly, their motion for leave to request production of documents will be denied. III. Motion for Summary Judgment A. Standard of Review It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). In other words, if there clearly exist factual issues that properly can be resolved only by a finder 33 of fact because they may reasonably be resolved in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 550 U.S. 372 (2007); Emmett, 532 F.3d at 297. A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. 323. Celotex Corp., 477 U.S. at [A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial. Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 254; Celotex Corp., 477 U.S. at 324. A mere scintilla of proof, however, will not Jenney, suffice 327 F.3d to 307, prevent 314 summary (4th Cir. judgment. 2003). Peters There must v. be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the evidence is merely colorable, or is not significantly 34 probative, summary judgment may be granted. Id. at 249-50 (citations omitted). B. Analysis Under Maryland law, the tort of intentional interference with business relations has two manifestations: the tort . . . is committed when a third party s intentional interference with another in his or her business or occupation induces a breach of an existing contract maliciously or relationship. 297 (1994). the amount or, wrongfully absent an infringes existing upon contract, an economic Macklin v. Robert Logan Assocs., 334 Md. 287, The two types of tort actions differ in terms of of interference that is tolerated. [W]here a contract between two parties exists, the circumstances in which a third party has a right to interfere with the performance of that contract are more narrowly restricted. A broader right to interfere with economic relations exists where no contract or a contract terminable at will is involved. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 69-70 (1984). In tortious their complaint, interference Plaintiffs claims. In the raised first both count, types of alleging tortious interference with contract, Plaintiffs asserted that Defendants . . . intentionally and improperly interfered with Plaintiffs Sale Contract with Ms. Bartos, which led to Ms. Bartos breach of said contract. 35 (ECF No. 1, ¶ 63). That count was subsequently dismissed as time-barred. count, for tortious interference with In the second prospective advantage, Plaintiffs alleged that Defendants intentionally and improperly interfered with Plaintiffs relationship with Ms. Bartos and the County zoning authorities solely to disrupt the Sale Contract and Plaintiffs[ ] ability to replace the damaged home. ¶ 68). (Id. at That count survived Defendants motion to dismiss, but only in part. Specifically, the court found: Each alleged interference with Plaintiffs prospective advantage constitutes a separate cause of action, with its own date of accrual. Therefore, while not acting as a complete bar to count II, the statute of limitations does not allow the court to look to any of Defendants actions occurring more than three years prior to the filing of this case. Accordingly, in determining whether Plaintiffs state a claim for which relief can be granted, the court will limit the analysis to Defendants alleged actions occurring after February 17, 2006. (ECF No. 10, at 16). The court enumerated the surviving claims: Plaintiffs allege that Defendants engaged in numerous improper activities after February 17, 2006, that interfered with their prospective advantage: (1) interfering in the Third-Party Litigation and hindering Plaintiffs ability to settle on the Property; (2) publishing the website www.theretainercheck.com . . . ; (3) sending a letter to St. Mary s County, Maryland [i.e., the Zupancic Letter] . . . ; and (4) attempting to hinder Plaintiffs efforts to obtain a building permit by contacting and questioning Nokleby Surveying, a surveying company hired by Plaintiffs. Plaintiffs 36 assert that this contact interfered with rerecording the subdivision of a half-lot that was part of the Property. The re-recording was required before Ms. Bartos could fully transfer ownership of the Property to Plaintiffs. (Id. at 16-17) (footnote omitted). In moving Plaintiffs for cannot summary prevail judgment, on these Defendants claims argue because that (1) their participation in the underlying litigation was not wrongful, and (2) even website, assuming and wrongful, interfered the Zupancic Defendants Plaintiffs with any damages resulted. have contact failed business Letter, with to publication third show relation of that of parties such Plaintiffs the were conduct or that Plaintiffs counter that Defendants wrongfully interfered in the state court litigation by appealing and then encouraging (and even secretly funding) Ms. Bartos to do the same. (ECF No. 45, at 42). They further contend that there are genuine disputes of material fact as to whether Defendants conduct impeded their ability to obtain a building permit, thereby resulting in compensable damages. In Maryland, the elements of tortious interference with prospective advantage are: (1) intentional and willful acts; (2) calculated to cause damage to the plaintiff[s] in [their] lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the 37 part of the defendants (which constitutes actual damage and loss resulting. malice); and (4) Carter v. Aramark Sports and Entm t Servs., Inc., 153 Md.App. 210, 240 (2003) (internal marks omitted) (quoting Natural Design, Inc., 302 Md. At 71). As the court recognized in Carter: [W]rongful or malicious interference with economic relations is interference by conduct that is independently wrongful or unlawful, quite apart from its effect on the plaintiff s business relationships. Wrongful acts include common law torts and violence or intimidation, defamation, injurious falsehood or other fraud, violations of criminal law, and the institution or threat of groundless civil suits or criminal prosecutions in bad faith. 153 Md.App. at 241 (internal marks omitted) (quoting Kramer v. Mayor and (1999)). City Council of Baltimore, 124 Md.App. 616, 638 [T]o establish causation in a wrongful interference action, the plaintiff must prove that the defendant s wrongful or unlawful act caused the destruction of the business relationship which was the target of the interference. Kaser v. Financial Protection Marketing, Inc., 376 Md. 621, 629 (2003) (quoting Medical Mut. Liability Soc. of Maryland v. B. Dixon Evander and Assocs., Inc., 339 Md. 41, 54 (1995)). 1. Participation Litigation in and Promotion of the State Court The precise nature of Plaintiffs argument with respect to the underlying litigation is somewhat difficult to pin down. 38 While it may or may not be the case that Defendants conduct facilitated Ms. Bartos breach of her contract with Plaintiffs, thereby necessitating Plaintiffs filing of the state court action, the present focus of this action must be on whether any conduct by Defendants occurring after February 17, 2006, was independently wrongful. any efforts made Thus, Plaintiffs initial argument that [by Defendants] to promote Ms. Bartos litigation efforts [thereafter] are poisoned by their original tortious conduct [before] may not be considered. at 39). 101, (ECF No. 45, See National R.R. Passenger Corp. v. Morgan, 536 U.S. 113 (2002) ( discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges, but such acts may be used as background evidence in support of a timely claim ). Along similar lines, Plaintiffs claim that Defendants surreptitiously encouraged . . . Ms. Bartos litigation efforts, citing the cover letter accompanying the addendum to the back-up contract and the subsequent execution of the addendum. 39). Both of those events also occurred outside of the relevant time frame. that (ECF No. 45, at Plaintiffs further cite telephone records showing Defendants and Ms. throughout the litigation. Bartos were in frequent contact They argue that, when considered alongside the time-barred letter, it may be inferred that the phone calls were done with unlawful purpose. 39 (Id. at 40). Even if the letter was sent within the limitations period, however, the mere fact that phone calls were made, without any indication as to their substance, would be of little evidentiary value. The only remaining evidence cited by Plaintiffs that is related to the litigation and not time-barred is Defendants acknowledgement that they loaned Ms. Bartos $5,000 to fund her appeal and did not require her to repay the loan. Plaintiffs contend that this act constitutes a classic case of tortious interference arising from the centuries old prohibition against officious intermeddling in a suit which in no way belongs to one, by maintaining or assisting either party, with money or otherwise, which is known and prohibited at the common law as maintenance. (Id. (quoting Schnabel v. Taft Broadcasting Co., Inc., 525 S.W.2d 819, 823 (Mo.App. 1975)). Maintenance consists in maintaining, promoting the litigation of another. supporting, or Schackow v. Medical-Legal Consulting Service, Inc., 46 Md.App. 179, 195 (1980) (quoting Black s Law Dictionary (5th ed. 1979)). In Maryland, it has been found to exist when a person without interest in a suit officiously intermeddles by assisting either party[.] Schackow, 46 Md.App. at 195 (quoting Lahocki v. Contee Sand & Gravel Co., 41 Md.App. 579, 608 (1979), rev d on other grounds 40 sub nom., General Motors Corp. v. Lahocki, 286 Md. 714 (1980)). The term was broadly construed under common law to include: assist[ing] another with money to carry on his cause, as by retaining one to be of counsel for him, or otherwise bearing him out in the whole or part of the expense of the suit, saving a suitor from expense, as by persuading an attorney to represent the party gratis, and endeavor[ing] to give, any other kind of assistance to either of the parties in the management of the suit depending between them. Son v. Margolius, Mallios, Davis, Rider & Tomar, 349 Md. 441, 457 (1998) (1824)). (quoting 1 W. Hawkins, Pleas of the Crown 455 The broad scope of common law maintenance, however, did not survive beyond the mid-Nineteenth Century. Son, 349 Md. at 458; see also American Hotel Management Associates, Inc. v. Jones, 768 F.2d 562, 570 (4th Cir. 1985) ( most jurisdictions no longer recognize causes of action for damages based on champerty and maintenance. . . . [The] doctrine remains viable only as a defense in contract actions. ).13 Nevertheless, against some of Maryland the continues originally to prohibited reserve conduct, a policy and the conduct once characterized as maintenance is now prohibited in Maryland under the label of barratry. Accrued Financial Services, Inc. v. Prime Retail, Inc., 298 F.3d 291, 298 (4th Cir. 13 Notably, no reported Maryland decision since Son, 1998, has addressed a claim of maintenance or champerty. 41 in 2002) (citing Son, 349 Md. at 458-59). been codified in the Business That prohibition has Occupations and Professions Article of the Maryland Code, which provides, in relevant part, that [w]ithout an existing relationship or interest in an issue . . . a person may not, for personal gain, solicit another person to sue or to retain a lawyer to represent the other person in a lawsuit. Md. Code Ann., Bus. Occ. & Prof. § 10- 604(b)(1).14 Defendants cannot be liable under this standard because they clearly had an interest in the state court litigation. See Stewart v. Tuli, 82 Md.App. 726, 730 (1990) (finding holders of a back-up contract for real property undoubtedly have an interest in the subject matter of the action that could be lost if not protected ).15 It is undisputed that the circuit court 14 The conduct proscribed by § 10-604 was first made a statutory offense in Maryland in 1908. . . . Before then, the officious stirring up of, maintaining, or meddling in litigation in which a person had no interest constituted the common law crime of barratry, maintenance, champerty, or embracery, depending on the particular nature of the conduct. Son, 349 Md. at 457. 15 Even in the cases cited by Plaintiffs, involving interpretations of maintenance and champerty in other jurisdictions, the term applies only where the interfering party did not have an interest in the litigation. See Schnabel, 525 S.W.2d at 824 ( [t]he modern doctrine takes out of the rule against maintenance those who interfere in litigation in which they have, or honestly believe they have, an interest ) (quoting Breeden v. Frankfort Marine, Accident & Plate Glass Ins. Co., 119 S.W. 576, 606 (1909)); American Hotel Management Associates, Inc., 768 F.2d at 571 (where party entered the fray to mitigate 42 granted Defendants motion to intervene. Inherent in that ruling is a finding that Defendants had a protectable interest. See Maryland-National Capital Park and Planning Commission v. Town of Washington requirement which intervention . . Grove, we . 408 have is that Md. imposed he 37, 75 on the have an (2009) ( [t]he applicant interest for for the protection of which intervention is essential and which is not otherwise protected. ). The intervention of a party whose position may be adversely affected by the resolution of the issues . . . does not comprise a separate action nor does it make the intervenor an other litigant. The intervenor is one of the litigants in the case sub judice. Hess Constr. Co. v. Bd. of Educ. of Prince George s County, 102 Md.App. 736, 754 (1995) (emphasis in original). Moreover, because an intervenor has all the rights as a party and a party has the right to appeal, . . . [the intervenor] has the right to appeal. the effect of a potential judgment in another action, [h]e thus had a justification, a verifiable interest, and was not an officious intermeddler who walks in off the street simply to stir up strife and litigation ); In re Brown, 354 B.R. 100, 105 (Bankr. N.D.W.Va. 2006) ( maintenance and champerty of personal injury tort claims has been forbidden based on a policy that protected the injured party so that an unrelated third-party cannot reap a windfall by paying the injured party a pittance for the claim and then prosecute litigation for injuries that the party never suffered (internal marks omitted)); Odell v. Legal Bucks, LLC, 665 S.E.2d 767, 773 (N.C.App. 2008) ( These doctrines are intended to prevent the interference of strangers having no pretense of right to the subject of the suit, and standing in no relation of duty to the suitor. (internal marks omitted)). 43 Professional Staff Nurses Ass n v. Dimensions Health Corp., 110 Md.App. 270, 282 (1996) (quoting Montgomery County v. Meany, 34 Md.App. 647, 650 (1977)). Plaintiffs point to no evidence that Defendants loaned Ms. Bartos money for her appeal with any malicious intent toward their business interests, nor do they specifically identify the interests that were implicated. Ms. Gordon-Zupancic testified at her deposition that the money was intended to be a loan, but that it was forgiven after Plaintiffs prevailed on appeal because Ms. Bartos was in failing health and ultimately died. (ECF No. 49, Ex. 6, at 167-68). At the time the loan was made, moreover, both Defendants and Ms. Bartos had already noted an appeal. Plaintiffs because Defendants speculation, defendants speculate urged however, properly that her to is Ms. do Bartos so. Such insufficient supported only to summary appealed unsupported defeat judgment the motion. Emmett, 532 F.3d at 308. 2. The Zupancic Letter Defendants argue that, assuming the Zupancic Letter constituted an intentional and willful act calculated to cause damage to Plaintiffs in their lawful business, there is no evidence that it caused any damage. The Zupancic Letter was received by officials on or about November 5, 2007. 44 St. Mary s County The letter focused largely on the fact that the [P]roperty contains a portion that is an illegal parcel of record, and promised heightened scrutiny of building permit and [boundary line adjustment plat] processes. (ECF No. 45, Ex. 49). By that time, however, Plaintiffs had already submitted a boundary line adjustment plat for approval, and approval was granted by LUGM on November 28, 2007. Moreover, Schmidt, the it is officials undisputed primarily that Ms. Ballard responsible for and Ms. processing Plaintiffs applications at that point, had no knowledge of the letter. Plaintiffs argue that this fact is not conclusive as to whether [other] County officials were influenced by their actions, and that one only need look to [the Zupancic Letter] to see there are very real issues of material fact as to what extent the County was influenced by them. (ECF No. 45, at 34). The letter itself is plainly not revealing of the effect it had on the recipients, and although Plaintiffs testified at their depositions that the letter slowed down getting a subdivision deed (ECF No. 45, Ex. 48, at 28), it is unclear how it actually did. Indeed, Plaintiffs gained approval of their boundary line adjustment plat just twenty-one days after the letter was sent, and they still had not resolved the ongoing problems with the septic system and variance request that prevented having their building permit application approved. 45 them from 3. Publication of the Website Similarly, assuming Defendants publication of www.theretainercheck.com constituted wrongful conduct, there is no indication that it had any effect on Plaintiffs business ventures. In their response to Defendants motion to dismiss, Plaintiffs claimed that the website was published after January 31, 2008. (ECF No. 8, at 8). The evidence supports that Ms. Ballard and Ms. Schmidt were primarily involved in processing Plaintiffs application at that time. Ms. Ballard specifically denied having any knowledge of the website (ECF No. 40, Ex. 10, at 53-54), and there is no evidence suggesting that Ms. Schmidt, Ms. Chaillet, or any other county employee was aware of it. three witnesses departments testified attempted to that no delay or one in impede their All respective approval of the building permit (ECF No. 40, Ex. 3, at 136; see also Ex. 8, at 80-81; Ex. 10, at 52-54). 4. Defendants Other Contact with County Officials While Plaintiffs further contend that various communications by Defendants with county personnel interfered with their efforts to rebuild on the Property, the evidence they cite reveals that some of these communications occurred outside of the relevant time frame. These communications include telephoning Jennifer Ballard in 2009 and 2010 and meeting with her in person in 2010. (ECF No. 45, at ¶ 77). 46 The evidence reflects that Defendants contact with Ms. primarily in March 2009 and February 2010. at 98-105); Ex. 23, at 124).16 Ballard occurred (ECF No. 45, Ex. 13, Plaintiffs filed their complaint, however, on February 17, 2009, and have not filed a supplemental complaint; thus, conduct occurring after the time the complaint was filed may not provide a basis for liability. further alleged that Nokelby Surveying, Defendants Inc., on contacted more [Plaintiffs] and the Property. than Plaintiffs their one surveyor, occasion (Id. at ¶ 78). about The evidence reflects that this contact occurred in November 2005 (ECF No. 45, Ex. 13, at 96), prior to the February 17, 2006, date. Plaintiffs further cite contact Ms. Gordon-Zupancic had with David Chapman, another county official, in June 2006, but the evidence claim. spoke they cite does not support their interference Ms. Gordon-Zupancic related at her deposition that she with Mr. Chapman at some 16 point after the state court Ms. Ballard testified at her deposition that she initially spoke with Ms. Gordon-Zupancic, by telephone, in 2008. On that occasion, Ms. Gordon-Zupancic inquired as to whether or not the fact that [the Property is] in an otherwise protected area for floodplain would stop anyone from building on it, and Ms. Ballard responded, They can develop, but they can t get federally subsidized flood insurance, which might . . . stop a lender from agreeing to lend, like [a] financial mortgage. (ECF No. 45, Ex. 55, at 36). Ms. Ballard further testified that Ms. Gordon-Zupancic did not tell [her] why she wanted that information, that she wasn t even aware of the lawsuit until 2010, and that she had no further contact with Defendants until 2010, after the instant suit was filed. (Id. at 36-37). The 2008 contact clearly does not support a claim of tortious interference with prospective advantage. 47 litigation commenced related to boundary line adjustment plats. 09). local ordinances regarding (ECF No. 45, Ex. 13, at 107- Her testimony makes no mention of either the Property or Plaintiffs efforts to build on it. Plaintiffs additionally cite Defendants contact with LUGM Director Denis Canavan and Deputy Director Phil Shire, both of whom received the Zupancic Letter. In support of these claims, they cite the deposition testimony of both Defendants. Ms. Gordon-Zupancic, however, denied having any contact with Mr. Shire (ECF No. 45, Ex. 13, at 98) and was not asked about any contact with Mr. Canavan, and the cited portion of Mr. Zupancic s testimony does not reveal that he had any contact with these individuals. To the extent Plaintiffs cite their receipt of the Zupancic Letter itself, that claim cannot prevail, as previously discussed. In sum, Plaintiffs encountered numerous obtaining a building permit on the Property. obstacles to While Defendants clearly contributed to their hardship, the evidence does not support that their conduct, at least during the relevant time frame, constituted advantage. tortious interference with prospective Accordingly, Defendants motion for summary judgment will be granted. IV. Conclusion For the deposition foregoing testimony reasons, and for Plaintiffs leave 48 to motion request to compel production of documents will be denied, and Defendants motion for summary judgment will be granted. A separate order will follow. _______/s/__________________ DEBORAH K. CHASANOW United States District Judge 49
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