IN THE CIRCUIT COURT FOR CARROLL COUNTY MARYLAND

WILLIAM JOHN JOSEPH HOGE, III

Plaintiff
v.
BRETT KIMBERLIN, et al.,
Defendants

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Case No. 06-C-16-070789

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DEFENDANT SCHMALFELDTS OPPOSITION TO PLAINTIFFS CROSS MOTION

FOR PARTIAL SUMMARY JUDGMENT AND REQUEST FOR A HEARING
COMES NOW Defendant William M. Schmalfeldt, Sr. to oppose Plaintiff William John
Joseph Hoge IIIs Cross Motion for Partial Summary Judgment and Request for a Hearing with
Respect to Count XII. In opposition, Mr. Schmalfeldt states as follows:
I. THERE IS NO DISPUTE WHETHER THIS AGREEMENT CONTAINS ALL THE
ELEMENTS NECESSARY FOR A CONTRACT IT DOES NOT
In the first instance, the Settlement Agreement (Plaintiffs Exhibit 1) is fatally flawed by
the lack of a Binding Arbitration Clause binding both parties to the agreement, such agreement to
be enforced by the Court. This particular agreement, in fact, contains a Non-Binding Arbitration
Clause1, meaning either party is free to reject the arbitrator's decision and take the dispute to
court, as if the arbitration had never taken place.
Under Maryland contract law, a legally binding agreement must be supported by
sufficient consideration. See Cheek v. United Healthcare of the Mid-Atlantic, Inc., 378
Md. 139, 147 (2003). A promise may become consideration for another promise only
when it constitutes a binding obligation. Id. at 148. When a promise is composed of

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In the event that either of the Parties breach this Agreement, this Agreement does not restrict the rights of the nonbreaching party to take the appropriate legal actions in the appropriate legal forum to seek relief for the breach of
contract. (Settlement Agreement, Section 6)

words in a promissory form that do not actually bind or obligate the promisor to do
anything, the promise is said to be illusory and does not constitute consideration. Id. at
148-49.2
According to the language in Ratliff, given the lack of a binding arbitration clause in the
agreement, the promises contained therein are illusory and do not constitute consideration.
Plaintiffs demonstration of having registered his works with the US Copyright Office
and his baffling reference to Defendants failure to avail himself of affirmative defenses are
absolutely irrelevant in consideration of this motion. A contract must include Offer, Acceptance
and Consideration. No Consideration, No Contract. No Contract, No Breach of Contract.
II. THERE IS NO NEED FOR A HEARING ON THIS MOTION
There is only one conceivable reason why Plaintiff asks this court for a hearing on this
matter. It his been his practice to attempt to subject this Defendant to as much pain and suffering
as possible. This Court permitted this defendant to appear by Skype at the previous motions
hearing because Defendants 17-year battle with Parkinsons has made it difficult and dangerous
to travel long distances without an assistant. Nothing has changed since this Court ruled
Defendant could appear by Skype.
Defendant maintains there is no reason to hold a hearing on this motion. The central
question is the existence of a contract. Maryland Contract Law and Case Law state clearly that in
the absence of a binding arbitration clause in the agreement and no consideration exchanged
between the parties, there is no contract to have been breached. Plaintiff wears the metaphoric
robes of a Jedi knight for his readership, although he most frequently quotes the ultimate evil of
Emperor Palpatine when he uses the Star Wars quote, Everything is proceeding as I have
foreseen. Perhaps Hoge should have foreseen the need for a binding arbitration clause in this

2
Ratliff v. CoStar Realty Info., Inc., No. DKC-11-0813, 2011 WL 2680585, (D. Md. July 7, 2011)

alleged settlement agreement. Without one, he cannot simply breathe life into his complaint and
compel others to believe it lives when it is clearly dead and on the mortuary slab.
PRAYER FOR RELIEF
WHEREFORE, for the reasons stated above, Defendant William M. Schmalfeldt, Sr.,
prays this Court will DENY Plaintiffs Motion for Partial Summary Judgment and grant any
other relief the Court deems just and proper.

Dated thus 24th Day of October, 2016

Respectfully submitted

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William M. Schmalfeldt, Sr., Pro Se
3209 S. Lake Dr., Apt 108
Saint Francis, WI 53235
414-249-4379
bschmalfeldt@twc.com
CERTIFICATE OF SERVICE
I Certify that on the 24th day of October 2016, I served copies of the above on the
following persons via electronic mail by prior agreement,
William John Joseph Hoge, by email
Brett and Tetyana Kimberlin, by e-mail

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William M. Schmalfeldt, Sr., Pro Se