Lindenmuth v. McCreer

Berger, J. This appeal arises out of a dispute between coworkers in a mechanic shop at Coca-Cola Enterprises (“CCE”). Appellant George Lindenmuth (“Lindenmuth”) appeals the decision of the Circuit Court for Baltimore County to grant summary judgment in favor of appellee Michael McCreer (“McCreer”) on all four counts of the complaint including (1) defamation; (2) invasion of privacy—unreasonable publicity given to private life; (3) invasion of privacy—placing a person in a false ³⁵⁰ light; and (4) intentional infliction of emotional distress. The court initially denied McCreer’s motion for summary judgment. Thereafter, McCreer filed a motion for reconsideration, and the circuit court held a hearing on McCreer’s motion for reconsideration.

After the hearing, during which the court established a number of undisputed material facts, the circuit court granted summary judgment in favor of McCreer on all counts of the complaint. Lindenmuth presents primarily one issue on appeal, which we have rephrased as follows: Whether the circuit court erred in granting summary judgment in favor of McCreer on all four counts of the complaint. For the reasons discussed below, we affirm the circuit court’s decision to grant summary judgment in favor of McCreer. FACTS AND PROCEDURAL HISTORY In April of 2014, Lindenmuth was employed at CCE as a mechanic.

McCreer was employed as the lead mechanic in the same CCE mechanic shop, with supervisory responsibilities over Lindenmuth’s work. McCreer performed audits of the work of the mechanics and made work assignments, including to Lindenmuth. In April 2014, Lindenmuth’s manager and supervisors brought several of Lindenmuth’s mistakes to his attention. On April 9, 2014, Lindenmuth left work early.

The next day, he returned to work and spoke with his manager, Jimmy Young, who advised Lindenmuth to take time off from work due to his level of stress, Starting on April 10, 2014, Lindenmuth was on a leave of absence from work at CCE. On May 2, 2014, Doug Anderson, another mechanic under McCreer’s supervision in the same CCE mechanic shop, heard rumors from others in the shop that Lindenmuth was returning to work and that he had a permit to carry a concealed firearm. Later that day, Anderson told McCreer the rumor he heard about Lindenmuth returning to work, that he owned guns and had a license to carry a concealed handgun, and that he was concerned that Lindenmuth was going to shoot someone at work upon his return. It was common knowledge ³⁵¹ among employees -within the mechanic shop that Lindenmuth owned firearms and that he had a license to carry a concealed firearm, which was issued in another state.

Further, Linden-muth was not concerned with whether others knew that he was a gun owner or that he had a concealed handgun permit. McCreer asked Anderson the basis of Anderson’s concerns about Lindenmuth. Anderson described a prior experience that occurred at a previous workplace during which a truck driver, who had been fired, came back to the workplace, said hello to Anderson, and then went into the supervisor’s office and shot the supervisor before shooting himself. McCreer asked Anderson whether he wanted to tell CCE management about his concerns directly or whether McCreer should relay Anderson’s concerns to management on his behalf.

Anderson asked McCreer to talk to management and convey his concerns. After his conversation with Anderson, McCreer went to CCE Manager, Jimmy Young (“Young”), and relayed Anderson’s concerns. The concerns that McCreer repeated to Young for Anderson were that (1) Lindenmuth was returning to work; (2) Lindenmuth had guns; (3) that Lindenmuth had a permit to carry a concealed weapon; and (4) Lindenmuth was going to shoot someone at work. Following McCreer’s conversation with Young, Young called the police and a police officer came to CCE and questioned several employees in the mechanic shop about Lindenmuth.

In response to the officer’s questions, McCreer and others described prior conversations or incidents in which they alleged that Lindenmuth had described wanting to commit violent acts, including shooting police officers. Thereafter, Lindenmuth returned to CCE and saw that his photo had been placed in the guard shack with a note indicating that Lindenmuth was not allowed into the facility. On November 14, 2014, Lindenmuth filed his First Amended Complaint against McCreer for defamation, invasion of privacy—unreasonable publicity given to private life, invasion of privacy—false light, and intentional infliction of emotional ³⁵² distress. McCreer filed a motion to dismiss for failure to state a claim upon which relief can be granted, which the circuit court denied.

After discovery, McCreer filed a motion for summary judgment on October 15, 2015. The circuit court denied the motion on January 13, 2016. McCreer filed a motion for reconsideration on January 22, 2016. On March 29, 2016, the circuit court held a hearing on the motion, during which the court confirmed its understanding of Lindenmuth’s allegations on each count of the complaint, what facts remained in dispute, and reviewed the arguments in the parties’ memoranda and accompanying attachments.

On April 12, 2016, the circuit court granted summary judgment in favor of McCreer. Thereafter, Lindenmuth filed a timely appeal to this Court. DISCUSSION I. Standard of Review We review a circuit court’s decision to grant summary judgment to determine whether the court was correct as a matter of law, “because the trial court decides issues of law, and not disputes of fact,” when considering a motion for summary judgment. Piscatelli v. Van Smith, 424 Md. 294 , 35 A.3d 1140 (2012) (citing Rosenberg v. Helinski, 328 Md. 664 , 616 A.2d 866 (1992)).

Our review of a circuit court’s grant of summary judgment is de novo. See Torbit v. Baltimore City Police Dep’t, 231 Md.App. 573, 586 , 153 A.3d 847 (2017) (citing Roy v. Dackman, 445 Md. 23, 39 , 124 A.3d 169 (2015)); see also (“Our review over a circuit court’s decision on summary judgment is plenary.”) (citing Hemmings v. Pelham Wood Ltd. Liab. P’ship, 375 Md. 522, 533 , 826 A.2d 443 (2003)). Maryland Rule 2-501, governing the circuit court’s issuance of summary judgment, provides, “[a]ny party may file a written motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law.” As Chief Judge Bell explained, ³⁵³ The party opposing a motion for summary judgment must produce admissible evidence to show that a genuine dispute of material fact, i.e., one “the resolution of which will somehow affect the outcome of the case,” ... does exist ....

This requires more than “general allegations which do not show facts in detail and with precision.” Rite Aid Corp. v. Hagley, 374 Md. 665, 684 , 824 A.2d 107 (2003) (citations omitted). Where “a reasonable dispute over a material fact” exists, summary judgment is not appropriate; however, “where no material fact presented is in dispute, summary judgment is appropriate to resolve purely legal questions.” Carter, supra, 153 Md.App. at 225, 835 A.2d 262 (citing Sterling v. Johns Hopkins Hospital, 145 Md.App. 161, 168 , 802 A.2d 440 (2002)). We note that summary judgment is typically inappropriate in a defamation case. See Carter, supra, 153 Md.App. 210, 225 , 835 A.2d 262 (2003) (citing Hagley, supra, 374 Md. 665, 684 , 824 A.2d 107 (2003)). “Nevertheless, this disposition may properly obtain if the prerequisites for summary judgment are satisfied, to wit: the absence of a disputed issue of material fact and the presence of a legal basis for the entry of judgment.” Carter, supra, 153 Md.App. at 226 , 835 A.2d 262 (citing Hagley, supra, 374 Md. at 685 , 824 A.2d 107 ).

II

The Circuit Court Did Not Err in Granting Summary Judgment in Favor of McCreer on All Counts of the Complaint. Lindenmuth argues that, at the hearing on the motion for reconsideration, the court “would only consider facts from the complaint and from Defendant” and that the court “refused to acknowledge or consider any of the material” or the “facts or inferences put into Plaintiffs response to Defendant’s motion.” Among these facts ignored by the court, Lindenmuth argues, were disputes of material fact. On appeal, Lindenmuth points primarily to his assertion that the parties had an “acrimonious relationship” as a material fact in dispute that the court did not consider. Lindenmuth refers to the hearing transcript and his papers filed before the circuit court as additional sources ³⁵⁴ for this Court to find issues of material facts that, he contends, are in dispute.

In Lindenmuth’s response to McCreer’s motion for summary judgment, Lindenmuth points to the parties’ “acrimonious relationship” as evidence that McCreer’s statements to management could have been motivated by reasons other than safety concerns. As support for this same assertion, Linden-muth refers to (1) an email from McCreer to management sent prior to McCreer’s May 2, 2014 statements in which he claimed that Lindenmuth had made a violent threat towards him; (2) notes taken by McCreer in which he had critiqued Lindenmuth’s work; and (3) his allegation that McCreer did not report other comments made by Lindenmuth about police officers. Further, Lindenmuth argued in his response to McCreer’s motion for reconsideration that another factual dispute existed over whether Lindenmuth had actually made statements regarding shooting police officers. Lindenmuth presented the following rationale that this dispute was material: “If those comments are true and undisputed as the Defendant argues, then the inference that Plaintiff had a desire and history of violent speech would bolster the argument for conditional privilege—a defense in this case.” Finally, Lindenmuth argued in his response that McCreer’s email to management contradicted a statement he made during his deposition that he did not know that Lindenmuth had spoken to management on the day he left work early.

Lindenmuth’s argument fails, however, because the circuit court was required to consider only the material facts—i.e. facts that could somehow affect the outcome of the case. For this reason, the circuit court painstakingly sorted through the material facts, as well as some immaterial facts, to determine what was in dispute. 1 For each fact asserted by McCreer as a ³⁵⁵ basis to grant summary judgment in his favor, the court inquired into whether the fact was disputed. Further, the trial court’s inquiries paralleled the required elements of each count of the complaint as well as the defenses asserted in this case. The circuit court’s task was to determine, based upon the undisputed material facts, and viewing all reasonable inferences from those facts in the light most favorable to Linden-muth as the nonmoving party, whether McCreer was entitled to judgment as a matter of law.

Lindenmuth’s argument on appeal that the circuit court failed to consider certain facts that he put forward overlooks the immateriality of the facts the court excluded from the basis of its opinion. We focus, first, on Lindenmuth’s allegation of defamation and whether McCreer was entitled to judgment as a matter of law based on a conditional privilege. All four counts of the complaint, however, flow out of the same alleged conduct. A. The Circuit Court was Correct as a Matter of Law in Granting Summary Judgment in Favor of McCreer on Count I: Defamation.

In his First Amended Complaint, Lindenmuth alleged that “[o]n or about May 2, 2014, Defendant reported to the management that he heard a rumor from another employee that Plaintiff owned guns and therefore concluded that Plaintiff was a threat to the workplace.” Lindenmuth conceded in the complaint, however, that he “does own shotguns, rifles and handguns, which were all legally purchased” and that he has a permit for the firearms from another state. On the count of defamation, specifically, Lindenmuth alleged that “[i]n [McCreer’s] statements to the management and ³⁵⁶ employees 2 regarding the rumor that Plaintiff may shoot at the facility, Defendant knowingly made the aforementioned false and defamatory statements about Plaintiff Lindenmuth.” 3 Next, Lindenmuth alleged, “McCreer acted with knowledge of this falsity of the statements and with the intent to harm Plaintiff Lindenmuth’s chances to return to work at Coca Cola when verbally publishing these false and defamatory statements about Plaintiff Lindenmuth.” Thereafter, Lindenmuth asserted that his reputation and character were harmed as well as his standing in the community, and that he had suffered mental anguish, personal humiliation, and was “forced to leave his position as a mechanic at Coca Cola and take a lesser paying job with another company” as a result of McCreer’s actions. In sum, Lindenmuth’s defamation claim is based on McCreer’s statement to his manager, Young, during which McCreer relayed the statements and concerns of his subordinate mechanic, Anderson. More specifically, the crux of the cause of action for defamation concerns Anderson hearing a rumor that Lindenmuth was returning to work, that Linden-muth owned a handgun and possessed a permit to carry a gun, and that Anderson was concerned that Lindenmuth might shoot someone at work.

Four elements must be present for a plaintiff to establish a prima facie case of defamation, including that: “(1) ... the defendant made a defamatory statement to a third ³⁵⁷ person, (2) ... the statement was false, (3) ... the defendant was legally at fault in making the statement, and (4) ... the plaintiff suffered harm.” Hosmane v. Seley-Radtke, 227 Md. App. 11, 20-21 , 132 A.3d 348 (2016) (citing Offen v. Brenner, 402 Md. 191, 198 , 935 A.2d 719 (2007)), aff'd, 450 Md. 468 , 149 A.3d 573 (2016). We have defined the substantive requirements of a defamatory statement in the following way: 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 from associating or dealing with, that person.” Batson v. Shiflett, 325 Md. 684, 722-23 , 602 A.2d 1191, 1210 (1992). A false statement is one that is not substantially correct. Id. at 726 , 602 A.2d at 1212 . [... ] Whether a publication is defamatory is a question of law for the court.

Id. at 21, 132 A.3d 348 ; see also Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 . It is the plaintiffs burden to prove that the statement was false. See Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 (citing Batson, supra, 325 Md. at 726 , 602 A.2d 1191 . Where a plaintiff can establish a prima facie case of defamation, the defendant bears the burden of proving that a privilege existed at the time of the statement in order to escape liability. 4 Id.

A privilege is a “circumstance[ ] 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 (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); see also Gohari v. Darvish, 363 Md. 42, 55 , 767 A.2d 321 (2001). A privilege may be either absolute or qualified. 5 A ³⁵⁸ qualified, or “conditional,” 6 privilege may “defeat[ ] a claim of defamation, if the defendant did not abuse that privilege.” Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 (citing Hanrahan v. Kelly, 269 Md. 21, 29-30 , 305 A.2d 151 (1973)). In Piscatelli , the Court of Appeals explained, [w]here a defendant asserts a privilege in a motion for summary judgment in a defamation action, we consider first whether the asserted privilege applies. See [ Rosenberg, supra, 328 Md. at 675-76 , 616 A.2d 866 ]; Orrison v. Vance, 262 Md. 285, 292-93 , 277 A.2d 573, 576 (1971); Peroutka v. Streng, 116 Md.App. 301, 312 , 695 A.2d 1287, 1293 (1997).

Thus, we assume that the plaintiffs allegations of defamation are true for purposes of evaluating whether the privilege exists. Rosenberg, 328 Md. at 675-76 , 616 A.2d at 871-72 ; Orrison, 262 Md. at 292-93 , 277 A.2d at 576 ; Peroutka, 116 Md.App. at 312 , 695 A.2d at 1293 . 424 Md. at 306-07 , 35 A.3d 1140 . The Court of Appeals has recognized four 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. Gohari, supra, 363 Md. at 57 , 767 A.2d 321 (quoting Dan B. Dobbs, The Law of Torts, § 413, 1158 (2000) (“The Law of Torts”)) (emphasis added).

Regarding what is broadly termed the “common interest” privilege, the policy underlying the common law was that a person should not be held liable for ³⁵⁹ defamation where that person, “in good faith, ... publishes a statement in furtherance of his own legitimate interests, or those shared in common with the recipient or third parties.” Marchesi v. Franchino, 283 Md. 131, 135-36 , 387 A.2d 1129 (1978). Quoting from The Law of Torts, supra, § 414 at 1160— 61, the Court of Appeals has explained, 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 .... Gohari, supra, 363 Md. at 58 , 767 A.2d 321 .

Notably, where there is no dispute of material fact regarding the common interest or duty giving rise to the statement, “[t]he determination of whether a privilege existed is made as a matter of law.” Carter, supra, 153 Md.App. at 242 , 835 A.2d 262 (citing Sindorf v. Jacron Sales Co., 27 Md.App. 53, 69 , 341 A.2d 856 (1975)); see also Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md.App. 470, 512 , 665 A.2d 297 (1995) (citing Exxon Corp. v. Schoene, 67 Md.App. 412, 421 , 508 A.2d 142 (1986)) (“The question of whether a defamatory communication enjoys a qualified privilege is a matter of law for the court.”). As we noted in Carter, supra, however, even where a defendant can establish that a qualified privilege existed, the defendant may forfeit his or her privilege by abuse, such as in the following circumstances: (1) the publication is made with malice, that is, with “knowledge of falsity or reckless disregard for truth ...” [;] (2) the statement was not made in furtherance of the interest for which the privilege exists ...; (3) the statement is made to a third person other than one “whose hearing is reasonably believed to be necessary or useful to the protection of the interest ...” [;] and (4) the statement includes ³⁶⁰ defamatory matter not reasonably believed to be in line with the purpose for which the privilege was granted. 153 Md.App. at 242-43 , 835 A.2d 262 (quoting Happy 40, Inc. v. Miller, 63 Md.App. 24, 32-33 , 491 A.2d 1210 (1985)). The standard for “malice” to overcome a defendant’s privilege is “actual malice,” sometimes referred to as “constitutional malice.” Bagwell, supra, 106 Md.App. at 512 , 665 A.2d 297 (citing Batson, supra, 325 Md. at 728 , 602 A.2d 1191 ).

On numerous occasions the Court of Appeals has articulated the Court’s preference for a “stringent standard of malice” to defeat a qualified privilege, requiring a plaintiff to show that the defendant acted with a “reckless disregard as to truth or falsity” of the statement. Marchesi, supra, 283 Md. at 134-35 , 387 A.2d 1129 . In Ellerin v. Fairfax Sav. F.S.B., the Court of Appeals defined the standard for malice as “a person’s actual knowledge that his [or her] statement is false, coupled with his [or her] intent to deceive another by means of that statement.” 337 Md. 216, 240 , 652 A.2d 1117 (1995) (emphasis added) (alterations in original).

To distinguish the meaning of actual malice, we have previously explained that it is not enough to show that the alleged defamatory statement was erroneous, derogatory or untrue; the publisher acted out of ill will, hatred or a desire to injure ...; the publisher acted negligently; the publisher acted in reliance on the unverified statement of a third party without personal knowledge of the subject matter of the defamatory subject; or the publisher acted without undertaking the investigation that would have been made by a reasonably prudent person .... Malice is not established if there is evidence to show that the publisher acted on a reasonable belief that the defamatory material was “substantially correct” and “there was no evidence to impeach the [publisher’s] good faith.” Bagwell, supra, 106 Md.App. at 512-13 , 665 A.2d 297 (citations omitted). Although the issue of abuse of a qualified privilege is typically reserved for the finder of fact, “the plaintiff must produce facts, admissible in evidence, demonstrating the de ³⁶¹ fendant abused the privilege, in order to generate a triable issue for the fact-finder.” Piscatelli, supra, 424 Md. at 307 , 35 A.3d 1140 (citing Hanrahan, supra, 269 Md. at 29 , 305 A.2d 151 ). In other words, the issue of malice “need not be submitted to the fact-finder when the plaintiff fails to allege or prove facts that would support a finding of malice.” Id. at 308, 35 A.3d 1140 ; see also Woodruff, supra, 125 Md.App. at 402 , 725 A.2d 612 (citations omitted) (“Once a judge determines that a privilege exists, the question of whether the privilege was abused is for the jury, subject to the censorial power of the judge where there is no evidence of malice, and the burden on the issue is on the plaintiff.”).

We note, first, that Lindenmuth failed to demonstrate that McCreer’s statements were false, an element of a plaintiffs prima facie case of defamation. See Gohari, supra, 363 Md. at 54 , 767 A.2d 321 (quoting Rosenberg, supra, 328 Md. at 675 , 616 A.2d 866 ) (stating the elements of defamation). As the circuit court explained, the undisputed facts demonstrate that McCreer “accurately relayed to [his] supervisor what the [party’s] co-worker said to [McCreer] about [Lindenmuth]. Thus, [Lindenmuth] has not shown that [McCreer’s] statements were false.” We agree with the circuit court that the parties did not dispute whether Anderson was concerned about Lindenmuth coming to the workplace to shoot someone, or whether Anderson told McCreer about his concerns.

Indeed, Lindenmuth could point to no evidence that would have contradicted these facts as stated in McCreer’s deposition testimony and in Anderson’s affidavit. Without any evidence to establish that McCreer’s statements were “not substantially correct,” Hosmane, supra, 227 Md.App. at 21 , 132 A.3d 348 , Lindenmuth did not meet his burden of proof. Assuming arguendo that Lindenmuth could have established all four primary elements of a prima facie case of defamation, McCreer would not be liable if he established that a conditional privilege applied. The circuit court’s analysis of Lindenmuth’s defamation claim focused primarily on this stage of the analysis—whether the undisputed facts estab ³⁶² lished that McCreer’s statements were subject to a