Gohari v. Darvish

HARRELL, J. John R. Darvish, Respondent, was found liable by a jury in the Circuit Court for Montgomery County of defamation of Shahriar Gohari, Petitioner, and of tortious interference with a contract that Gohari had entered to purchase an automobile dealership. The jury awarded Petitioner compensatory damages in the amount of $600,000.00 for the defamation claim. Petitioner and Arlington Motors, Inc., Petitioner’s co-plaintiff at trial, also were awarded $2,120,000.00 for tortious interference with the contract. The Court of Special Appeals vacated the judgment and remanded the case to the Circuit Court.

According to the Court of Special Appeals, Respondent was entitled to a new trial, presumably on both counts, at which time he would be permitted to assert a qualified privilege defense and to introduce evidence that his statements about Petitioner were true. Darvish v. Gohari, 130 Md.App. 265 , 745 A.2d 1134 (2000). We granted Petitioner’s petition for writ of certiorari, Gohari v. Darvish, 359 Md. 28 , 753 A.2d 1 (2000), to consider the following questions: 1. Whether the law of qualified privilege should be expanded to protect a business owner’s defamatory statements about a former employee who seeks to enter a competitive business arrangement with a third party, even though such statements neither arise in the context of an employer- ⁴⁶ employee relationship nor relate to any common interest of the business owner and third party. 2.

Whether a jury verdict may be reversed where a qualified privilege defense instruction, if given, would not have made any difference to the verdict, yet the Court of Special Appeals failed to consider whether any error is harmless. I. A Factual Background Darvish, at all pertinent times, was the owner and chief executive officer of Darcars Automotive Group (Darcars), the umbrella organization of a group of automotive franchises and related enterprises. In January 1987, Darvish hired Gohari, an accountant by training, 1 as a comptroller trainee at one of the Darcars dealerships. In January 1988, Darvish promoted Gohaii to comptroller of Darcars Toyota, where he was responsible for overseeing the accounting and financial functions of the dealership.

By 1992, Gohari ascended to the position of senior vice president of the Darcars Automotive Group 2 and was identified as such on the Darcars Toyota dealer’s license. Although Gohari accumulated extensive experience in the financial and accounting aspects of the businesses operated under the Darcars umbrella while working there, he was not trained in other aspects of its operations. Darvish testified that the only training Gohari received was in accounting; Gohari was not provided with any training in sales, service; or any of the other operating departments in the Darcars empire. 3 Because he specialized in the financial side of the ⁴⁷ business, with demanding responsibilities that Darvish described as “more than a full time job,” Gohari did not supervise directly the sales, service, or parts department of Darcars Toyota, nor did he, according to Darvish, ever express an interest in training to become a general manager in charge of supervising those departments. 4 At trial, Gohari agreed that he had not expressed interest in becoming a general manager because such a position would be the equivalent of a demotion from his position as senior vice president. When asked whether he lacked retail operational experience in the business, however, Gohari asserted that he did not lack such experience. 5 In August of 1996, Gohari quit his job with Darcars.

In November of 1996, he entered into an agreement with James Kline to buy the Kline Arlington Toyota dealership. 6 Needing Toyota’s permission to consummate the transaction, Gohari applied to Toyota Motor Sales, Inc.’s (Toyota) local agent, Central Atlantic Toyota Distributors, Inc. (CATD), for approval to own and operate the dealership. According to testimony at trial, CATD was responsible for examining “the credentials ⁴⁸ of the individual to determine whether or not [he or she] qualified to be a dealer and/or operator.” On 2 December 1996, Gohari met with Dennis Clements, president, and Roy Arminger, dealer development manager, of CATD. Gohari authorized CATD to “inquire, through outside sources, about [his] character, general reputation and credit history” and to “obtain and share information from and with any of its affiliated entities.” At trial, Clements testified that he specifically sought and received Gohari’s permission to interview Darvish about Gohari’s work experience at Darcars Toyota. On 10 December 1996, Clements met with Darvish and inquired about Gohari’s qualifications — experience, background, and capabilities — to own the Arlington Toyota franchise.

Later that day, Clements also met with Kline to report on the status of CATD’s consideration of Gohari’s franchise transfer application. Clements drafted a file memorandum, dated 10 December 1996, regarding his meeting with Kline. In that memorandum, Clements related some of what he claimed Darvish told him in their meeting on 10 December 1996. That memorandum recited that Darvish told Clements that “Gohari lacked the experience, capacity and character to be considered a qualified candidate.” Clements drafted a second file memorandum, dated 11 December 1996, purportedly memorializing his 10 December 1996 meeting with Darvish, which stated that Darvish also told Clements that Gohari “had suddenly left the DARCARS organization several months ago in an unprofessional manner and with no notice[,] ... that there was questionable financial manipulation by Mr. Gohari to inflate his compensation^] and that Mr. Darvish should have terminated Mr. Gohari’s employment much earlier but had kept him on out of loyalty.” The 11 December 1996 memorandum also stated, among other things, that Gohari “had no experience in the operational aspects of a dealership” and that Darvish strongly questioned whether Gohari’s experience or background qualified him to operate a dealership. ⁴⁹ Clements spoke to Armiger about his meeting with Darvish, and Armiger prepared his own file memorandum summarizing Clements’s description of Darvish’s 10 December comments about Gohari.

During a 12 December 1996 telephone conversation with Darvish, Arminger read aloud to Darvish several passages from this memorandum reciting what Darvish reportedly told Clements about whether Gohari “had had operational authority over the dealership, dishonesty, manipulation of financial figures, people skills and whether ... he had had other automotive experience other than accounting.” Arming-er testified that, after relating these passages to Darvish, Darvish remained silent, offering no denials as to whether he had made these statements. Arminger considered the silence to be confirmation that Darvish had made the statements. Armiger requested that Darvish provide a letter confirming the statements that Darvish made to Clements. He told Darvish that Gohari’s approval “would be dependent upon what was contained in the letter.” Darvish sent Armiger the requested letter on 13 December 1996.

The letter stated in part: Mr. Gohari was employed at DARCARS ... through August 12,1996, as in house controller____He had responsibility for overseeing day-to-day accounting issues and coordinating all accounting issues with ... DARCARS’ outside accounting firm. Mr. Gohari’s responsibilities did not include, however, involvement in or supervision over other dealership departments, including New and Used Car Sales, Service and Parts, Leasing, Body Shop, Customer Relations, or Finance or Insurance Programs.... Unfortunately, Mr. Gohari left his employment in a most unprofessional manner....

As a result, there are many unanswered questions concerning the proper allocation of expenses in the dealership and pay plan applications. CATD ultimately concluded that, because Gohari lacked the necessary operational experience, it would require that he recruit a qualified general manager to oversee the day-to-day retail business of the dealership before it would approve the ⁵⁰ franchise transfer. Gohari submitted several names as possible general managers, but was unable to procure CATD approval before his contract with Kline expired by its terms. B. Procedural History Gohari, in his amended complaint in the Circuit Court, alleged that Darvish had defamed him and had tortiously interfered with his contract to purchase the Kline Arlington Toyota dealership.

In his answer, Darvish asserted that his communications to CATD, solicited with Gohari’s permission as part of CATD’s evaluation of his dealership application, were privileged. Before trial, Gohari filed a motion in limine to preclude Darvish from asserting qualified privilege. The Circuit Court granted this motion, without further elaboration as to its reasoning. 7 Gohari also filed motions in limine to preclude Darvish from introducing at trial evidence of Gohari’s dishonesty or manipulation of financial statements while at Darcars, claiming that Darvish had waived any defense of truth by denying that he had said Gohari was dishonest or manipulated financial statements. 8 Darvish opposed the motions, arguing that Gohari was required to prove that Darvish’s alleged statements were false and that Darvish was entitled to introduce evidence to the contrary. The trial court granted Gohari’s motions, again without further comment. ⁵¹ After a six day trial, the jury found that Darvish made false and defamatory statements and deliberately interfered with Gohari’s contract with Kline.

The jury awarded Gohari $500,000.00 in compensatory damages for defamation and Go-hari and Arlington Motors, Inc. $2,120,000.00 in compensatory damages for tortious interference with the contract. The jury declined to award punitive damages. On appeal, the Court of Special Appeals reversed. Darvish, 130 Md.App. at 267 , 745 A.2d at 1139-40 .

The intermediate appellate court determined that Darvish “was entitled to assert the qualified privilege defense, and to present evidence that the statements attributed to him 9 were true” so as to demonstrate that Gohari was not defamed. Darvish, 130 Md.App. at 274 , 745 A.2d at 1138 . In so finding, the court concluded that Darvish’s statements to the CATD representatives, though not covered by Maryland Code (1974, 1998 Repl.Vol.), § 5-423 of the Courts & Judicial Proceedings Article, 10 came within the common law protection of qualified privileges. Darvish, 130 Md.App. at 275 , 745 A.2d at 1139 .

The court determined, as required by the common law of qualified privilege, that Gohari’s fitness to operate a Toyota franchise was of sufficiently important interest to CATD to give rise to a qualified privilege and that the publication was made “within the generally accepted standards of decent conduct.” Id . (internal quotation marks omitted) (quoting Restatement (Second) of Torts § 595(1)). In reaching this conclusion, the appellate court considered that Darvish had made the comments “in response to an [authorized] inquiry ⁵² and [were] not volunteered,” and thus the court was “persuaded that he enjoyed ‘greater latitude about what he may say about [Gohari] without incurring liability.’ ” Id. (internal quotation marks omitted) (first alteration in original) (quoting Happy 40, Inc. v. Miller, 68 Md.App. 24, 35 , 491 A.2d 1210 , cert. denied, 304 Md. 299 , 498 A.2d 1185 (1985)).

The court also took into account the business relationship between CATD and its existing franchisee, Darvish, and concluded that “[b]ased on 1) [Gohari’s] express consent authorizing CATD to solicit information from [Darvish] and 2) the business relationship between CATD-franchisor, and [Darvish]-franchisee, we hold the circuit court erred in concluding that [Darvish] was not entitled to a qualified privilege.” Darvish, 130 Md.App. at 276 , 745 A.2d at 1139-40 . The Court of Special Appeals further held that Darvish’s “denial that he made defamatory statements does not prevent him from asserting that those statements are substantially correct.” Darvish, 130 Md.App. at 280 , 745 A.2d at 1142 . The court stated that Maryland Rule 2-303(e) 11 “expressly authorizes a party to plead alternative defenses,” and “[i]t follows that [Darvish] should be able to put on evidence in support of each defense that he asserted.” Id. (citing Alpar v. Weyerhaeuser Co., 20 N.C.App. 340 , 201 S.E.2d 503, 506 , cert. denied, 285 N.C. 85 , 203 S.E.2d 57 (1974)).

The court concluded that Darvish was “entitled to a new trial on the qualified privilege issue” and that Darvish was “permitted the opportunity to prove that the statements attributed to him were true.” ⁵³ Darvish, 130 Md.App. at 281 , 745 A.2d at 1142 . 12 II. The Circuit Court determined that the following statements Darvish allegedly made to CATD’s representatives were at the heart of the litigation:. THE COURT: “Gohari never had operational authority over the dealership even at the time of Darvish’s illness.” Are you claiming that to be defamatory? [GOHARI’S TRIAL COUNSEL]: Yes sir. THE COURT: Okay. “He manipulated financial statement figures to inflate his personal compensation.” [GOHARI’S TRIAL COUNSEL]: Yes, sir.

THE COURT: “He was dishonest.” ⁵⁴ [APPELLEE’S TRIAL COUNSEL]: Yes sir THE COURT: All right. “People don’t like him.” [GOHARI’S TRIAL COUNSEL]: Yes, I think that is because I think that does really go to the heart of being the operator of a dealership. I think it is borderline, ... it is not something that I am going to spend a lot of time on---- Petitioner contends that no qualified privilege protects a business owner’s defamatory statements about a former employee who seeks to enter a directly competitive business arrangement with a third party, in this case a potential common franchisor. Respondent argues that the Court of Special Appeals “correctly held that the common law affords a qualified privilege to a franchisee who gives information about a former employee to his franchisor at the franchisor’s request, just as it protects communications in other business and employment-related contexts.” We agree with Respondent and the Court of Special Appeals. Under Maryland law, to present a prima facie case for defamation, a 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 , 616 A.2d 866, 871 (1992) (citing Hearst Corp. v. Hughes, 297 Md. 112, 120-25 , 466 A.2d 486 (1983); Jacron Sales Co. v. Sindorf, 276 Md. 580 , 350 A.2d 688 (1976)). A defamatory statement is one “which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.” Id. (citing Batson v. Shiflett, 325 Md. 684, 722-23 , 602 A.2d 1191 (1992)). ⁵⁵ A defendant, in a defamation suit, may assert a qualified, or conditional, privilege. 13 See generally Dan B. Dobbs, The Law of Torts, §§ 413-414 (2000) [hereinafter The Law of Torts]. 14 As the Court of Special Appeals succinctly stated, “[t]here are 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 protection.’ ” Woodruff v. Trepel, 125 Md.App. 381, 391 , 725 A.2d 612, 617 (1999), cert. denied, 354 Md. 332 , 731 A.2d 440 (1999) (quoting W. Page Keeton et al., Prosser and Keeton on Torts § 114, 815 (5th ed.1984) [hereinafter Prosser & Keeton] ); see also Miner v. Novotny, 304 Md. 164, 167 , 498 A.2d 269, 270 (1985) (“For reasons of public policy, the law of defamation recognizes certain communications as privileged, and thereby affords those who publish such communications immunity from liability.”). In Marchesi v. Franchino, 283 Md. 131 , 387 A.2d 1129 (1978), we explained: The common law conditional privileges rest upon the notion that a defendant may escape liability for an otherwise actionable defamatory statement, if publication of the utterance advances social policies of greater importance than the ⁵⁶ vindication of a plaintiffs reputational interest....

Specifically, the common law recognized that a person ought to be shielded against civil liability for defamation where, in good faith, he publishes a statement in furtherance of his own legitimate interests, or those shared in common with the recipient or third parties, or where his declaration would be of interest to the public in general. Marchesi, 283 Md. at 135-36 , 387 A.2d at 1131 (internal citations omitted); see McDermott v. Hughley, 317 Md. 12, 28 , 561 A.2d 1038, 1046 (1989) (“A statement is accorded a qualified privilege ‘only when the occasion shows that the communicating party and the recipient have a mutual interest in the subject matter, or some duty with respect thereto.’ ” (quoting Simon v. Robinson, 221 Md. 200, 206 , 154 A.2d 911 (1959))). Communications arising out of the employer-employee relationship “clearly enjoy a qualified privilege.” McDermott, 317 Md. at 28 , 561 A.2d at 1046 (citing General Motors Corp. v. Piskor, 277 Md. 165 , 352 A.2d 810 (1976)); see also Maryland Code (1974, 1998 Repl.Vol.), § 5-423 of the Courts & Judicial Proceedings Article (provided supra note 10). A qualified privilege in Maryland for the employer-employee relationship is found in (1) Maryland Code (1974, 1998 Repl.

Vol.), § 5-423 of the Courts & Judicial Proceedings Article, supra note 10, and (2) the common law. The Court of Special Appeals correctly determined that the franchisor-franchisee relationship in the present case is not covered by § 5-423. The intermediate appellate court reasoned that “[bjecause CATD is a prospective franchisor and not a prospective employer [as to Gohari], [Darvish’s] statements do not fall within the letter of this statutory protection. This statute, however, did not abrogate the common law, and [Darvish] asserts that the circuit court should have found that his statements were protected by the common law.

We agree.” Darvish, 130 Md.App. at 275 , 745 A.2d at 1139 . The Court of Special Appeals also was correct in concluding that the common law qualified privilege applied in the present case. The common law conditional privilege is ⁵⁷ broad and may apply to “an infinite variety of factual circumstances.” Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151, 156 (1973); see also McDermott, 317 Md. at 28-29 , 561 A.2d at 1046-47 (providing numerous examples in which we have determined the application of a qualified privilege to be appropriate). Though we have not recognized before a qualified privilege applicable to communications in a franchisor/franchisee relationship, we determine, taking into consideration the breadth of the privilege, that it is available as a defense in such circumstances.

According to one scholar, there are four basic common law qualified privileges: (1) The public interest privilege, to publish materials to public officials on matters within their public responsibility; (2) the privilege to publish to someone who shares a common interest, or, relatedly, to publish in defense of oneself or in the interest of others; (3) the fair comment privilege; and (4) the privilege to make a fair and accurate report of public proceedings. The Law of Torts, supra, § 413, at 1158 (footnote omitted); see also Hanrahan, 269 Md. at 29 , 305 A.2d at 156 (“Mutual interest in the subject matter is but one type of qualified privilege recognized in the law of defamation.” (citing Stevenson v. Baltimore Club, 250 Md. 482, 486 , 243 A.2d 533, 536 (1968))); Restatement (Second) of Torts §§ 593-597. The conditional privilege at issue in the present case involves Professor Dobbs’s subsection, supra, (2) — “the privilege to publish to someone who shares a common interest, or, relatedly, to publish in defense of oneself or in the interest of others.” The standard for common interest is the following: An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know. Hanrahan, 269 Md. at 28 , 305 A.2d at 156 ; see Restatement (Second) of Torts § 596.

In determining what qualifies as a ⁵⁸ common interest, we have stated that a common interest may include “interests in property, business and professional dealings,” id., and can “inhere in business dealings between the publisher and the recipient.” Hanrahan, 269 Md. at 28 n. 2, 305 A.2d at 156 n. 2 (citing Deckelman v. Lake, 149 Md. 533 , 131 A. 762 (1926); Bavington v. Robinson, 124 Md. 85 , 91 A. 777 (1914)). Dobbs has elaborated: Common interests are usually found among members of identifiable groups in which members share similar goals or values or cooperate in a single endeavor____The idea is to promote free exchange of relevant information among those engaged in a common enterprise or activity and to permit them to make appropriate internal communications and share consultations without fear of suit----The privilege does not arise in the first place unless the communication relates in some degree to the common interest, and once the privilege arises it is lost if it is abused by malice or excessive publication. The Law of Torts, supra, § 414, at 1160-61. The record in the present case demonstrates a common interest shared by CATD/franchisor and Darvish/franchisee for they share in “business and professional dealings.” See Hanrahan, 269 Md. at 28 , 305 A.2d at 156 .

It was undoubtedly in CATD’s business interest to receive an accurate, full, and truthful assessment of the qualifications of a proposed franchisee candidate to operate one of its franchises. A logical person to give such an assessment might be someone like Darvish—Gohari’s former employer and an existing franchisee of Toyota, CATD’s principal. Furthermore, conceptually it would be in Darvish’s professional interest to answer candidly as Darvish must deal with CATD and Toyota on an ongoing basis as a Toyota franchisee. For example, Darvish “reports his sales to CATD and requests inventory from CATD, and it is CATD which, as in this case, holds approval power over the potential sale or transfer of a Toyota franchise.” Thus, there is a common interest in maintaining a candid business relationship in furtherance of the franchisee’s individual success and the overall success of the franchisor. ⁵⁹ We perceive also that a need “to publish ... in the interest of others” arguably is present in this case.

The rule regarding the protection of interest of the recipient or a third person has been explained as follows: (1) An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the recipient or a third person, and (b) the recipient is one to whom the publisher is under a legal duty to publish the defamatory matter or is a person to whom its publication is otherwise within the generally accepted standards of decent conduct. (2) In determining whether a publication is within generally accepted standards of decent conduct it is an important factor that (a) the publication is made in response to a request rather than volunteered by the publisher or (b) a family or other relationship exists between the parties. Restatement (Second) of Torts § 595, at 268 (emphasis added); see also Darvish, 130 Md.App. at 275 , 745 A.2d at 1139-40 . It seems patent that information regarding Gohari’s qualifications would be important to CATD and Toyota.

The information supplied by Darvish also appears to have been supplied within generally accepted standards of decent conduct. The comment regarding subsection (1) of the Restatement states that “a statement made for the protection of a lawful business, professional, property or other pecuniary interest ... comes within the rule stated in this Section.” Restatement (Second) of Torts § 595, at 270. Additionally, the comment states that “[i]t is enough that the circumstances are such as to lead to the reasonable belief that the third person’s interest is in danger.” Id. The statements made by Darvish regarding Gohari’s abilities to operate a Toyota franchise fall here. ⁶⁰ When considering whether Darvish acted within generally accepted standards of decent conduct, it is important to look at the circumstances of the present case 15 and “[t]he social value of the particular interest of the third person that is believed to be imperiled, the value of the communication as a means of protection if the defamatory matter is true, the probable harm to the person defamed if the defamatory matter is false, and the fact that the publication is made in response to a request.” Id.

The fact that the communication is made in response to a request is of particular importance: The fact that the recipient has made the request is an indication that he, at least, regards the matter in respect to which information is desired as sufficiently important to justify the publication of any defamatory matter than may be involved in response to the request. In that case, the person requested to give information is not required nicely to evaluate the interest that the person making the request seeks to protect, nor to make that comparison otherwise required of him, between the harm likely to be done to the other’s reputation if the defamatory matter is false and the harm likely to be done to the third person’s interest if the it should prove true Restatement (Second) of Torts § 595, at 273-74. The importance of the response/request qualification to the existence of a conditional privilbge has been noted previously in Maryland. In Fresh v. Cutter, 73 Md. 87, 92 , 20 A. 774, 775 (1890), a case involving slander and a qualified privilege, we stated “[i]f ... the statement be made in response to an inquiry, it would undoubtedly be privileged.” (Citations omitted).

The Court of Special Appeals also has noted that “where the defamatory publication is ... in response to an inquiry and not volunteered, the defendant is afforded greater latitude in what he may say about the plaintiff without incur ⁶¹ ring liability.” Happy 40, Inc. v. Miller, 63 Md.App. 24, 35 , 491 A.2d 1210, 1216 (1985) (citing Stevenson v. Baltimore Baseball Club, Inc., 250 Md. 482, 487 , 243 A.2d 533 (1968); Fresh, 73 Md. at 92 , 20 A. 774 ; Beeler v. Jackson, 64 Md. 589, 593 , 2 A. 916 (1886)). In the present case, Darvish was approached by CATD to provide his assessment of his former employee’s, Gohari’s, qualifications as the prospective owner-operator of a Toyota dealership. CATD approached Darvish after receiving Go-hari’s express permission to do so. Moreover, Gohari’s Toyota dealership application permitted CATD to obtain information from other sources about his “character, general reputation and credit history” and to “obtain and share information ... from and with any of its affiliated entities.” The only other jurisdiction to address directly the flagship question presented in this case held that a qualified privilege may be applied to communications in franchisor/franchisee relationships.

In Quinn v. Jewel Food Stores Inc., 276 Ill.App.3d 861 , 213 Ill.Dec. 204 , 658 N.E.2d 1225 (1995), the plaintiff was a former employee of Jewel Food Stores (Jewel) and, while working for Jewel, had received work evaluations in which he was described, in part, as being a con artist. Quinn, 213 Ill.Dec. 204 , 658 N.E.2d at 1228-29 . The plaintiff left Jewel and sought a franchise with Southland Corporation (7-Eleven) and White Hen Pantry convenience stores. Quinn, 213 Ill.Dec. 204 , 658 N.E.2d at 1229 .

The plaintiff authorized the release of his personnel file from Jewel to the Southland Corporation and White Hen Pantry. Id. He was unaware of the contents of this file or that it contained the above mentioned evaluation. Id.

The plaintiff was denied a franchise and subsequently sued Jewel for defamation. Id. The Appellate Court of Illinois determined that Jewel had a qualified privilege because the situation involved “some interest of the person to whom the matter is published or of some other third person .” Quinn, 213 Ill.Dec. 204 , 658 N.E.2d at 1234 . In so determining, the Illinois court stated: “[p]laintiff seeks to differentiate the relationships between franchisor-franchisee and employer-employee relationship.

However, we believe ⁶² the difference between the two is in form, rather than substance.” Id. We recognize this case as persuasive and reject Petitioner’s argument that Quinn is distinguishable on the basis that “the plaintiff in Quinn specifically authorized the release of his entire employment file, including an internal evaluation form, by his former employer.” Gohari authorized an equally broad, if not broader, inquiry than in Quinn , in light of the Toyota Dealer Application, which allowed, as stated supra, CATD to inquire, of “outside sources,” into Gohari’s “character, general reputation and credit history.” Lastly, Petitioner argues that there can be no qualified privilege because “Darvish, as Gohari’s potential competitor, had a powerful interest in destroying Gohari’s chances of entering into the same sort of contract with CATD and acquiring his own Toyota dealership,” and thus, “[n]o ‘social policies]’ ... are advanced by applying a qualified privilege under such circumstances; to the contrary, a qualified privilege would only injure competition and protect individuals whose self-interest lies in defaming innocent parties.” Petitioner’s Br. at 17 (alteration in original) (quoting Marchesi, 283 Md. at 135 , 387 A.2d at 1131 ). We agree that the potential competitive interest of Darvish should not be disregarded. This same competitive interest, however, may exist within the employer/employee relationship.

The mere fact that a franchisor/franchisee relationship underlies the present case does not make Petitioner’s competitive interest argument any more poignant than when an employer/employee relationship is present. Indeed, in his reply brief, Petitioner acknowledges that the same interest may be present in employment relationships, but attempts to distinguish franchise relationships by arguing that [t]he issue here is whether a privilege should be extended to a quite different context — heretofore unrecognized by Maryland courts and the Maryland legislature — in which the speaker, simply by virtue of his position in the marketplace, inevitably has incentives to disparage the subject of the communications in order to minimize competition. ⁶³ Petitioner’s Reply Br. at 6-7 (emphasis in original). As stated, supra, we do not believe that, for present purposes, the contrast between the employment and franchise relationships is as stark as Petitioner paints. Additionally, the same situation as with an existing franchisee aiming to preserve his or her position in the marketplace may arise with a former employer when a former employer enters, or attempts to enter, competition or in the same market.

See, e.g., Jacron Sales Co. v. Sindorf, 276 Md. 580, 582-83, 598-601 , 350 A.2d 688, 690, 698-700 (1976) (discussing defamation and qualified privileges in a case in which the plaintiff left his former employer on uncertain terms to work with another employer “in a similar capacity”). Whether Respondent made the statements, assuming them to be false for present analysis, because of his competitive interest becomes part of the evaluation concerning whether the qualified privilege has been abused. The Court of Special Appeals correctly reasoned that appellee “has the right notwithstanding the privileged character of the communication to go to the jury, if there be evidence tending to show actual malice, as where the words unreasonably impute crime, or the occasion of their utterance is such as to indicate, by its unnecessary publicity or otherwise, a purpose wrongfully to defame the plaintiff____ Or, malice may be established by showing that the publication contained matter not relevant to the occasion.... Expressions in excess of what the occasion warrants do not per se take away the privilege, but such evidence may be excess of malice.... ” Darvish, 130 Md.App. at 276-77 , 745 A.2d at 1140 (alterations in original) (quoting Hanrahan, 269 Md. at 29 , 305 A.2d 151 (quoting Fresh, 73 Md. at 93-94 , 20 A. 774 )) (citing Shapiro v. Massengill, 105 Md.App. 743 , 777 n. 11, 661 A.2d 202 (1995)).

Furthermore, “[w]hile the question of whether a defamatory communication enjoys a conditional privilege is one of law for the court, whether it has been forfeited by malice is usually a question for the jury.” Sindorf, 276 Md. at 600 , 350 A.2d at 700 (citing Hanrahan, 269 Md. at 29 , 305 A.2d at 156 ; Jump ⁶⁴ v. Barnes, 139 Md. 101 , 114 A. 734 (1921); Bavington v. Robinson, 124 Md. 85, 90 , 91 A. 777 (1914); Fresh, 73 Md. at 93 , 20 A. 774 ); see McDermott, 317 Md. at 30 , 561 A.2d at 1047 (“Our cases make clear that resolution of whether the privilege