Preview:

HEADNOTE: David C. Davidson v. Seneca Crossing Section II Homeowner's Association, Inc., et al., No. 527, Sept. Term, 2008. I. RES JUDICATA - PEACE ORDER ISSUED BY THE DISTRICT COURT DID NOT PRECLUDE THE SUBSEQUENT ENTRY OF A PERMANENT INJUNCTION INVOLVING THE SAME PARTIES AND SIMILAR CIRCUMSTANCES CONSTITUTIONAL LAW - FREE SPEECH CLAUSE - INJUNCTION PROHIBITING USE OF "FIGHTING WORDS" IN COMMUNICATING WITH MEMBERS OF HOMEOWNER'S ASSOCIATION DID NOT VIOLATE APPELLANT'S RIGHT TO FREE SPEECH

II.

Appellant engaged in outrageous communications and conduct with his homeowner's association, its agents, and members of its Board of Directors, which included vulgar, harassing, and demeaning correspondence, verbal threats, disruption of association meetings, and a physical assault on a Board member. Several of the Board members sought a peace order in the District Court, which was granted. About the same time, the instant litigation ensued, resulting in the entry of a permanent injunction against appellant. Among other things, the injunction forbade appellant from using spoken or written words towards any member of the association or its agents (1) that harassed or tended to incite a breach of the peace, (2) that were of a lewd, profane, or obscene nature, which by their very utterance harassed, inflicted injury, or tended to incite a breach of the peace, or (3) that verbally harassed or attacked these individuals. On appeal, appellant challenged the entry of the permanent injunction, claiming, inter alia, that because of the issuance of the peace order by the District Court, the doctrine of res judicata precluded the entry of the injunction. Appellant also contended that the injunction violated his constitutional right to free speech. The Court of Special Appeals held (1) that the doctrine of res judicata did not preclude the entry of the permanent injunction, because the claims and relief in the two proceedings were not and could not be identical, and the peace order statute expressly provides that a petitioner is "not limited to or precluded from pursuing any other legal remedy," and (2) the injunction did not violate appellant's constitutional right to free speech, because the injunction was narrowly tailored to prohibit appellant's use of "fighting words" that would tend to incite a breach of the peace or invoke a physical or violent response. .

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 527 September Term, 2008 ____________________________________ DAVID C. DAVIDSON v. SENECA CROSSING SECTION II HOMEOWNER'S ASSOCIATION, INC., ET AL. ____________________________________ Davis, Woodward, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.

Opinion by Woodward, J. _________________________________ Filed: August 31, 2009

Appellant, David S. Davidson, initiated this litigation by filing suit against appellees, Seneca Crossing Section II Housing Association, Inc. ("the Association"), Azadeh Kaider ("Azadeh"), Brian Kaider ("Brian"), Lourdes Sandoval ("Lourdes"), and Santiago Sandoval ("Santiago").1 The individual appellees are past and present members of the Association's Board of Directors. The complaint, as amended, sought declaratory, injunctive, and mandamus relief regarding the administration of the Association, as well as damages for defamation. Appellees filed a counterclaim for injunctive relief and damages for private nuisance and libel. Relief was denied on all of the parties' claims, by court rulings or jury verdict, except for appellees' counterclaim for injunctive relief. The circuit court, sitting as a court of equity, found in favor of appellees on their counterclaim and entered a permanent injunction against appellant, which proscribed certain conduct and communications by appellant regarding appellees, as is more fully set forth below. This timely appeal followed. Appellant presents for our review a multitude of questions, which we have distilled and rephrased into three questions:2 Appellant also named as defendants James Earnest, Vishawas Parekh, and Jack Zavin. None of these individuals are parties to the present appeal.
2 1

Appellant's questions, in the words of his brief, are: A. Was the lower Court's ruling, denying Appellant's Motion in Limine: Motion to Bar the Introduction of Certain Testimony and Evidence at Trial . . . , on the grounds of res judicata, clearly erroneous as a matter of law and/or an abuse of discretion? B. Was the lower Court's ruling, granting Appellees' prayer for a permanent injunction against Appellant clearly erroneous and/or an abuse of discretion? (continued...)

(...continued) 1.

Did the lower Court err in granting the individual Appellees standing to seek and obtain the permanent injunction that was granted to them against Appellant? Did the lower Court err in granting relief to Appellees Azadeh Kaider and Brian Kaider when their claims for injunctive relief were moot?

2.

2. [sic] Was the Order granting the permanent injunction clearly erroneous because it was not based upon substantial evidence? 3. Was the Order granting the permanent injunction an abuse of judicial discretion because it was not based on specific findings of irreparable harm?

C. Did the lower Court err in granting a permanent injunction that violated Appellant's constitutionally protected freedom of speech? D. Did the lower Court make material and critical procedural and evidentiary rulings that were clearly erroneous and/or an abuse of discretion? 1. Did the lower Court err and/or abuse its discretion by admitting into evidence unauthenticated exhibits of questionable provenance? Did the lower Court clearly err and/or abuse its discretion in barring, ab initio, all testimony concerning Appellee Santiago Sandoval's assault upon Appellant? Did the lower Court clearly err and/or abuse its discretion in granting a conditional or qualified privilege to certain written and oral communications by members of Appellee HOA's Board of Directors?

2.

3.

3. [sic] Did the lower Court err and/or abuse its discretion in accepting proposed jury instructions first provided by Appellees on the last day of trial ? 2

I.

Did the trial court err or abuse its discretion in granting a permanent injunction in favor of appellees and against appellant? Did the trial court's granting of a permanent injunction violate appellant's constitutional right to freedom of speech? Did the trial court commit reversible error in making certain substantive and procedural rulings in the course of the litigation?

II.

III.

For the reasons set forth below, we shall affirm the judgment of the circuit court. BACKGROUND Seneca Crossing Section II is a residential subdivision in Germantown, Montgomery County, consisting of approximately 55 homes. The Association is a corporate entity

3

comprised of the 55 homes, each home having a voting right within the Association. The community is small, with the majority of the homes located along Summer Sweet Terrace, which is an approximately two-block-long street with a cul de sac at each end. Appellant purchased his home in the Seneca Crossing Section II community at 20700 Summer Sweet Terrace in March of 1999. Shortly thereafter, appellant became active in the Association. As set forth more fully below, appellant's relationship with the Association deteriorated and grew hostile and antagonistic. In 2003, the Association hired a new management company, and appellant was unhappy with the services provided by that company. Appellant "complained about dues going up and services going down." Appellant also believed "that certain people on the board of directors [of the Association] were getting preferred service." Appellant took some of his issues to the Montgomery County

Commission on Common Ownership Communities and a settlement was ultimately reached. On November 27, 2006, appellant filed a complaint against appellees and others for injunctive relief, declaratory judgment, and mandamus, regarding certain actions of the Association. On December 18, 2006, appellees filed an answer and counterclaim for injunctive relief, private nuisance, and libel of Azadeh. At about the same time, Lourdes, Santiago, Azadeh, and Lydia Marzouk, individually, sought peace orders against appellant from the District Court of Maryland for Montgomery County. After the parties, including appellant, participated in alternative dispute resolution, a settlement was reached. On December 12, 2006, consent final peace orders were entered in favor of Lourdes, Santiago, Azadeh, and Marzouk. 4

Thereafter, in the instant litigation, appellant amended his complaint on several occasions. Ultimately, on September 17, 2007, appellant filed a Fifth Amended Complaint, which contained a total of six counts: (I) "breach of contract, shareholder derivative action request for declaratory relief, request for injunctive relief, request for attorney's fees," (II) defamation against Azadeh, (III) defamation against Lee Newbegin, (IV) defamation against Santiago, (V) defamation against Marzouk, and (VI) defamation against the Association. In an order dated October 22, 2007, the circuit court dismissed counts I and V of appellant's Fifth Amended Complaint. In an order entered on March 10, 2008, the circuit court dismissed count III. Appellant's defamation claims against Azadeh, Santiago, and the Association, appellees' counterclaim for private nuisance, and libel of Azadeh were tried to a jury on March 31, 2008 to April 3, 2008. In the same proceeding, evidence was received on appellees' counterclaim for injunctive relief. At the close of appellant's case, appellees moved for judgment, which was granted in regard to counts II and IV, i.e., the defamation counts against Azadeh and Santiago. At the conclusion of the trial, appellant moved for judgment on appellees' counterclaim for private nuisance, which was granted. The jury denied relief on all of the remaining claims, to wit, appellant's defamation against the Association and Azadeh's libel against appellant. The trial court held appellees'

counterclaim for injunctive relief under advisement. Thereafter, in an order entered on May 7, 2008, the circuit court ruled in favor of appellees on their counterclaim for injunctive relief and entered a permanent injunction against appellant. This appeal followed. 5

Additional facts will be included as necessary for our discussion of the issues presented in this appeal. DISCUSSION I. Did the trial court err or abuse its discretion in granting a permanent injunction in favor of appellees and against appellant? Standard of Review The relevant standard of review was articulated by the Court of Appeals in El Bey v. Moorish Science Temple of America, 362 Md. 339, 353 (2001). The Court stated: When reviewing a judgment arising from a bench trial, we must review the case on both the law and the evidence" but we must not set aside the judgment of the trial court on the evidence unless clearly erroneous, for we must give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Additionally, we must consider the evidence in the light most favorable to the prevailing party, deciding not whether the trial judge's conclusions were correct, but whether they were supported by a preponderance of the evidence. Id. (citations and quotations omitted). Where, as here, the appeal concerns the issuance of a permanent injunction, we proceed with certain principles of injunctive relief guiding our review: An injunction is a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice, or restraining an act which it esteems contrary to equity and good conscience. Thus, injunctive relief is a preventative and protective remedy, aimed at future acts, and is not intended to redress past wrongs. Id. at 353-54 (citations and quotations omitted) (emphasis in original).

6

Was there sufficient evidence to support the issuance of a permanent injunction? Appellant makes several allegations of error concerning the factual and legal basis for the trial court's issuance of a permanent injunction. We will address each argument in turn, after first setting forth the precise findings and order of the circuit court and a summary of the evidence supporting those findings. The Circuit Court's Opinion and Order In rendering its opinion and order for injunctive relief, the trial court found: 1. [Appellant] sent unsolicited correspondence to [individual appellees] and other members of the Association that contained demeaning, harassing and gratuitously vulgar language; 2. [Appellant] made vulgar and harassing gestures to [individual appellees] and other members of the Association without cause, justification or provocation; 3. [Appellant] used obscenities, loud, antagonistic and overly boisterous tones at meetings and gatherings of the members of the Association that disrupted such meetings and interfered with the Association's ability to conduct its business affairs; 4. [Appellant's] conduct resulted in harassment of the Association's Board members and its agents including [individual appellees]; 5. [Appellant's] unreasonable and outrageous conduct, verbal attacks, written words (through e-mails and letters), manner, demeanor and method of speaking has placed [individual appellees] in fear of bodily harm and that such actions constitute harassment of them; 6. [Appellant's] unreasonable and outrageous conduct (including but not limited to those actions described in Paragraphs 1-5 above), has resulted in the disruption of [individual appellees'] peaceful use and enjoyment of their respective properties and 7

Association common areas; 7. [Appellant's] unreasonable and outrageous conduct, verbal attacks, written words (through e-mails and letters), manner, demeanor and method of speaking with [individual appellees] and other members and agents of the Association at meeting and other functions and gatherings of the Association, constituted an unreasonable disruption to the Association and resulted in interference with the Association's ability to manage its affairs, conduct peaceful and business-like meetings, transact business and tend to the affairs of the Association; 8. The acts of [appellant], set forth herein above resulted in irreparable injury under [Coster v. Department of Personnel, 36 Md. App. 523 (1977)] and [Harford County Education Association v. Board of Education, 281 Md. 574 (1977)], [El Bey v. Moorish Science Temple of America, 362 Md. 339, 355-56 (2001)]. Based on these findings, the circuit court, in its injunction, ordered that appellant: 1. Shall not commit or threaten to commit any act or conduct himself in any manner that harasses, causes bodily harm, threatens to cause bodily harm or places Azadeh [ ], Brian [ ], Lourdes [ ], and/or Santiago [ ] in fear of bodily harm; 2. Shall not use spoken or written words towards Azadeh [ ], Brian [ ], Lourdes [ ], Santiago [ ], and/or any member of the Association, including its Board members (past or present) or agents, that harass[], tend to incite a breach of the peace or invoke a physical or violent response; 3. Shall not use spoken or written words, conduct or actions of a lewd, obscene, profane, defamatory and/or insulting manner towards Azadeh [ ], Brian [ ], Lourdes [ ], Santiago [ ], and/or any member of the Association, including its Board members (past or present) or agents, which by their very utterance harass, inflict injury or tend to incite an immediate breach of the peace; 4. Shall not verbally harass, attack or send any written communication (including but not limited to e-mails, facsimiles and/or letters) of a demeaning and harassing nature to Azadeh [ ], Brian [ ], 8

Lourdes [ ], Santiago [ ], and/or any member of the Association, including its Board members (past or present) or agents; 5. Shall not enter the residence and/or real property of Azadeh [ ], Brian [ ], Lourdes [ ], and/or Santiago [ ]; 6. Shall not initiate contact with Azadeh [ ], Brian [ ], Lourdes [ ], and/or Santiago [ ], in any manner, including but not limited to e-mails, letters, facsimiles, telephone or in person at their respective places of business, their residences or their real property. Notwithstanding the foregoing, and subject to the limitations set forth in Paragraph 7 below, in the event that one of [individual appellees] is, at the time of the intended communication, serving as a member of the Association Board of Directors or in the event the communication is one related to Association business, [appellant] may send written correspondence to that person but only by postal mail delivery, sent to care of the Association's management company; 7. Shall not communicate (verbally and/or in writing) with any member of the Association, including its Board members (past or present) or agents, using profane, intimidating, threatening, harassing, vulgar or offensive language that would tend to, by their very utterance, inflict injury and/or tend to incite an immediate breach of the peace; and 8. Shall not use obscenities, loud, antagonistic and overly boisterous tones at meetings and gatherings of the members of the Association so as to disrupt such meetings or interfere with the Association's ability to conduct its business in a business like and efficient manner; and it is FURTHER ORDERED, that any breach of this Order will subject [appellant] to sanctions, damages and/or any other remedy that may be determined by this Court, or any other court of competent jurisdiction. The Evidence The trial below spanned three days, with the jury rendering its verdict on a fourth day, and included the testimony of twelve individuals and substantial documentary evidence 9

spanning the years 2003 to 2006. Taken in a light most favorable to appellees, as prevailing parties, the evidence tended to show a pattern of obscene, vulgar, belittling, and harassing communications sent from appellant to appellees; a pattern of threatening and disruptive behavior against appellees; and, actual acts, which along with the forgoing threats and behaviors, caused harm to appellees. Appellant's Communications The communications entered into evidence spanned several years and included statements from appellant to various Association Board members and agents. The evidence included:

Download Davidson v. Seneca Crossing.pdf

Maryland Law