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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
fpolaw@fpolaw.com
410-440-4833
Pro Bono Counsel for Appellees

TABLE OF CONTENTS
Appellees Motion to Dismiss and Proposed Order

10

Table of Authorities

10

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

_______________________________________
BRETT KIMBERLIN,

*
*
Appellant,
*
*
v.
*
*
AARON WALKER et al,
*
*
Appellees
*
_______________________________________

IN THE
COURT OF SPECIAL APPEALS
OF MARYLAND
September Term, 2014: No. 1553
September Term, 2014: No. 2099
September Term, 2015: No. 365
Consolidated Appeals

APPELLEES MOTIONS TO DISMISS APPELLANTS 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

either an appendix to Appellants brief or filed as a separate volume with the brief. In this
case, Appellant filed the extract as a separate volume.
3.

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

possible, the parts of the record to be included in the extract. Rule 8-501(d) even lays out
the scenario should the parties not agree on the contents of the extract. Specifically,
Appellant is required to serve on the Appellee what Appellant proposes to include in the
extract and he is to do this within 15 days after the filing of the record with the Court.
4.

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

extract prior to his filing of his brief, a clear violation of Rule 8-501(c). The first time
Appellees attorney saw the extract was after Appellant had filed his brief with the Court.
5.

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

contemplated by Rule 8-501(g)) that would mitigate Appellants 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, Appellants 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 Appellants Complaint.

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

in its entirety and then referenced it solely as a source of his original counts against
Appellees. It serves no evidentiary purpose.
9.

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 McCanns
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
Appellants submission:
We must comment on the condition of the joint record extract
provided to this panel by the parties. This 273 page extract

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 to
leaf 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. Thats a bit more descriptive
than item D but, unfortunately, the description is wrong.
13.

The August 7th hearing was on Appellants 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
Appellants motion on August 11th (and reconsidered on August 12th at Appellees
request) but Appellant has only included the August 12th transcript. While Judge Johnson
did not go so far as to declare CJ 9-104 unconstitutional, he did rule, over Appellees
objections, that Appellant could testify at his trial.

15.

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. (Appellants Brief at 10) This is
exactly the kind of behavior that this Court has previously found sufficient to warrant
dismissal of an Appellants appeal:
[B]ut appellant placed in the supplemental record extract only that
testimony which supported his version of the facts and his
arguments, having failed to consult with opposing counsel and
comply with the Rules as to the content of the record extract.
Because of the foregoing and his failure to include the complete
opinion of the trial court, appellant has violated every subsection of
Rule 1028 b. 1 which provides what is to be included in the record
extract
Spivey v. Harris, 64 Md.App. 619, 498 A.2d 281 (Md. App., 1985).
16.

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
Appellants preparation of the extract.
17.

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

with the circuit court docket entries. Appellant ignored this requirement except for the
previously noted copies of specific docket entries included in item B.
18.

Nor should Appellants 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 Courts A Guide for Self-Representation :

Because Appellant is proceeding pro se, he relied on the Courts


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.
Appellants 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 Appellants Appeal.

September 9, 2015

9th

_______________________________________
BRETT KIMBERLIN,

*
*
Appellant,
*
*
v.
*
*
AARON WALKER et al,
*
*
Appellees
*
_______________________________________

IN THE
COURT OF SPECIAL APPEALS
OF MARYLAND
September Term, 2014: No. 1553
September Term, 2014: No. 2099
September Term, 2015: No. 365
Consolidated Appeals

ORDER
Having reviewed the Appellees Motion to Dismiss Appeals, and any Opposition thereto,
it is this ____ day of ________________, 2015, hereby ORDERED, that Appellants
Appeals are DISMISSED.

___________________________
Judge, Court of Special Appeals

TABLE OF AUTHORITIES

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

15

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

15

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

16

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

10

STATEMENT OF THE CASE


Appellees do not agree with the Appellants statement of the case but do accept
Appellee Walkers statement of the case with the following additions.
With respect to Mr. Hoge, the Appellant alleged that he committed the following
torts: 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 Appellants
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 Appellants prior conviction for perjury. The Appellant
ultimately chose not to testify. At the end of the Appellants 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 courts overall procedural
handling of the case.

11

QUESTIONS PRESENTED1
I.

Whether Courts Article 9-104, which prohibits anyone convicted of perjury from
testifying in any Maryland court, is unconstitutional as a violation of the First
Amendments guarantee to meaningful access to the courts, the Fifth
Amendments Due Process Clause, and the Fourteenth Amendments Equal
Protection, under both the United States and Maryland constitutions, and other
articles of the United States and Maryland constitutions.

II.

Whether the Circuit Judge erred in his ruling for a directed verdict on the
defamation and false light counts.

III.

Whether the Circuit Court Judge erred in not following the law with regard to his
ordering a directed verdict, rather than allowing the jury to issue a verdict.

IV.

Whether the Trial Judge exhibited prejudicial conduct in the case that deprived
appellant of a fair trial.

V.

Whether the Circuit Court erred in denying pretrial appellants claims for abuse of
process, conspiracy and intentional infliction of emotional distress.
STATEMENT OF FACTS
Appellees do not agree with Appellants statement of the case but do accept

Appellee Walkers statement of facts. Appellant has merely reproduced many


declarations 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 Appellants 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 Appellants case against Mr. McCain
1

These are presented as originally included in Appellants brief.

12

and, separately, his case against Mr. Hoge. In short, there is no they in these matters.
Instead, there are two separate Appellees against which Appellant must show reversible
error as to each case. A recurring theme, then, through the body of our Brief will be
Appellants continual failure to describe how any perceived errors of the Circuit Court
impacted his case specifically against Mr. McCain or specifically against Mr. Mr. Hoge.
Also, we are constrained by the Extract as we received it. Appellant did not
consult with Appellees prior to submission, so we were unaware that Appellant would
use a numbering system not in accordance with Rules 8-501(i) and 8-503 (a)-(c).
Accordingly, we will reference to the Extract using the Appellants Letters and Page
Numbers (i.e., E.Dxx refers to Section D of the Extract: Selected Trial Transcripts).
We will be addressing Appellants arguments in the order he presented them.
I.
THE CONSTITUTIONALITY OF MD CODE CTS. & JUD. PROC. 9-104 IS NOT
AT ISSUE BECAUSE APPELLANT WAS PERMITTED TO TESTIFY
Appellant fails to even mention Mr. McCain or Mr. Hoge in his argument about
the constitutionality of MD CODE Cts. & Jud. Proc. 9-104, so Appellees cannot respond
to anything he argues as it specifically applies to their cases. That said, Appellants
argument deserves some perspective and comment.
On August 8, 2014, three days before the scheduled start of his trial, Appellant
filed a motion to find MD CODE Cts. & Jud. Proc. 9-104 unconstitutional or,
alternatively, not applicable to Appellants case. On August 11th, prior to the scheduled
start of the trial, Judge Johnson did not rule on the constitutionality of the law but did rule
that Appellant could testify. In essence, then, Judge Johnson found the prohibition against
a perjurer testifying inapplicable in this case. Thus, Appellant won on his motion: he
received the relief sought, and the Court allowed him to testify.
Appellant filed his motion on the Friday before the trial, and had his successful
hearing that following Monday a turnaround time that is almost unheard of in normal

13

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

14

disallowed emails from Appellants wife (Appellants Brief at 28). In short, Appellees
have no specific arguments to respond to as applied to their individual cases.
Appellant is fixated on the classification of defamation per se or per quod, but the
classification is meaningless as applied to this case. Quite simply, Appellant does not
(and cannot) cite one piece of testimony or evidence that would suggest any specific
statement made by Mr. Hoge or Mr. McCain which was both false and made with malice.
We take this standard directly from the first case Appellant references in his Brief
on this matterBatson:
The First Amendment of the United States Constitution requires
that before a public figure may recover for defamation, clear and
convincing evidence must establish that the statements in issue
were: (1) defamatory in meaning, (2) false, and (3) made with
actual malice.
Batson v. Shiflett, 325 Md. 684, 722, 602 A.2d 1191 (Md. 1991). Emphasis added.
Internal citations omitted
We agree with Appellant that Batson is an appropriate citation for this matter as
we believe Appellant is sufficiently a public figure for purposes of applying this standard.
However, even using the less-stringent standard of a private person would not allow
Appellant to properly argue error on the part of Judge Johnson.
This is because, no matter the standard used, it was incumbent on Appellant to
produce evidence that a specific defamatory statement made by Mr. McCain and different
specific defamatory statement made by Mr. Hoge were each false:
Piscatelli advanced two counts in his complaint: defamation and
invasion of privacy (false light). We shall address [424 Md. 306] in
greatest detail Piscatellis defamation claim, but need not address
the false light claim separately. An allegation of false light must
meet the same legal standards [35 A.3d 1147] as an allegation of
defamation. We shall conclude ultimately that Respondents did not
defame Piscatelli actually, rendering superfluous a separate analysis
of his false light claim.
In order to plead properly a defamation claim under Maryland law,
a plaintiff must allege specific facts establishing four elements to

15

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 Appellants 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 there
was 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

16

Mr. Hoge: defamation and false light. As previously noted, a crucial element of both torts
is falsitythe supposed defamatory statements must be false, and the jury cant find the
statements false absent any relevant evidence. Appellant constantly glosses over this. He
failed to introduce any evidence that would allow the matter to go to the jury on the
question of falsity, and this is what the Judge Johnson told him at the conclusion of the
trial: [t]heres not one scintilla of evidence in this case that the statements that were
made by these individuals [Mr. McCain and Mr. Hoge] were false. (E.D 266)
Specifically, Appellant does not (and cannot) point to anywhere in the Record to
an alleged defamatory statement made by Mr. McCain and/or Mr. Hoge and then also
make reference to introduced evidence that supports his contention that the alleged
defamatory statement is false.
While we also believe any statements made by Mr. McCain and Mr. Hoge are
protected as opinions based on disclosed facts, Judge Johnson was correct in asserting
that absent evidence of falsity, there was nothing for the jury to decide. As previously
noted, the torts of defamation and false light require, as an element to prove, evidence of
falsity. Appellant failed to present the jury with any such evidence.
IV.
JUDGE JOHNSON DISPLAYED NO PREJUDICIAL CONDUCT DEPRIVING
APPELLANT OF A FAIR TRIAL IN LIMITING IMPORTANT EVIDENCE
We began our Brief discussing how Judge Johnson ruled in Appellants favor as to
Appellant being allowed to testify despite a previous conviction for perjury. That, if
nothing else, should have given Appellant his best chance at trial. Having failed to take
advantage of that ruling, Appellant now tries to allege prejudice because he was ruled
against on some fairly routine evidentiary matters. However, Mr. McCain and Mr. Hoge
discern no law-based argument by Appellant against any specific ruling by Judge
Johnson.
Appellant begins by saying Judge Johnson refused to allow testimony by

17

Appellants daughter as to untoward interest in her, her friends or her sister.


(Appellants Brief at 32). However, as previously discussed within, Appellant noted a
few pages earlier in his Brief (Appellants Brief at 28) that his daughter did testify that
the allegations of pedophilia were false ... What Judge Johnson did not allow was
testimony about which Appellants daughter could not credibly testify.
Appellant is also dismayed that Judge Johnson did not allow the daughter to testify
as to the travails of Appellants reputation (Appellants 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. Appellants 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
Appellants wife and Mr. Hoge to be entered (Appellants Brief at 33). But Appellants
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
Appellants wife. However, we note that during Mr. Hoges testimony, Judge Johnson
excluded much of the testimony about Appellants wifes emails on hearsay grounds
(E.D142). Appellant fails to provide any law-based arguments to respond to as to why
Judge Johnsons 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 Johnsons evidentiary rulings prejudiced
Appellant as to his claims against either Appellee.

18

V.
JUDGE MCGANN CORRECTLY GRANTED SUMMARY JUDGMENT FOR
FIVE OF THE COUNTS
Appellant claims that Judge McGanns grant of summary judgment for three of the
counts is reversible error. In support of this, he references exactly nothing in the Record,
which is appropriate because the Record does not include the transcripts from the July 1,
2014, hearing. Further, the Extract does not include the judgements appealed from as
required by Rule 8-501(c). The Extract does include the Docket Entries relating to the
July 1, 2014, hearing, but Appellant makes no reference to even them in his argument. In
short, Appellant makes his entire argument without a single reference to the Record.
Instead, he merely re-alleges elements of his complaint without explaining where Judge
McGann went wrong in his rulings. Mr. Hoge and Mr. McCain have no issue with Judge
McGanns rulings and, accordingly, will not argue with Appellants lack of argument on
this matter.
CONCLUSION
Anyone who has carefully read and studied all 272 pages of the trial transcript
(E.D) and Appellants 35-page Brief would still be unable to answer the following query:
Identify even one alleged defamatory statement made by either Mr. McCain or
Mr. Hoge for which Appellant produced admissible evidence as to its falsity.
It simply cant be done. For all the foregoing reasons, Appellees McCain and
Hoge respectfully request that this Court affirm the decisions of the Circuit Court of
Montgomery County.

19

9,

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 witnesss 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 crossappeal. 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) of
this 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 covers
of 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

21

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 is
not 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 appellants brief or filed as a separate
volume, shall be indicated as (E ........), (2) to any appendix to appellants brief
shall be indicated as (App ........), (3) to an appendix to appellees brief shall be
indicated as (Apx ........), and (4) to an appendix to a reply brief shall be indicated
as (Rep. App ........). If the case falls within an exception listed in Rule 8-501 (b),
references to the transcript of testimony contained in the record shall be indicated
as (T ........) and other references to the record shall be indicated as (R ........).

(c)

Covers. A brief shall have a back and cover of the following color:
(1)

In the Court of Special Appeals:


(A)

appellants brief -- yellow;

(B)

appellees brief -- green;

(C)

reply brief -- light red;

(D)

amicus curiae brief -- gray;

(E)

briefs of incarcerated or institutionalized parties who are selfrepresented -- white.

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BRETT KIMBERLIN,

*
*
Appellant,
*
*
v.
*
*
AARON WALKER et al,
*
*
Appellees
*
_______________________________________

IN THE
COURT OF SPECIAL APPEALS
OF MARYLAND
September Term, 2014: No. 1553
September Term, 2014: No. 2099
September Term, 2015: No. 365
Consolidated Appeals

ORDER AFFIRMING JUDGMENT


Upon consideration of the Appellants Brief, Appellees Hoge and McCains Brief,
Appellee Walkers 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

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