Publish America, LLP v. Stern , 216 Md. App. 82 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2965
September Term, 2010
PUBLISH AMERICA, LLP
v.
SALLY STERN A/K/A SALLY ANN
MIKETA STERN
Kehoe
Nazarian,
Kenney, James A., III
(Retired, Specially Assigned),
JJ.
Opinion by Kenney, J.
Filed: February 3, 2014
During a three-day trial in the Circuit Court for Frederick County on October 27-29,
2010, the court granted judgment as to liability in favor of Sally Stern, appellee and cross-
appellant, on her complaint for breach of contract against Publish America, LLP (“Publish
America”), appellant and cross-appellee, and a jury awarded damages of $10,880. Publish
America presents one question,1 and, Stern presents four questions for our review.2 We have
reworded those questions as follows:
• Did the circuit court err in granting judgment as to liability in favor of
Stern?
• Did the jury err in its jury instructions and/or verdict sheet in regard to
1
As stated in its brief, Publish America’s question is:
Whether the trial court properly granted judgment in favor of
[Stern] (rather than granting judgment, judgment notwithstanding
the verdict, or summary judgment in favor of [Publish America])
when the undisputed evidence proffered by [Publish America]
established that (a) [Stern] failed to fictionalize the book as
promised, (b) people were able to recognize characters in the book
as real people, and (c) damages for lost profits were speculative.
2
As stated in her brief, Stern’s questions are:
1. Did the lower court err[] in denying Stern’s motion to amend her
pleadings to conform to the proof? Stern says “yes.”
2. Did the lower court err in denying Stern’s Motion for Costs?
Stern says “yes.”
3. Did the trial court err in denying Stern’s Motion to Amend the
Ad Damnum clause? Stern says “yes.”
4. Did the trial court err by excluding Stern’s expert? Stern says
“yes.”
damages? 3
• Did the circuit court abuse its discretion in granting Publish America’s
Motion for Protective Order Quashing [Stern’s] Notice of Deposition
and to Exclude [Stern’s] Expert from Testifying at Trial?
• Did the circuit abuse its discretion in denying Stern’s Motion for Leave
of Court to Amend the Ad Damnun Clause?
• Did the circuit court abuse its discretion in denying Stern’s motion to
amend the complaint to conform to the proof by adding a count “for
tortious interference with a prospective economic advantage”?
• Did the circuit court abuse its discretion in denying Stern’s motion for
costs?
For the reasons that follow, we shall reverse the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
While working as a librarian at the Ludington Library in Ludington, Michigan, Stern
developed a manuscript for a book which she sought to have published.4 She contacted
3
This issue is not presented as a stand alone question in Publish America’s “Questions
Presented,” but it is raised in the body of its brief. See Janelsins v. Button, 102 Md. App. 30, 35
(1994) (“Janelsins’s actual Question Presented does not specifically mention consent or
assumption of risk, but, in a generous reading of his brief, those issues appear in the argument
section.”).
4
At trial, when asked by counsel what “possessed” her to seek publication, Stern replied:
[O]ver the years I tried to let the director [of the library] know that
not only were there pedophiles in the library, because I guess,
there’s no where else for them to go, I don’t really know. And the
children are not safe there, and many of our patrons were making
other patrons uncomfortable by rubbing themselves, um,
masturbating next to them, um, yelling and screaming curse words,
uh, stalking children, and, uh, we have a, some terrorists come into
the library. And every time I went to, um, to my director he said
(continued...)
2
Publish America, a publishing company. On February 7, 2008, Publish America offered to
publish Stern’s manuscript. In the offer email, Stern was “advise[d]” to “obtain written
permission for all quotes used and for any real life individuals mentioned.” 5
Stern wrote back:
I am not using any real names in this book. If I choose to
categorize the book as fiction, would I still need to get written
permission for all quotes? . . . [H]aving to have permission to
repeat what someone has said to you seems like a massive effort
to conceal the truth rather than protecting individuals.
Publish America responded that “you would not have to concern yourself with this if you
were to label your book as fiction” and “fictionalize the work[.]”
On February 11, 2008, Stern emailed Publish America about how she could “go about
4
(...continued)
that the patron would need to come to him with the complaint.
***
I guess I just felt that nothing was ever going to change, and no
matter how many times I went to my director he . . . wasn’t going
to do anything. And I called the police numerous times about
people and I could tell that that was making me very unpopular at
work. Over the years I complained about incidents. You have to
understand that everyone else is in the back so they don’t see them,
and they thought, and, um, most of the people who were either
molested or bothered or, they weren’t going to go [to] a director.
How many, you know, fifth graders or high school girls are going
to go [to] a director and say there’s an old man out there that’s
stroking himself while I’m trying to do my homework.
5
In an April 1, 2008 email, Publish America clarified that “[t]his permission should
indicate that they are aware of what you are writing and that they permit you to print it for
distribution and sale.”
3
fictionalizing the book, simply call it fiction?” Publish America replied:
[Y]ou would have to change the names of anyone mentioned by
their real names in the book. You must market the book as
fiction, and during the production process, a disclaimer will be
inserted into your book informing the reader that all contents are
fictional.
On February 13, 2008, Publish America and Stern executed an “Agreement.” 6 It
states, in pertinent part:
1. The Author grants and assigns to the Publisher during a
period of seven years from the date of the signing of this
agreement by both parties thereto the exclusive right to produce,
publish, sell or export, or cause to be produced, published, sold
or exported, the above work in book form.
***
3. The Publisher agrees to cause all copies of the said literary
work to be printed as the market demands, and agrees,
furthermore, to cause the copies so printed to be bound, from
time to time, in sufficient quantities to supply purchasers of the
said literary work therewith.
***
13. Publisher may, in its discretion and without cost to the
Author, edit or revise the manuscript. It is specifically
understood and agreed, however, that the Publisher shall make
no major revisions, changes and/or alterations therein without
first receiving written permission to do so, provided that
Publisher reserves the right to delete, modify and/or make such
editorial changes and/or revisions as it deems advisable in the
event that the context, or implication, of any part of the said
6
The Agreement admitted into evidence was signed by Jennifer Brenneman on behalf of
Publish America, but not by Stern. At trial, however, Stern testified that she “signed” the
Agreement, and the execution of the Agreement has not been challenged by either party.
4
literary work would, in Publisher’s opinion, incite prejudice, or
defame any group, or any member thereof, because of race,
religion or nationality; or in the event that any part or parts of
the said literary work may be considered, by the Publisher, to be
against the public welfare. If the Author refuses to give
Publisher permission to make any requested change or otherwise
objects to any suggested change, Publisher may terminate this
agreement at its discretion.
14. If, in the opinion of the Publisher, the manuscript of the said
literary work requires editing or revision, Publisher may, in its
discretion, direct Author to edit or revise the manuscript. Author
shall make the changes suggested by Publisher or Publisher shall
have the right to terminate the contract at its discretion.
***
24. When in the judgment of the Publisher, the public demand
for the work is no longer sufficient to warrant its continued
manufacture, the Publisher may discontinue further manufacture
and destroy any or all plates, books, sheets and electronic files
without any liability in connection therewith to the author.
However, the Publisher agrees to notify the Author of such
decision in writing, and will offer to transfer to the Author the
work and its rights in the copyrights thereon, the plates (if any),
the bound copies and sheet stock (if any) on the following terms
F.O.B. point of shipment: the plates at their value for old metal,
the engravings (to be used only in the work) at one-half (½) their
original cost, the bound stock at one half (½) the list price, and
the sheet stock at cost of gathering, folding, sewing and
preparing for shipment, all without royalties. In the latter event,
unless the Author shall, within 30 days, accept said offer and
pay the amount set forth in said writing, the Publisher may
dispose of the work, copyrights, plates, books, sheets and other
property without further liability for royalties or otherwise.
***
27. The Author covenants and represents that the said literary
work has not hitherto been published in book form; that it
5
contains no matter that, when published, will be libelous or
otherwise unlawful, or which will infringe upon any proprietary
interest at common law or statutory copyright; that the Author
is the sole proprietor of the said literary work and has full power
to make this grant and agreement, and that the said work is free
of any lien, claim, charge or debt of any kind; and that the
Author and his legal successors and/or representatives will hold
harmless and keep indemnified the Publisher from all manner of
claims, proceedings and expenses which may be taken or
incurred on the ground that said work is subject to any such lien,
claim, charge or debt, or that it is such violation, or that it
contains anything libelous or illegal.
On March 2, 2008, Stern, responding to a questionnaire prepared by Publish America,
characterized her manuscript as “either narrative non-fiction or current events[.]” After
reviewing Stern’s proposed manuscript, Publish America emailed Stern on April 1, 2008:
After a review of your non-fiction manuscript in the text
production department, we have discovered the following
content issues that must be resolved before we move forward.
Publish America advises that you discuss your use of quotes and
presentation of real-life persons with a lawyer per paragraph 27
of the [Agreement], you will be liable for any infringements. .
..
Here are the issues that must be addressed:
Permissions:
Publish America requests a copy of the expressed, written
permissions you have obtained from the real-life persons you
refer to or describe in your book. This permission should
indicate that they are aware of what you are writing and that
they permit you to print it for distribution and sale.
OR, if you are unable to obtain such permissions,
6
Publish America requests that you revise your manuscript, and
re-submit a novel that allows the book to truthfully state that
“All characters in this book are fictitious, and any resemblance
to real persons, living or dead, is coincidental.”
(Emphasis added).
Stern replied, “I suppose my best option is to turn it into a novel,” but, “the problem
is, I have no idea how to turn this into a novel. . . . What parts of the [manuscript] are
worrisome to Publish America?” Publish America responded:
The issues at hand are those of real-life people being disparaged
and possibly recognizable within your community. You mention
certain things about individuals that they might not want to put
in print. Such as situations that may be embarrassing to the
individual or illegal drug use. Here are two examples:
Then Mr. Three Hats started following her around in the
library. Diane finally exploded. I am surprised she didn’t
explode sooner. She demanded that something be done about the
stalking and ogling. No one should have been permitted to stalk
her. I had let my director know several times when men had
made advances toward her and nothing was done. Then, when
she finally did explode, Mr. Three Hats and Diane were told
they couldn’t be in the library at the same time. They had to split
the day. Diane didn’t agree with the new rule, so, she ignored
it and visited the library when she wanted. The police were
called. She was handcuffed and taken into custody. I don’t know
what happened to her. I don’t know if charges were pressed, but
she has never been in the library again (her choice) and will not
speak to me when I see her.
***
Mr. Waterman suffers from both shell shock and too much
illegal drug use. He comes in pretty much daily. He takes our
mass transit, Dial-A-Ride, into town, sits right next to my desk,
and reads the papers, only he doesn’t read them, he rhymes
7
them out loud.
Although you do not refer to these individuals by name, they are
most likely recognizable by their eccentricities alone. There are
privacy concerns.
Stern replied: “I just don’t know how to make it fiction without rewriting the entire
book & totally changing the complexion.” Publish America replied:
It seems your best bet may be to fictionalize as you cannot seem
to obtain permissions from anyone. By fictionalizing you would
need to make sure that all names, places, and events have been
changed so you may truthfully comply with the following
disclaimer:
“All characters in this book are fictitious, and any resemblance
to real persons, living or dead, is coincidental.”
You would not be required to obtain any permissions if the book
was fictionalized.
On April 7, 2008, Stern emailed Publish America that she would fictionalize her
manuscript. Publish America responded: “The main thing to remember when fictionalizing
is to take care that there are no real-life people that are in the least bit recognizable. You can
achieve this by making sure that you change all names, places and events in your text. You
must also make sure that you remove any mention either in your manuscript, or on your back
cover, that this book is based on a true story.”
On April 24, 2008, after receiving a revised manuscript, Publish America emailed
Stern asking her to “confirm” that the manuscript was “in compliance” with Paragraph 27
of the agreement, and that “[a]ll characters in this book are fictitious, and any resemblance
8
to real persons, living or dead, is coincidental.” Stern replied, “yes and yes. They are
fictitious.”
Stern’s manuscript was subsequently published as The Library Diaries, and several
hundred copies were sold. On July 15, 2008, Stern received a letter from Robert Dickson, the
Director of the Mason County District Library, suspending her from work. On July 25, 2008,
Stern’s employment at the library was terminated.
Thereafter, Publish America was alerted to several articles in the press regarding
Stern’s book.7 Publish America determined that The Library Diaries should be “take[n] off
the market,” and contacted Lightning Source, its printer, to “stop orders from printing . . . .”
According to one email from Publish America to Lightning Source,
“The Library Diaries” . . . was originally published as a work of
fiction by Publish America. At the time of publication, Publish
America had no reason to believe that the work was defamatory.
Subsequently, Publish America was notified that third parties
might try to assert claims for defamation based upon the
fictional content of the work.
On August 25, 2008, Publish America emailed Stern:
As you know, there is a lot of public commentary about your
7
These articles include: “Librarian writes tell-all book, gets fired,” WorldNetDaily,
August 23, 2008 and “Library worker fired for writing revealing book,” WZZM 13 News,
August 26, 2008, which were admitted into evidence; and “Director: Library Diaries Author
Invaded Patrons’ Privacy,” website of the American Library Association, August 30, 2008, which
Publish America sent to Stern as an example of an article relating to the book.
9
book. Some people are even calling it defamatory.[8] As a result,
we have had to pull the book temporarily from the market while
we investigate. We will likely be contacting you for help during
this investigation. Pursuant to paragraph 27 of the contract, your
assistance is mandatory.
Lightning Source put the book on “hold” on September 5, 2008.
On September 25, 2008, Publish America emailed Stern:
Based upon public statements that you have made since your
book was placed on the market, we are no longer able to
continue selling your book. The contract, however, including the
indemnification clause, will remain in force. If you find another
publisher interested in selling your book, let us know; we may
be willing to transfer publishing rights.[9]
The book was “cancel[ed]” on October 1, 2008.
Subsequently, Stern contacted other publishers about publishing The Library Diaries,
but was unable to find one willing to do so. In making contacts with other publishers, Stern
stated that Publish America was “willing to let [her] out of my contract if [she] can find a
new publisher[.]”
On March 10, 2009, Stern, by email, requested that Publish America, because it was
8
At trial, Publish America’s counsel stated that no defamation claims had been filed
against it, “but at the time[] we took the book off the market we certainly were concerned that . . .
27 or 30 different people could sue us.”
9
Paragraph 1 of the Agreement gave Publish America, for seven years, “the exclusive
right to produce, publish, sell or export, or cause to be produced, published, sold or exported,”
The Library Diaries. Paragraph 20 of the Agreement gave Publish America “the exclusive right
for the duration of this Agreement to negotiate for the sale, lease, license or other disposition of
[The Library Diaries] in all hard and/or soft cover or reprint editions in book form.”
10
no longer publishing her book, release her from the Agreement.10 Publish America
responded:
We are still in the process of evaluating your legal obligations
to Publish America. As you know, you promised to indemnify
Publish America from all legal claims arising from your book,
e.g., defamation and invasion of privacy. Since third parties
have characterized your book as tortious, we need to investigate
further before we terminate the contract. In all likelihood, we
will not terminate the contract completely. While we may return
your book rights to you voluntarily, we will likely insist that the
indemnification and dispute resolution provisions remain
enforceable. However, it will probably take us several more
months to finish our investigation. Assuming we make an offer
like this, i.e., only partial termination of the contract, would you
be amenable to that?
On February 7, 2010, Stern filed a First Amended Complaint for breach of contract
against Publish America.11 The complaint alleged that “the Agreement permits [Publish
America] to cease manufacture of [The Library Diaries] only upon the exercise of its
judgment that public demand for the work would no longer be sufficient to warrant
publication,” and that Publish America ceased publication without making such a finding,
and notwithstanding the actual continued market demand for the book. (Emphasis added).
Furthermore,
even if [Publish America] had made a finding that requisite
market demand for “The Library Diaries” did not exist, . . .
[Publish America] would have still materially breached the
10
Stern testified that, in this email, she was “asking to be let out of the contract and have
my publishing rights returned.”
11
The original complaint was filed on August 24, 2009.
11
Agreement by, inter alia, failing to offer to transfer to [Stern]
her work and her rights in the copyright thereon, the plate, the
bound copies and sheet stock, and engravings[.]
The complaint sought “compensatory,” “consequential,” “incidental,” and “punitive”
damages “in the amount in excess of $30,000” resulting from Stern’s “lost revenues from the
sale of the book, lost opportunities for capturing those sales, and other potential profits as
contemplated in the Agreement.”
Publish America made a motion for summary judgment before trial, a motion for
judgment at the end of trial, and, later, a motion for judgment notwithstanding the verdict and
for a new trial. In its motion for judgment, Publish America’s counsel stated: “the
discontinuation [of publication] was based on paragraph 24” of the Agreement, i.e., lack of
demand. “But the reason why [Publish America] didn’t return the rights was based upon
[Stern’s] breach of paragraph 14” of the Agreement, i.e., the failure to fictionalize would
excuse any breach by Publish America.12 Counsel continued:
if a contract states a remedy, the only way that they’re bound to
follow that specific remedy in all circumstances is if it says
that’s the exclusive remedy. And if you look at the contract here
there’s nothing in the language of paragraph 14 that says Publish
America is limited to that specific remedy. In fact, it says at its
discretion. So it may terminate, but it may, at its discretion, do
something else. And in that case, Publish America decided not
to terminate according to the contract, but to . . . cease
performance.
12
Citing Maslow v. Vangrui, 168 Md. App. 298 (2006), Publish America stated in a pre-
trial a motion that, “[u]pon a material breach” by one party the other “party may rescind or may
refuse further performance and sue for breach,” and that Publish America “chose the latter option
here by refusing to continue sale” of The Library Diaries.
12
These motions were denied.13 After pondering “[w]hat does fictionalize mean under
publishing terms?,” the court stated, as to Publish America’s motion for judgment:
I certainly can’t find as a matter of law that she breached . . . the
contract in this case, quite truthfully, there’s not enough
evidence to submit the issue to the jury . . . as to whether or not
she committed a breach as to whether or not she fictionalized or
didn’t fictionalize. . . . I don’t think a lay person can testify as to
whether or not it was fictionalized.
Stern made her own motion for judgment, based on Publish America’s alleged
disingenuous finding of lack of market demand, and its failure to return the publishing rights.
Finding “as a matter of law,” that “what Publish America decided to do was terminate” under
paragraph 24 of the Agreement, the trial court granted Stern’s motion “on the issue of
liability,” because Publish America did not “offer” to “return” the publishing rights to The
Library Diaries to Stern, as was required under paragraph 24 of the Agreement.14 The court
sent to the jury the issue of damages for the time from contract termination until the rights
were returned. The jury awarded Stern $10,880 in damages.
Discussion
On appeal, Publish America argues that the circuit court erred in granting Stern’s
motion for judgment as to liability, and therefore, the circuit court also erred in not entering
13
The motion for summary judgment and judgment notwithstanding the verdict were
denied without a hearing.
14
At trial, Publish America’s counsel said that “we’re willing to stipulate that we didn’t
return the rights.” After the court granted motion for judgment in favor of Stern, Publish America
agreed to return the rights before arguing the issue of damages.
13
summary judgment, judgment, or judgment notwithstanding the verdict in favor of Publish
America.
Maryland Rule 2-519 (“Motion for Judgment”) states, in pertinent part:
(a) Generally. A party may move for judgment on any or all of
the issues in any action at the close of the evidence offered by an
opposing party, and in a jury trial at the close of all the evidence.
The moving party shall state with particularity all reasons why
the motion should be granted. No objection to the motion for
judgment shall be necessary. A party does not waive the right to
make the motion by introducing evidence during the
presentation of an opposing party’s case.
(b) Disposition. When a defendant moves for judgment at the
close of the evidence offered by the plaintiff in an action tried
by the court, the court may proceed, as the trier of fact, to
determine the facts and to render judgment against the plaintiff
or may decline to render judgment until the close of all the
evidence. When a motion for judgment is made under any other
circumstances, the court shall consider all evidence and
inferences in the light most favorable to the party against whom
the motion is made.
“Where . . . the trial is held before a jury, ‘other circumstances’ exist and the trial court must
‘consider all evidence and inferences in the light most favorable’ to the non-moving party.”
Hardy v. Winnebago Indus., Inc., 120 Md. App. 261, 269 (1998).
In regard to the applicable appellate review, the Court of Appeals has said:
We review the trial court’s grant of [a] motion for judgment de
novo, considering the evidence and reasonable inferences drawn
from the evidence in the light most favorable to the non-moving
party. . . . It is only when the “facts and circumstances only
permit one inference with regard to the issue presented,” that the
issue is one of law for the court and not one of fact for the jury.
An appellate court must review the grant or denial of a motion
14
for judgment by conducting the same analysis as the trial judge.
Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387, 393-94 (2011) (internal citations
omitted). Put another way, “if there is any evidence, no matter how slight, that is legally
sufficient to generate a jury question, the case must be submitted to the jury for its
consideration.” Tate v. Bd. of Educ., Prince George’s Cnty., 155 Md. App. 536, 545 (2004)
(citation omitted). Publish America contends that Stern, by failing to adequately revise and
fictionalize The Library Diaries, committed a material breach of paragraph 14 of the
Agreement that required the author to “make the changes suggested by Publisher.” Therefore,
under common law principles of contractual breach and performance, Publish America was
excused from any obligation it had to return the publishing rights under paragraph 24 of the
Agreement. Publish America specifically assigns error to the circuit court’s determination
that
I certainly can’t find as a matter of law that [Stern] breached . .
. the contract in this case, quite truthfully, there’s not enough
evidence to submit the issue to the jury . . . as to whether or not
she committed a breach as to whether or not she fictionalized or
didn’t fictionalize. . . . I don’t think a lay person can testify as to
whether or not it was fictionalized.
Publish America contends that the court’s decision was “wrong” because, “[w]hen deciding
whether real persons are recognizable in the book, the fact finder is required to examine
whether the readers or audience, i.e., the people who know about the events, would recognize
the persons depicted in the book.” As we understand Publish America’s contention, it offered
“legally sufficient” evidence to generate a “jury question” as to whether or not Stern
15
fictionalized The Library Diaries.15
Stern responds that by “advis[ing]” her “about the process of fictionalization” and
“recommend[ing] specific changes,” Publish America, by publishing the book, “either
waiv[ed the] requirement of fictionalization or [was] satisfied Stern had sufficiently done
so.” In Stern’s view, Publish America “was under no delusion [that] Stern’s vignettes were
based upon characters other than those derived from her experiences.”
Publish America’s concern with the fictionalization of The Library Diaries rests on
the premise that, ordinarily, a fictitious person cannot be defamed. Indeed, “in order to
maintain an action for libel or slander, it must appear that the defamatory words refer to some
ascertained or ascertainable person, and that person must be the plaintiff.’” Great Atl. & Pac.
Tea Co. v. Paul, 256 Md. 643, 651 (1970) (quoting Nat’l Shutter Bar Co. v. C.F.S.
Zimmerman & Co., 110 Md. 313 (1909)). More specifically, § 564(d) of the Restatement
(Second) of Torts states,
15
Publish America also contends that, because it was the “sole arbiter” of whether, under
paragraph 24 of the Agreement, “public demand for the work [was] no longer sufficient to
warrant its continued manufacture,” Stern failed to establish a breach of contract. Because the
circuit court found a breach based only on the failure to return the publishing rights, we do not
address this argument.
Publish America further argues that: (1) because Stern “tricked” it into publishing a non-
fiction book, she should not be entitled to “benefits” under paragraph 24 of the Agreement, i.e.,
return of the publishing rights; (2) Publish America “was entitled to retain some control over the
literary rights” in order to minimize its potential exposure to defamation claims; and (3) it was
not obliged to terminate the agreement because to do so would “excuse[]” Stern “from defending
[Publish America] under the indemnification clause even though she had exposed [Publish
America] to the liability against which it needed indemnification.”
16
A libel[16] may be published of an actual person by a story or
essay, novel, play or moving picture that is intended to deal only
with fictitious characters if the characters or plot bear such a
resemblance to actual persons or events as to make it reasonable
for its readers or audience to understand that a particular
character is intended to portray that person. Mere similarity of
name alone is not enough; nor is it enough that the readers of a
novel or the audience of a play or a moving picture recognize
one of the characters as resembling an actual person, unless they
also reasonably believe that the character is intended to portray
that person. . . .[17] The fact that the author or producer states that
his work is exclusively one of fiction and in no sense applicable
to living persons is not decisive if readers actually and
reasonably understand otherwise. Such a statement, however, is
a factor to be considered by the jury in determining whether
readers did so understand it, or, if so, whether the understanding
was reasonable.
The Restatement provides the following “illustration”:
The A motion picture producing company produces a film based
upon historical events but offered as a fictitious play. In the film,
B, a young woman who was a participant in some of these
events, is represented as having yielded to the hypnotic power
of the villain. In spite of the deviations of the film from the
exact historical facts, B’s friends reasonably understand that she
is portrayed in the picture. The film is defamatory of B.
16
“Libel and slander are two branches” of the tort of defamation, Lake Shore Investors v.
Rite Aid Corp., 67 Md. App. 743, 752 (1986), the difference being that, ordinarily, “slander
refers to words which are spoken while libel refers to words which are written,” Cant v. Bartlett,
292 Md. 611, 622 (1982), although slander may also encompass the written word. See generally
292 Md. 611. “But their essential elements are the same, and in many instances, it does not make
any difference in which form plaintiff elects to cast his complaint.” Lake Shore Investors, 67 Md.
App. at 752.
17
“‘The test is whether persons who knew or knew of the plaintiff could reasonably have
understood that the fictional character was a portrayal of the plaintiff.’ ‘It is not necessary that all
the world should understand the libel; it is sufficient if those who knew the plaintiff can make out
that [the plaintiff] is the person meant.’” Smith v. Stewart, 291 Ga. App. 86, 92 (2008) (internal
citations omitted).
17
Publish America was not required to call an expert witness to establish what is
essentially a question of fact and the court erred in granting Stern’s motion for judgment. In
our view, the evidence submitted at trial was sufficient18 to have the jury decide whether
certain characters were reasonably identifiable individuals within the Ludington community.
Specifically, Stern testified that Ludington library patrons included a man who brought empty
gallon jugs to the library to fill with water, a girl who carried a stuffed purple dinosaur, a man
who wore three hats at once, and a woman from Norway who had an altercation with this
three-hatted man and was arrested as a result. The Library Diaries includes characters with
these distinct traits. In addition, the book cover includes a picture of the actual Ludington
Library. The story takes place in Michigan and refers to Dial-a-Ride, a car service found in
Ludington, a retirement community across the street from the Library called “The Towers,”
which is the name of a retirement community across the street from the Ludington Library,
and a “Jabovy” street, a street also found in Ludington. Miranda Prather, an executive
director at Publish America, testified that she read an article quoting Stern’s supervisor at the
Library, Mr. Dickson, that the characterizations in The Library Diaries were very
recognizable as people within their community. Moreover, Stern testified that her reason for
writing The Library Diaries was to draw attention to specific incidents occasioned by
18
The test for legal sufficiency of the evidence is whether “some evidence in the case,
including all inferences that may be permissibly drawn therefrom, that if believed and if given
maximum weight, could logically establish all of the elements necessary to prove that . . . the tort
tortfeasor committed the tort. Starke v. Starke, 134 Md. App. 663, 678-79 (2000).
18
particular patrons of the Ludington Library and the director’s failure to address her concerns.
When asked what she did to fictionalize the book, Stern testified that she merely created a
pen name and introduced two protagonists so it would not appear that the book was written
by her.
The court denied Publish America’s proffer to introduce Mr. Dickson’s testimony into
evidence on the basis that a lay person could not testify whether a book was fictionalized.
Publish America’s counsel proffered that Mr. Dickson was “going to testify that he
recognized . . . events . . . and places, and that he was able to . . . associate a name with
certain people.” The denial of Mr. Dickson’s testimony on the basis that he was not an expert
was error, and his testimony would have been relevant to help the jury decide whether
readers could reasonably understand that the fictional characters were actually portrayals of
real and identifiable people living in the Ludington community.
The circuit court, by its finding that there was not enough evidence to support Publish
America’s position that Stern failed to fictionalize The Library Diaries, effectively short-
circuited Publish America’s defense that any breach of the Agreement was excused by
Stern’s own material breach.19 Whether a breach is considered material is a question of fact,
19
“[U]nder Maryland law, a party suing on the contract must first prove his own
performance, or an excuse for nonperformance, in order to recover for any breach by the
opposing party.” Hubler Rentals, Inc. v. Roadway Exp., Inc., 637 F.2d 257, 260-61 (4th Cir.
1981) (citations omitted). The Court of Appeals has said that when “there has been a material
breach by one party, the other party has the right to rescind.” Plitt v. McMillan , 244 Md. 450,
454 (1966). More specifically:
(continued...)
19
unless the question is “so clear that a decision can properly be given only one way, and in
such a case the court may properly decide the matter as if it were a question of law.” Speed
v. Bailey, 153 Md. 655, 661-62 (1927) (quoting Williston on Contracts, sec. 866). It is not
so clear in this case because the failure to adequately fictionalize the work could be
considered a material breach of the Agreement and no specific remedy is provided for breach
of paragraph 27, so common law remedies were available to Publish America if Stern
breached that paragraph of the Agreement. See Massachusetts Indem. & Life Ins. Co. v.
Dresser, 269 Md. 364, 369-70 (1973) (“‘Although the parties may, in their contract, specify
19
(...continued)
It is not every partial failure to comply with the terms of a contract
by one party which will entitle the other party to abandon the
contract at once. In order to justify an abandonment of it and of the
proper remedy growing out of it, the failure of the opposite party
must be a total one – the object of the contract must have been
defeated or rendered unattainable by his misconduct or default. For
partial derelictions and nonperformance in matters not necessarily
of first importance to the accomplishment of the object of the
contract, the party injured must seek his remedy upon the
stipulations of the contract itself. Before partial failure of
performance of one party will give the other the right of rescission,
the act failed to be performed must go to the root of the contract, or
the failure to perform the contract must be in respect to matters
which would render the performance of the rest a thing different in
substance from that which was contracted for. When a covenant
goes only to a part of the consideration of a contract, is incidental
and subordinate to its main purpose, and its breach may be
compensated in damages, such a breach does not warrant a
rescission of the contract, but the injured party is still bound to
perform his part of the agreement, and his only remedy for the
breach consists of the damages he has suffered therefrom.
Barufaldi v. Ocean City, 196 Md. App. 1, 20 (2010) (quoting Speed v. Bailey, 139 A. 534, 536
(Md. 1927).
20
a remedy for a breach thereof, that specification does not exclude other legally recognized
remedies. A contract will not be construed as taking away a common-law remedy unless that
result is imperatively required.’”) (quoting 17 Am.Jur. 2d Contracts s 445 at 906 (1964)).
On the other hand, whether Publish America waived or is precluded from defending
on the requirement of fictionalization, as Stern argues, would also be a question for the jury.
See Mercantile-Safe Deposit & Trust Co. v. Delp & Chapel Concrete & Constr. Co., 44 Md.
App. 34, 41-42 (1979) (whether “subsequent conduct of parties amounts to a modification
or waiver of their contract . . . is generally a question to be decided by the trier of fact).
In sum, the judgment in favor of Stern on the issue of liability was granted in error.
Accordingly, we shall reverse the damages judgment in favor of Stern.
As a result, we need not address in any detail the questions presented by Publish
America and Stern because they are unlikely to occur in the event of a new trial, which would
have resulted were we to resolve Stern’s questions in her favor. If there is to be a new trial,
there will be a new scheduling order that will present the opportunity for the necessary
amendment of pleadings. Timely compliance with that scheduling order by both parties
would avoid the need for late filed motions as occurred in the first trial.
As to Stern’s Motion for Costs, to the extent it is grounded in the judgment in her
favor on the issue of liability, it is undermined by our decision reversing that judgment and
the resulting award of damages. Thus, Stern, at this juncture, in the litigation, is not the
prevailing party. That said, “the allowance” or disallowance of costs is “clearly within the
21
sound discretion of the trial court” and will be reviewed by an appellate court for abuse of
discretion. Sinclair Estates, Inc. v. Charles R. Guthrie Co., 223 Md. 572, 575 (1960).
Maryland Rule 2-603 states, in pertinent part:
(a) Allowance and allocation. Unless otherwise provided by
rule, law, or order of court, the prevailing party is entitled to
costs. The court, by order, may allocate costs among the parties.
(b) Assessment by the Clerk. The clerk shall assess as costs all
fees of the clerk and sheriff, statutory fees actually paid to
witnesses who testify, and, in proceedings under Title 7, Chapter
200 of these Rules, the costs specified by Rule 7-206(a). On
written request of a party, the clerk shall assess other costs
prescribed by rule or law. The clerk shall notify each party of the
assessment in writing. On motion of any party filed within five
days after the party receives notice of the clerk's assessment, the
court shall review the action of the clerk.
(c) Assessment by the Court. When the court orders or requests
a transcript or, on its own initiative, appoints an expert or
interpreter, the court may assess as costs some or all of the
expenses or may order payment of some or all of the expenses
from public funds. On motion of a party and after hearing, if
requested, the court may assess as costs any reasonable and
necessary expenses, to the extent permitted by rule or law.
We perceive no abuse of discretion in denying this motion that included postage,
photocopying, parking, fuel, and meals at Starbucks and at McDonald’s.
JUDGMENT OF THE CIRCUIT
COURT FOR FREDERICK
COUNTY REVERSED. COSTS
T O B E P A I D B Y
A P P E L E E / C R O S S -
APPELLANT.
22