F. Whittington v. T. Whittington

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
FRANK C. WHITTINGTON, )
)
Plaintiff, )
)
v. ) C.A. No. N23C-08-123 SPL
) C.A. No. N23C-08-195 SPL1
THOMAS WHITTINGTON, )
SEAN T. O’KELLY, and )
ANDREW H. LIPPSTONE, )
)
Defendants. )
ORDER
This 8th day of February 2024, upon consideration of Defendants’, Sean T.
O’Kelly, Esq. (“O’Kelly”),2 Andrew H. Lippstone, Esq. (“Lippstone”),3 and Thomas
Whittington, Esq. (“Thomas”),4 motions to dismiss, Plaintiff’s, Frank Whittington
(“Frank”), Response,5 and the parties’ January 16, 2024, arguments,6 it appears to
the Court that:
1
C.A. No. N23C-08-195 SPL is consolidated with C.A. No. N23C-08-123 SPL. See
infra ¶2. Docket items from C.A. No. N23C-08-123 SPL are cited as “D.I.(123)
__,” and docket items from C.A. No. N23C-08-195 SPL are cited as “D.I.(195) __.”
2
D.I.(123) 10 (“O’Kelly Mot.”).
3
D.I.(195) 7 (“Lippstone Mot.”).
4
D.I.(123) 13 (“Thomas Mot. 123”); D.I.(195) 15 (“Thomas Mot. 195”). The Court
refers to the Whittingtons by first name for clarity; no disrespect or familiarity is
intended by this reference.
5
D.I.(123) 14.
6
D.I.(123) 18.
1. On August 14, 2023, Frank sued Thomas and O’Kelly for defamation
based on statements in a letter Thomas sent to Lippstone in an earlier matter that
O’Kelly’s firm subsequently admitted in a judicial proceeding.7 A week later, Frank
filed a second, nearly identical, defamation case against Thomas and Lippstone
premised on the same letter.8
2. Defendants moved to dismiss under Superior Court Civil Rule 12.9 On
January 16, 2024, with the agreement of the parties, the Court consolidated the cases
under Superior Court Civil Rule 42(a). After hearing argument from the parties, the
Court took the motions under advisement.10
3. Under Delaware law, a complaint must provide general notice of the
claim to withstand dismissal under Rule 12(b)(6).11 The Court will accept the well
pleaded allegations in the complaint and “draw all reasonable factual inferences in
favor of the party opposing the motion.”12 A motion to dismiss will be denied if the
plaintiff may recover under any reasonably conceivable set of circumstances
susceptible of proof supported by the complaint.13 Conversely, a motion to dismiss
7
D.I.(123) 1 (“Compl. 123”).
8
D.I.(195) 1 (“Compl. 195”).
9
See O’Kelly Mot., Lippstone Mot., Thomas Mot. 123, Thomas Mot. 195.
10
D.I.(123) 18.
11
Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
12
Id. (cleaned up).
13
Spence v. Funk, 396 A.2d 967, 968 (Del 1978).
will be granted if the complaint lacks sufficient factual assertions to warrant relief.14
The Court will not accept unsupported conclusory statements or draw unreasonable
inferences favoring the non-moving party.15
4. “A statement is defamatory when it ‘tends so to harm the reputation of
another as to lower him in the estimation of the community or to deter third persons
from associating or dealing with him.’”16 To be actionable, “a defamation plaintiff
must plead and ultimately prove that the defendant made a statement about the
plaintiff that would be understood as defamatory by a reasonable third party and was
published, meaning that it was ‘communicat[ed] by any method, to one or more
persons who can understand the meaning.’”17
5. Defamation claims require additional scrutiny at the dismissal stage
because dismissal under Rule 12(b)(6) “not only protects against the costs of
meritless litigation, but provides assurance to those exercising their First
14
Central Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531,
537 (Del. 2011) (“[T]he governing pleading standard in Delaware to survive a
motion to dismiss is reasonable conceivability.”).
15
Nemec v. Shrader, 991 A.2d 1120, 1125 (Del. 2010) (cleaned up).
16
Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022) (quoting Restatement of
Torts § 559 (1938)).
17
Cousins, 283 A.3d at 1148 (quoting Dobbs, et. al., The Law of Torts § 520, p.176
(2011)).
Amendment rights.”18 The Court will consider the substance of Thomas’s letter
because it is integral to, and incorporated in, Frank’s complaints.19 And because the
context of alleged defamatory speech matters, particularly with respect to the
application of certain privileges, Frank’s recent litigation will also be considered.
6. On May 25, 2021, Frank retained the law firm of O’Kelly & O’Rourke
under an “Agreement for Legal Services” (the “Agreement”) to “research causes of
action against [Thomas], other family members, and several entities controlled by
them in a decades-long dispute over land and money.”20 Defendants O’Kelly and
Lippstone, attorneys with the O’Kelly & O’Rourke law firm, performed legal
services on Frank’s behalf under the Agreement.21 Lippstone drafted and served
upon Thomas a demand for the inspection of certain books and records.”22
7. Thomas responded to Lippstone’s demand.23 In his response, Thomas
offered his impressions of Frank’s mental state and his belief that Frank engaged in
deceptive and harassing conduct in personal and professional contexts.24
18
ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *6 (Del. Super. Jun.
30, 2022) (cleaned up).
19
See generally, ShotSpotter, 2022 WL 2373418 at *4.
O’Kelly Mot. at Ex. A, Justice of the Peace Court Notice of Judgment (“JP Court
20
Notice of Judgment”) at 2.
21
See JP Court Notice of Judgment at 2-3.
22
Id. at 3.
23
See Letter.
24
Id.
8. Ultimately, O’Kelly & O’Rourke did not take any formal legal action
on Frank’s behalf.25 Thereafter, Frank refused to pay the legal fees he owed O’Kelly
& O’Rourke under the Agreement.26
9. To collect the unpaid legal fees, O’Kelly & O’Rourke filed an action in
the Justice of the Peace Court (“JP Court”) against Frank for breach of the
Agreement.27 In the JP Court trial, O’Kelly & O’Rourke offered its demand and
Thomas’s Letter as evidence of services performed for which payment was owed.
10. The JP Court found that “[O’Kelly & O’Rourke] performed $13,020 in
billed Work for [Frank],” and that Frank “breached the Agreement by refusing to
pay for legal services rendered on his behalf,” and entered a judgment in favor of
O’Kelly & O’Rourke.28
11. Frank then filed the defamation cases presently before this Court.
Frank alleges that Thomas defamed him in his response to Lippstone’s demand and
that O’Kelly and Lippstone defamed him by introducing Thomas’s response in the
JP Court trial.29 Defendants argue a number of bases support dismissal, including
25
JP Court Notice of Judgment at 2-3.
26
Id.
27
Id. at 1.
28
Id. at 3-4.
29
Compl.(123) at 2; Compl.(195) at 2.
what is referred to as the “absolute litigation privilege” or “judicial proceedings
privilege.”
12. “Generally, defamation is subject to liability. However, affirmative
defenses to a prima facie case exist for statements made in certain contexts where
there is a particular public interest in unchilled freedom of expression.”30 Statements
made in the context of judicial proceedings are entitled to an “absolute
privilege.”31 The doctrine of privilege is “founded [upon] public policy,”32 and
“whether the privilege attaches is a question of law.”33 The privilege derives from:
a common law rule, long recognized in Delaware, that protects from
actions for defamation statements of judges, parties, witnesses and
attorneys offered in the course of judicial proceedings so long as the
party claiming the privilege shows that the statements [were] issued as
part of a judicial proceeding and were relevant to a matter at issue in
the case. However, statements made outside of the course of judicial
proceedings, such as those made during a newspaper interview
concerning judicial proceedings, are not accorded the protection of the
absolute privilege.34
“Traditionally, [the absolute litigation privilege] applied only to statements made
during judicial proceedings. However, many jurisdictions ‘have recognized the
utility in extending the privilege to cover communications made in advance of
30
Barker v. Huang, 610 A.2d 1341, 1344 (Del. 1992) 1344.
31
Tatro v. Esham, 335 A.2d 623, 625-26 (Del. Super. Ct. 1975).
32
Tatro, 335 A.2d at 627.
33
Walker v. Parson, 2016 WL 3130093, at *3 (Del. Super. Ct. Apr. 21, 2016).
34
Barker, 610 A.2d at 1345 (cleaned up).
anticipated litigation.’”35 If the statement “is reasonably germane to the pending
action” or “has some connection to the subject matter of the pending action” then it
is relevant to a matter at issue in the case.36 “To the extent statements were made
prior to, or during judicial proceedings, so long as the statements were made in an
effort to address the alleged grievance between the parties, the absolute privilege
doctrine applies.”37
13. The absolute litigation privilege applies here. The Court will not,
because it need not in the context of this privilege, assess the veracity of the
statements contained within Thomas’s letter as suggested by Defendants.
14. O’Kelly and Lippstone offered Thomas’s letter as evidence in the JP
Court litigation to substantiate work done on Frank’s behalf for which Frank was
obligated to pay. The substance of the correspondence – the alleged defamatory
remarks – was incidental to the letter’s admission but, nonetheless, precisely the type
of communication the absolute litigation privilege exists to protect. O’Kelly and
Lippstone offered the document as evidence in fee dispute litigation. The privilege
35
Feenix Payment Systems, LLC v. Michael Blum, 2022 WL 215026, at *6 (Del.
Super. Ct. Jan. 25, 2022) (quoting Paige Cap. Mgmt., LLC v. Lerner Master Fund,
LLC, 22 A.3d 710, 716-17 (Del. Ch. 2011)).
36
Walker, 2016 WL 3130093 at *4 (cleaned up).
37
BRP Hold Ox, LLC v. Chilian, 2018 WL 5734648, at *5 (Del. Super. Ct. Oct. 31,
2018) (applying the absolute litigation privilege to communications “to address the
potential violation of contract claims between the parties.”)
applies to this communication, and Frank’s defamation claims against O’Kelly and
Lippstone must be dismissed.
15. The privilege applies with equal force to Thomas’s response to
Lippstone’s demand letter. Absolute privilege extends to “all communications
appurtenant” to judicial proceedings, including “conversations between witnesses
and counsel.”38 Statements made “prior to the possible commencement of judicial
proceedings” are “deserving of privilege … where the purposes underlying the
privilege are satisfied.”39 The purpose of the absolute privilege is to “facilitate the
flow of communication between persons involved in judicial proceedings and, thus,
to aid in the complete and full disclosure of facts necessary to a fair adjudication.”40
16. Frank retained O’Kelly and O’Rourke to research potential causes of
action against Thomas and others. To this end, Lippstone engaged in preliminary
investigation to determine whether any cause of action could be pursued and issued
a letter to Thomas demanding information. Thomas’s response included his
impressions of Frank as it related to Frank’s mental state and prior litigation.
Thomas wrote of Frank’s “significant litigation,” that “Frank is not after information
[but rather seeks] to punish his siblings,” and his belief that Frank suffers from some
38
Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. Ct. Jul. 21, 1983).
39
Tatro, 335 A.2d at 627.
40
Barker, 610 A.2d at 1345.