Keys v. Chrysler Credit Corp.

McAULIFFE, Judge. In November of 1981 Appellant suffered the attachment of her wages by a writ of garnishment issued to enforce payment of a judgment she had fully satisfied more than four years before. For this indignity and alleged damage to her reputation and credit she brought suit against the creditor and its attorney, and we must now determine whether her proof was sufficient to establish a prima facie case in each of the four causes of action sued upon. In 1971 Chrysler Credit Corporation, represented by N. Frank Lanocha, Esquire, obtained a judgment against Anna ⁴⁰¹ Lee Keys and her husband in the District Court of Maryland for Baltimore City.

During the period 1972-74 Chrysler levied upon the real property of the Keys, and caused to be issued the writ of fieri facias for personal property as well as five garnishments against Appellant’s wages, all apparently without success. In October of 1977 the Keys sold their home, and the outstanding balance of Chrysler’s judgment, including attorney’s fees and costs, was paid in full from the proceeds of sale. Payment was made by the settlement attorney directly to Chrysler, and there is no indication that Lanocha was involved. However, on November 16, 1977 a document captioned “Order of Satisfaction” and signed by Lanocha as attorney for Chrysler was filed in the action, directing the clerk to enter the judgment “satisfied.” On the same day the clerk of the District Court made an entry on the docket of “Agreed and Settled.” On August 25, 1981 Lanocha filed in the same case a request for writ of attachment of Appellant’s wages, stating as a part of his request that the sum of $2,068.61 was currently due on the judgment.

The writ 1 was issued on November 12, and served on Appellant’s employer, Chesapeake and Potomac Telephone Company of Maryland, several days later. On November 18, Appellant was advised of the attachment by Ray Culbertson, her supervisor. According to Appellant she was working in a large room with approximately 40 other employees, some of whom she supervised, when Mr. Culbertson approached her desk and in a normal conversational voice informed her that her wages for the week ending November 14th had been attached by Chrysler. Appellant testified that a number of co-employees were in very close proximity to her when her supervisor advised her of the attachment, and that some of them ⁴⁰² stopped working when they heard what he was saying to her.

On the same day Appellant called Lanocha and told him the judgment had been paid in 1977. Lanocha responded that his records did not indicate payment, but that “he would check into it.” Appellant contacted her attorney, G.M. Cohen, on the following day, and on November 20, Cohen called Lanocha to demand that the error be corrected. Later that same day Lanocha called another of Appellant’s attorneys, a Mr. Katzenberg, to acknowledge his error and to advise that he would act immediately to effect a reimbursement of the attached wages. Appellant’s wages for the week, ending November 21, were also affected by the continuing garnishment, and she was advised of this by Mr. Culbertson on November 25, apparently in the same manner as before.

A co-worker testified she had overheard Mr. Culbertson telling Appellant of the effect of the attachment on November 25, and that she had observed Appellant to be upset and crying a short time thereafter. Later the same day Appellant’s employer authorized release of the attached wages to her, pursuant to a notice of dismissal of the attachment that had been forwarded by Lanocha and apparently received by the employer on November 24th. Appellant received the wages that had been attached within several days of November 25th. Appellant brought this action against Chrysler and Lanocha, including one count of defamation against Chrysler and two counts each of malicious use of process, abuse of process, and conversion against Chrysler and Lanocha.

Following the presentation of Appellant’s evidence at a jury trial in the Circuit Court for Baltimore City, Judge David G. Mitchell granted motions for judgment on behalf of the defendants on all counts. A timely appeal was taken to the Court of Special Appeals and we granted certiorari, 302 Md. 192 , 486 A.2d 205 (1985) on our own motion before consideration of the case by that court. We will consider the ⁴⁰³ contentions of the parties as to each of the several causes of action involved. I DEFAMATION Appellant’s action against Chrysler alleges that the writ of attachment defamed her because it included a false statement that she owed an outstanding judgment.

This, she reasons, suggested a refusal or failure to pay her honest debts and therefore reflected adversely on her credit or character. Furthermore, she contends Chrysler is liable for the republication of this untruth by her employer. Because we agree with the trial judge’s determination that statements contained in the writ were protected by an absolute privilege against an action for defamation we affirm the entry of a judgment for Chrysler on this count, and we do not reach the question of whether a statement that a person has not paid or refuses to pay a lawful debt would be defamatory under the facts of this case. 2 For the same reason, and for the additional reason that the question was not raised by the parties, we do not decide whether the issuance of a writ may constitute the original publication of a libel and subject the requesting party to liability for defamation. 3 At least since 1888, when this Court decided Hunckel v. Voneiff, 69 Md. 179 , 14 A. 500 (1888) and Bartlett v. Christhilf, 69 Md. 219 , 14 A. 518 (1888), we have recognized the existence of an absolute privilege for defamatory statements uttered in the course of a trial or contained in ⁴⁰⁴ pleadings, affidavits or other documents directly related to the case. This privilege operates in favor of the judge, as well as the witnesses, counsel, and parties to the litigation.

Our interpretation of the privilege has consistently been broad and comprehensive in recognition of the sound policy announced in Bartlett, supra, 69 Md. at 226: to foster “the free and unfettered administration of justice.” We accepted the minority or “English” rule which afforded the absolute privilege to witnesses and parties without the necessity of demonstrating the relevance of the statement to the pending litigation. See Korb v. Kowaleviocz, 285 Md. 699 , 402 A.2d 897 (1979). In Adams v. Peck, 288 Md. 1 , 415 A.2d 292 (1980) we approved the application of an absolute privilege to a defamatory statement published in a document prepared for possible use in connection with a pending judicial proceeding, even though not filed in the proceeding. And, in Gersh v. Ambrose, 291 Md. 188 , 434 A.2d 547 (1981) we said that the absolute privilege may be extended to witnesses testifying in certain types of administrative proceedings.

We do not here retreat from the broad view we have taken of the necessary scope and effect of this important privilege. Appellant suggests the privilege should not apply because the litigation had ended on November 16, 1977 with the filing of the praecipe signed by Lanocha and directing the Clerk of the District Court to enter the judgment “satisfied.” She cites in support of that contention Burlingame v. Burlingame, 8 Cow. 141 (N.Y.1828) wherein suit had been brought for defamation following defendant’s statement that plaintiff had been involved in.bovine bestiality, i.e., “connexion with the defendant’s cow.” The plaintiff had been charged with a crime against nature, but had been acquitted of the charge. Because the statement upon which the action was based was made after the hearing and acquittal, it was held to be outside the scope of the privilege. We conclude that Burlingame has no application to the facts of this case.

Here, the alleged defamatory eommuni ⁴⁰⁵ cation was made in and as a part of a District Court action. In Burlingame , the statement was not made as a part of the case, but was an editorial comment offered after the conclusion of the trial. That is not to say that the rendition of a verdict or the entry of a judgment forever terminates the privilege. Quite to the contrary, if a post trial motion is filed, and affidavits are received or testimony is taken with respect thereto, the privilege would apply to the pleadings, affidavits and testimony.

Similarly, an attachment issued to enforce a final judgment may precipitate extensive additional proceedings involving the original parties as well as a garnishee, and those proceedings will enjoy the protection of the privilege even though occurring in a case in which the judgment had become final. Even when a judgment has been entered satisfied, and more than 30 days has passed, additional proceedings will be required if a motion to strike or to withdraw the order of satisfaction is filed, alleging fraud, mistake or irregularity. In the case before us, the litigation was resuscitated by the filing of a request for the issuance of a writ of attachment which included a statement by Chrysler’s attorney that the judgment had not been paid and that $2,068.61 was still due to Chrysler. As it turns out, this statement was in error, and the judgment had in fact been paid, but neither error contained in the statement that revived the litigation nor error on the part of the court in allowing it to be revived will defeat the privilege as to defamation when the statements and pleadings were in fact a part of a judicial process.

In Gore v. Condon, 87 Md. 368 , 39 A. 1042 (1898) the defendant advertised plaintiffs property for sale under an ex parte decree of foreclosure on a mortgage even though he knew the mortgage was fraudulent and that he had obtained it from a person whom he knew not to be the owner. This Court held that an action on the case would lie for wrongful interference with the property of the plaintiff ⁴⁰⁶ 4 but that no action could be brought for damage to the reputation of the claimant because: [i]t is well settled that no action will lie for words spoken or written in the course of giving evidence or for words spoken or written in the course of any judicial proceeding. Id. at 377 , 39 A. 1042 [citation omitted]. Thus, even the intentional and wrongful bringing or maintaining of litigation will not destroy the absolute privilege that attends the litigation, and a cause of action other than defamation must be employed to redress such a wrong.

While we have spoken of the continuation or resuscitation of litigation in the context of this case, the result would be the same if we consider the service of a writ of attachment by garnishment as generating a new action. Historically, a new case was created by the clerk each time a garnishee was served, because the issues and some of the parties were separate from the underlying action. Although the procedure has changed and garnishment proceedings now remain in the original case file, 5 the essential character of a separate action is not lost. Maryland Rule 2-645(g) dealing with garnishment of property in general, provides in pertinent part: If a timely reply is filed to the answer of the garnishee, the matter shall proceed as if it were an original action between the judgment creditor as plaintiff and the garnishee as defendant and shall be governed by the rules applicable to civil actions. ⁴⁰⁷ Maryland Rule 2-646, dealing with garnishment of wages, is not as explicit but provides generally for the same type of additional proceedings.

If the garnishment is treated as creating a new action it is clear that the privilege attaches, even though the attachment may be wrongfully or maliciously obtained. We conclude that the trial judge correctly granted Chrysler’s motion for judgment as to the defamation count. II MALICIOUS USE OF PROCESS The elements of the cause of action of malicious use • of process are: 1. A prior civil proceeding was instituted by the defendant. 2.

The proceeding was instituted without probable cause. 3. The proceeding was instituted with malice. 4. The proceeding terminated in favor of the plaintiff. 5. Damages were inflicted upon the plaintiff by arrest or imprisonment, by seizure of property, or other special injury which would not necessarily result in all suits prosecuted to recover for a like cause of action.

Wesko v. G.E.M., Inc., 272 Md. 192 , 321 A.2d 529 (1974); Siegman v. Equitable Trust Co., 267 Md. 309 , 297 A.2d 758 (1972); Walker v. American Security Co., 237 Md. 80 , 205 A.2d 302 (1964); Shamberger v. Dessel, 236 Md. 318 , 204 A.2d 68 (1964); Owens v. Graetzel, 149 Md. 689 , 132 A. 265 (1926); Supreme Lodge, Etc. v. Unverzagt, 76 Md. 104 , 24 A. 323 (1892); McNamee v. Minke, 49 Md. 122 (1878). The trial judge determined, and the parties agree, that Appellant’s evidence was sufficient to permit the trier of fact to conclude that the first, second and fourth elements had been proven. Judge Mitchell granted Appellees’ motion for judgment on this count because he found the evidence insufficient to permit a finding of malice, as required by the third element. Because of this finding, Judge Mitchell did not consider the legal sufficiency of the evidence to prove ⁴⁰⁸ the requisite damages, and Chrysler here argues that this evidence was also insufficient.

We conclude the evidence was sufficient to permit the trier of fact to find the existence of all elements of this cause of action. When Appellees moved for judgment at the end of Appellant’s case, Judge Mitchell was obliged to “consider all evidence and inferences in the light most favorable” to Appellant. Maryland Rule 2-519(b). That evidence demonstrated the issuance of an attachment by Appellees 6 when the judgment had been paid in full, and therefore the initiation of a proceeding without probable cause.

From the lack of probable cause, the jury could have inferred the existence of malice. 7 In addition, the evidence disclosed that both Appellees had received actual notice of the payment of the judgment before the issuance of the writ, and the jury could have inferred an improper motive from that fact. Appellees argue that within Appellant’s case there was sufficient evidence of innocent oversight or “clerical error” to prevent a finding of malice. They correctly cite Wesko as authority for the proposition that a plaintiff may be bound by testimony offered in his case, and where that testimony is uncontradicted and completely negates the existence of malice the plaintiff will not have made out a cause of action of malicious use of process. The facts of Wesko , while strikingly similar in some respects, are distinguishable from the facts of the case before us in important ⁴⁰⁹ and dispositive particulars.

In Wesko , as here, the defendant caused the attachment of a party’s wages in execution of a judgment that had previously been paid in full. Unlike the instant case, however, the plaintiff in Wesko called as his own witness the attorney who had caused the wrongful attachment to issue, and called as an adverse witness the defendant’s division credit manager. Both of these witnesses testified that the issuance of the writ of attachment was the result of a clerical mistake, and was not actuated by any improper motive or purpose. That testimony was not contradicted by any other evidence in the plaintiff’s case, and the plaintiff was bound by it.

We therefore held that the plaintiff had effectively negated any possibility that malice could be inferred from want of probable cause, and that as a result the judgment n.o.v. entered in favor of the defendant was appropriate. For a similar holding, see Delisi v. Garnett, 257 Md. 4 , 261 A.2d 784 (1970). In the instant case, Appellant did not call as her witness either Lanocha or any representative of Chrysler. Appellees rely on testimony elicited during the cross examination of Appellant, to the effect that Lanocha had told her during a “rather pleasant” telephone conversation