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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 701

STANLEY WOODRUFF v. JOSEPH TREPEL, ET. AL.

Eyler, Adkins, Alpert, Paul E. (Retired, Specially Assigned) JJ.

Opinion by Adkins, J.

Filed: March 2, 1999

This appeal is from the dismissal of a defamation action filed by Stanley J. Woodruff, Sr., appellant, against his former spouse, Shirley C. Woodruff,1 and her attorney, Joseph J. Trepel, Esq.,2 appellees. Appellant alleges that appellees defamed him by

accusing him of child abuse in a letter written by Trepel to appellant's attorney, which was then given by Mrs. Woodruff to their child's school principal. Appellees each filed a motion to

dismiss the action on the ground that the statements made in the letter were privileged. privilege for statements Appellees asserted both the absolute made in the course of judicial Following

proceedings, as well as various conditional privileges.

a hearing, the circuit court granted appellees' motions to dismiss, without an opinion. This appeal followed.

FACTS Appellant and Mrs. Woodruff were involved in divorce and custody proceedings. Mrs. Woodruff was represented by Trepel. In

September 1996, the trial court entered a custody order awarding custody of the Woodruffs' five-year old son to Mrs. Woodruff. Appellant appealed that order to this Court and oral argument was heard on May 9, 1997.

Appellee, Mrs. Woodruff, elected not to file a brief in this matter. Appellant's complaint also named Mr. Trepel's law firm, Hannon & Trepel, P.C., as a defendant. The arguments relating to the law firm are identical to those relating to Mr. Trepel as an individual. Thus, we refer to them collectively as "Trepel."
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Immediately following oral argument, Trepel and appellant's attorney, Pere J. Jarboe, Esq., discussed the custody order. Trepel explained to Jarboe that Mrs. Woodruff was unhappy with appellant's alleged disregard for the custody order and she would no longer permit appellant to pick up their son from school and take him to swimming practice. Apparently, there had been an

arrangement to do so on Tuesday and Thursday afternoons. Following this conversation, Trepel wrote a letter to Jarboe, dated May 12, 1997, which memorialized the content of their

discussions.

The letter, in its entirety, is set forth as follows: May 12, 1997

Mr. Pere J. Jarboe, Esq. 9560 Pennsylvania Avenue Upper Marlboro, Maryland 20772 Dear Mr. Jarboe: This letter is to document our conversation at the Court of Special Appeals this past Friday wherein I verbally informed you of the contents of this letter. As you should know, Mr. Woodruff has previously attempted to hide Jeffrey from his mother. While the minor child was with him he coached the minor child to say ugly things to his mother over the telephone while she did not even know the child's whereabouts. From the transcript of the trial you have learned how your client physically abused and mistreated his daughter. Unfortunately, Mrs. Woodruff has learned that your client's verbally abusive behavior towards Jeffrey has continued. Effective May 9, 1997 Mr. Woodruff will not be allowed to take his son from his school -2-

to swimming classes on Tuesday and Thursday after school. Mr. Woodruff shall not pick up the minor child during his visitation except at the times and places specified in the Court's order. Although Mrs. Woodruff has tried to encourage extra visitation between your client and his son, Mr. Woodruff has once again used his visitation with Jeffrey to try and create friction and trouble between my client and her son. Mr. Woodruff's continued actions in telling his son negative things about his mother to try and have this young child argue his father's case for more visitation is simply unconscionable. His actions are also in direct violation of the court's custody order. If Mr. Woodruff's actions in speaking to the child about his complaints with the Court's decision regarding visitation and custody are continued, I will have no other option then [sic] to tell my client that she should return to court to file a contempt petition for violating the specific orders of Judge Casula and request that Courtt [sic] have Mr. Woodruff's visitation restricted to supervised visitation so that the child will not be confused and upset by Mr. Woodruff. This would effectively end Mr. Woodruff's overnight visitation with the child. We would also ask for punishment for Mr. Woodruff and our reasonable attorney's fees. Mrs. Woodruff will not continue to allow her son to be harmed by Mr. Woodruff's immature behavior. Please inform Mr. Woodruff of the contents of this letter and that he is to adhere to the Court's custody order in this case. I request that you contact me to assure that there is no misunderstanding about this matter so that the child is not placed in a position of peril because this information is alleged not to have been communicated to your client. Very truly yours, Joseph J. Trepel, Esquire

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cc: Shirley Woodruff Trepel, as indicated, also sent a copy of this letter to his client who, in turn, republished the letter to the principal of her son's school. Appellant alleges that he "sustained damages by way

of out-of-pocket expenses, humiliation and loss of his good name and personal reputation."

DISCUSSION Appellant, pro se, contends that the trial court erred in dismissing his complaint because: 1) the privilege of republishing words from a judicial proceeding does not apply when no public or private duty requires it; 2) the privilege does not apply when the republishing inappropriate is done with the malice; and 3) the dismissal was to

because

circumstances

were

"orchestrated

appear in privilege form."

We have condensed appellant's arguments

into the single question of whether the lower court erred in granting the defendants' on the motions ground under to that the dismiss the his claim for

defamation statement

based was

alleged

defamatory for

privileged

absolute

privilege

statements made in the course of judicial proceedings. Trepel argues that appellant cannot maintain a claim for defamation because all statements were published during the course of a judicial proceeding, and regardless of their truth or the presence of malice, the defamation claim is barred by the

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application of the absolute judicial privilege.

Alternatively,

Trepel contends that the defamation claim fails because the alleged defamatory statements are true. this Court. Mrs. Woodruff filed no brief in

She asserted below, in her motion to dismiss, the

absolute privilege for judicial proceedings, various conditional privileges, and that the statements were true.

Standard of Review Because a motion to dismiss lies where there is no

justiciable controversy, see Broadwater v. State, 303 Md. 461, 467 (1985), "[d]ismissal is proper only if the facts and allegations . . . would . . . fail to afford plaintiff relief if proven." v. Almaraz, 329 Md. 435, 443 (1993). Faya

In a claim for defamation, a

motion to dismiss on grounds that the alleged defamatory statement is privileged should only be granted if the privilege is an absolute one and should not be granted when a conditional privilege is asserted. See Leese v. Baltimore County, 64 Md. App. 442, 476,

cert. denied, 305 Md. 106 (1985), overruled on other grounds, Harford County v. Town of Bel Air, 348 Md. 363 (1998); see also Tynecki v. Tufts Univ. Sch. of Dental Med., 875 F. Supp. 26, 36 (D. Mass. 1994); Johnson v. Resources for Human Dev., Inc., 860 F. Supp. 218, 221 (E.D. Pa. 1994).

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Defamation The gravamen of appellant's defamation claim is the assertion in Trepel's letter that appellant had physically abused his

daughter.

The letter specifically referred to testimony of the

supposed abuse at a hearing that was part of the pending custody litigation. First, we briefly review the elements of a prima facie case for defamation. defamation, "a In Maryland, to establish a prima facie case for plaintiff must ordinarily establish that the

defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm." Rosenberg v. Helinski, 328 Md. 664, 675 (1992), cert. The defamatory

denied, 509 U.S. 924, 113 S. Ct. 3041 (1993).

statement must "expose a person to public scorn, hatred, contempt or ridicule[.]" Batson v. Shiflett, 325 Md. 684, 722 (1992). There are, however, circumstances in which a person will not be held liable for a defamatory statement because the person is acting "in furtherance of some interest of social importance, which is entitled to protection . . . ." W. Page Keeton et al., Prosser The

and Keeton on the Law of Torts

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