Shirley v. Heckman

NAZARIAN, J. Bill Shankly said it most succinctly: “Some people think football is a matter of life and death ... I can assure them that it is much more serious than that.” 1 This defamation case comes not from the professional ranks, but from the Rockville Football League (the “League”), which suspended coach (now appellant) Scott Shirley after a parent complained to the League’s Board of Directors (the “Board”) about his conduct toward an official during a youth football game. Mr. ³⁸ Shirley appealed his suspension to the Board, as the League’s written rules allowed, and lost. He then filed suit in the Circuit Court for Montgomery County, alleging, among other things, that League President Eric Heckman (and thus the League as well) defamed him when Mr. Heckman sent notice of Mr. Shirley’s suspension to the Board and a small group of relevant League-affiliated people and when Mr. Heckman recounted the allegations underlying the suspension during the appeal hearing.

The circuit court granted summary judgment in favor of Mr. Heckman and the League. After review, the ruling on the field stands. I. BACKGROUND Mr. Shirley began as a coach in the League in 2000 and continued for nearly ten seasons, albeit with some volatility and controversy along the way. During the 2009 season, he coached the Pony League Wolverines to the brink of the League’s “Super Bowl.” But after the Wolverines’ playoff game on November 15, 2009, Maura Fitzgerald, a parent and a member of the Board, lodged a complaint with the Board about an altercation she claimed she witnessed between Mr. Shirley and a volunteer play monitor. 2 Ms. Fitzgerald, who was standing several feet back from the Wolverine sideline, said that she saw and heard Mr. Shirley and a fellow coach verbally abuse the play monitor in close proximity to the children during the third quarter of that game.

According to Ms. Fitzgerald, one of the coaches threw a clipboard at the ground and Mr. Shirley used a curse word. 3 ³⁹ At its next regular weekly meeting, held on November 18, 2009, the Board addressed Ms. Fitzgerald’s complaint. Ms. Fitzgerald attended and described what she saw at the game, and League Commissioner Craig Brodsky, who also witnessed the incident, commented on what he saw and heard as well. Mr. Heckman also recounted a series of prior reports of Mr. Shirley’s misbehavior during his League coaching career. Mr. Shirley was not invited or, at that point, informed that the complaint was on the Board’s agenda.

After hearing the evidence and discussing the matter, the Board voted to suspend Mr. Shirley from coaching indefinitely. 4 That evening, Mr. Shirley was notified of his suspension via e-mail (the “Notification”). 5 The Notification informed Mr. Shirley that after the playoff game, “[i 'll was reported that [he ⁴⁰ was] verbally abusive, used foul language and acted aggressively towards a volunteer play monitor” (emphasis added), and that he was being suspended from “participation in any games or practices in any manner whatsoever.” The Notification also advised him of his right under the League’s rules to appeal the suspension within seventy-two hours, which he did. Because the Wolverines were scheduled to play in the League’s “Super Bowl” the following weekend, the Board granted Mr. Shirley an expedited appeal hearing on the evening of Friday, November 20 (the “Suspension Hearing”). As League rules provide, the hearing was open; only Board members were invited, but a few parents and coaches attended as well (all attendees were affiliated one way or another with the League). At the Suspension Hearing, Mr. Heckman again described Ms. Fitzgerald’s allegations.

Mr. Shirley was allotted fifteen minutes to respond. He called two witnesses, Coaches Rick Silver and Brandt Mensch, and read a statement from Coach James Wilson, all of whom testified that Mr. Shirley did not engage in inappropriate conduct during the playoff game. Mr. Heckman then related a series of incidents involving Mr. Shirley that were reported to him by other Board members or spectators between 2002 and 2009, including: a co-coach disassociating himself from a team he coached with Mr. Shirley; an ongoing dispute with a parent involving repeated phone calls by both parties and a call from Mr. Shirley to the parent’s employer requesting that the parent be terminated for using company resources for personal business; an on-field verbal fight with a cheerleading coach; a verbal assault on a high school-aged referee during a flag football game; ejection from a pee-wee football game for foul language; repeated missed games and practices; and multiple instances of verbal abuse in the view of children. Mr. Shirley was given five additional minutes to respond and did so.

At the conclusion of the hearing, the Board upheld the suspension. Mr. Shirley then filed suit against Mr. Heckman and the ⁴¹ League (collectively, the appellees). 6 He initially asserted counts of misrepresentation, violation of due process, breach of contract, and defamation against the appellees and the City of Rockville. On April 12, 2011, the circuit court granted summary judgment in favor of the City and dismissed the case against the appellees for insufficient service. Mr. Shirley filed an amended complaint asserting the same four counts, this time only against the appellees.

In October 2011, the circuit court dismissed Mr. Shirley’s claims for misrepresentation, violation of due process, and breach of contract, leaving only the defamation claim. The defamation claim focused on two publications—Mr. Heckman’s statements in the Notification and Mr. Heckman’s statements at the Suspension Hearing. 7 The appellees moved for summary judgment on Mr. Shirley’s remaining defamation claim. After a hearing, the circuit court found no genuine disputes of material fact and that the appellees were entitled to judgment as a matter of law “by virtue of asserting the privilege of common interest or qualified privilege.” (Emphasis added.) The circuit court found that the common interest privilege raised a question of law, that the privilege applied, and that Mr. Shirley failed to demonstrate that Mr. Heckman or the League had abused the privilege. The court relied on Piscatelli v. Smith, 424 Md. 294 , 35 A.3d 1140 (2012), and specifically its holding that an abuse of privilege required a showing of malice and defining 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.” And in granting the motion, the court concluded that it had “not heard any argument or any evidence anticipated to be presented at trial or that has been discovered to this point to indicate at all that there was any intent to deceive another by means of the statement,” and that ⁴² “[tjhere is simply nothing that [Mr. Shirley] has argued ... that in any way indicates that there was actual knowledge that any of these statements were false.” Mr. Shirley filed a motion to alter or amend the judgment that the circuit court denied.

This timely appeal followed.

II

DISCUSSION Although Mr. Shirley raises two issues in his brief, 8 the appeal as postured really only raises one: whether the circuit court erred in deciding on summary judgment that Mr. Heck-man and the League did not abuse the conditional common interest privilege. Mr. Shirley’s brief doesn’t appear to challenge the appellees’ contention (or the circuit court’s holding) that the statements at issue are protected by the common interest privilege, and his counsel conceded the point at oral argument. With the privilege in place, we need not, and do not, address whether the statements were defamatory—we assume for present purposes that they were. Piscatelli, 424 Md. at 306-07 , 35 A.3d 1140 .

In reviewing the circuit court’s finding that the appellees did not abuse the privilege, we review legal conclusions de novo and construe all reasonable factual inferences in favor of Mr. Shirley. Id. at 305 , 35 A.3d 1140 . There are absolute privileges to defamation, but the common interest privilege is not one of them. The common interest privilege is one of the four qualified or conditional privileges to defamation 9 that “is conditioned upon the absence of malice and is forfeited if it is abused.” Piscatelli, 424 ⁴³ Md. at 307 , 35 A.3d 1140 (citations and quotation marks omitted).

As we analyze whether the League or Mr. Heck-man abused the privilege, we start with the purpose of the privilege and the scope of the communications it is designed to protect. The common interest privilege shields a speaker against liability for defamation arising from statements “publish[ed] to someone who shares a common interest or, relatedly, published] in defense of oneself or in the interest of others.” Dan B. Dobbs, The Law of Torts, § 413, at 1158 (2000). The privilege recognizes the broader public value in “promoting] 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 v. Darvish, 363 Md. 42, 58 , 767 A.2d 321 (2001) (quoting Dobbs, § 414, at 1160-61). A common interest may be “found among members of identifiable groups in which members share similar goals or values or cooperate in a single endeavor,” id.

(quoting Dobbs, § 414, at 1160-61), and 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,” id. at 57, 767 A.2d 321 (quoting Hanrahan v. Kelly, 269 Md. 21, 28 , 305 A.2d 151 (1973)). There is no rigid definition of “common interest,” but the principle that emerges from the cases in which the privilege has applied— i.e., that it covers speakers and recipients within a readily definable business or organizational relationship 10 —easily en ⁴⁴ compasses the common interest that Messrs. Shirley and Heckman, the members of the Board, and League participants share in the League and its orderly (written) and hearing processes, even if Mr. Shirley had not conceded the point. Once the privilege is found or conceded to apply, the burden shifts to Mr. Shirley to prove that the appellees breached the condition to (or, interchangeably, abused) the conditional privilege.

See Piscatelli, 424 Md. at 307 , 35 A.3d 1140 . Mr. Shirley can meet this burden by “demonstrating that ‘the publication is made for a purpose other than to further the social interest entitled to protection ... or [by proving] malice on the part of the publisher.’ ” Gohari, 363 Md. at 64 , 767 A.2d 321 (quoting McDermott v. Hughley, 317 Md. 12, 29 , 561 A.2d 1038 (1989)). Abuse of a conditional privilege is usually a question for the fact-finder, id., but a court can decide the question as a matter of law if the plaintiff fails to allege or prove facts that would support a finding of abuse. See Piscatelli, 424 Md. at 308 , 35 A.3d 1140 .

Mr. Shirley argues that the appellees defamed him through two sets of statements, both published by Mr. Heckman, that described allegations of (mis)behavior by Mr. Shirley, and that he proffered evidence from which a jury could find that the appellees abused the privilege. In the first publication, the Notification, Mr. Heckman explained the basis for the League’s decision to suspend Mr. Shirley in an email he sent to Mr. Shirley, the Board, the League Commissioner, and Mr. Wilson. The second publication occurred during the Suspension Hearing, when Mr. Heckman “made a verbal presentation to those assembled, listing a litany of ‘bad acts’ by [Mr.] Shirley as justification for the suspension.” The appellees ⁴⁵ respond that the Board members and coaches who received the Notification, and the Board members, coaches, and parents in attendance at the Suspension Hearing (all of whom were affiliated with the League) fell within an “identifiable group” bound together by a common interest, ie., the orderly and just operation of the League according to its written rules. The circuit court found that Mr. Shirley failed as a matter of law to proffer facts sufficient to support a finding of abuse in either of the recognized forms.

We agree. A. Mr. Shirley Failed To Produce Evidence That Could Support A Finding That Mr. Heckman Acted With Malice. We take the second prong first. Malice, as defined by the Court of Appeals, requires proof of “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.” Piscatelli, 424 Md. at 307-08 , 35 A.3d 1140 (brackets in original) (quoting Ellerin v. Fairfax Sav.

F.S.B., 337 Md. 216, 240 , 652 A.2d 1117 (1995)). Mr. Shirley asks us to look instead to whether the record contained evidence that Mr. Heckman made the statements with knowledge of falsity or reckless disregard for their truth. Although the analytical trail is a little winding and not well-marked, we hold that the circuit court followed the right path. No case says so in so many words, but a careful reading of three opinions from the Court of Appeals reveals a collective holding that the Ellerin definition of malice determines whether a speaker has abused any of the conditional privileges to defamation.

The first milestone is Marchesi v. Franchino, 283 Md. 131 , 387 A.2d 1129 (1978), a common interest privilege case, in which the Court of Appeals held that the same standard of malice defines eligibility for punitive damages and whether conditional privileges have been abused in defamation cases. Id. at 138-39 , 387 A.2d 1129 . Marchesi applied the then-governing definition of malice, which required a plaintiff to prove that the speaker acted with “knowledge of falsity or reckless disregard for truth.” Id. at 139 , 387 A.2d 1129 . But ⁴⁶ that definition of malice was superseded ten years later, in Le Marc’s Management Corp. v. Valentin, 349 Md. 645, 651-54 , 709 A.2d 1222 (1998), when the Court adopted the Ellerin definition of malice as the standard for punitive damages for defamation.

The final step is Piscatelli , which cited and followed the Ellerin malice definition in analyzing abuse of the fair reporting and fair comment privileges. Piscatelli, 424 Md. at 307-08 , 35 A.3d 1140 . So although we recognize that the privileges analyzed in Piscatelli are imbued with free press implications that the common interest privilege is not, see id. at 309-17 & nn. 3-5, 35 A.3d 1140 the combination of these precedents directs us to apply the Ellerin malice standard here to determine whether the appellees abused