Aron v. Brock

CATHELL, Judge. Ruthann Aron appeals from a jury verdict rendered in the Circuit Court for Anne Arundel County and from a subsequent order by the trial court that denied her Motion for a New Trial and imposed sanctions against her for filing that motion. She presents several questions on appeal: I. Did the circuit court err in admitting into evidence extrinsic testimony on collateral matters which [was] highly prejudicial to Aron’s case? A. Was this testimony relevant to the substantive issues at trial?

B. Was this testimony highly prejudicial?

II

Did the circuit court err in refusing to find juror misconduct based upon the preparation of a trial notebook outside of the courthouse? A. Did the circuit court err in denying Aron’s motion for a new trial? B. Did the circuit court err in its refusal to permit Aron to review extrinsic material created by a juror at home and brought into jury deliberations to determine the existence of juror misconduct? ⁴⁸⁰ III. Did the circuit court err in sanctioning Aron as a result of Aron’s post[-]trial motion?

A. Did the circuit court fail to make required findings as to bad faith or lack of substantial justification for the filing of the motion for a new trial by Aron? B. Did the circuit court err by stating that imposition of sanctions under Maryland Rule 1-341 is mandatory? C. Were the amounts awarded by the circuit court in excess of the costs actually incurred by defendant in defending the motion for a new trial based on juror misconduct? The Facts Appellant filed suit below against William E. Brock III, appellee.

Her Complaint described the suit as follows: NATURE OF THE ACTION 1. Plaintiff files this action to hold Defendant Brock accountable for the malicious defamation, intentional infliction of emotional distress and outrageous conduct which he resorted to in his attempt to salvage his stumbling campaign against Plaintiff for the 1994 Maryland Republican Party nomination for the United States Senate. While the nature of a political campaign necessitates some latitude in the tactics which can legitimately be used to portray a competing candidate, Brock crossed all bounds of decency and licensed conduct when he maliciously defamed Plaintiff during the final days of the campaign by falsely telling newspaper reporters and prospective voters that Plaintiff had been “convicted” of, or had otherwise been found guilty of, committing a criminal offense. This was a lie whose genesis was Defendant’s desperate attempt to discredit Plaintiff who, according to polls, was in a dead heat with Defendant for the Republican nomination.

Moreover, Defendant knew it was a lie or acted with reckless disregard for the truth. Political campaign or not, Brock must be made accountable ⁴⁸¹ for all damages proximately resulting from Brock’s malicious defamation of Plaintiff. 2. Brock’s unjustified and indefensible assassination of his opponent’s character caused Plaintiff to suffer extreme mental anguish, humiliation, embarrassment, and potentially permanent damage to her reputation. Moreover, by unleashing his smear campaign against Aron immediately pri- or to the primary election, Brock stripped Plaintiff of any meaningful chance to set the record straight in time to obtain her party’s nomination.

As a result, Brock selfishly denied the Republican Party voters of Maryland the opportunity to make a clearly informed choice as to their candidate to run against the incumbent U.S. Senator for Maryland — Democrat Paul Sarbanes. After an extensive factual recitation, appellant’s complaint asserted four counts. In count one, “Defamation/Slander Per Se — September 7, 1994,” appellant asserted that appellee “at the Rockville Courthouse ... in the presence and hearing of one or more newspaper reporters, stated that Aron had been convicted of fraud by a jury more than once.” (Emphasis added.) She asserted that the statement was knowingly false, slanderous per se, malicious, not justified or privileged and that appellee made the statement with the intent that it be disseminated by one or more newspapers to potential voters who lived in the area and would be voting in the upcoming election. Appellant further asserted that appellee made the statement to discredit her candidacy for the 1994 Republican Party nomination for the United States Senate.

As a result of the defamation, appellant alleged that she had been ridiculed, her credit had been impaired, her business relationships had been negatively affected, her reputation for honesty had been demeaned, and her standing as a citizen had been “impugned and belittled.” As a result, appellant alleged damage to her personal, political, business, and professional reputation. She also asserted that she had lost “the opportunity to serve in the United States Senate.” In count two, “Defamation/Libel Per Se — September 8, 1994,” appellant alleged that the statement made by appellee ⁴⁸² on September 7, 1994, described in the first count, had been “republished by The Washington Post ... on September 8, 1994.” She made further averments similar to those made in count one. In count three, “Defamation/Slander and Libel Per Se— September 9-12, 1994,” appellant alleged that appellee was responsible for certain television commercials that ran during the applicable period. Appellant asserted that the commercials stated that she had “ ‘trouble obeying the law 1 ; had been ‘more than once’ ‘ruled ... out of bounds’ by a court of law; and had ‘admitted to ... wrongdoing.’ ” She asserted that the commercials were intended to convey that she had been found guilty of criminal conduct, and that they were false, maliciously made, and approved by appellee.

She included other averments as to damages and other matters similar to those contained in counts one and two. The fourth count was also a defamation/slander count that was similar to count three except that the defamatory statements were made in radio commercials. In the fifth count, “Intentional Infliction of Emotional Distress,” appellant asserted that appellee’s conduct “was so extreme and outrageous that it exceeded the boundaries of decency and is utterly intolerable, to the civilized community.” The jury returned a verdict on March 12,1996. The verdict sheet reflected that the jury found that the statement(s) were published but that they were neither false nor defamatory.

On March 19, 1996, seven days after the rendition of the jury’s verdict and three days prior to appellant’s timely filing of a Motion for New Trial, the docket entries reflect the following: “Order of Court that the motion for confiscation is hereby granted.” That order resulted from appellant’s filing of an emergency motion requesting that the court confiscate a juror’s notebook. That motion alleged that a juror had prepared at his home in the evenings a personal notebook and brought it into the jury deliberations and that the notebook “was represented [to the other jurors] to constitute the true record of the evidence in this case.” That notebook was ⁴⁸³ represented to be “tabbed” and to contain “highlighting” of certain portions. It was represented to the court as having contained that juror’s summary and commentary on the evidence and exhibits presented. Appellant alleged that the respective juror used the notebook to dominate the deliberations and “control the discussions.” Appellant’s motion noted that what the juror had done in preparing the notebook at home violated at least the spirit of Maryland Rule 2-521.

She argued in the motion for confiscation that what the juror had done was improper, citing Niemeyer & Shuett, Maryland Rules Commentary 396 (2d ed. 1992): “The [jurors’] notes can be picked up each day as the jury returns to the jury room. The practice avoids extraneous influences and ‘homework’ by jurors.” Appellant argued below that the practice the juror had conducted in formulating his notes at home and in formulating his comments and position during the course of the trial, violated the requirement that the notes remain in the jury room or with the bailiff, in order to avoid “extraneous influences” and “homework.” 1 She also asserts that the juror’s conduct had been contrary to the trial court’s instructions “not to begin to deliberate until the close of the case.” The trial court granted the motion and confiscated the notebook. Appellant subsequently filed a Motion for New Trial. She asserted in that motion that the trial court improperly admitted provocation evidence and that appellee made prejudicial comments at closing argument.

She also relied, in part, on the juror’s inappropriate, out-of-court compilation of the notebook, and the subsequent in-court use of that notebook to influence other jurors. Appellant requested a hearing on the issue and “permission to review [the juror’s] notes [the notebook compiled outside the courtroom] in order to ... know how serious and prejudicial was the breach.” Appellant proffered that, in reviewing the notebook, she would not be ⁴⁸⁴ delving into that individual juror’s “subjective deliberative process.” Rather, she sought to examine the extrinsic material, i.e., the notebook the juror had brought into the jury room. The docket entries reflect that on March 26, 1996, the Motion for New Trial was denied “except as to juror misconduct.” The trial court, after a hearing, denied the motion “as to juror’s misconduct” and imposed Rule 1-341 sanctions against appellant for presenting the issue. We shall present additional facts as are necessary to the resolution of appellant’s questions.

I. Did the circuit court err in admitting into evidence extrinsic testimony on collateral matters which [was] highly prejudicial to Aron’s case? As we have indicated, this case involves allegations by appellant that appellee made defamatory and slanderous comments about her during the 1994 primary election for the Republican nomination for United States senator. Specifically, appellant asserted that on September 7, 1994, at a press conference in front of the old Montgomery County Courthouse in Rockville, appellee stated to one or more newspaper reporters that appellant had been convicted of fraud by a jury on more than one occasion. On the following day, The Washington Post quoted appellee as stating that appellant “ha[d] been convicted by jury of fraud, more than once.” Sometime later, appellee or members of his campaign caused the following television commercial to be broadcast: Ruthann Aron?

The Baltimore Sun reported while she was making millions as a real estate speculator, she had trouble obeying the law. More than once the court ruled her out of bounds. She admitted to the Sun she paid more than $300,000 because of her wrongdoing. The television commercial also noted graphically: “A Montgomery County jury found [Aron] hable for breach of contract and fraud and awarded the plaintiff $300,000.” ⁴⁸⁵ In addition to the television commercial, appellant alleges that the following radio commercial was defamatory: [According to the Baltimore Sun, Ruth Ann [sic] Aron has trouble obeying the law while she’s making money.

More than once the court had to rule Ruth Ann [sic] Aron out of bounds. Ruth Ann [sic] Aron admitted to the Baltimore Sun she paid more than $800,000 because of her wrongdoing. These statements and assertions made by appellee during the primary election were based on two earlier civil lawsuits that involved appellant. In the first suit, appellant was sued for breach of contract, breach of fiduciary duty, and constructive fraud.

This suit involved an alleged agreement between appellant and others in respect to a real estate project. Appellant testified extensively in the case sub judiee regarding the underlying facts and outcome of that prior lawsuit: [APPELLANT’S TRIAL COUNSEL:] [2] Let me ask you this; what did they sue you for? [MS. ARON:] Everything. Breach of contract, breach of fiduciary duty, fraud, constructive fraud; that’s all I remember.

Q And did the jury find against you? A Yes. Q What happened after the case? A Well, I was pretty upset.... [WJe filed an appeal.... ... [W]e filed an appeal and then ... one of them contacted my husband.

He knew my husband and he said they wanted to settle the case and I was not about to settle the case with that kind of finding on my reputation. And their counsel, my counsel, got together and, eventually, the judge vacated the jury finding and we settled the case. ⁴⁸⁶ Q And what was your understanding of the significance of the Court vacating the judgement against you? A My understanding is, that if a judgement is vacated, it’s like it didn’t happen because if it’s vacated and a new trial is set down, you don’t have a new trial based on what happened before, you have a new trial based on a clear blackboard. You have [a] new trial based on there not being any finding, whatsoever.

I never, ever, ever would have participated in a procedure that I was advised to participate in by counsel, being told that the jury finding being vacated meant that it was, I guess, what’s called in the law, “null and void,” a nullity, like it never happened. [Emphasis added.] The second suit involved a real estate joint venture in which appellant was a partner. Appellant also testified extensively regarding that civil case, referred to by her as the “Clinton property” litigation: [MS. ARON:] ... [T]his financing person who was in jail at this time, he sued me and my partner for the profits that we made when we sold the property. [APPELLANT’S TRIAL COUNSEL:] What happened in that law suit? A Well, the jury found against my partner and I and we were stunned and our attorneys filed what’s called a “Judgement Notwithstanding the Verdict,” laying out all the evidence and laying what the facts were, what our agreement was, everything, and a very highly respected judge in the federal court set aside the jury’s finding____ He even went through the whole set of issues and said that he reviewed the evidence and found that the evidence showed this person breached the contract, the financing person breached the contract, not us, and he found for us and said, I mean just said, basically, the verdict was “null and void.” Q Now, what happened after the judge vacated the judgement? ⁴⁸⁷ A ... [T]here [were] some ... [m'jotions on the side of the lawyers for the financing partner.

They were claiming there was confusion as to the breach of contract decision, and the judge ... ordered a new trial on that count of the case. A Well, rather than go through a new trial, ... I decided based on business judgement to settle the case.... Q Was there any claim for fraud in the second case?

A None whatsoever[.] Q Was there any finding of fraud in this case? A There was no claim, there was no finding. Q Was there a claim for conversion, do you recall ? A Yes. [Emphasis added.] During the presentation of his case, appellee introduced the testimony of Arthur Kahn and John Harrison.

Messrs. Kahn and Harrison were the attorneys who had represented appellant’s adversaries in the two prior civil actions. Mr. Harrison, the attorney who represented appellant’s adversary in the second civil suit (the Clinton transaction), testified that he filed four causes of action against appellant and the partnership in which she was involved: 1) breach of contract, 2) breach of fiduciary duty, 3) accounting, and 4) conversion. Although he was not permitted to testify as to the facts of that case, Mr. Harrison was permitted to testify regarding the result and ultimate disposition of the case.

He indicated that the jury returned a verdict in favor of his client 3 on the breach of contract, breach of fiduciary duty, and the conversion counts. Mr. Harrison then testified that the trial judge granted appellant’s motion for judgment notwithstanding the verdict as to the conversion count because it was ⁴⁸⁸ premature. Mr. Harrison then testified regarding what was left to be done in connection with that case: [APPELLEE’S COUNSEL:] With respect to what remained to be done in trial, explain that to the jury? [MR. HARRISON:] Thank you your Honor.

What remained to be done at trial was a new trial was scheduled for March 8th of the following year----[A]t that time we would have gone forward with another jury on the two issues of breach of contract and breach of fiduciary duty. And we would have gone forward on the accounting.... Q Would the issue of fraud have been an issue in the case? A The issue of fraud was definitely an issue.

The Court finds on an accounting suit that it’s ... almost an automatic finding of fraud or constructive fraud.... [APPELLANT’S COUNSEL]: May we approach the bench Your Honor? COURT: Yes. Bench Conference [APPELLANT’S COUNSEL]: Your Honor he’s done it once again. He comes in the back door....

COURT: ... The nature, the answer to the question as to fraud and so forth goes back to the allegations that were made. I’ll allow it to stand. End Bench Conference.

Q I’m asking why would the fraud have been an open issue in the remaining trial to be decided by the jury? A Under breach of fiduciary duty in the accounting count, all of these counts were tried under Maryland Law and not Virginia Law. Under the breach of fiduciary duty in ⁴⁸⁹ the accounting count when you show the fiduciary has received money on behalf— [APPELLANT’S COUNSEL]: Object. COURT: All right wait let’s just leave it without all the details that it was an element of the claim.

The trial court also permitted Mr. Harrison to testify regarding the eventual settlement in the action. The court carefully excluded evidence regarding the underlying facts of the previous civil case. Mr. Kahn, who represented appellant’s adversaries in the other civil suit, testified regarding that case. Appellee tried to introduce Mr. Kahn’s testimony as to the facts of the suit, and appellant’s counsel objected.

The following ensued: [APPELLANT’S COUNSEL]: Your Honor we’re just simply re[-]litigating the case. COURT: Why are you going into this? [ONE OF APPELLEE’S TRIAL ATTORNEYS]: Your Honor, you will recall that the plaintiff on direct examination took the stand and discussed in detail the subject matter of the suit, why she was sued, what she did, what she didn’t do, and all the transactions that she says gave rise to this suit and this misunderstanding. She described how ... she didn’t pay them because of misunderstandings with regard to financing and they didn’t do this and they didn’t do that, and she ... described ... in some detail the nature of the transaction that gave rise to the suit. I’m doing nothing more then [sic] essentially describing the same background and giving if you will the reverse side of that story....

COURT: I’m not going to allow that to go into the substance of the suit. Appellee’s counsel again tried to introduce Mr. Kahn’s testimony regarding the substance of the previous civil suit, and appellant again objected. The following then transpired: ⁴⁹⁰ [ANOTHER OF APPELLEE’S ATTORNEYS]: Excuse me your Honor. Excuse me.

Could we ask ... the benefit of one thing so we [are] clear for basis for your ruling cause we’re arguing they opened the door for this and was permitted to testify even so far your Honor as saying and in response to the questions well why did the jury rule against you? ... COURT: I think all this [is] collateral. I have no problem as to the results of the suit and the jury verdict and all the rest of it, but how we arrived at that verdict I’m just not going to allow any testimony. Mr. Kahn then testified: Q And with regard to the outcome of that case what did the jury do?

A The jury as I recall returned a verdict against ... Mrs. Aron and her company in the amount of as I recall a hundred and fifty-five thousand dollars in compensatory damages and ... ninety-two thousand dollars in punitive damages. Q After the return of that verdict by the jury could you describe what happened in terms of post[-]verdict activity by Miss Aron to her counsel and by the Court? A ...

Mrs. Aron filed a motion for what’s called Judgement Notwithstanding the Verdict---- [T]he ... judge who tried the case denied that motion.... A He [the judge] ... denied Mrs. Aron’s motion on the condition that the plaintiff agree to accept instead of ninety-two thousand dollars in punitive damages from her twenty thousand dollars keeping in tact [sic] the one hundred and fifty-five thousand dollars compensatory damage award. Q All right. What were your options at that point as attorney representing the plaintiff? ⁴⁹¹ A Well if we did not accept the judge[’]s remittitur of that amount then a new trial would have been ordered.

Q Okay. A So therefore we elected to indeed accept the remittitur and a judgement there upon [sic] was entered against Mrs. Aron in the amount of a hundred and fifty-five thousand dollars in compensatory damages and twenty thousand dollars in punitive damages. Q With respect at that point what happened with regard to further inner action [sic] between you and Mrs. Aron or her counsel? A Mrs. Aron there upon [sic] filed an appeal to the ...

Maryland Court of Special Appeals.... A Mrs. Aron had agreed to pay the amount of the damages awarded by the jury including the reduced amount of the punitive damage claim on the condition that we the plaintiff file a motion withdrawing this remittitur of the punitive damage award. A ... [T]he effect of us filing a motion to withdraw the remittitur then put the case in the posture of being set for a new trial since the Judge had in denying her motion for a new trial conditioned his order upon us accepting the remittitur. So when we filed the motion for the remittitur the Judge there upon [sic] based on his previous order ... ordered that a new trial occur.

Q Was there ever a new trial? A No. Q Why not? A Well our agreement with Mrs. Aron was that we wanted to be paid the amount of the judgement that had been entered against her and our clients rather then [sic] having to go through an appeal process wanted their money ⁴⁹² now rather then [sic] later____ To facilitate us getting paid the damage award we went along -with it---- Q Mr. Kahn, Mrs. Aron has described this suit as having been business disputes that were settled out of court. Would you concur with that description?

A Well we got a judgement against Mrs. Aron and as a consequence of that judgement she agreed to pay us what she owed us. Q Do you regard that as being settled out of court? A Well it depends [on] what you mean by settled out of court. Certainly the substance and the jest [sic] of the transaction was that we had a damage award---- A We had a damage award returned by ... a jury ... in the amount of ... as I said a hundred and fifty-five thousand plus ninety-two thousand that was reduced to twenty on the punitive end and Mrs. Aron agreed to pay these damages and in order to facilitate her payment of these damages we agreed to at her request file this motion to withdraw the remittitur which for posterity sake would have set the case for a new trial and vacated the verdict.

But as far as we were concerned we didn’t settle the case. We tried the case for two weeks. She made us try the case and only after we got our judgement did she finally agree to pay us. Q ... [T]here’s been a suggestion that somehow or another the jury verdict in this case ... was a nullity---- A Mrs. Aron filed a motion to set aside the verdict and the Judge denied the motion.

The verdict was supported by the weight of the evidence. There was nothing defective in the verdict as far as we could see. Judge’s denial of a motion to set aside the verdict ... substantiates that. Q And with regard to how the verdict eventually was stricken it was only cause she paid the judgement and you agreed to this arrangement to allow the dismissal? ⁴⁹³ A Correct.

Appellant contends that Messrs. Kahn and Harrison testified regarding collateral matters and, therefore, their testimony was inadmissible. She further argues that “[s]ince Messrs. Kahn and Harrison were called as witnesses for no other purpose but to contradict Aron’s testimony, it was error to admit this evidence.

Moreover ... the testimony was highly prejudicial and substantially injurious to [appellant’s] case.” Appellant also asserts that because these witnesses were attorneys, they were given the latitude and allowed to testify as to the effect of the judgments in the prior civil actions, and whether or not these judgments were nullified by reason of the events following trial. The witnesses speculated as to the legal conclusions which are outside the realm of proper opinion and which, as presented by these witnesses, were contrary to the law, and just plain wrong. As far back as 1834, the Maryland Court of Appeals recognized that a witness may not be impeached by extrinsic evidence that contradicts the witness’s testimony in respect to facts that are collateral or irrelevant to the issues in the case. See Goodhand v. Benton, 6 G. & J. 481, 487-88 (Md.1834); see also Consolidated Beef & Provision Co. v. Witt & Co., 184 Md. 105, 112 , 40 A.2d 295 (1944).

This common-law rule of evidence is now codified in Maryland Rule 5-616(b)(2). This rule provides: “Other extrinsic evidence contradicting a witness’s testimony ordinarily may be admitted only on non-collateral matters. In the court’s discretion, however, extrinsic evidence may be admitted on collateral matters.” Rule 5 — 616(b)(2) makes clear that the absolute common-law prohibition on the introduction of collateral, extrinsic evidence for impeachment purposes has been modified so that such evidence may be admitted in the court’s discretion. Thus, the questions are: was the testimony collateral in the first instance; and, if so, did the trial court abuse its discretion in admitting the testimony? ⁴⁹⁴ An article in the Maryland Law Review written by Professor Alan D. Hornstein 4 concerns, in part, the issue we here address.

See Alan D. Hornstein, The New Maryland Rules of Evidence: Survey, Analysis and Critique, 54 Md. L.Rev. 1032, 1054-56 (1995). Professor Hornstein, in respect to Rule 5-616, states: The division of parts (a) and (b) helps to clarify, though not completely resolve, the common-law problem of “collateralness.” The common law prohibited the introduction of extrinsic evidence to impeach on collateral matters, but permitted it if the matter was not collateral. It was sometimes difficult to tell what counted as “not collateral.” With respect to ... impeachment by contradiction, the problem remains, but the other modes of impeachment listed in Rule 616(b) permit proof by extrinsic evidence. In the parlance of the common law, these matters are not collateral. [The Rules] permit impeachment by contradiction---[E]xtrinsic evidence of the contradictory material may be admitted only if the matter is not collateral or if the court exercises its discretion to permit extrinsic evidence of collateral matters.

One might expect the exercise of such discretion where the matter is collateral in a strict sense but forms the linchpin of the -witness’s testimony. [Emphasis added, footnotes omitted.] The term “collateral” is not defined in the rules themselves. In Smith v. State, 273 Md. 152 , 328 A.2d 274 (1974), the Court of Appeals adopted a test to be utilized by the courts in determining whether a matter is collateral for purposes of impeachment. In that case, the state introduced the testimony of a police officer who arrived at the scene of the crime. On cross-examination, the police officer was asked whether he had told a member of the public defender’s investigative staff ⁴⁹⁵ that the shooting was accidental; he denied having made the statement.

In its case-in-chief, the defense sought to introduce the testimony of the member of the public defender’s investigative staff with whom the officer spoke. The defense proffered that the witness would testify that the police officer told him that the officer had visited the victim in the hospital and that the victim had told the officer that the shooting was an accident. The trial court, indicating that the testimony constituted double hearsay, declined to admit it. The Court of Appeals noted the test as to whether extrinsic evidence is collateral, laid down in Attorney-General v. Hitchcock, 1 Exch. 91 (1847), which held that “the proper test is whether the fact, as to which the error is predicated, could have been shown in evidence for any purpose independently of the self-contradiction.” Smith, 273 Md. at 160 , 328 A.2d 274 .

The Smith Court indicated that the rule in Attorney-General v. Hitchcock is applicable when the extrinsic evidence being offered for purposes of impeachment is otherwise inadmissible because it is irrelevant. The Court stated “where the inadmissibility of the extrinsic evidence, for a purpose independent of the contradiction, rests on grounds other than relevancy as, for example, in the present case, where it rests on the hearsay rule, different considerations govern.” Smith, 273 Md. at 161 , 328 A.2d 274 . The Court went on to state: LT]he test of collateralness — whether the fact as to which the error is predicated could have been independently shown in evidence — actually means whether that fact could have been shown in evidence from the standpoint of relevancy. It is only in the context of relevancy that the rule accomplishes its underlying objectives.

The test, therefore, and we think it is foreshadowed by our earlier decisions, is whether the fact as to which the error is predicated is relevant independently of the contradiction; and not whether the evidence would be independently admissible in terms of satisfying all the rules of evidence. ⁴⁹⁶ Smith, 273 Md. at 162, 328 A.2d 274 . The Court concluded that “the testimony of the proffered witness with regard to the statement allegedly made to him by the police officer should have been admitted for the sole purpose of impeachment. For this purpose, it is not hearsay and, as we have observed, it is relevant.” Id. at 162-63 , 328 A.2d 274 . We hold, accordingly, that “the test of collateralness ... means whether that fact could have been shown in evidence from the standpoint of relevancy.” Id. at 162 , 328 A.2d 274 .

If it can, it is not collateral. Guided by the Court of Appeals’s decision in Smith , we perceive the issue in the case sub judice to be whether the testimonial evidence of Messrs. Kahn and Harrison was relevant. Relevant evidence is defined as any “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401.

This case concerns alleged defamatory statements made by appellee. Judge Karwacki, writing for the Court of Appeals in Batson v. Shiflett, 325 Md. 684, 722 , 602 A.2d 1191 (1992), noted the elements of the tort of defamation: “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.’ ” • (Citations omitted.) The alleged defamatory statements made by appellee related specifically to the jury’s findings in each of the two prior civil cases. Appellant essentially asserts that the testimony of Messrs. Kahn and Harrison, in reference to the result and disposition of the prior civil actions, was irrelevant because the jury verdicts in each of the two cases were vacated.

Appellant would have us hold that the jury verdicts and subsequent actions of the parties involved in the prior civil cases are not of consequence to her defamation action because the verdicts in ⁴⁹⁷ those cases were vacated and the cases subsequently settled. We disagree. As expressed by Maryland Rule 5-401, in order for evidence to be relevant, it must 1) be of some consequence to the determination of the action, and 2) have some tendency to make a fact more or less probable. The alleged defamatory statements made by appellee concerned the prior jury verdicts.

Accordingly, the jury verdicts and the facts surrounding the subsequent vacating of those verdicts were unquestionably relevant to determining whether appellee had made a true or false statement and, ultimately, whether appellee defamed appellant. The fact that the jury verdicts were vacated does not mean that they were never actually rendered. Additionally, the attorneys’ testimony regarding the jury verdicts in the two cases, if believed, tended to show that the alleged defamatory statements and assertions were true. We, therefore, conclude that Messrs.

Kahn’s and Harrison’s testimony was relevant. Accordingly, the testimony in the first instance concerned a noncollateral matter and was admissible to impeach appellant’s credibility. 5 Even if we were to assume that the testimony of Messrs. Kahn and Harrison might have been irrelevant and therefore collateral, Rule 5 — 616(b)(2) clearly permits the trial court, in its discretion, to admit extrinsic evidence for purposes of impeachment. As Professor Hornstein noted: “One might expect the exercise of such discretion where the matter is collateral in a strict sense but forms the linchpin of the witness’s testimony.” Hornstein, supra at 1056.

It is clear, at a minimum, that the disposition of the two prior civil actions formed the “linchpin” of appellant’s case against appellee. ⁴⁹⁸ We are cognizant of a recent Court of Appeals opinion that discusses another reason why Messrs. Kahn’s and Harrison’s testimony was admissible. In Clark v. State, 332 Md. 77, 84-85 , 629 A.2d 1239 (1993), Judge Chasanow noted Chief Judge Murphy’s discussion in his Maryland Evidence Handbook concerning the distinction between “opening the door” and “curative admissibility.” Judge Chasanow commented: The “opening the door” doctrine is really a rule of expanded relevancy and authorizes admitting evidence which otherwise would have been irrelevant in order to respond to (1) admissible evidence which generates an issue, or (2) inadmissible evidence admitted by the court over objection. Generally, “opening the door” is simply a contention that competent evidence which was previously irrelevant is now relevant through the opponent’s admission of other evidence on the same issue.

In sum, “opening the door” is simply a way of saying: “My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.” [Footnote omitted.] Clark was being tried for rape. The defendant challenged the method used by the police in taking blood from the defendant for DNA testing. In response to that testimony, the State proffered the testimony of the officer who had taken Clark’s blood sample. The officer inadvertently testified that he was taking blood for testing in a rape case other than the one for which Clark was on trial.

In response, defense counsel attempted to ask the witness what had happened in the other rape case, and the State’s Attorney objected. The trial court “ordered defense counsel to ‘stay away from that other case.’ ” Id. at 83 , 629 A.2d 1239 . Ultimately, the Court held that the “opening the door” doctrine was not applicable because the exculpatory evidence, ie., DNA test results, that Clark sought to introduce was incompetent hearsay evidence. In the case sub judice, however, the two civil law suits were the crux — the end all and be all — of appellant’s case.

Once ⁴⁹⁹ appellant injected the issue of “meaning” or “interpretation” as to what had occurred in those prior cases, she generated an issue as to the ultimate disposition of those cases. We do not perceive that the testimony of Harrison and Kahn was irrelevant in the first instance, even had appellant not presented her evidence on the matter. To the extent their testimony might have been irrelevant if offered for purposes other than contradiction, under the “opening the door” theory discussed by Judges Chasanow and Murphy, it would have been made relevant in any event. We perceive no error.

Finally, appellant asserts that the testimony of Messrs. Kahn and Harrison constituted improper opinion testimony. The transcript makes clear that appellant did not object below to the testimony on those grounds. Appellant’s objection to the testimony related only to its collateralness.

Her argument is therefore waived on appeal by her failure to present it at trial. Md. Rule 8-131.

II

Did the circuit court err in refusing to find juror misconduct based upon the preparation of a trial notebook outside of the courthouse? During the hearing on the Motion for New Trial, which was based in part upon the juror’s alleged misconduct in preparing notes and his comments on the proceedings at home, appellant’s counsel argued: Your Honor, we haven’t even had the opportunity to confront that evidence. We don’t know what’s in those notes. Without being able to examine them how can we confront them?

It ... brings to a conclusion that essentially you have somebody who has become the witness for one side or the other. In other words, when he gains that importance in becoming the witness, we didn’t have the opportunity to cross-examine him. We didn’t have the opportunity to confront him. ⁵⁰⁰ ... Your Honor, I think that the further point is that, you know, essentially the fairness and the sanctity of the proceeding has been impaired and there is little possibility to put aside that there has been deviation from the Rule and that this has given again to one juror an inordinate amount ... of authority before the jury.

I think, Your Honor, the ... thing we would like to do, I think the only way we really can address this as to whether or not the extrinsic evidence is a probability of prejudice is to allow us to examine the notes because if we could examine the notes then we would be able to determine in how many ways those notes deviated from the record in this case and that would be the ... prejudice on the face of the extrinsic evidence. I know we can’t have a hearing, we can’t go into the deliberative process, but we can go into what’s on the face of the extrinsic information. And the face of the extrinsic information is — what I recall ... is a notebook this large, about an inch or two in ... depth, and it appeared to be organized with tabs and underlinings, and it appears to have been relied upon by the jury, even Mr. Bullard [the juror] in his ... note itself says that when he referred to his notes. [Emphasis added.] On this issue, appellee’s counsel’s argument below was based on his position that to examine the extrinsic evidence would improperly involve the parties in the deliberative processes of the jury. At one point, however, appellee’s counsel, himself, argued to the court: He added nothing to them except his own thought processes which is exactly what is protected by Rule. ...

Plaintiffs counsel should not have [an] opportunity to review them____ They make the bold allegation ... saying there is extraneous material brought into the jury room---They have absolutely no facts to support that. [Emphasis added.] Thereafter, appellant argued further: Your Honor, I would note first that the Maryland Rules Commentary which we provided to the Court, has as part of ⁵⁰¹ the annotation a statement that the notes should not be taken outside the courtroom because to do so would be to engage in homework and would be to engage in outside influence.... I don’t see any harm for us to review the notes. The only thing that we would determine by looking at the notes would become enlightened as to the probability [of] prejudice. To not allow us to view the notes is again to not allow us to confront evidence that was brought into the jury room.

It’s that simple, Your Honor.... [W]e have never had am, oppori,unity to review that. Without that ability there is an inability really to argue the probability of prejudice because we don’t have a knowing platform from which to ... make that determination and to draw the Court’s attention to it. I know the Court has reviewed those notes, but I think we should also have the opportunity to confront everything that was used by the jury in their deliberations against Ms. Aron. [Emphasis added.] In its findings from the bench, the trial court said, in part: The question is whether this is extraneous matter. First, there are no tabs in the book.

And in my reviewing of the book, ... it just appears to be just what it is, a [juror’s] notes of the testimony and his impressions as to — he makes impressions, comments as to the credibility of witnesses, and he also makes notes about stuff that he doesn’t understand like remittitur. He has a question mark over it where it was used. But these appear to be almost — at least to this Court’s recollection, what you would expect the jury to take. I’m not going to disclose it to Counsel.

I believe that that would be allowing in the back door the can of worms that Judge R[o]dowsk[y], in uniting the [Wemsing/ opinion, was afraid of opening, but I’m going to retain it because if this case goes up on appeal and the appellate court wants it submitted it will be here. But to allow the jury — or to allow Counsel, either Counsel, to inspect this I think would just be in violation of [Wemsing ]. So at first, I don’t believe that it’s extraneous matter. The fact that the individual is conscientious and decides to type his notes up, he’s to be penalized for that?

That’s incredible. And even if it is ⁵⁰² extraneous matter, which I don’t — the probability of prejudice, why? Because they’re typed up? Why does that make — what is he supposed to rely upon just his recollection?

I don’t think that there [is] that[ ] degree of probability of prejudice that would warrant a new trial. And for those reasons the Court[ wi]ll deny the Motion for a New Trial, the last remaining issue, for those reasons. [Emphasis added.] In reference to sanctions, the court opined: Now, under Maryland Rule [1-841], Mr. Gittner, I just— I’m not going to talk about good faith, but I think the Maryland law and the Maryland rules are crystal clear on this, and I do believe this aspect of the Motion of this hearing was without substantial justification under the rule. And having said that, under Maryland law, the application of the rule is mandatory. I’ll be glad to submit whatever you want on the issue, but I will award Counsel fees for this Motion, and this aspect of the Motion, because the other aspects I’ve already denied.

After the trial court forbade the inclusion of the juror’s notebook in the record, the following occurred: THE COURT: ... I’m also indicating that I’m not filing the juror’s notes in the file. That would allow access to the public and to Counsel. The Court is retaining— [APPELLANT’S COUNSEL]: Your Honor, may I be ... heard ... on your ruling?

THE COURT: Yeah, sure. [APPELLANT’S COUNSEL]: Your Honor, how could we not — how could we have brought this to your attention without filing the Motion? THE COURT: I don’t think there’s any basis for the Motion. I think the Maryland law is clear. I think you’re just trying to impeach the jury verdict under Maryland law, Mr. Gittner, and I think that’s precisely what you were trying to do. [APPELLANT’S COUNSEL]: Your Honor, how would it be clear if we don’t know what’s in the notes?

For ⁵⁰³ example, what if there had been an impropriety in those notes? [Emphasis added.] THE COURT: Mr. Gittner, no. I’m sorry, my ruling will stand. Before further addressing the law in reference to this issue, we must address the state of the record forwarded to us and how it impacts upon our review. The notebook at issue here has been lost, and the parties, absent the opportunity to review it below, could not, in this appeal, possibly reconstruct its contents because the trial court denied them the opportunity at the hearing to examine it.

This, of course, creates an additional problem because of the nature of this appeal. Just as the two prior civil cases were the “linchpin” of appellant’s case, this notebook was the “linchpin” of her Motion for New ’Trial. We are unaware of any case exactly on point, in which determinative, unexamined documents have been lost through no fault of the parties. Accordingly, we look to the cases, with some similarity to the facts of the case sub judice.

These cases generally concern delayed transmittal or inadequate records. Owens-Illinois, Inc. v. Zenobia, 325 Md. 665, 667 , 602 A.2d 1182 (1992), on Motion for Reconsideration, was a case in which one of the defendants, in a motion to reconsider, requested that certain documents “‘... be made part of the total record’ ” and that, with the documents as a part of the record, the Court’s prior decision be reconsidered. The Court’s prior opinion had held that a defendant was not entitled to indemnification or contribution from another defendant because that other defendant had never been properly named as a defendant or third-party defendant. In its motion for reconsideration, the movant argued that the page of the complaint naming the other defendant as a party had inadvertently been omitted from the record extract.

The Court of Appeals noted: Neither the original complaint in the Zenobia case, nor the stipulation as to cross-claims, nor Anchor’s cross-claims ⁵⁰⁴ for indemnity were included in the record on appeal transmitted to this Court pursuant to Maryland Rules 8-412 and 8-413. The original complaint, apparently with a page missing, and a portion of the cross-claim stipulation, were included in the record extract under Rule 8-501. These partial documents indicated that Raymark had never been a party in the Zenobia case. Anchor’s proffered cross-claims for indemnity against “all defendants” was not included in the record extract.

Zenobia, 325 Md. at 668 , 602 A.2d 1182 . The Court then corrected the record: Since the exhibits attached to Anchor’s Motion for Reconsideration indicate that the plaintiff Zenobia had named Raymark as a defendant and that Anchor had filed cross-claims for contribution and indemnity against all defendants, including Raymark, we shall pursuant to Rule 8-414 correct the record to include these papers, and we shall proceed on the basis that the cross-claims were filed against Raymark in the Zenobia case. Zenobia, 325 Md. at 668 , 602 A.2d 1182 (footnote omitted). It, however, declined to change its prior opinion and denied the motion to reconsider based upon the facts of the case: Nevertheless, we shall not modify the judgment vacating the circuit court’s granting of the cross-claims against Ray-mark in the Zenobia case, and we shall deny Anchor’s Motion for Reconsideration.

As in the Dickerson case, the evidence in the Zenobia case was insufficient to show that Raymark was a joint tortfeasor. Id. at 669 , 602 A.2d 1182 . In the case sub judice, on our own motion, we ordered the Clerk of the Circuit Court for Anne Arundel County to correct the record by forwarding to us the “notebook” at issue. The clerk has informed us that he cannot comply because the “notebook” cannot be found.

This record, unlike the record in Zenobia , cannot be corrected by an appellate court because the notebook cannot be made a part of the record as it was lost. ⁵⁰⁵ The general rule is that an appeal will not be dismissed if the delay in transmittal of the record is occasioned by the neglect, omission, or errors of the court or its staff. See Horseman v. Furbush, 124 Md. 581, 582 , 93 A. 149 (1915) (noting that an appeal will not be dismissed if the delay was caused by the “ ‘... neglect, omission or inability of the clerk or appellee ... ’ ”); Wilson v. Merryman, 48 Md. 328 (1878) (holding “we are of opinion that no fault or laches can be imputed to the appellant’s counsel, in the failure to transmit the record within the time prescribed by the Rule, and therefore the motion to dismiss is overruled”); Hooper v. Baltimore & Y. Turnpike Rd., 34 Md. 521, 529 (1871) (stating “[t]he proof offered ... shows that the delay ... was not caused by the fault or latches of the appellant”); cf. Nationwide Motor Sales Corp. v. Trusty, 24 Md.App. 407 , 331 A.2d 76 (1975) (dismissing appeal when absence of transcript was not caused by neglect, omission, or inability of the clerk of the lower court); Laukenmann v. Laukenmann, 17 Md.App. 107, 109 , 299 A.2d 466 (1973) (“There is no contention that the failure ... was occasioned by the neglect, omission or inability of the clerk----”); White v. State, 8 Md.App. 51, 54 , 258 A.2d 50 (1969) (affirming trial court’s denial of motion to change venue because the record was “silent as to what transpired at the hearing on his motion”), cert. denied, 257 Md. 737 (1970). Although Maryland Rule 8-412(d) concerns the transmittal of the entire record, as contrasted with the failure to include a part of it as in the case at bar, it, nevertheless, sheds some light on the Court of Appeals’s general position on clerical omissions. The rule states, in pertinent part, in respect to the filing of a motion to extend time to transmit the record after the time for transmittal of the record has expired: “[T]he Court will not extend the time unless the Court finds that the failure to transmit the record was caused by the act or omission of a judge, a clerk of court, the court stenographer, or the appellee.” Md. Rule 8-412(d).

The Court of Appeals was concerned with the application of the predecessor rule to Rule 8-412(d), Rule 1025(d), in Uhler v. Real Properties, Inc., 289 Md. 7 , 421 A.2d 966 (1980). There, the Court traced the ⁵⁰⁶ history of the provision “going back more than one and a quarter centuries.” Id. at 12 , 421 A.2d 966 . The Court stated: Thereafter, this Court revised the proposed rules by removing from the trial courts the power to grant extensions and by enlarging the basic period for record transmittal to 60 days. Of particular significance here is that the class of persons whose “neglect, omission or inability” could occasion and excuse delay was [expanded] to include a judge of the Court of Special Appeals in Ride 1025, and, in a companion amendment to Rule 825, a judge of this Court.

Former section b of Rule 1025 was deleted, former section c was relettered to “b” and Rule 1025 was adopted in the form extant at the time relevant to the subject appeal. 2 Md. Reg. 988 , 987, 994 (June 25,1975). ... Even more fundamental is that present section c of Rule 825, from which Rule 1025 c was cloned, has stood intact since 1957 and embodies an historic policy designed to protect, in appropriate cases, against dismissal of appeals because of specified types of delay in record transmittal. ... If the existence of excusing conditions asserted in the motion for extension is not controverted, or, if controverted, it appears to the Court of Special Appeals that the delay was occasioned by the neglect, omission or inability of a judge of that court, the clerk of the lower court, the court stenographer or the appellee, then the appeal cannot be dismissed for failure to transmit the record within the time prescribed. Rule 1025 c.

In the instant matter the Uhlers had demonstrated in their motion for extension of time which was filed one court business day late, in their motion to strike the order denying the extension, and in their opposition to RPI’s motion to dismiss that the failure to transmit the record within the time prescribed had been occasioned by the inability of the ⁵⁰⁷ court reporter. It was therefore error for the Court of Special Appeals to dismiss the appeal. Id. at 18-22, 421 A.2d 966 (footnotes omitted). The issue of an incomplete record was addressed in King v. State Rds.

Comm’n, 284 Md. 368 , 396 A.2d 267 (1979). There, the Court stated: In so stating, however, we nonetheless find we are unable to discern if petitioners are entitled to this relief because the record leaves uncertainty as to whether a timely objection was made. The Kings contend they made two seasonable objections.... Thus, the issue before us is relegated to an inquiry as to whether an objection was made prior to the jury being sworn.

In this regard, the trial transcript reflects that immediately prior to the administration of the oath to the jury there was a bench conference, the content of which was not recorded by the court reporter. As a consequence, the record tells us nothing concerning what took place at that conference. We have previously recognized that if a party thinks the record in this Court is incomplete or incorrect, the proper remedy is to file a motion here under Rule 826 f to correct that record. Harmon v. State, 227 Md. 602, 607 , 177 A.2d 902 (1962).

The Kings have not explicitly made such a motion, but we think that when, as here, the record is incomplete through no apparent fault of the appealing party and there is some indication in the record that tends to support that party’s assertion that, in fact, a timely objection was made, “the purposes of justice will be advanced by permitting further proceedings in the cause” to determine the issue, Md. Rule 871, and thus we will treat petitioners’ assertions as a Rule 826 f motion and remand the case, as is provided in Rule 826 c, for certification by the trial court as to what occurred. On remand, if, after considering the record, the arguments of counsel, any trial notes he retained, or any other legitimate source, the trial judge’s recollection is refreshed to the extent that he can certify as to what occurred with regard to the alleged objection, the following action should take place: If the court finds the ⁵⁰⁸ petitioners did not make a timely objection, as specified by this opinion, the judgments previously recorded on May 4, 1978, should be reentered; however, if it finds such an objection was registered before the jury was impaneled, a new trial should be provided. On the other hand, if the trial judge is unable to reach a conclusion as to whether a timely objection was made, then, in that event, a new trial should be conducted. King, 284 Md. at 372-75 , 396 A.2d 267 (footnotes omitted) (emphasis added).

In the case sub judice, we are unable to discern whether the trial judge would be able to recreate the record in the event we were to remand. Neither can the parties’ attorneys create the record on this issue, absent some means not immediately apparent, because they never had the opportunity to examine the notebook. As we perceive the situation, to dismiss an appeal of this nature because the trial court lost crucial exhibits it represented to the parties would be available, on the basis that it is appellant’s responsibility to make the record — especially when appellant was denied the right at trial to examine the exhibit — would not be in the interest of justice. We decline to dismiss the appeal sua sponte on the ground of the inadequacy of the record under the circumstances here present.

To aid us further in our inquiry as to the correct resolution of this procedural problem, we shall examine two cases that involve appellate review of a motion for new trial based on alleged juror misconduct. In Harford Sands, Inc. v. Groft, 320 Md. 136 , 577 A.2d 7 (1990), a