Shepard v. Nabb

WILNER, Judge. Appellant, who is not a lawyer but who comes perilously close to holding herself out as one 1 , filed, pro se, a four-count complaint against eight defendants in the Circuit Court for Dorchester County. The action stemmed from the efforts of the defendants, which were ultimately successful, to have her removed as a trustee of two testamentary trusts. She sued them for malicious interference with her appointment and tenure as trustee (Count I), defamation (Count II), unlawful harassment (Count III), and civil conspiracy (Count IV).

The court ultimately dismissed all four claims, three on the ground that they represented a collateral attack on a prior judgment and one, the defamation claim, because it was time-barred. Continuing pro se, appellant has brought this appeal challenging the court’s action on a variety of theories. One of them has merit. At the center of this dispute is Betty Brown, a woman who, though never declared incompetent, is apparently of limited intellectual ability.

Betty was the daughter of Levi Brown, Sr. and Virginia Brown and the sister of Levi Brown, Jr. Each of these relatives made provision for Betty through a testamentary trust under which Betty was a lifetime income beneficiary. We are concerned here with the trusts established by Virginia and Levi, Jr. It appears that Levi, Jr. was the trustee named in Virginia’s will and that Virginia was the trustee named in Levi Jr.’s will. It also appears that each of those wills provided that, upon the death of the named trustee, Betty could appoint a successor ⁶⁹⁰ trustee. Virginia died in March, 1984; Levi, Jr. died in October, 1986.

In May, 1987, at the suggestion of a mutual friend, Betty contacted appellant, whom she did not know before, with respect to appointing successor trustees. Later that month, Betty purported to name appellant as the successor trustee of both trusts. Frederick C. Malkus, Jr. had been appointed as persona] representative of Levi, Jr.’s estate and substituted personal representative of Virginia’s estate and was then in the process of administering those estates. At some point, Virginia’s estate was settled and her testamentary trust became funded and operative.

Because of a pending claim in litigation, however, Levi, Jr.’s estate remained open. See Taxiera v. Malkus, 320 Md. 471 , 578 A.2d 761 (1990). Almost immediately following appellant’s appointment by Betty as successor trustee, disputes arose between appellant, on the one hand, and Malkus and various family members, on the other, over the management of property in Virginia’s and Levi, Jr.’s estate. By January, 1988, Betty herself had become disenchanted with appellant’s performance, including the high fees she seemed to be charging, and, through her housekeeper, Dorothy McGlaughlin, sought legal advice from Mr. Malkus.

Betty asked Malkus to assist her in removing appellant as trustee and discharging the attorneys that appellant had hired to represent the trust. Perceiving a conflict between providing such assistance to Betty and his position as personal representative of Levi, Jr.’s estate, Malkus declined but referred Betty instead to the firm of Harrington, Harrington & Nabb and set up an appointment for her with that firm. The Harrington firm agreed to represent Betty. Presumably with their assistance, Betty terminated the representation of the attorneys hired by appellant.

On Betty’s behalf, the firm informed appellant that she was discharged as trustee of the two trusts. When appellant refused to accept the termination, Betty, through the Harrington firm, filed two complaints in the Circuit Court — one for each ⁶⁹¹ trust — in which she asked the court to assume jurisdiction over the two trusts, to remove appellant as trustee, and to appoint successor trustees. The complaints, docketed as Nos. 1839 and 1840, alleged, among other things, that appellant had procured her appointment as trustee by fraud, duress, and undue influence, that she had charged excessive fees, and that in several enumerated respects, she had mismanaged assets and income of the estates and trusts. The two complaints filed by Betty were set for hearing before Judge H. Chester Goudy on May 26, 1988.

Appellant was represented by counsel at that hearing, and, as the first order of business, she filed an amended answer to the complaints in which she not only consented to the relief prayed by Betty but actually joined in requesting it. Though continuing to deny the accusatory allegations of the complaints, she “agree[d] to resign immediately, with such resignation to be effective upon appointment of a substitute trustee or trustees by the Court.” As characterized by her attorney, the amended answer “agrees to the prayers for relief with respect to this Court taking jurisdiction of the trust, and [appellant] is here, and she agrees to make a full and complete accounting of the trusts’ assets, and agrees to relinquish control of all assets of the estate within ten days.” Counsel for Betty, though not at all disturbed by this concession, nonetheless noted that “[w]e are here to show wrong doing; we have it documented; but if it’s the Court’s decision not to have us show wrong doing, obviously we will not.” To that, the court replied that it “will take notice and does take notice of the file, affidavits in the file, and the Court also takes notice of all the testimony received previously” and that “[b]ased upon the Court’s taking notice of the file and the testimony received previously, the Court feels that there is adequate evidence before it for the Court to take jurisdiction ... and the Court will fashion an order ⁶⁹² once the Court makes a decision with regard to new trustees.” 2 In orders entered June 8, 1988, the court formally assumed jurisdiction over the two trusts, accepted appellant’s resignation as trustee but did not finally approve the resignation pending an accounting, directed her to file an accounting within 10 days, retained jurisdiction over her for that purpose, and appointed successor trustees. Eventually, final judgment was entered in those proceedings. A month after the entry of the June 8 orders, appellant filed suit against the same defendants sued in this action in the United States District Court for the District of Maryland.

The Federal court complaint is not in the record extract, and so we do not know precisely what it contained. It appears from the order of Judge Black disposing of the case, which is in the record extract, and from what we are otherwise told in the briefs filed in this appeal that she accused the defendants of violating the Racketeer Influenced and Corrupt Organization (RICO) statute, defamation, and six other torts of one kind or another and that those claims were based “on the same set of facts as this proceeding.” On June 5, 1989, the Federal Court entered judgment for all defendants on the RICO claim and dismissed, without prejudice, the other claims. Appellant thereupon filed this action in the Circuit Court for Dorchester County. In the introductory paragraphs of her Complaint, she alleged her appointment as trustee of the two trusts in May, 1987, and that, in May, 1988, she resigned as trustee “due to the prolonged intentional, malicious, and willful interference by all the defendants with her business rights as a fiduciary.” In Count I (Malicious Interference), she alleged that the defendants had publicly ⁶⁹³ challenged the validity of her appointment, frozen fiduciary accounts held by her as trustee, destroyed her fiduciary relationship with Betty, and caused Betty to discharge her.

In Count II, denominated as “Intentional and Malicious Injury to Business Reputation,” but effectively a claim of defamation, she incorporated all foregoing allegations and added that “from approximately May 6, 1987 to present,” the defendants had “spread throughout the community false statements of wrongdoing and mismanagement by the plaintiff in her capacity as trustee.” In particular, she contended that three of the defendants (Edward Nabb, Sr., Edward Nabb, Jr., and the Harrington law firm, of which the Nabbs were partners) had, on May 26, 1988, made false statements to a newspaper reporter regarding the business practices of appellant “with the intent these statements would be and were, in fact, published in the Daily Banner on or about May 31, 1989 ... said statements being reprinted in various local newspapers on at least three other occasions.” Count III (Harassment) alleged that the defendants had engaged in a persistent pattern of malicious harassment of her in violation of Md.Ann.Code art. 27, § 121A. Finally, Count IV alleged a civil conspiracy among the defendants based on the foregoing factual averments. Appellant raised a number of challenges to the court’s dismissal of her Complaint. Only one, as we have indicated, has any merit.

Counts I, III, and IV The court dismissed Counts I, III, and IV on the ground that they represented a collateral attack on the judgments entered by the court in Nos. 1839 and 1840 and were therefore precluded by the doctrine enunciated and applied in Klein v. Whitehead, 40 Md.App. 1 , 389 A.2d 374 , cert. denied, 283 Md. 734 (1978). Appellant urges that the court misapplied that doctrine because some of the defendants in this action were not parties to the proceedings in ⁶⁹⁴ Nos. 1839 and 1840. That does not make the doctrine inapplicable, however, especially as she concedes that the current defendants who were not parties to the earlier proceeding were either instigators of or counsel or likely witnesses in that proceeding. See Nicholson v. Nicholson, 113 Ind. 131 , 15 N.E. 223 (1888), quoting Freeman on Judgments § 289, quoted and relied upon by us in Klein at 22-23, 389 A.2d 374 .

It is evident from the record before us that Counts I, III, and IV do indeed attempt exactly what Klein forbids — to seek damages against those persons who were parties, instigators, or witnesses in the earlier actions and who, by achieving the result they desired (albeit through appellant’s last-minute capitulation), ultimately prevailed in those actions, for their conduct in bringing and prosecuting the actions. The very complaints made here could have been presented as defenses in those actions; had they been, and had they proven successful, the damage alleged in Counts I, III, and IV of this action would either not have occurred or would have been redressed. We also reject as devoid of merit the other challenges raised by appellant to the judgments entered on these counts. Count II The situation with respect to Count II is a bit more complex.

Two different grievances seem to be included in it. In ¶ 8 of the Complaint, appellant asserts that all of the defendants “spread throughout the community false statements of wrongdoing and mismanagement by the plaintiff in her capacity as trustee,” and that this occurred “from approximately May 6, 1987 to present.” In ¶ 9, she complains about particular remarks Mr. Nabb, Sr., Mr. Nabb, Jr. and the Harrington firm allegedly made to a newspaper reporter “on or about May 26, 1988” with the intent that those remarks be published in the Daily Banner on May 31, 1988. 3 This action was filed June 12, 1989. ⁶⁹⁵ The statements complained of in ¶18, whatever they may be, were alleged to have been made, at least in part, within the period of limitations. We do not know, of course, from the Complaint, who supposedly said what to whom or when. To the extent that defamatory statements were made after June 12, 1988, however, whatever other defense might be raised to the averments of that paragraph, limitations would not seem to be a proper one, at least upon the record now before us.

The crux of the limitations defense was directed at the averments of 119, which were somewhat more specific though still lacking in real precision. As noted, though generally accusing three of the defendants of making defamatory statements, it is evident that the only statements actually sued on were those allegedly made by Mr. Nabb, Sr. The May 31 article in the Daily Banner appears to be a report of the hearing before Judge Goudy on May 26 in the actions to remove appellant as trustee. It states, in relevant part, that “Ed Nabb Sr., one of several attorneys in the case, said Miss Brown had asked that [appellant] be removed as trustee because she is charging the estate too much for her services.” No statements by any of the other defendants were reported, nor is there any indication in the article that any of the other defendants made any statements concerning appellant. ⁶⁹⁶ The next newspaper publication complained of by appellant was in the Daily Banner of July 14,1988. That article principally concerned an unrelated matter — a paternity action that had been brought against Levi, Jr. posthumously — but in the course of the article, the action to remove appellant as trustee and the hearing of May 26 thereon were mentioned.

The article noted that appellant had resigned at the hearing and that Mr. Nabb