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In the Court of Special Appeals

of Maryland
September Term, 2014,
Nos. 1553 and 2099
September Term, 2015,
No. 365

BRETT KIMBERLIN,
Appellant,
v.
AARON J. WALKER, ESQ., ET AL.,
Appellees.
Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Eric Johnson and Terrance McGann, Judges)
BRIEF OF APPELLEE AARON J. WALKER, ESQ.,
APPELLEE WALKERS MOTION TO DISMISS APPEAL,
AND APPELLEE WALKERS MOTION FOR LEAVE TO FILE MOTION TO
DISMISS IN EXCESS OF PAGE LIMIT
Aaron J. Walker, Esq. (Va Bar# 48882)
[redacted]
Manassas, Virginia 20109
AaronJW72@gmail.com
(703) [redacted] (No fax)

ii

TABLE OF CONTENTS
Table of Authorities

Motion to File a Motion to Dismiss in Excess of Page Limit

Proposed Order Granting Appellee Walkers Motion to File Motion to Dismiss in Excess
of Page Limit
11
Motion to Dismiss

12

Proposed Order Granting Appellee Walkers Motion to Dismiss

73

Appellees Brief

Statement of the Case

Questions Presented

Statement of Facts

I.

The Appellant Is Procedurally Barred from Challenging the Constitutionality of


MD CODE Cts. & Jud. Proc. 9-104
5

II.

The Appellant Is Procedurally Barred from Challenging Judge McGanns


Summary Judgment
8

III.

A.

The Appellant Misstates the Nature of Judge McGanns Decision and


Claims That Facts Were Proven That Have No Support in the Summary
Judgment Record
8

B.

The Appellant is Procedurally Barred from Challenging Judge McGanns


Summary Judgment Because the Appellant Has Not Developed an
Appropriate Summary Judgment Record to Review
10

The Grant of a Motion for Judgment Should Be Affirmed Because There Was No
Evidence that Mr. Walker Made a False Statement
11
A.

The Appellant Presented No Evidence that Mr. Walker Published


Statements Calling the Appellant a Terrorist, but the Appellant Is in Fact a
Convicted Terrorist
13

B.

There Is No Evidence Mr. Walker Accused the Appellant of Murder

C.

There Is No Evidence Mr. Walker Accused the Appellant of Spousal Abuse


14

iii

14

D.

There Is No Evidence of Falsity as It Relates to the Accusation That the


Appellant Attempted to Frame Mr. Walker for a Crime
15

E.

There Is No Evidence of Falsity as It Relates to the Accusation That the


Appellant Cost Mr. Walker His Job
17

F.

There Is No Evidence of Falsity as It Relates to the Accusation That the


Appellant is a Pedophile
19

G.

There is no Evidence of Falsity as it Relates to the Accusation that the


Appellant (Statutorily) Raped His Wife
25

IV.

The Appellant Is Procedurally Barred from Raising Causes of Action on Appeal


Based on Invasion of Privacy That He Did Not Raise in the Trial
26

V.

The Appellant Serially Fails to Articulate Any Reason Why It Was Error to
Exclude Any of His Alleged Evidence
28

VI.

MD CODE Cts. & Jud. Proc. 9-104 Would Be Constitutional as Applied to the
Appellant
29

Conclusion

34

Text of Cited Constitutional Provisions, Statutes And Rules

36

Abbreviations Used throughout This Filing

53

iv

TABLE OF AUTHORITIES

CASES
Bagwell v. Peninsula Regional Medical, 106 Md. App. 470 (1995)

12

Banks v. Iron Hustler Corp., 59 Md. App. 408 (1984)

13

Beatty v. Trailmaster Prods., Inc., 330 Md. 726 (1993)

11, 24

Beaumont v. Brown, 65 Mich. App. 455, 237 N.W. 2d 501 (1975)

27

Burral v. State, 352 Md. 707 (1999)

32

Chambers v. Mississippi, 410 U.S. 284, 298 (1973)

32

Colkley v. State, 204 Md. App. 593 (2012)

30-31

Doe v. U.S., 83 F. Supp. 2d 833 (S.D. Tex. 2000)

27

Fields v. State, 172 Md. App. 496 (2007)

30

Galloway v. State, 365 Md. 599 (2001)

34

Hollander v. Lubow, 277 Md. 47, 351 A. 2d 421 (1976)

27

Gowan v. Maryland, 366 U.S. 420 (1961)

31

Hourie v. State, 53 Md. App. 62 (1982)

29, 30

Kimberlin v. Allen, No. 339254V (Md. Mont. Co. Cir. Ct. 2010)

14, 19

Kimberlin v. DeLong, 637 N.E. 2d 121 (Ind. Sup. Ct. 1994)


Kimberlin v. Dewalt, 12 F. Supp. 2d 487 (D. Md. 1998)

14
2

Kimberlin v. KimberlinUnmasked, Case No. 8:13-cv-02580-RWT, 3-4 (D. Md., Feb. 28,
2014)
7
Kimberlin v. National Bloggers Club, et al. (I), No. GJH-13-3059 (2013)
Kimberlin v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992)
Kimberlin v. White, 7 F. 3d 527 (6th Cir. 1993)

16
2
2, 13

Knisley v. Keller, 11 Md. App. 269 (1971)

11

Lawrence v. A.S. Abell Co., 299 Md. 697 (1982)

26

Mugford v. Mayor, 185 Md. 266, 44 A. 2d 745 (1946)

Murphy v. Edmonds, 325 Md. 342 (1990)

31

Pierson v. News Group Publications, Inc., 549 F. Supp. 635 (S.D. Ga. 1982)

27

Piselli v. 75th Street Medical, 371 Md. 188, 808 A. 2d 508 (2002)

33

Rock v. Arkansas, 483 U.S. 44 (1987)

31-32

Schall v. Martin, 467 U.S. 253 (1984)

33

Solesky v. Tracey, 198 Md. App. 292, 17 A.3d 718 (2011)

13

Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628 (2005)

11

State v. Bryan, 145 Wash. App. 353 (Wash. App., 2008)

31

State v. Collins, 296 Md. 670 (1983)

32

State v. Good Samaritan Hosp., 299 Md. 310 (1984)

31

State v. Latham, 182 Md. App. 597 (2008)

30-31

Telnikoff v. Matusevitch, 347 Md. 561 (1996)

12

Trundle v. Homeside Lending, Inc., 162 F. Supp. 2d 396 (D. Md., 2001)

27

U.S. v. Kimberlin, 805 F. 2d 210 (7th Cir. 1986)

16

Washington v. Texas, 388 U.S. 14 (1967)

32

Wilson v. Sysco Food Services of Dallas, Inc., 940 F. Supp. 1003 (N.D. Tex. 1996)

27

Zitterbart v. Am. Suzuki Motor Corp, 182 Md. App. 495 (Md. App. 2008)

8-10

Zitterbart v. Am. Suzuki Motor Corp, 406 Md. 581 (2008)

9-10

CONSTITUTIONAL PROVISIONS, STATUTES AND RULES


MD. DECL. OF RTS. art. 19

33

vi

MD. DECL. OF RTS. art. 24

29, 31

U.S. CONST. amend 5 cl. 4

29

U.S. CONST. amend 14 1 cl. 4

31

MD CODE Crim. L. 3-307

21, 25

MD CODE Crim. L. 3-323

23

MD CODE Crim. L. 3-803

34

MD CODE Cts. & Jud. Proc. 9-104

passim

MD CODE Cts. & Jud. Proc. 9-107

33

MD CODE Cts. & Jud. Proc. 9-108

22, 29

MD CODE Cts. & Jud. Proc. 9-111

33

MD CODE Fam. L. 2-202

23

Md. Rule 1-101

35

Md. Rule 1-341

35

Md. Rule 2-519

13, 1, 11

Md. Rule 5-601

29

Md. Rule 5-602

24

Md. Rule 5-609

29

Md. Rule 5-802

18, 22, 29

Md. Rule 5-901

28

Md. Rule 8-131

7, 26

Md. Rule 8-503

10

Md. Rule 8-504

9, 12, 2

vii

ARTICLES, BOOKS AND WEBSITES


2012 Regular Session Committee Vote House Judiciary for Senate Bill 673 (available at
http://mgaleg.maryland.gov/2012rs/votes_comm/sb0673_jud.pdf), visited August 11,
2015
31
Bill Info-2012 Regular Session HB 926 (available at http://mgaleg.maryland.gov/
webmga/frmMain.aspx?tab=subject3&ys=2012rs/billfile/hb0926.htm), visited August 11,
2015
31
Bill Info-2012 Regular Session SB 673 (available at http://mgaleg.maryland.gov/webmga
/frmMain.aspx?ys=2012rs/billfile/sb0673.htm), visited August 11, 2015
31
BLACKS LAW DICTIONARY (6th ed. 1990)

25

Carl Sagan, THE DEMON-HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK (1996)
23
Los Angeles Times Editorial Board, Editorial: Paris Terrorists Aimed at Freedom of
Expression, We Must Defend it, LOS ANGELES TIMES, January 7, 2015 (available at
http://www.latimes.com/opinion/editorials/la-ed-paris-attack-charlie-hebdo-freedom-ofspeech-20150108-story.html) visited August 10, 2015
17
WEBSTERS NEW WORLD COLLEGE DICTIONARY 1310 (Victoria Neufeldt, 3rd ed. 1996)
25

viii

IN THE COURT OF SPECIAL APPEALS


OF MARYLAND

BRETT KIMBERLIN,
Appellant

September Term, 2014:


Nos: 1553 and 2099

v.
September Term, 2015:
No. 365

AARON J. WALKER, ESQ., ET AL.


Appellees

Consolidated Appeals

APPELLEE WALKERS MOTION TO FILE A MOTION TO DISMISS


IN EXCESS OF PAGE LIMIT
NOW COMES Appellee Aaron J. Walker, Esq.,1 and files this Motion to Grant Leave
to File a Motion to Dismiss Appeal in Excess of the Page Limit and states the following:
1.

Under Md. Rule 8-504(a)(4), the Appellant is allowed to provide [a] clear

concise statement of the facts material to a determination of the questions presented[.]


Further, as applicable here, [r]eference shall be made to the pages of the record extract
supporting the assertions.
2.

The Appellant has provided a statement of the facts that is not consistently

concise, material, or even factual, and certainly is not made with accurate citation of the
Record or Record Extract. This is equally true of facts stated throughout the remainder of
the briefthey are not supported by the Record or Record Extract.
3.

While many of the Appellants misstatements of the truth are of limited

relevance, some of them go to the heart of the appeal. For instance, on page 30 of his
brief (hereinafter KBr.), the Appellant writes the Appellees had knowledge of and
Mr. Walker was previously represented by Patrick Ostronic on this appeal. A motion to
withdraw as counsel has been filed by Mr. Ostronic (with Mr. Walkers consent) and Mr.
Walker files this and other documents expecting this request to be granted.
1

ix

acted with reckless disregard to the falsity of these matters. There is nothing in the
Record or Record Extract supporting that assertion. As another example, the Appellant
falsely portrays a grant of summary judgment as a grant of a motion to dismiss (e.g. KBr.
10 and 33). Even his own Record Extract contradicts him. (Record Extract B)
4.

Ordinarily, the motion to dismiss portion of an Appellees brief is limited to

ten pages under Md. Rule 8-503(d)(2) [e]xcept with permission of the Court.
5.

Granting such permission is appropriate in this instance. The discussion of

the law and its application to the present facts amounts to about three pages total. It is the
necessity of correcting every time the Appellant misstated the truth that take up the bulk
of the Motion to Dismiss. Therefore, the length of the Motion to Dismiss is dictated
almost entirely by the number of times the Appellant has misstated the truth. Accordingly,
the Motion to Dismiss is twenty-five pages long.
WHEREFORE, Appellee Aaron J. Walker, Esq. should be granted leave to file a Motion
to Dismiss in excess of the page limitation and all other relief that is appropriate.
Tuesday, August 18, 2015

Respectfully submitted,

Aaron J. Walker, Esq. (Va Bar# 48882)


P.O. Box 3075
Manassas, Virginia 20108
Phone: (703) [redacted] (no fax)
AaronJW72@gmail.com

IN THE COURT OF SPECIAL APPEALS


OF MARYLAND

BRETT KIMBERLIN,
Appellant

September Term, 2014:


Nos: 1553 and 2099

v.
September Term, 2015:
No. 365

AARON J. WALKER, ESQ., ET AL.


Appellees

Consolidated Appeals

ORDER GRANTING APPELLEE WALKERS MOTION TO FILE MOTION TO


DISMISS IN EXCESS OF PAGE LIMIT
Upon consideration of the Appellee Walkers Motion to File a Motion to Dismiss
in Excess of Page Limit, and any opposition thereto, it is this _________ day of
, 2015, hereby
ORDERED that Appellee Walkers Motion to File a Motion to Dismiss in Excess
of Page Limit is GRANTED.

__________________________________________
Judge, Court of Special Appeals

xi

IN THE COURT OF SPECIAL APPEALS


OF MARYLAND

BRETT KIMBERLIN,
Appellant

September Term, 2014:


Nos: 1553 and 2099

v.
September Term, 2015:
No. 365

AARON J. WALKER, ESQ., ET AL.


Appellees

Consolidated Appeals

APPELLEE WALKERS MOTION TO DISMISS


NOW COMES Appellee Aaron J. Walker, Esq., and files this Motion to Dismiss this
appeal, and, in support thereof, states the following:
Appellee Walker2 joins Mr. Hoge and Mr. McCains Motion to Dismiss without
reservation and incorporates those arguments by reference, but writes separately to
highlight the impropriety of Appellants purported Statement of Facts.
Under Md. Rule 8-504(a)(4), the Appellant is allowed to provide [a] clear concise
statement of the facts material to a determination of the questions presented[.] Further,
as applicable here, [r]eference shall be made to the pages of the record extract
supporting the assertions. By implication, the Appellant has a duty to only make
representations of the facts that are 1) true and 2) supported by the Record or Record
Extract.
As an act of supreme irony, in a brief attempting to convince this Court that the
Appellant can be trusted to testify truthfully, the Appellant has repeatedly and deliberately
misstated the truth. In almost every section of Mr. Walkers brief it is necessary to take a
Mr. Walker refers to himself in the third person for stylistic purposes and to depersonalize this case.
2

xii

moment to correct the misstatements of the truth in the Appellants brief. See Brief of
Appellee Walker (hereinafter WBr.) 6-10, 13-18 and 22-23. This motion incorporates
those pages by reference. In addition to those misstatements of the truth, the Appellant
makes the following misstatements in his brief (hereinafter KBr.), with the Appellants
words in boldface:
1.

(The fifth defendant confidentially settled the case in Appellants

favor.) (KBr. 1) There is nothing in the Record or Record Extract establishing either
that 1) there was a settlement, or 2) whether it was in the Appellants favor. Indeed, if it
was a confidential settlement, one wonders if it is proper to reveal any detail about the
agreement, including its existence.
2.

However, after a full presentation of the evidence, the trial court,

Judge Eric Johnson presiding, directed a verdict on both counts. (KBr. 1) An


examination of the Record Extract D (hereinafter E.D.) 3 shows that a full presentation
was not necessary nor provided. The directed verdict 4 was sought (E.D. 241-265) and
granted (E.D. 265-271) after the Appellant rested his case (E.D. 240-241).
3.

Judge Johnson had resigned (KBr. 1) As stated in E.C. 5, Judge

Johnson did not resign. He retired.


4.

Appellant Brett Kimberlin is a... composer and director of a

Maryland based non-profit called Justice Through Music, that works with bands
and musicians worldwide to promote pluralism, tolerance and progressive values.
(KBr. 3) Nothing in the Record or Record Extract establishes any of these claims. At
Because the Appellants Record Extract does not have a master numbering system, Mr.
Walker shall cite it as E.A., E.B., E.C., etc. to designate the specific section of the extract
being cited.
4
Under the Maryland Rules, a motion for a directed verdict is better described as a
motion for judgment. Md. Rule 2-519. See, e.g. Solesky v. Tracey, 198 Md. App. 292,
17 A.3d 718, 721 (2011), (quoting from Banks v. Iron Hustler Corp., 59 Md. App. 408,
423 (1984), which discussed granting directed verdicts, and substituting the phrase
motions for judgment in the place of that term).
3

xiii

most, Mr. Walker acknowledged that hes heard the Appellant claim he was the director
of a non-profit, but that is still hearsay. (E.D. 81) The Appellant introduced no evidence
of even the name of his alleged non-profit, let alone what it did.
5.

From: Because of Appellants work... to offices in Baltimore,

Maryland. (KBr. 3) Nothing in the Record or Record Extract supports a single word of
this passage.
6.

In November 2011, at a trial before Judge Richard Jordan, Appellant

won a judgment against Mr. Allen for defamation, which included injunctive and
monetary relief. (KBr. 3) There is nothing in the Record or Record Extract to support
the assertion that he won a judgment after a trial, and it is not true. He won on default
judgment in Kimberlin v. Allen, No. 339254V (Md. Mont. Co. Cir. Ct. 2010). Further, a
search of the Maryland Judiciary Case Search website indicates the same. (See Dkt. No.
66 in that case) Likewise, nothing in the Record or Record extract establishes what relief
he was awarded.
7.

Aaron [Walker], who was well known online as the publisher of the

anti-Muslim Everyone Draw Mohammed blog (KBr. 3) There was nothing in the
Record establishing that Mr. Walker was well-known. The baseless allegation that Mr.
Walker harbors prejudice toward Muslims is addressed in WBr. 18-18.
8.

Mr. Walker offered to assist Mr. Allen in getting [the default

judgment] overturned on a motion for new trial. (KBr. 3) Mr. Walker did enter into
an attorney-client relationship with Mr. Allen, but the entirety of Mr. Walkers testimony
on his legal aid to Mr. Allen is as follows: I provided [Mr. Allen] legal advice on how to
deal with your lawsuits. (E.D. 57) He did not testify as to specific goals of
representation or the contents of any privileged communication.
9.

Mr. Walker filed several pleadings on Mr. Allens behalf to overturn

the judgment. (KBr. 3) To be clear, since Mr. Walker is not, and never has been, a
Maryland lawyer, the Appellant is accusing Mr. Walker of unauthorized practice of law.
The accusation is categorically false and there is no evidence in the Record or Record
Extract that Mr. Walker did any such thing. Mr. Walker respectfully requests that this

xiv

allegation be stricken entirely.


10.

Because Mr. Worthing had filed documents in the Circuit Court,

Appellant advised the court that Mr. Worthing had filed the documents under a
pseudonym, and that he was really Aaron Walker. (KBr. 3) This is not supported by
the Record or Record Extract, and it is false. The Appellant is trying to suggest Mr.
Walker filed documents in the Circuit Court (on Seth Allens behalf), under a fake name
that he pretended was real. What actually happened was as follows. Mr. Walker wrote on
the Internet under the pseudonym, Aaron Worthing. The Appellant learned that Mr.
Walker gave Mr. Allen free legal help and sought to obtain his identity through the use of
subpoenas allegedly so he could force Mr. Walker to testify against his client. Mr. Walker
maintained that the Appellant was seeking Mr. Walkers identity so he could harass him
for having provided legal advice to his enemy. In the process of fighting those abusive
subpoenas, Mr. Walker (through counsel) sought and eventually obtained the right to file
pro se pleadings under a pseudonym,5 so he would not have to reveal his true identity in
order to fight the Appellants attempts to reveal his name. So the Appellant didnt
advise[] the court that Mr. Worthing had filed the documents under a pseudonym. The
court already knew Mr. Walker was writing under a pseudonym. Further, the Appellant
has portrayed himself as merely revealing Mr. Walkers identity. Heres Mr. Walkers
uncontradicted testimony about what the Appellant actually tried to put in the public
record:
When you learned what my true identity was then you put the motion to
withdraw on the record. That motion to withdraw included my real name
and the alias I went under online. It included my date of birth, my current
home address. It included where I worked. It included their address. It
included what college I went to. It included what law school I went to. It
included sealed information from a lawsuit I had filed and included all of
this information unnecessarily. And this was one day after you had sent a
letter to the police saying that your act of placing that information into the
public record would put my life in danger.
(E.D. 58) The Appellant was not playing the benign whistle-blower as he claimed. In
any case, the Appellants claims are not supported by the Record or Record Extract.
5

See Dkt. No. 125 in that case. Mr. Walker is the John Doe.

xv

11.

On January 9, 2012... Mr. Walker/Worthing came to Court and

demanded that the judge seal his identity because Muslims could target him for
being the publisher of the Muslim hate blog. (KBr. 4) The Record and Record Extract
establishes that Mr. Walker went to court to successfully move to place a document the
Appellant filed under seal but not Mr. Walkers proffered reasoning for the seal. (E.D. 58)
12.

After the hearing, Mr. Walker followed Appellant to the Circuit Court

waiting room, committed battery against him, and took his iPad. Police responded
and Appellant was treated at Suburban Hospital for a contusion to the eye and back
pain. Appellant later filed for a Peace Order and criminal charges for assault
against Mr. Walker. (KBr. 4). The falsity of the claim that Mr. Walker battered the
Appellant is covered in WBr. 15-17. Further, while Mr. Walker testified that the Appellant
filed two peace orders against him, he did not state what they were related to. (E.D. 126127) Likewise, he only vaguely alluded to vexatious... criminal charges (E.D. 87) filed
by the Appellant, but didnt state what they were related to.
13.

Mr. Walker... rallied a group of right wing extremists to destroy the

reputation and employment of Appellant through a series of campaigns based on


false narratives and malicious legal actions. (KBr. 4) There is nothing in the Record
or Record Extract that establishes that Mr. Walker rallied anyone. As noted in WBr. 1126, there is nothing in the Record or Record Extract stating that Mr. Walker made any
false statements. Equally, the Record and Record Extract dont show any evidence in
support of the claim that Mr. Walker filed or was involved in a malicious legal action.
14.

He acted in concert with Appellees Ali Akbar, William Hoge and

Robert Stacy McCain to launch an online campaign called Everybody Blog About
Brett Kimberlin, using the template of his Muslim hate blog-i.e., create a false
narrative and then use social media to get others to pile on. (KBr. 4) First, any
allegation that the Appellees were acting in concert was dismissed when the court granted
summary judgment (R. 193-94) on the conspiracy to abuse process count (E.A. 19),
and, in any case, there was nothing in the Record or Record Extract supporting that claim.
Second, while a free speech protest called Everybody Blog About Brett Kimberlin Day

xvi

was mentioned, there is nothing in the Record or Record Extract showing that any of the
Appellees, solely or in concert, launched it. The only testimony on that subject was Mr.
Walkers, where he said he didnt start it or ask anyone to join in. (E.D. 123-24) Further,
there was no evidence that Mr. Walkers template on his Everyone Draw Mohammed
site was about creating false narratives. The only testimony as to its purpose is found on
E.D. 60-62. The purpose of the blog was simple: Islamofascist terrorists threatened to
murder anyone who depicted the religious figure Mohammed in even the most benign,
inoffensive way. Those who participated in the Everyone Draw Mohammed protest
believed that if enough people committed the crime of drawing Mohammed, that the
Islamofascists would realize it would be impossible to kill everyone who drew
Mohammed and stop issuing such threats. (E.D. 60-61) Events subsequent to the trial,
such as the massacre of employees working for the French publication Charlie Hebdo,
have only highlighted how serious this threat to freedom of speech and freedom of
religion truly is.6
15.

The stress from all this proved too much for Appellants wife and she

suffered a mental [sic] health issues. (KBr. 4) There is nothing in the Record or
Record Extract suggesting that Mrs. Kimberlin ever suffered from mental health issues.
Mr. Walker asks this Court to strike this despicable attempt by the Appellant to smear his
own wife as crazy.
16.

Messrs. Hoge and Walker then stalked Appellants wife, contacted

her, offered to pay her money to lie about Appellant, launched a fundraising
campaign which raised thousands of dollars to save Appellants wife, and foisted
an attorney on her to represent her in family law proceedings. (KBr. 4-5) Nothing in
Los Angeles Times Editorial Board, Editorial: Paris Terrorists Aimed at Freedom of
Expression, We Must Defend it, LOS ANGELES TIMES, January 7, 2015 (available at
http://www.latimes.com/opinion/editorials/la-ed-paris-attack-charlie-hebdo-freedom-ofspeech-20150108-story.html) visited August 10, 2015 (the terrorists, who reportedly said
they were avenging the prophet Muhammad, were aiming not only at individuals but at
an idea: that freedom of expression includes the right to criticize and, yes, ridicule the
cherished beliefs of others).
6

xvii

the Record or Record Extract supports the allegation that Mr. Walker (or Hoge) stalked
Mrs. Kimberlin, offered to pay her money to lie about the Appellant, or helped her obtain
local counsel that Mrs. Kimberlin did not want. The word save only appears once in the
whole transcript, and not in reference to Mrs. Kimberlin. (E.D. 213) Finally, the only
contacts in the Record or Record Extract between Messrs. Hoge or Walker and Mrs.
Kimberlin are 1) Mr. Walker entering into an attorney client relationship with her (E.D.
103-104), and 2) Mr. Hoge helping to raise funds to pay for local counsel (E.D. 141-142).
17.

Entire paragraph: Appellants wife told... to ...and without merit.

(KBr. 5) There is no support for a single allegation in the paragraph, except that at some
point after Mr. Hoge began his fundraising, he stopped fundraising for Mrs. Kimberlins
legal defense fund at Mrs. Kimberlins request. (E.D. 141-142)
18.

Claims that several statements were admitted into evidence that were

not (KBr. 5-7). The following statements were not supported by evidence in the Record
or Record Extract although the Appellant represents that they were:
a.

August 28, 2013-Bethesda Gazette-Comments believed to be

written or directed by Defendant Walker under one or more names-Brett ...


committed rape (KBr. 5)
b.

July 31, 2013-Pedophile Brett Kimberlin Violates A Domestic

Violence Protective Order (KBr. 6)


c.

August 10, 2013-Twitter-LG is the paid troll of pedophile Brett

Kimberlin (KBr. 6)
d.

Every single alleged statement by Mr. Hoge from August 15, 20

13-She not only needs help... to ...Brett Kimberlin: Pedophile? (KBr. 6-7)
e.

July 18, 2013-If Brett Kimberlin hates you he will do anything

within his power to harm you - even though he derives no benefit from these
destructive acts other than the sadistic vengeful pleasure of inflicting harm.
(KBr. 7)
f.

Every single alleged statement by Mr. Akbar from August 13,

2013-Twitter-Were about to raise... to with other pedophiles around his

xviii

children!(KBr. 7)
19.

Appellees [sic] Walker and Hoge filed more than a dozen malicious

lawsuits, peace orders, and criminal charges (KBr. 7) The Appellants brief purports
to list the meritless legal actions filed by these Appellees in a footnote. (KBr. 8) First,
the Appellant doesnt list more than a dozen such suits. Second, the entire list is not
supported by the record in terms of dates, party names, and outcomes. Third, the
Appellant apparently blames the Appellees for every lawsuit filed by any person,
including ones where the Appellant is the plaintiff. For instance, his list (in footnote 1,
KBr. 8) includes Kimberlin v. Allen, No. 339254V (Md. Mont. Co. Cir. Ct. 2010), where
the Appellees are listed neither as plaintiff nor defendant. Likewise, the allegation that
that Mr. Walker filed either July 30, 2013, Montgomery County District Court,
prepared false pleading in Family Court matter alleging sex offense (denied August
12, 2013) or July 29, 2013, Montgomery County District Court, prepared criminal
charge for third degree sexual assault (nolle prossed August 23, 2013) is not
supported by the Record or Record Extract, and, in fact, these charges/petitions were filed
by Mrs. Kimberlin. Nor is there anything in the Record or Record Extract supporting the
allegation that Mr. Walker prepared filings in either case. Finally, while Mr. Hoge
testified to filing unspecified criminal charges against the Appellant, nothing in the
Record or Record Extract shows that he filed for any peace orders.
20.

These meritless legal actions were filed by these Appellees as part of

their reign of terror and as a strategy to use them for an improper purpose...
(KBr. 7) There is nothing in the Record or Record Extract showing that any Appellee
filed any legal action for any other reason than to seek justice in good faith or that they
were meritless.
21.

Entire paragraph: In 1972, when Appellant... to ...Dorszynski v.

United States, 418 U.S. 424 (1974). (BKr. 8-9) The only allegation in this paragraph
supported by the Record or Record Extract is the fact he was convicted of perjury. Thus,
a convicted perjurer is asking this Court to take him at his word.

xix

22.

Appellees knew about Appellants perjury conviction and decided

that they could file legal actions against Appellant with impunity because of an
arcane Maryland rule that prohibits persons convicted of perjury from testifying...
(KBr. 9) There was no evidence in the Record or Record Extract that the Appellees even
knew of the existence of this statute or that the Appellant was convicted of perjury before
this case was filed. Further, there was no evidence in the Record or Record Extract that
suggested that the Appellees decided to print falsehoods about Appellant because they
thought they could get away with it because of this statute. This fits a familiar pattern,
where the Appellant claims to know what his enemies are thinking, and, to hear him
tell it, it is always the worst motivations possible.
23.

Finally, once Appellant was served with Interrogatories by the

Appellees and asked to answer them under oath, he filed a motion for protective
order, citing inconsistent 9-104 rulings. (KBr. 9) There is nothing in the Record or
Record Extract showing that his motion for a protective order cited inconsistent 9-104
rulings or even mentioned MD CODE Cts. & Jud. Proc. 9-104 at all. (R. 154)
24.

Instead, the judge imposed sanctions against Appellant for not

answering [interrogatories] under oath. (KBr. 9) While sanctions were imposed, the
Appellant has failed to provide a transcript of the July 1, 2014 hearing related to such
sanctions (the same one where summary judgment was granted on most claims).
Therefore, this allegation is not supported by the Record or Record Extract. It is worth
noting that the Appellees successful motion for sanctions was based in part on a
complete failure to answer the interrogatories, not simply a failure to answer them under
oath. (R.143-145)
25.

Appellant then filed a pre-trial motion to... find Rule 9-104

unconstitutional.... On August 7. 2014, five days before the trial was to begin, Judge
Richard Jordan held a hearing on the motion and stated that it was his opinion that
the Rule 9-104 is unconstitutional and that it would be found so if it were ever
challenged. (KBr. 8-9) First, the claim that Judge Jordan said it was unconstitutional is
contradicted by that Appellants own block quote just below it, where he merely says that

xx

he would highly question whether it would be constitutional if challenged. Second, this


hearing was not about the Appellants motion to hold 9-104 unconstitutional. The
hearing was on August 7, 2014. (E.E., Dkt. No. 217-20) The Appellants motion to
declare 9-104 unconstitutional was filed on August 8, 2014 (R. 222), so unless Judge
Jordan is a time traveler, he did not consider a motion filed after that hearing.
26.

In reference to Judge McGanns July 1, 2014 ruling: He ruled that the

defamation and false light claims were Appellants money counts (KBr. 10) Since
the Appellant has not bothered to include a transcript from the hearing in question,
nothing in the Record or Record Extract supports the alleged quote.
27.

She cant testify. (KBr. 12) The quote is taken out of context to imply

that Judge Johnson said that the Appellants self-described daughter, K.K., 7 couldnt
testify at all, when in fact it was a half-finished thought (as is common in spoken
conversation) where he was clearly trying to say she couldnt testify about her personal
harm, because she was not a party. To put the quote in fuller context:
THE COURT:

Shes not a party in this case.

MR. KIMBERLIN:

Shes not a party, shes a witness.

THE COURT:

To what that they did?

MR. KIMBERLIN:

That they harmed me and my family and shes,


you know, I asked you to give me a chance to
make that

THE COURT:

But she cant testify. Her school and all that is


not relevant in this case.

Judge Johnson clearly didnt mean to imply that K.K. couldnt testify at all, because he
did allow her to testify.
28.

No one is doubting [harm] but you have to understand something, you

are the party in this case, not your daughter. (KBr. 12) While the quoted words are
accurate the bracketed insertion of the word harm is inappropriate. Here is the
exchange in greater context:
Since she is a minor, Mr. Walker will only refer to this person by her initials. So there is
no room for ambiguity, all references to K.K. refers to the elder daughter of Tetyana
Kimberlin.
7

xxi

[Appellant]:

Your Honor, my daughter has suffered immensely at


this and

THE COURT:

No ones doubting that but youve got to understand


something, you are the party in this case, not your
daughter. Shes not a party here.

In context, that refers to the alleged suffering K.K. has felt. But the Appellants
bracketed assertion of undifferentiated harm suggests that Judge Johnson felt that the
Appellant showed harm to himself when he hadnt.
29.

Im telling you youre risking putting this little girl, your daughter on

the witness stand and having her testimony not being admitted. Because what youre
telling the Court that shes going to testify to, shes not competent to testify to form
[sic] a legal point of view. A lay witness cant come in here and say somebody
suffered from depression. (KBr. 12) The Appellant has altered this quote without
marking that change. The original reads (with the omitted text in underline):
Well I dont even reach that. I mean I reach, I dont know what youre
going to ask her, but Im telling you youre risking putting this little girl,
your daughter on the witness stand and having her testimony not being
admitted. Because what youre telling the Court that shes going to testify
to, shes not competent to testify to from a legal point of view. A lay
witness cant come in here and I dont care if she was 35 years old, she
couldnt come in here and say somebody suffers from bipolar. She couldnt
come in here and say somebody suffered from depression. She couldnt
come in here and say that my mom did certain things, therefore it is because
of what the defendants did. Even an adult cant do that.
(E.D. 52)
30.

[T]he Court refused to allow [K.K.] to testify regarding harm to

Appellant, his reputation, damages, or emotional distress. (KBr. 13) One would look
in vain for any question the Appellant attempted to ask, and was prevented by a sustained
objection, that was calculated to show harm to the Appellant, harm to his reputation, his
damages or his emotional distress by admissible evidence.
31.

The Appellant takes an exchange out of context:

THE COURT:

Sustained. Sir, youre going way off base.

MR. KIMBERLIN:

Your Honor, I need to let this jury

xxii

understand that weve suffered.


MR. OSTRONIC:

Objection .....

(KBr. 13) What the Appellant was leaving out was how he was trying to bring evidence
of his wifes mental state in through the back door. The full exchange is as follows:
Q [Appellant]

Do I take care of your mother?

A [K.K.]

A lot actually, surprisingly.

MR. OSTRONIC:

Objection.

THE COURT:

Sustained. Sir, youre going way off base.

MR. KIMBELIN:

Your Honor, I need to let this jury understand


that weve suffered.

MR. OSTRONIC:

Objection.

THE COURT:

You need to do whatever you need to do with


admissible evidence pursuant to the rules of
evidence and to the law. And Ive allowed you
some, Ive given you a long leash.

MR. KIMBERLIN:

You have and I appreciate it.

THE COURT:

And let you run pretty far out there. But Im


now pulling you back in.

32.

The Appellant has made it appear that Mr. Walker gave a different

answer to a question than he did:


Q. [Appellant]

But have you ever posted on your blog that


people should not fund my non-profit? 129 ...

A. [Walker]

And so I have sought justice against you, that


is correct. 130

(KBr. 15) In doing so, he seems to be trying to imply that the Mr. Walkers response was
in answer to his question. Heres the full exchange with the words he quoted in bold:
Q [Appellant]

But have you ever posted on your blog that


people should not fund my non-profit?

A [Walker]

I have said that I believe that you use your


nonprofits in ways -- how can I explain this?
Your non-profits are funding your lawsuit
abuse.

Just answer the question, just answer the


question --

xxiii

I am attempting to.

And so you attempted to have me arrested


multiple times, am I correct?

Attempted to have you arrested?

I mean you filed charges to have me arrested?

No, I dont believe any of the charges would


cause you to be arrested, but most maybe if
were lucky convicted.

But you wanted me to get arrested. Youve


asked that I be arrested.

You went to court and repeated --

I asked you a simple question, yes or no?

You committed multiple crimes against me and


I --

Im asking a simple question --

MR. OSTRONIC:

Objection, Your Honor, badgering a witness.

BY MR. KIMBERLIN:
Q

Yes or no, have you asked that I be arrested?

THE COURT:

Well witness is doing fine, overruled.

THE WITNESS:

You have committed multiple crimes against


myself and my wife.

BY MR. KIMBERLIN:
Q

I asked a simple question, yes or no.

And so I have sought justice against you, that


is correct.

33.

Appellant falsely states that a statement was written on Mr. Hoges

blog:
Q [Appellant]

... Im asking you right now, can you read


that under that picture [from your blog]?

A. [Hoge]

It says dread Pedo Kimberlin.... 137

(KBr. 15) With the bracketed information from your blog the Appellant implies that
passage was from an authenticated document. However, in truth, he was asking Mr. Hoge
to read from a document that was not authenticated. Mr. Ostronic objected to it, and that

xxiv

objection was sustained. (E.D. 137-138) Therefore, nothing in the Record or Record
Extract established it was from Mr. Hoges blog. As far Judge Johnson and this Court is
concerned, anyone could have written that.
34.

Appellant altered a quoted exchange in the transcript without noting

the changes:
Q. [Appellant]

So you accused me of crimes that Ive never


been convicted of, am I correct? 147

A. [Hoge]

Thats true.

Q.

Okay, you filed charges, let me ask you this.


When you file charges against me, the
caption of that charge reads State of
Maryland versus Brett Kimberlin.

A.

Yes.

Q.

And then you, have you ever taken that


charge, that title and gone on your blog or on
Twitter and said something to the effect State
of Maryland charges Brett Kimberlin with
X?

A.

I have reported the fact that you have been


charged with things by me or by other
people. 148.

Q.

So you create the document, you file the


charge and then you report it as gospel.

(KBr. 16) Here is the full exchange, with the missing text underlined:
Q [Appellant]

So you accused me of crimes that Ive never


been convicted of, am I correct?

A [Hoge]

Thats true.

Youve asked that I be arrested for these crimes.

No.

Okay, you filed charges, let me ask this. When


you file charges against me, the caption of that
charge reads State of Maryland versus Brett
Kimberlin.

Yes.

And then you, have you ever taken that charge,

xxv

that title and gone on your blog or on Twitter


and said something to the effect State of
Maryland charges Brett Kimberlin with X?
A

I have reported the fact that you have been


charged with things by me or by other people.

So you create the document, you file the charge


and then you report it as gospel. And then

MR. OSTRONIC:

Objection.

BY MR. KIMBERLIN:
Q

-- what do you do when

THE COURT:

Sustained, ask another question.

BY MR. KIMBERLIN:
Q

Okay, what do you do once those charges are


nolle pross?

Typically I write a story saying, discussing the


disposition of the charges.

(E.D. 147-148)
35.

From Q. So weve uncovered... to ...thats a non-party. 159 (KBr.

16) This passage is heavily and deceptively edited. The unedited version is as follows:
Q [Appellant]

Answer the question, thats it. So did you write


a tweet on July 27, 2013?

A [Akbar]

Im not aware of what I wrote on that day.

So weve uncovered Brett Kimberlins big


secret, hes a pedophile with other pedophiles
around his children.

You have a convicted child pornographer


filming your 14-year old daughters music
videos.

Hello, hello --

And you sent him to my party at the event that


you reference with Mr. Hoge to harass minors
that were at my party, Mr. Kimberlin. So I
believe the content of that tweet to be true, too.
But I cannot recall it.

Did you on July 29th, 2013 say that Neal

xxvi

Rauhauser supports pedophile Brett Kimberlin?


A

Objection, thats a non-party.

By this deceptive editing the Appellant makes it appear that Appellee Akbar implicitly
admitted to the writing when he had not.
36.

From Q. Did you ever publish... to ...daughter cant sing a lick?

170 (KBr. 16-17) This passage is heavily and deceptively edited. The fuller context is as
follows:
Q [Appellant]

Did you ever publish a blog post -- first Im


going to hand this to you.

THE COURT:

What is that, Exhibit 23?

THE WITNESS:

Yes.

BY MR. KIMBERLIN:
Q

First of all can you read the title?

A [McCain]

The title is How to Get a Million Hits On Your


Blog In Less Than A Year.

Uh-huh. So lets just cut to the chase here. Point


number 4 --

Point number 4, make some enemies.

Right.

Point number 4, make some enemies. Well


have none of your bipartisan civility around
here you sissy weaklings. This here is the inner
tubes and were as nasty as we want to be. The
fact that the moderate voice has turned into a
reliable vessel for DNC talking points should
tell you all you need to know about the fate of
bipartisanship in the blogosphere. At the same
time however, dont confuse cyber venom with
real world hate. Maybe Ace of Spades really
would like to go upside Andrew Sullivans head
with a baseball bat. I dont know. But at some
point you understand its just blogging about
politics. And you start wondering if maybe it
shares a certain spectator friendly quality with
pro wrestling. For all we know Ace is spending
weekends at Sullys beach shack in Province

xxvii

Town.
A sense of humor, sir, is not a crime in this
country.
THE COURT:

Defaming pro wrestling might be.

THE WITNESS:

Hey Jessie Ventura sued somebody for, you


know --

BY MR. KIMBERLIN:
Q

I just highlighted some things there in red, if


you could read those to the jury.

Okay, let me see here. Is this from the same


thing?

Same thing, yeah.

No, its not. Wait a minute, wait a minute, back


page. George frickin Will should be airdropped
into Easy as it would have, okay, this is about
--

Highlighted in red.

Yes, I see. I see what youre asking me to read,


sir.
A couple of days ago hunting around for a
reason to link my friend Russ Smiths splice
today I happened upon a column by Russs
young minion Andrew Sargus Klein. Theres the
set up. Anyway he was attacking me or
something. Easy as it would have been to ignore
Klein I hit upon the delightfully fun idea of
laying into him Arkansas knife fight mode. If
youre going to cut a man, eviscerate him. So I
quickly composed a hyperbolic ad homonym
rant with the thoughtfully civil title Andrew
Sargus Klein is an arrogant elitist douche bag. I
forward dated the post for Friday morning and
sent Russ and email to the effect of hey, hope
you dont mind me abusing your office help a
little bit, nothing like a flame war to build
traffic. Dont let on to Klein that its just funnin
around with him. I had hoped to bate Klein
himself into a response, however, before that

xxviii

could happen, as if intent on illustrating how to


make a fool out of yourself by taking this stuff
too seriously, one of Kleins friends offered up a
comment.
And then its -Q

Thank you. Now theres one other part of your


how to get a million hits -- and by the way does
your blog have a tip jar on it?

Yes, it does.

So pretty much every time you post a blog you


say hit the tip jar or something to that effect?

Its at the top of the page, hit the freaking tip jar.

Okay, now under Number 5 --

Rule 5.

Rule 5 --

Rule 5, yes, thank you sir. Rule 5 this is what


we call the Christina Hendricks rule or Anne
Hathaway or Natalie Portman or Sarah Palin
bikini picks. Rule 5 actually combines four
separate principles of blogospheric success. A,
everybody loves a pretty girl. B, mind the mego
factor. All politics all the time gets boring after
a while. Observant readers will notice that the
headlines at hotair dot com, a very popular blog,
by the way, often features silly celebrity tabloid
stuff and news of the weird. Even a stone
political junkie like me cannot subsist on a 24/7
diet of politics. The occasional joke, the
occasional hot babe, the occasional joke about a
hot babe, its a safety valve to make sure we
dont become humorous right wing clones of
those moon bats at democrat underground.
C, the one he wants me to ask. Sex sells. Back
when I was blogging to promote Donkey Cons,
buy two, that was my book I co-authored with
Lynn Vincent, I accidentally discovered
something via site meter. Because the subtitle of
the book is Sex Crime and Corruption in the
Democrat Party, we were giving traffic from

xxix

people googling donkey sex. Youd be surprised


at the key word combinations that bring traffic
to a political blogger who understands this.
Human nature being what it is the lowest
common denominator is always there even if
its sublimated or reverse projected as
puritanical indignation....
[After an exchange between Mr. Ostronic, the court and the Appellant:]
Q

....So in other words make enemies and raise


money and use sex to do that.

Everybody loves a pretty girl --

Yeah.

Christina Hendricks.

Now you have used those things in your


blogging about me, Im your enemy, right?

Do you hate me with a passion, sir --

Im saying youve created an enemy, right, is


that what youre saying?

No, Im saying that you attacked me.

And then --

You attacked my family, sir.

My wife --

You have sicced your friends on my family.

37.

Appellee McCain said that he did not need to use the actual word

pedophile to cast Appellant as a pedophile. 208-9. (KBr. 18) That is not what he
said. He said he doesnt tell people what conclusions to draw: he lets them draw their
own conclusions. Here are his actual words:
Q [Appellant]

...Im trying to get you to tell this jury why you


didnt use the word pedophile and all these guys
did?

A [McCain]

Well because I suppose because long years of


experience and it was not necessary to use the

xxx

word pedophile in order to make the point. Let


the readers draw their own conclusion by citing
the book, Citizen K; to cite articles in the
Indianapolis Star; to cite other evidence you
know, that was relevant to the thing. In other
words, you report the facts and let people make
up their own minds. Its not my job to tell
people what to think about you. I tell them the
facts and they make up their own mind.
(E.D. 208-209)
38.

The Appellant said that the Appellees called him a pedophile, said he

engaged in sex abuse, posted his face superimposed on a Pedo bear graphic, and
repeated this hundreds of times if not thousands. 245. (KBr. 18) First, the correct
citation is to E.D. 246. Second, while it is true that the Appellant said that, this assertion
is not evidence and it is not supported by the Record or Record Extract.
39.

In the instant case, the Appellees invoked the rule at every pretrial

hearing where Appellant was required to testify[,] (KBr. 20) Several judges ruled
that Appellant could not testify[,] (KBr. 20) and Appellees have used Rule 9-104 as
a grant of immunity to commit wholesale torts against Appellant and file malicious
litigation against him[.] (KBr. 23) There is nothing in the Record or Record Extract
showing any of these assertions to be true.
40.

[T]he [Maryland] House Judiciary Committee voted to repeal 9-

104. (KBr. 21) According to the Maryland Assembly website and contrary to the
Appellants assertion, they did not vote to repeal and, in actuality, gave the bill to repeal it
an unfavorable report. See, Bill Info-2012 Regular Session HB 926 (available at
http://mgaleg.maryland.gov/webmga/frmMain.aspx?
tab=subject3&ys=2012rs/billfile/hb0926.htm), visited August 11, 2015; Bill Info-2012
Regular

Session

SB

673

(available

at

http://mgaleg.maryland.gov/webmga/frmMain.aspx?ys=2012rs/billfile/sb0673.htm),
visited August 11, 2015; and 2012 Regular Session Committee Vote House Judiciary
for Senate Bill 673 (available at http://mgaleg.maryland.gov/2012rs/votes_comm/

xxxi

sb0673_jud.pdf), visited August 11, 2015.


41.

In fact, the Appellees specifically stated that they wanted Appellant

arrested and prosecuted for sexual assault of a child (KBr. 27) and [t]he Appellees
even testified that they meant that Appellant was a criminal pedophile who
committed statutory rape and should be in prison. (KBr. 28) While Mr. Walker
stated that he sought justice for crimes committed against himself and his wife (E.D.
130), no Appellee testified that they wanted to see the Appellant charged with any sex
crime, let alone imprisoned.
42.

Appellees admitted that they said these things in order to injure

Appellant. (KBr. 28) There is nothing in the Record or Record Extract supporting this
allegation.
43.

Moreover, the Appellees had knowledge of and acted with reckless

disregard to the falsity of these matters. (KBr. 30) Not only has the Appellant
presented no evidence that any of the statements made by the Appellees were false WBr.
11-26, but he also failed to show that they knew these statements were false. As for
recklessness, the Appellant for the most part made no attempt to examine the basis of the
Appellees assertions. The sole exception is when the Appellant asked Mr. Walker why
Mr. Walker believed the Appellant was a pedophile. As noted in WBr. 19-25, Mr. Walker
demonstrated that his opinion was based on significant research.
44.

Appellees knew that Appellant was never arrested, prosecuted or

sentenced for any sex crimes. (KBr. 30) The Appellant has not established this to be
true, and the Appellees were never even asked if it were true. The only testimony as to the
Appellants criminal history in relation to sexual misconduct was when Mr. Walker stated
that he didnt know if the Appellant had been charged with any kind of sexual misconduct
in Indiana (E.D. 101), and when Mr. Walker discussed charges Mrs. Kimberlin filed
against him (E.D. 105), which were eventually dismissed on a plea of nolle prosequi
(E.D. 143).
45.

They knew that no person in an official capacity bought into their

false narratives about sex abuse, perjury or any other nefarious, unethical or

xxxii

criminal activity. (KBr. 30) The Appellant has not established that this is the case so
necessarily he cannot establish that the Appellees knew this to be the case.
46.

They knew that Appellants wife and daughter had told Appellees that

their accusations were untrue. (KBr. 30) Nothing in the Record or Record Extract
establishes that either Mrs. Kimberlin or K.K. have told the Appellees this. Indeed, there
isnt even evidence in the Record or Record Extract of any communication between any
of the Appellees and K.K.
47.

Moreover, these Internet bloggers never once contacted Appellant to

ask him about their accusations. (KBr. 35) In relation to Messrs. Hoge, McCain and
Akbar, there is nothing in the Record or Record Extract indicating whether they had
contacted the Appellant. Mr. Walker, meanwhile, stated he had not contacted the
Appellant in the context of asserting that he left the Appellant alone as the Appellant
requested:
Q [Appellant]

You mentioned a minute ago that Ive asked you to


leave me alone many times. Can you tell me how
many times Ive asked you to leave me alone?

A [Walker]

You technically only asked me once.

Have I asked your attorney?

MR. OSTRONIC: Objection.


THE COURT:

Sustained.

BY MR. KIMBERLIN:
Q

But you havent left me alone.

I have never accosted you. I have never been in your


presence except when Im forced to come to court with
you. I have left you alone you. Ive never come to your
house. Ive never called your house. Ive never sent
you an actual e-mail. What I have done is I write about
you to the world-at-large, just like Woodward and
Bernstein did about Richard Nixon.

Right.

Did Richard Nixon have a right to say to them leave


me alone, stop writing about me?

xxxiii

However, the real dishonesty is this: under MD CODE Crim. L. 3-803, if a person asks
you to leave them alone and you contact them, you might be committing criminal
harassment under Galloway v. State, 365 Md. 599 (2001) (holding that unwanted contact
can be harassment under the previous version of the harassment statute). So the Appellant
is complaining in his Brief that Mr. Walker failed to contact him, when the testimony
showed that the Appellant asked Mr. Walker to leave him alone, and, therefore,
contacting the Appellant could potentially be a crime because of the Appellants request.
48.

[T]he Appellants invaded his privacy by publishing private

information and maliciously twisting a court hearing involving a private family


matter into published accusations of spousal abuse, pedophilia, and rape. (KBr. 32)
First, the Appellant seems to have forgotten he is the Appellant. Second, as noted in Mr.
Walkers brief, there is no evidence in the Record or Record Extract that the Appellees
published any private facts (WBr. 27), or that the Appellees accused him of spousal abuse
(WBr. 14-14).
In this appeal, the Appellant is attempting to argue that MD CODE Cts. & Jud.
Proc. 9-104, which prohibits convicted perjurers like himself from testifying is unfair.
He is arguing that he can be trusted to testify. However, in these last forty eight
paragraphs, he has erased any doubt that he has intentionally attempted to deceive this
Court, and he has demonstrated what a tiresome task it is to correct his serial
misstatements of fact. He claims that 9-104 is unconstitutional, while proving to be its
poster boy.
Indeed Exhibit A is pages 1-35 of the Appellants brief, with nearly every factual
assertion unsupported by the record blocked out, including misstatements of the truth
mentioned identified in Appellee Walkers brief (but leaving untouched any baseless legal
assertions). At times it reads like something the CIA might produce in response to a FOIA
request, with entire pages being almost completely blocked out.
For this flagrant violation of the rules of this Court, as well as every other reason
stated in Appellee Hoge and McCains Motion to Dismiss, this Court should dismiss this

xxxiv

appeal. Further, under Md. Rule 1-341(a), if this Court


finds that the conduct of any party in maintaining or defending any
proceeding was in bad faith or without substantial justification, the court,
on motion by an adverse party, may require the offending party or the
attorney advising the conduct or both of them to pay to the adverse party
the costs of the proceeding and the reasonable expenses, including
reasonable attorneys fees, incurred by the adverse party in opposing it.
This rule is applicable to this Court under Md. Rule 1-101(a) and the Appellants bad
faith is all over his brief, misrepresenting that a motion for summary judgment was a
motion to dismiss (WBr. 8-10); falsely stating that he was only told he could testify on
the day of the trial while excluding the half of the transcript that would have contradicted
him (WBr. 6-6); claiming that Appellees admitted to facts they did not; claiming that he
admitted evidence that he did not; and so on. This Court and the Appellees should not be
burdened with having to deal with an appellant pathologically incapable of telling the
truth. He is the one seeking this Courts aid. Ultimately, he is asking to reach into the
Appellees pockets and take their money; indeed, he was also seeking a prior restraint on
the Appellees freedom of expression. This Court should not come to the aid of an
Appellant who simply doesnt play by this Courts rules.
Accordingly, Mr. Walker asks for costs and attorneys feesincluding any
incurred by Patrick Ostronic prior to the date he withdrew as Mr. Walkers counselin
addition to dismissal.
WHEREFORE, Appellee Walker respectfully requests that this Court dismiss Appellants
Appeal.

xxxv

Tuesday, August 18, 2015

Respectfully submitted,

Aaron J. Walker, Esq. (Va Bar# 48882)


P.O. Box 3075
Manassas, Virginia 20108
Phone: (703) [redacted] (no fax)
AaronJW72@gmail.com
VERIFICATION
I, Aaron Walker, solemnly affirm under the penalties of perjury that the contents of
the foregoing paper are true to the best of my knowledge, information, and belief.
Dated:

xxxvi

EXHIBIT A:
Pages 1-35 of the Appellants Brief, with every factual assertion unsupported by the
record blocked out (and limited explanatory text in the blocked out areas)

xxxvii

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lxxii

IN THE COURT OF SPECIAL APPEALS


OF MARYLAND

BRETT KIMBERLIN,
Appellant

September Term, 2014:


Nos: 1553 and 2099

v.
September Term, 2015:
No. 365

AARON J. WALKER, ESQ., ET AL.


Appellees

Consolidated Appeals

ORDER GRANTING APPELLEE WALKERS MOTION TO DISMISS


Upon consideration of the Appellee Walkers Motion to Dismiss, Appellee McCain
and Hoges Motion to Dismiss and any opposition or support thereto, it is this _________
day of

, 2015, hereby
ORDERED that Appellee Walkers Motion to Dismiss is GRANTED; and it is

further
ORDERED that the Appellants Appeals are DISMISSED; and it is further
ORDERED that the Appellees are entitled to attorneys fees and court costs; and it
is further
ORDERED that Appellees shall file within fifteen days a verified statement in
conformity with Md. Rule 1-341.

lxxiii

__________________________________________
Judge, Court of Special Appeals

lxxiv

In the Court of Special Appeals


of Maryland
September Term, 2014,
Nos. 1553 and 2099
September Term, 2015,
No. 365

BRETT KIMBERLIN,
Appellant,
v.
AARON J. WALKER, ESQ., ET AL.,
Appellees.
Appeal from the Circuit Court of Montgomery County, Maryland
(Hon. Eric Johnson and Terrance McGann, Judges)
BRIEF OF APPELLEE AARON J. WALKER

Aaron J. Walker, Esq. (Va Bar# 48882)


[redacted]
Manassas, Virginia 20109
AaronJW72@gmail.com
(703) [redacted] (No fax)

ii

STATEMENT OF THE CASE8


Appellant Brett Kimberlin filed a complaint for damages initially against four
named individuals (Aaron J. Walker, Esq., Ali Akbar, William Hoge III and Robert Stacy
McCain, the Appellees in this case) and a pseudonymous writer or writers not part of this
appeal. With respect to Mr. Walker,9 the Appellant alleged that he committed the
following asserted torts: malicious prosecution, conspiracy to abuse process, defamation,
false light invasion of privacy, harassment, intentional infliction of emotional distress and
stalking. At a July 1, 2014, hearing, Judge McGann granted summary judgment to the
Appellees on every claim but defamation and false light. On August 11-12, 2014, a trial
was held on those remaining counts before Judge Eric Johnson. Although the Appellant is
ordinarily barred from testifying under MD CODE Cts. & Jud. Proc. 9-104 because of a
perjury conviction, the court ruled that the Appellant could testify if he chose to.
However, the Appellant ultimately chose not to testify. At the end of the Appellants
presentation of evidence, the Appellees moved for judgment under Md. Rule 2-519 10
which was granted. The court found there was no evidence that the Appellees had said
anything false about the Appellant. The court also ruled that the statements the Appellees
made were not defamation per se. This Court has consolidated three appeals that, at their
essence, challenge the decision to grant summary judgment on three of the claims, and a
judgment on the remaining two counts, as well as certain evidentiary rulings.
QUESTIONS PRESENTED11
I.

Whether Courts Article 9-104, which prohibits anyone convicted of perjury from

Mr. Walker writes a separate statement of the case because the Appellant has repeatedly
and pervasively misstated the truth in his Statement of the Case. See Appellee Walkers
Motion to Dismiss (hereinafter MTD), filed simultaneously with this Brief.
9
Mr. Walker refers to himself in the third person for stylistic purposes and to depersonalize this case.
10
Both the Appellant and the Appellees below used the more common term directed
verdict for what is better described as a motion for judgment. See, e.g. E.D. 265 (Judge
Johnson describing Mr. Ostronic as making a motion for judgment).
11
Mr. Walker is quoting the Appellants purported questions verbatim, including any
inaccuracies in them.
8

testifying in any Maryland court, is unconstitutional as a violation of the First


Amendments guarantee to meaningful access to the courts, the Fifth
Amendments Due Process Clause, and the Fourteenth Amendments Equal
Protection, under both the United States and Maryland constitutions, and other
articles of the United States and Maryland constitutions.
II.

Whether the circuit judge erred in his ruling for a directed verdict on the
defamation and false light counts.

III.

Whether the Circuit Court judge erred in not following the law with regard to his
ordering a directed verdict, rather than allowing the jury to issue a verdict.

IV.

Whether the trial judge exhibited prejudicial conduct in the case that deprived
appellant of a fair trial.

V.

Whether the circuit court erred in denying pretrial appellants claims for abuse of
process, conspiracy and intentional infliction of emotional distress.
STATEMENT OF FACTS12
In relation to Judge McGanns grant of summary judgment on July 1, 2014, the

only relevant facts supported by the Record or Record Extract are as follows. In a series
of motions, Mr. Walker sought summary judgment on every count of the complaint. (R.
156, 158-159, 163, and 168) Judge McGann granted Mr. Walker summary judgment on
every count except defamation and false light. (R. 193-94) The Appellant provided no
evidence in either his oppositions to those motions for summary judgment or in his own
motion for summary judgment against Mr. Walker and other appellees. (R. 152, 155 and
174-179) No reasoning appears in the Record or Record Extract: the order does not state
its reasoning (R. 193-94) and no transcript of the hearing has been provided.
In relation to the trial, the following facts are relevant and supported by the
Record, the Record Extract, or other court cases. The Appellant is a convicted serial
bomber. Kimberlin v. White, 7 F.3d 527, 528-29 (6th Cir. 1993). He is also a convicted
perjurer.13 On August 8, 2014three days before trialthe Appellant filed a motion to
Ordinarily an appellee is supposed to include only those additional facts necessary to
correct or amplify the statement in the appellants brief. Md. Rule 8-504(a)(4). However,
as demonstrated in the MTD filed simultaneously with this brief, the Appellants
statement of the facts is so riddled with misstatements of the Record and Record Extract,
as well as irrelevancies, Mr. Walker believed it was simpler to start from scratch.
13
See, e.g., Kimberlin v. Dewalt, 12 F.Supp.2d 487, 490 n. 6 (D. Md 1998) and Kimberlin
12

prevent the application of MD CODE Cts. & Jud. Proc. 9-104. (R. 222) On the first day
of trial, August 11, 2014, Mr. Walker filed a written motion in limine to prevent the
Appellant from testifying under 9-104 (R. 223), and an opposition to the Appellants
motion (R. 225). On the same day, the court ruled in favor of the Appellant, allowing him
to testify. (Dkt. No. 227-29) No reasoning appears in the Record or Record Extract,
because the Appellant did not include the transcript of the first day of trial.
On August 12, 2014, the trial court heard opening statements, testimony and
eventually granted a motion for judgment. (Record Extract D, hereinafter E.D.) 14
Before opening statements, Mr. Walker moved for reconsideration of the decision to
allow the Appellant to testify. (R. 226, E.D. 6-11) It was denied, Judge Johnson citing
fundamental fairness. (Dkt. No. R. 231, E.D. 11-12)
Mr. Walker was the first witness called by the Appellant (E.D. 54) and the only
witness who testified about what statements Mr. Walker made to third parties about the
Appellant or to authenticate documents showing what he wrote. (E.D. 53-133) Mr.
Walker stated that he is a Virginia lawyer (E.D. 104) who provided free legal advice to a
man named Seth Allen that the Appellant had sued for defamation (E.D. 56-57). After
this, Mr. Walker accused the Appellant of harassing Mr. Walker as follows: 1) causing
Mr. Walker to be terminated from his employment at Professional Healthcare
Management, Inc. (hereinafter PHMI) (E.D. 76), and 2) attempting to frame Mr.
Walker for the crime of assault. Specifically in relation to the framing, Mr. Walker
testified that he stated in Internet articles that the Appellant lied about the alleged assault;
that Mr. Walker did not injure the Appellant or even touch him; and that hospital records
produced by the Appellant in other settings that purported to show that the Appellant had
been injured by Mr. Walker, did not reflect any injuries inflicted by Mr. Walker and were
likely forged. (E.D. 70-73)
Further, Mr. Walker testified that the Appellants wife, Tetyana Kimberlin, came to
v. White, 798 F. Supp. 472, 482 (W.D. Tenn. 1992).
14
Because the Appellants Record Extract does not have a master numbering system, Mr.
Walker shall cite it as E.A., E.B., E.C., etc. to designate the specific section of the extract
being cited.

Mr. Walker for legal help and they entered into an attorney-client relationship. (E.D. 103104) Mr. Walker stated that Mrs. Kimberlin had made the following accusations against
the Appellant by criminal charges and legal filings: 1) that she first met the Appellant
when she was fourteen and living in Ukraine and the Appellant was in his forties, 2) that
the Appellant seduced her at that time and made numerous trips back and forth between
the U.S. and Ukraine to court her, and 3) that at the age of fifteen, the Appellant brought
her to Maryland and engaged in sexual relations in violation of MD CODE Crim. L. 3307(a)(4)-(5) at least fifty times before she turned sixteen and was legally able to consent.
Mr. Walker stated that he believes Mrs. Kimberlin told the truth and that the Appellant is
a pedophile. (E.D. 105-6)
Turning to the issue of the truth or falsity of those statements, the only person to
testify about the loss of Mr. Walkers job was Mr. Walker. His uncontradicted testimony
was that his employers cited the Appellant as the reason for initially suspending him and
eventually firing him. (E.D. 75-76)
Likewise, on the issue of whether the Appellant attempted to frame Mr. Walker for
assault, the only person to testify on the subject was Mr. Walker. His uncontradicted
testimony was that he did not assault the Appellant, cause him any injury or even touch
him. (E.D. 67-69) He stated that the Appellant had released purported medical records at
different times,15 but those records did not match each other, calling their authenticity into
question. (E.D. 70-72) Mr. Walker stated further that courthouse security footage
obtained by both parties showed that no assault occurred. (E.D. 72)
Meanwhile, the only person to testify on the subject of the Appellants alleged
pedophilia (including allegations of criminal conduct with Mrs. Kimberlin) was K.K., 16
the Appellants self-described daughter. She stated that she witnessed no evidence that the
Appellant was a pedophile and he never touched her. (E.D. 238)
The Appellant presented no evidence he suffered any damages, and, likewise, no
No medical records were entered into evidence in this case.
Since she is a minor, Mr. Walker will only refer to this person by her initials. So there is
no room for ambiguity, all references to K.K. refers to the elder daughter of Tetyana
Kimberlin.
15
16

evidence that such non-damages were proximately caused by any of the Appellees
statements. In addition to the testimony of Mr. Walker and K.K., the Appellant also called
the other Appellees to testify and although they did speak to matters relevant to their part
of the case, they did not testify to any matter relevant to Mr. Walkers case. Finally, even
though he had been granted the right to testify, the Appellant chose not to and rested his
case. (E.D. 240-241)
At that time, Mr. Walker moved for judgment. (E.D. 241-265) Judge Eric Johnson
entered a judgment in all the Appellees favor. (E.D. 265-271) The court found that
[t]heres not one scintilla of evidence in this case that the statements that were made by
these individuals were false. (E.D. 266) He further found that the allegations of
pedophilia did not amount to defamation per se, because pedophilia is a mental state and
not a crime. (E.D. 266-271)
I.
THE APPELLANT IS PROCEDURALLY BARRED FROM CHALLENGING
THE CONSTITUTIONALITY OF MD CODE CTS. & JUD. PROC. 9-104
One of the most absurd elements of the Appellants brief is that he thinks that the
first and most important question before this Court relates to a motion that he won.
Specifically, he asks this Court to declare that MD. CODE Cts. & Jud. Proc. 9-104, which
bars convicted perjurers from testifying, is unconstitutional. However, the Appellant filed
a motion to allow him to testify, and it was granted. The Appellant was told he could
testify (Dkt. No. 227-29, E.D. 11-12), and he chose not to. Therefore, he has no right to
appeal that rulinghe has no defeat on that question to appeal.17
The Appellant tries to side-step this limitation on the right of appeal by claiming
that although he won the right to testify, he won too late:
And then on the day of trial, minutes before evidence was to begin, the trial
court refused to find it unconstitutional but did rule that Appellant could
testify. By that time, Appellant had no time to prepare himself to testify,
thereby prejudicing him, and depriving him of due process and meaningful
See, e.g., Mugford v. Mayor, 185 Md. 266, 44 A. 2d 745, 746 (1946) (the court needs
no authorities to support the proposition that one cannot appeal from a decree wherein the
relief he prays for has been granted).
17

access to the court.


(Appellants Brief 24) (hereinafter KBr.) There are several problems with this claim.
First, it is not true. Ironically, while arguing that he should be trusted to testify
truthfully, the Appellant has misled this Court. He was not told for the first time that he
could testify on August 12, 2014, i.e. minutes before evidence was to begin. The day
before, on August 11, 2014, Judge Johnson heard the Appellants motion seeking the right
to testify (R. 222) and granted it (Dkt. No. 227-29). It doesnt appear in the Record
Extract because the Appellant provided only half of the trial transcript. The discussion on
August 12, 2014 (E.D. 6-11), was in regard to the Appellees motion to reconsider (R.
226). For instance, Judge Johnson stated in his ruling on the matter: [t]he rulings that the
Court made yesterday will stand. (E.D. 12) (emphasis added) Yet, the Appellant dares to
claim that he was not told he could testify until literally minutes before testimony was to
begin. (KBr. 10) This is simply false; he had an entire evening to prepare.
Further, there is evidence that this deception was deliberate. Why else did the
Appellant choose to include only half of the trial transcript, when the record clearly
shows that the Appellant won the right to testify on that day? Thus, he misrepresented the
timing of the decision and also failed to provide this Court with a copy of the August 11,
2014 transcript that would have more clearly exposed his misrepresentation. This seems
to be unlikely to be an accident.
The Appellant also claims on page 23 that [i]n the instant case, Appellant
repeatedly tried to get pretrial rulings on the constitutionality of Rule 9-104 [sic] so he
could prepare for trial but the courts refused [sic] to make those rulings or rule whether
he could testify. (KBr. 23) There is nothing in the Record or Record Extract that
establishes that this occurred, because it did not. The first time he raised this issue was in
his August 8, 2014 motion to declare 9-104 unconstitutional (R.222), the day after Judge
Jordan expressed his doubts sua sponte as to the constitutionality of 9-104. (E.E. 6-7)
Second, it is an absurd objection: I wasnt prepared to win my motion! The
Appellant is no babe in the woods when it comes to litigation. 18 He can be expected to
18

As Judge Titus wrote about the Appellant, The Plaintiff is no stranger to the processes

adjust his trial strategy for unexpected defeats on questions of evidence, as well as
unexpected victories, especially when he is given a whole night to prepare to testify.
Indeed, one has to wonder, how much preparation does one need to tell the truth?
Third, the Appellants real complaint is not about the outcome of the Courts
decision but rather about the timing, and the Appellant has not preserved that objection.
There is nothing in the Record or Record Extract indicating that he asked Judge Johnson
for a continuance, which is the ordinary remedy for unfair surprise, because he made no
such motion. Further, as noted above, there is no evidence in the Record or Record
Extract that he raised the issue prior to trial, demanding a quick resolution so he can
prepare to testify. Even when he told Judge Johnson that I may not testify, (E.D. 179),
he didnt mention any reluctance based on lack of preparation.
Maryland Rule 8-131 states what is elementary in appellate review, namely that
Ordinarily, the appellate court will not decide any other issue [besides
certain jurisdictional issues] unless it plainly appears by the record to have
been raised in or decided by the trial court, but the Court may decide such
an issue if necessary or desirable to guide the trial court or to avoid the
expense and delay of another appeal.
The Record and Record Extract does not show that the issue of the timing was raised or
decided in the trial court, and it was not. Nor do any of the exceptions apply. There is no
need to guide the lower court on when it is appropriate to spontaneously continue a trial
when a plaintiff unexpectedly wins an evidentiary motion. Likewise, there is no concern
for another appeal on the issue of timing. If this Court affirms the decision below, the
case will be over.19
Therefore, the Appellant is procedurally barred from raising this issue on appeal.
He won the right to testify in spite of 9-104, and one cannot appeal victory. Meanwhile,
of this Court. Kimberlin v. KimberlinUnmasked, Case No. 8:13-cv-02580-RWT, 3-4 (D.
Md., Feb. 28, 2014). In his opinion, Judge Titus went on to list ten different cases he had
participated in the U.S. District Court for the District of Maryland alone.
19
And even if this Court should remand for a new trial on any other grounds (and it
should not), there is no reason to think that the lower court is likely to have to confront
this issue of timing again.

the Appellant failed to preserve for review his real objectionthe timing of the courts
favorable decisionand therefore he cannot raise it for the first time on appeal.
II.
THE APPELLANT IS PROCEDURALLY BARRED FROM CHALLENGING
JUDGE MCGANNS SUMMARY JUDGMENT
The Appellant is also procedurally barred from challenging Judge McGanns grant
of summary judgment on July 1, 2014.
A.

The Appellant Misstates the Nature of Judge McGanns Decision and Claims
That Facts Were Proven That Have No Support in the Summary Judgment
Record.
Once again, it is necessary as a preliminary step to correct the Appellants

misrepresentations of what occurred. First, the Appellant repeatedly attempts to depict


this as a dismissal for failure to state a claim, rather than a summary judgment. 20
However, the Appellants Record Extract includes as Record Extract-B entries in the
docket indicating that a motion for summary judgment, not a motion to dismiss, was
granted on that date.21 In any case, the Record itself indicates that Mr. Walkers motion to
dismiss was denied on January 13, 2014 (Dkt. No. 66), but that his motion for summary
judgment was granted for every count but defamation and false light on July 1, 2014. (R.
193-94)
Further, in an attempt to bolster his legal argument, the Appellant states as fact
claims that have no support in the Summary Judgment Record 22 (such that it is).
See, e.g., KBr. 10 (Appellees filed a pretrial motion to dismiss all the claims, which
was heard by Judge McGann on July 1, 2014), 33 (header, and [o]n July 1, 2015, Judge
McGann held a hearing on Appellees Motion to Dismiss). The Appellant adds to the
confusion on this point by sometimes counting abuse of process and conspiracy to abuse
process as separate counts, even though the only count related to abuse of process is
Count II, Conspiracy to Abuse Process. (E.A. 19)
21
On page 33, the Appellant also carelessly states that the date of these supposed
dismissal as July 1, 2015. Plainly, he meant to state it occurred on July 1, 2014. This
intuition is reinforced by the fact that earlier in his brief, the Appellant states the correct
date. (KBr. 10)
22
In Maryland, like elsewhere, courts look to the summary judgment record when
reviewing a motion for summary judgment. Zitterbart v. Am. Suzuki Motor Corp, 182
20

Specifically, on page 33, the Appellant writes that [a]s noted above and in the
Complaint, Appellees filed dozens of frivolous and malicious criminal charges, peace
orders and civil cases against Appellant[.] The Appellant certainly alleged that Mr.
Walker has done so, but there is no evidence in the Summary Judgment Record
supporting that claim (and it is not true). (MTD 19-19) Next, still on page 33, the
Appellant writes [t]hey then used those legal pleadings improperly as a basis for their
defamatory publications, and this inflicted special injury on Appellant. Again, there
can be little doubt that the Appellant alleged this sort of thing, but there is no evidence in
the Summary Judgment Record supporting these allegations (and they are not true). On
pages 33-34, the Appellant writes that [a]s noted above, the Appellees admitted that they
wanted to cause Appellant deep emotional distress with their publications. There is no
evidence in the Summary Judgment Record supporting the claim that any Appellee
admitted to such a motivation, or that the Appellant felt any emotional distress at all.
Likewise, on pages 34-35, the Appellant writes that
Appellees engaged in outrageous and extreme conduct by falsely publishing
the defamatory statements accusing him of heinous crimes and nefarious
conduct, and demanding that he be investigated, arrested and imprisoned
for pedophilia, rape, murder, and other serious crimes.
Putting aside that there is no evidence of falsity in the Record or Record Extract, infra
15-26, there is no evidence in the Summary Judgment Record supporting the claim that
they were seeking those consequences. There is also no evidence in the Summary
Judgment Record for the claims that they had falsely accused him of rape, murder, or
pedophilia.23 Finally, on page 35, he writes that [t]his abhorrent conduct has kept
Appellant under siege for years, and caused extremists to come to his home, take pictures
of him and his daughter, and make threatening calls to him, his family and his neighbors.
Again, there is no evidence in the Summary Judgment Record supporting a single
Md. App. 495, 501-02, 958 A. 2d 372, 376-77 (2008) cert. denied, 406 Md. 581 (2008).
This necessarily is limited to items pre-dating the grant of summary judgment, as well as
materials related to the summary judgment hearing, and the order granting summary
judgment.
23
The issue of falsity is addressed infra 11-26.

allegation in that sentence.24


B.

The Appellant is Procedurally Barred from Challenging Judge McGanns


Summary Judgment Because the Appellant Has Not Developed an
Appropriate Summary Judgment Record to Review.
In Zitterbart, 182 Md. App. at 501-02, 958 A. 2d at 376-77 cert. denied, 406 Md.

581 (2008), this Court has described the applicable standard of review as follows:
We review a circuit courts decision to grant summary judgment de novo....
Our review is two-fold. First, we determine whether there was or was not a
genuine dispute of material fact on the summary judgment record... A
material fact is a fact that, if found one way or the other, will affect the
outcome of the case.... Second, if there is no genuine dispute of material
fact, we determine whether the party that obtained summary judgment was
entitled to judgment in its favor, as a matter of law.
In this appeal, this Court cannot even begin the first step. The Appellant has not created a
sufficient Summary Judgment Record allowing this Court to determine whether there was
a material fact at issue. As it stands, the Record and Record Extract submitted to this
Court does not offer any evidence whatsoever as to critical elements of each claim. Most
basically there is no evidence in the Summary Judgment Record that the Appellant has
suffered any damages at all. 25 Indeed, judging by the plethora of facts the Appellant
alleged to exist that has no evidentiary basis in his brief and his mischaracterization of
Judge McGanns decision as an order on a motion to dismiss, the Appellant seems to be
attempting to argue that he should be granted a reversal based on a motion to dismiss
standard, rather than a motion for summary judgment standard. In any case, without a
The Appellant also misstates how two of the claims were disposed. The Appellant also
states on page 33 (in his section header) that Judge McGann dismissed only three
claims and on page 1, he claims he withdrew the stalking and harassment claims
because they did not allow any private cause of action. This is unsupported by the
summary judgment record, and it is false. If one examines the actual order granting
summary judgment on most of these claims, (R. 193-94) Judge McGann makes it clear
that he had granted summary judgment in the Appellees favor on counts I-II, and V-VII
for all four Appellees. There is no indication in the summary judgment record that the
Appellant consented to any part of that summary judgment and he did not.
25
This is not the only evidentiary failure in the case, but it is the one failure common to
all claims that were dismissed upon motion for summary judgment.
24

10

sufficient Summary Judgment Record to enable this Court to review the decision below,
or even any evidence at all to show a genuine dispute of material fact existed, the
Appellants attempt to challenge Judge McGanns summary judgment is procedurally
barred. Accordingly, the summary judgment should be affirmed.
III.
THE GRANT OF A MOTION FOR JUDGMENT SHOULD BE AFFIRMED
BECAUSE THERE WAS NO EVIDENCE THAT MR. WALKER MADE A
FALSE STATEMENT
Turning to Judge Johnsons grant of a judgment in under Md. Rule 2-519 (which is
referred to by Appellant as a directed verdict), this Court has described the appropriate
standard of review as follows:
In reviewing the grant of a motion for judgment, we assume the truth of all
credible evidence on the issue, and all fairly deducible inferences
therefrom, in the light most favorable to the party against whom the motion
is made.... Consequently, we may affirm the grant of the motion for
judgment only if . . . we conclude that there was insufficient evidence to
create a jury question. Wilbur v. Suter, 126 Md. App. 518, 528, 730 A. 2d
693 (1999) (alterations added)[.]
Spengler v. Sears, Roebuck & Co., 163 Md. App. 220, 878 A. 2d 628, 637 (2005)
(internal quotation marks and citations omitted). Further, the standard for determining
whether a motion for judgment should be granted is much the same as when
determining whether to grant summary judgment, 26 and, therefore, the precedents related
to when it is appropriate to grant summary judgment are illuminating as well. For
instance, in Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738-39 (1993), the Court of
Appeals stated as follows:
[W]hile a court must resolve all inferences in favor of the party opposing
summary judgment, [t]hose inferences ... must be reasonable ones.
(Emphasis in original.) In that case, we quoted Professor Wright, as
follows:
Knisley v. Keller, 11 Md. App. 269, 272-73 (1971) ([t]he function of the judge [in
determining whether to grant summary judgment] is much the same as that he performs at
the close of all the evidence in a jury trial when motions for directed verdict... require
him to determine whether an issue requires resolution by a jury, or is to be decided by the
court as a matter of law).
26

11

It is frequently said that summary judgment should not be


granted if there is the slightest doubt as to the facts. Such
statements are a rather misleading gloss on a rule that speaks
in terms of genuine issue as to any material fact, and would,
if taken literally, mean that there could hardly ever be a
summary judgment, for at least a slight doubt can be
developed as to practically all things human. A better
formulation would be that the party opposing the motion is to
be given the benefit of all reasonable doubts in determining
whether a genuine issue exists.
312 Md. at 678, 541 A. 2d 1303, quoting C. Wright, THE LAW OF FEDERAL
COURTS 99, at 666-667 (1983).
Judge Johnson stated when granting a motion for judgment that [t]heres not one
scintilla of evidence in this case that the statements that were made by these individuals
[the Appellees] were false. (E.D. 266) Although Judge Johnson was speaking
specifically in relationship to false light invasion of privacy, proof of falsity is also
necessary to prevail on a claim for defamation. 27 Therefore, no matter what horrible
things Mr. Walker might have written about the Appellant, if Judge Johnson was correct
in his finding that there was insufficient evidence of falsity, then this Court can affirm his
decision on that ground alone.
In the Appellants brief, he identifies the following alleged false statements
allegedly made by Mr. Walker: (1) that Appellant is a terrorist (KBr. 4), (2) that he
committed murder (KBr. 35), (3) that he committed spousal abuse, (4) that Appellant
lied in relation to an alleged assault and falsified hospital records related to that alleged
assault (KBr. 30), (5) that Appellant cost Mr. Walker his job (KBr. 8), (6) that Appellant is
a pedophile, and (7) that the Appellant raped his wife (KBr. 32). In each case, the
Appellant failed to present evidence sufficient to allow a jury to find that 1) Mr. Walker
In Maryland, the burden of proving falsity rests with a plaintiff in proving defamation
or false light. See Telnikoff v. Matusevitch, 347 Md. 561, 594 (1996) (in all defamation
actions, truth is no longer an affirmative defense to be established by the defendant, but
instead the burden of proving falsity rests upon the plaintiff,) and Bagwell v. Peninsula
Regional Medical, 106 Md. App. 470, 513-514 (1995) (stating that in order to prove false
light, a plaintiff must show the actor had knowledge of or acted in reckless disregard as
to the falsity of the publicized matter).
27

12

made the statement and 2) that the statement was false. Indeed, in one casethe
allegation that he is a terroristit is undeniably true.
A.

The Appellant Presented No Evidence that Mr. Walker Published Statements


Calling the Appellant a Terrorist, but the Appellant Is in Fact a Convicted
Terrorist.
Once again, it is necessary to correct the Appellants misrepresentations of the

record below. On page 4 the Appellant writes that [i]n the case of the Muslim blog, Mr.
Walkers false narrative was that the Prophet Mohammed was a pedophile and a terrorist,
and that was what he also called Appellant. First, there is nothing in the Record or
Record Extract suggesting Mr. Walker called the Islamic religious figure anything,
negative or positive. As Judge Johnson pithily noted when shutting down that line of
questioning: Prophet Mohammed is not in this case. (E.D. 66) Further, when the
Appellant states that that was what [Mr. Walker] also called Appellant, he is claiming
Mr. Walker called him a pedophile and a terrorist. While Mr. Walker did state that the
Appellant was a pedophile, this Court would look in vain to find any evidence in the
Record or Record Extract that Mr. Walker stated to third parties that the Appellant was a
terrorist.
However, the irony is that it is the truth. The Appellant is a convicted terrorist
known as the Speedway Bomber:
[Brett] Kimberlin was convicted as the so-called Speedway Bomber, who
terrorized the city of Speedway, Indiana, by detonating a series of
explosives in early September 1978. In the worst incident, Kimberlin
placed one of his bombs in a gym bag, and left it in a parking lot outside
Speedway High School. Carl Delong was leaving the high school football
game with his wife when he attempted to pick up the bag and it exploded.
The blast tore off his lower right leg and two fingers, and embedded bomb
fragments in his wifes leg. He was hospitalized for six weeks, during
which he was forced to undergo nine operations to complete the amputation
of his leg, reattach two fingers, repair damage to his inner ear, and remove
bomb fragments from his stomach, chest, and arm. In February 1983, he
committed suicide.
Kimberlin v. White, 7 F. 3d at 528-29. So in the case of allegations that the Appellant is a
terrorist, the Appellant failed to establish that Mr. Walker had made such a statement, but

13

nonetheless it would be true.


B.

There Is No Evidence Mr. Walker Accused the Appellant of Murder.


On page 35 of his brief the Appellant writes that unspecified appellees accused

him of murder. The only evidence on the question of whether Mr. Walker stated he is a
murderer is Mr. Walkers uncontradicted testimony that he did not. (E.D. 80)
However, while the Appellant has never had a finding against him that he
murdered a person, he is collaterally estopped from denying that his behavior cost a man
his life. As noted above, the last of his bombs maimed a veteran named Carl DeLong who
eventually killed himself. Subsequently, the Indiana Supreme Court affirmed that the
Appellant was liable for DeLongs suicide. Kimberlin v. DeLong, 637 N.E. 2d 121 (Ind.
Sup. Ct. 1994). In any case, since he failed to establish that Mr. Walker actually called
him a murderer, no defamation or false light claim can lie for such a claim.
C.

There Is No Evidence Mr. Walker Accused the Appellant of Spousal Abuse.


There is equally no evidence that Mr. Walker made statements to third parties that

the Appellant committed spousal abuse. One will search Mr. Walkers testimony in vain
for any reference to a claim that the Appellant committed spousal abuse, domestic
violence, or similar terms. Indeed, the only time any of the Appellees discuss spousal
abuse, is when Mr. McCain denies ever having accused the Appellant of that. 28 (E.D. 176)
Likewise, the Appellants claim that Mr. Walker accused the Appellant of having falsely
imprisoned his wife, [and] threatened her (KBr. 4) was also unsupported by the Record
or Record Extract. At most, Mr. Walker mentioned that he had reported that the Appellant
caused his wife to be arrested, but didnt comment on the validity of the arrest. (E.D. 102)
Accordingly, without any evidence the Appellees even made such a statement to third
parties, there can be no claim for defamation or false light based on it, and this Court
should affirm the judgment as it relates to any claim that the Appellant committed spousal
abuse.
Mr. Walker does discuss allegations that the Appellant committed more or less
statutory rape under MD CODE Crim. L. 3-307 against his wife, Tetyana Kimberlin,
but the allegations are that he committed these acts before they were married, and thus are
not allegations of spousal abuse.
28

14

D.

There Is No Evidence of Falsity as It Relates to the Accusation That the


Appellant Attempted to Frame Mr. Walker for a Crime.
The Appellant has claimed that Mr. Walker assaulted him on January 9, 2012.

Essentially, he has claimed that Mr. Walker beat him up in the Montgomery County
Circuit Courthouse. In the instant case the Appellant has claimed that Mr. Walker has
defamed him by stating that 1) Mr. Walker did not assault the Appellant, 2) the Appellant
lied when he made that accusation, and 3) the Appellant forged documents to support his
allegations of assault. In short, Mr. Walker accused the Appellant of trying to frame him
for that alleged assault, and the Appellant claims that accusation is in turn defamatory.
The only witness called to testify about the matter was Mr. Walker, and he testified
that he did nothing wrong. The relevant testimony can be found on E.D. 58-59 and 67-73,
and can be summarized as follows. On January 9, 2012, Mr. Walker attended a hearing
with the Appellant in a different case. (E.D. 58-59) As they left the courtroom, they
exchanged words (E.D. 67-68), and the Appellant went to use his iPad in some way (E.D.
68). Knowing the Appellants violent criminal history, Mr. Walker acted in self-defense
by taking the iPad from the Appellant. (E.D. 68-69) He did not harm the Appellant as he
took the iPad from him and kept it away from him until courthouse security arrived. (E.D.
68)
Mr. Walker stated that he was aware that the Appellant claimed that he
hospitalized him (E.D. 70), and in prior court hearings the Appellant had produced what
he claimed to be medical records, documenting injuries he supposedly received at Mr.
Walkers hands (E.D. 70-72). Mr. Walker also stated that courthouse security cameras
captured the entire incident and the footage showed the Appellants accusations against
him were false. (E.D. 72-73)
Mr. Walker did not state that Appellant definitely forged alleged those medical
records. (E.D. 71) Mr. Walkers testimony was that I said that I did not do any harm to
you. So necessarily those, any records that exist do not accurately reflect what
happened. (E.D. 71) That left only two possibilities. The first and least likely possibility
was that the Appellant was actually injured that day, but not by Mr. Walker. (E.D. 71-72)

15

The second possibility is that this convicted and admitted document forger 29 forged any
such documents. (E.D. 72) Mr. Walker even testified that he saw evidence that the
medical records had been altered. (E.D. 70-72) Mr. Walker continues to believe that
forgery is the more likely possibility.
Also, it is again necessary to correct the Appellants misstatements of the record
on the subject. On page 4 of his brief, the Appellant writes:
After the hearing [on January 9, 2012], Mr. Walker followed Appellant to
the Circuit Court waiting room, committed battery against him, and took his
iPad. Police responded and Appellant was treated a Suburban Hospital for a
contusion to the eye and back pain. Appellant later filed for a Peace Order
and criminal charges for assault against Mr. Walker.
The majority of that passage is not supported by any evidence. Mr. Walkers
uncontradicted testimony that he acted in self-defense negates any claim that he battered
the Appellant. Further, Mr. Walkers uncontradicted testimony is that he did not harm or
even touch the Appellant. Additionally, there was no evidence that the Appellant went to
the hospitalMr. Walker only noted that the Appellant says he did (E.D. 70), and pointed
to evidence the Appellant had forged the alleged hospital records (E.D. 70-72). There was
no testimony that the Appellant went to the hospital or indeed that he was injured at all;
the uncontradicted testimony is that Mr. Walker didnt harm him. 30 Moreover, while Mr.
Walker stated that the Appellant did file peace orders and criminal charges against Mr.
Walker, there was no testimony about the alleged basis of those charges and peace orders.
See United States v. Kimberlin, 805 F. 2d 210, 228 (7th Cir. 1986) (stating that when the
Appellant was caught with forged documents outside of a copy shop by an FBI agent, he
attempted to chew up the evidence), Verified Response to February 21, 2014 Order to
Show Cause Re Twitchy Summons, ECF No. 102, submitted in Kimberlin v. National
Bloggers Club, et al. (I), No. GJH-13-3059 (2013) (admitting to forging a summons in
that case but pleading that he was somehow ignorant of the fact that forging a court
document was wrong) Supplemental Memorandum of Defendants Michelle Malkin and
Twitchy in Support of Request for Dismissal (ECF No. 124) submitted in Kimberlin v.
National Bloggers Club, et al. (I) (documenting how the Appellant admitted to a forgery
in this case).
30
See E.D. 68 (I did not touch your body. I did not touch you with [the iPad]. I did no
harm to you).
29

16

(E.D. 126) Finally, the Appellant doesnt mention that Mr. Walker testified that both
peace order petitions were dismissed. (E.D. 126-127)31
In short, the only evidence presented on the subject of the alleged assault was Mr.
Walkers testimony and Mr. Walker maintained that he didnt do anything wrong. While a
defendant in a defamation or false light case is not obligated to offer any evidence of
truth, in this case the only evidence on this subject tends to show Mr. Walker spoke
truthfully and therefore a judgment was appropriate on this subject.
E.

There Is No Evidence of Falsity as It Relates to the Accusation That the


Appellant Cost Mr. Walker His Job.
The crux of this issue is that Mr. Walker once worked for PHMI as their corporate

counsel (E.D. 55) and that Mr. Walker stated that he lost his job there because of the
Appellant (E.D. 75-76). As with the issue of the non-assault, there is no question Mr.
Walker made statements to third parties that the Appellant caused Mr. Walkers
termination, and there is no evidence whatsoever that the accusation was false.
Mr. Walker was the only person with first-hand knowledge of the circumstances of
his termination who was called to testify on the matter. The entirety of his testimony on
this point was as follows:
Q [Appellant]

What day were you terminated?

A [Walker]

I was, well the termination was effectively on the 9th,


sorry, yeah, January 9th. But what had happened was
they had told me initially it was going to be a
suspension and they said were going to suspend you
until this Kimberlin situation is resolved. And I said
what the hell does that mean? How is it going to be
resolved?

So

And so then later in the week they decided that it was


going to be a permanent termination and effectively
backdated the date of termination to the 9th.

(E.D. 75-76) Later, Mr. Kimberlin attempted to introduce an email written by outside
There was no discussion of the outcome of the criminal charges, but all were dismissed
on a plea of nolle prosequi.
31

17

counsel Jim Hodges, Esq., discussing that termination, but discussion of its contents was
excluded from evidence as hearsay. (Rule 5-802, E.D. 76-77) Appellant claims that this
decision was erroneous but offers no reason why this is the case. Therefore, the abovequoted passage is the only admissible evidence as to why Mr. Walker was terminated
from his job, and his testimony squarely supported Mr. Walkers contention that the
Appellant was to blame.
Further, it is necessary once again to correct the alleged facts in the Appellants
brief. The Appellant writes on page 4 that
A few days later, after Mr. Walkers employer found out about the assault
and his activities as publisher of the Muslim hate blog, the employer fired
Mr. Walker for attacking Muslims, doing so on company time and on
company premises, and for placing other employees in danger.
The only factual assertion in that paragraph that is supported by the Record or Record
Extract is that Mr. Walker was fired a few days after the non-assault.
There was no evidence that Mr. Walker ran a Muslim hate blog in the sense that
his website was Anti-Muslim (KBr. 3) or prejudiced against Muslims. The only
testimony about the purpose of the blog in question, Everyone Draw Mohammed, was
Mr. Walkers testimony. Mr. Walker testified that the purpose of the blog was to
participate in a protest to protect freedom of speech. (MTD 16-17, E.D. 60-62) Mr.
Walkers uncontradicted testimony was that he did not have any prejudice toward any
person based on their religion and that he believed religious tolerance is part of what
made America great. (E.D. 113-14)
Second, there was no evidence introduced that PHMI had learned of this blog or of
either the non-assault or allegations of the non-assault.
Third, there was also no evidence that Mr. Walker had been fired for attacking
Muslims, doing so on company time and on company premises, and for placing other
employees in danger. The only testimony about the motives of PHMI in its decision to
fire himMr. Walkers testimonysupported Mr. Walkers claim that the Appellant was
to blame.
So, as with the non-assault, the only witness called to testify on the subject was

18

Mr. Walker and he maintained that he did nothing wrong. While Mr. Walker was not
obligated to prove he had told the truth about the Appellant, the only evidence on the
subjectMr. Walkers testimonytended to show Mr. Walker did tell the truth.
Accordingly, with absolutely no evidence that Mr. Walker falsely accused the Appellant
of causing his job loss, judgment was appropriate on this point as well.
F.

There Is No Evidence of Falsity as It Relates to the Accusation That the


Appellant is a Pedophile.
There is certainly no question that Mr. Walker has called the Appellant a

pedophile, and, as counsel Patrick Ostronic said, he did not do so rashly, but rather that
his opinion was well documented and well researched. (E.D. 242) For instance, at one
point the Appellant asked Mr. Walker what he based this accusation on and it is worth
quoting extensively:
Q [Appellant]

You must have some basis for [calling the Appellant a


pedophile]. Tell me what [sic] you tell the jury why
you know, why you think thats true? And where is the
truth, where is the evidence?

A [Walker]

Okay, well its a number of different things. First of all


I read Mark Singers book on Citizen K, the
authorized

[objections raised and overruled]


A

And in that book it discusses how you had a very


questionable relationship with a young girl. He
identifies her as Jessica Barton. Her real name I have
since learned is Debra Barton or Debbie. She was 10
years old when you came into her life according to
Singer. And it also, by the way, this is backed up by
Indianapolis Star newspaper articles Ive also read.
She was 10 years old when she came into your life.
She was 14 years old when you left it, I think I
understand when you were arrested for the series of
bombings you committed and you were convicted of.
We do not have direct evidence of any sexual contact
with this girl according to Mark Singer and again the

19

Indianapolis Star but there were suspicious


circumstances. You were taking long trips, just you and
her, this young girl. You were going around allegedly
calling her your girlfriend. You, and similar kinds of
very, you know, behavior that should alarm any parent.
Thats one piece of evidence.
Later on in the same book they talk about an incident
where you actually at the moment they were trying to
figure out where you were at the moment a woman
named Julia Scyphers had been murdered. And it was
suspected all along that you were the, that you may
have put a contract on her. Now Julia...
[objections raised and sustained]
THE WITNESS:

...So the question was where were you at that time and
the answer you eventually gave Mr. Singer, according
to Mr. Singer was that you were delivering tee shirts to
two young woman. One was the daughter of a friend of
yours and another was just identified as the friend of
this daughter and she was 15 years old and you had
said to Singer that you had kind of a romance with her.
I also have since learned that you also gave an
interview, again, this is according to the sources Ive
read in a magazine called the Loston City Paper.32 And
in that interview there was actually an album review of
an album you made called I believe something like,
something to the effect of Out Of Hell. But it was by a
band youre in called Poxy (phonetic sp.). You were
credited with writing the lyrics of these songs. One
was called Teen Dream and another one was called
Waiting to Meet. And both of these sings were about
adults having sex with teenagers. And you gave a
quote in an interview for this music review where I
wont repeat the explicative, but you talk about how
yes, its about having sex and where this is where you
used the explicative a teenager, okay. And then you go
on to say this is something all men want to do but they
wont actually act on it or something to that effect. And

32

This is a phonetic (mis)spelling of the Washington City Paper.

20

we have the actual articles with us.


(E.D. 96-99) Mr. Walker went on to try to recount the story Mrs. Kimberlin told him, but
the court believed the testimony was too much in the narrative. (E.D. 100), so Mr. Walker
wasnt allowed to tell that story at that time. Later, Mr. Walker explained that he entered
into an attorney-client relationship with Mrs. Kimberlin and that she made the following
accusations against the Appellant:
Q [Appellant]

What happened after you met with my wife?

A [Walker]

In what respect?

Did she file any document in court?

One, she filed criminal charges against you for sexual


offense in the third degree.33 I can go into more detail
about that if youd like. She also filed a motion to
continue. You had filed a protective order against her
claiming that she was on behalf of your children
claiming that she would harm them. She believed the
greater damage for harm is you Mr. Kimberlin because
she had told me, and Im basing this on and whats in
the document as well, that you had seduced her when
she was 14 years old in Ukraine. She told me that you
made numerous trips back and forth from the United
States to Ukraine, I dont know how many. She said
that when she was 15 you brought her over to the
United States and then proceeded to violate that statute
around 50 times. I mean basically its a statutory rape
statute as you folks might understand.
...And on top of that at the same time she said she had
another cousin there named Tetyana something.... her
first name was Tetyana as well.... And what Tetyana
Kimberlin witnessed was she walks in and you are
kissing this 12-year old cousin.

(E.D. 105-106) This testimony cannot be considered as evidence that the Appellant is a
pedophile since it is only hearsay on that question, but it can be considered as evidence of
the foundation of Mr. Walkers accusation. In other words, this information is why Mr.
Walker concluded that the Appellant was a pedophile.
The Appellant makes only three attempts to address the issue of falsity in his brief.
33

MD CODE Crim. L. 3-307(a)(4)-(5).

21

(KBr. 32-33) First, he writes that he attempted to introduce emails that Appellants wife
had sent to Appellees Walker and Hoge where she stated that the allegations were false.
However, the court sustained objections to those emails. The Appellant challenges this
ruling on page 33, but offers no reason to overturn that ruling except that he really, really
wanted to introduce that evidence. As demonstrated by the transcript, this email was
excluded was based on the rule against hearsay (E.D. 119-120; Md. Rule 5-802) and
because it was covered by attorney-client privilege (E.D. 122; MD CODE Cts. & Jud.
Proc. 9-108). If the Appellant wanted Mrs. Kimberlin to repudiate her prior statements
accusing him of pedophilia, he should have called her to testify herselfassuming she
would have testified in his favor.
Second, he wrote that Appellant showed through the testimony of various
Appellees that the false allegations of sex abuse were nolle prossed, investigated and
found malicious by the Department of Child Services. (KBr. 29) Even if every word in
that sentence were true, it is merely hearsay on whether the Appellant is a pedophile and,
thus, no evidence at all on that question. Indeed, the mere fact that a charge is dismissed
on a plea of nolle prosequi is only proof the state has chosen not to prosecute, nothing
more. As Appellee McCain colorfully explained on the stand: Noll[e] pross does not
mean you were falsely accused. Ive had traffic tickets that were noll[e] pross. That didnt
mean I wasnt going 85 miles an hour. (E.D. 217)
Further, once again is it necessary to point out that the Appellant is misstating the
truth. There was no evidence presented as to any investigation by the Department of
Child Services, let alone their outcome. The only testimony on that subject is Mr.
Walkers statement that he had no idea if any such investigation occurred. (E.D. 111)
The last piece of asserted evidence of falsity is when the Appellant writes on page
32 that:
Appellants daughter did testify that the allegations of pedophilia were false
despite the trial courts repeatedly ruling that she could not testify that
Appellant never showed any untoward inclinations toward her, her friends
or her sister. She also testified that Appellant was a good father who never
raised a hand to her or her mother.

22

Once again, it is necessary to correct his asserted facts because they conflict with the
Record Extract. While K.K. was not allowed to testify as to her fathers state of mind in
relation to her younger sister (E.D. 239), or her friends (E.D. 238-39), she was allowed to
testify she was unaware of any evidence that he was a pedophile, and that the Appellant
has never touched me in anyway. (E.D. 238) On the other hand, she did not and,
indeed, could not testify that he wasnt a pedophile.
Judge Johnson believed that this was no evidence at all on the question of whether
the Appellant was a pedophile. When Mr. Kimberlin was trying to make a proffer as to
why his K.K.s testimony was needed, they had this exchange:
MR. KIMBERLIN:

Well if anybody would know that Im not a


pedophile its my 15-year old daughter.

THE COURT:

Let me just tell you something, youre going to


tell me that kids know everything about their
parents, please.

The bare text of the transcript doesnt capture it, but Johnsons response is better phrased
like this (to capture how he presented a rhetorical question, followed by his own sarcastic
response): youre going to tell me that kids know everything about their parents?
Please. Common sense and human nature supports Judge Johnsons inference. Children
cannot be expected to see their parents with clear eyes.
Indeed, what do these two statements by K.K. actually show? Her statement that
her father never touched her can be taken as evidence that he is not an incestuous
pedophile,34 but does it follow that every pedophile is unable to resist incest as well?
Otherwise, there is no evidence that it is false to call the Appellant a pedophile. She could
only plead that she saw no evidence of it. The reason why it is a clich to say absence of
evidence is not evidence of absence35 is because it is true.
MD CODE Crim. L. 3-323(a) prohibits sex with any person you cannot marry under
MD. CODE Fam. L. 2-202. Meanwhile 2-202 is broad enough to prohibit pairings
between ones child by blood (2-202(b)(1)(iii)) or the child of ones wife (2-202(c)(1)
(vi)) even if you are not related by blood.
35
E.g., Carl Sagan, THE DEMON-HAUNTED WORLD: SCIENCE AS A CANDLE IN THE DARK
213 (1996).
34

23

Further, while the allegations Mr. Walker outlined in his testimony supra 19-21,
cannot be considered in order to prove the truth of whether the Appellant is a pedophile,
it shows the kinds of things we cannot expect this fifteen year-old girl to know. She is not
going have first-hand information about the courtship of her mother, and she is not going
to know about an alleged underage girlfriend in the 1970s.
As previously stated,36 the motion for summary judgment standard is virtually the
same as the motion for default judgment. Knisley, 11 Md. App. at 272. Writing on the
legal standard for summary judgment, the Court of Appeals stated that
the mere existence of a scintilla of evidence in support of the plaintiffs
claim is insufficient to preclude the grant of summary judgment; there must
be evidence upon which the jury could reasonably find for the plaintiff....
We recognized in Clea v. City of Baltimore, 312 Md. 662, 678, 541 A. 2d
1303 (1988), that while a court must resolve all inferences in favor of the
party opposing summary judgment, [t]hose inferences... must be
reasonable ones.
Beatty, 330 Md. at 738-9 (1992). In the instant case the Appellant believes one can
reasonably infer from K.K.s testimony that the Appellant must not be a pedophile and he
must never have slept with any underage girl in his entire life. Judge Johnson did not
believe that was a reasonable inference, and Mr. Walker believes he was exactly right. To
be blunt, if the Appellant really wanted to create a sufficient quantum of evidence to put
the question to the jury, he should have testified.
It is also worth noting that the Appellant implicitly admits that he did not have
sufficient evidence to present a question to a jury. Specifically, he writes that
Specifically, [the court] refused to allow Appellants daughter to refute the
allegations of pedophilia by testifying that Appellant never exhibited any
untoward interest in her, her friends or her sister. 239 This testimony would
have created a factual issue for the jury to decide.
It is elementary that no lay witness can testify to the state of mind of another person, thus
the evidence was properly excluded under Md. Rule 5-602. However, if such (improper)
testimony would have created a factual issue for the jury to decide, then, by expressio
unius, without it there must not have been a sufficient factual issue to send the question to
36

Supra note Error: Reference source not found and accompanying text.

24

the jury. Thus, he has admitted that if the court was correct in its evidentiary ruling
excluding that testimony, it was also correct in granting a motion for judgment.
Accordingly, this Court should findas Judge Johnson didthat there was
insufficient evidence to justify submitting the question to the jury and affirm the
judgment on this point.
G.

There is no Evidence of Falsity as it Relates to the Accusation that the


Appellant (Statutorily) Raped His Wife.
In the end, this claim is a retread of the claim that Mr. Walker made a false

statement by calling him a pedophile. It is the same accusationhe just says it two
different ways to make it sound like Mr. Walker made more accusations than he did. The
only reference to any rape by the Appellant in the entire transcript is when Mr. Walker
characterized the charges Mrs. Kimberlin filed (under MD CODE Crim. L. 3-307(a)(4)(5)) as statutory rape.
The term statutory rape is generally understood as referring to sex that is
criminal solely because it is with a person who is under the age of consent. For instance,
Websters Dictionary uses this somewhat sexist definition for statutory rape: the crime
of having sexual intercourse with a girl below the age of consent. WEBSTERS NEW
WORLD COLLEGE DICTIONARY 1310 (Victoria Neufeldt, 3rd ed. 1996). Meanwhile,
Blacks Law Dictionary includes this under the definition of rape: Modern statutes,
which often materially change the common-law definition, create an offense commonly
known as statutory rape, where the offense consists in having sexual intercourse with a
female or male under statutory age. BLACKS LAW DICTIONARY 1260 (6th ed. 1990).
Thus an accusation that a person committed statutory rape is understood as an
accusation that he or she had sex with a criminally underage person. Therefore, Mr.
Walker should prevail on this point for the same reason he should prevail in relation to
the allegation that the Appellant was a pedophile, and the judgment should be affirmed.
In short, the appellant has shown that Mr. Walker stated that the Appellant got Mr.
Walker fired from his job, attempted to frame him for a crime, and that he is a pedophile
who slept with his future wife when she was fourteen years old. But in the law of

25

defamation and false light, it is not enough to say a person said someone engaged in
reprehensible conduct. A plaintiff must also show it is untrue. The Appellant failed his
burden, and, therefore, the judgment should be affirmed.
IV.
THE APPELLANT IS PROCEDURALLY BARRED FROM RAISING CAUSES
OF ACTION ON APPEAL BASED ON INVASION OF PRIVACY THAT HE DID
NOT RAISE IN THE TRIAL
Another truly absurd element of the Appellants brief is on pages 29-30 where he
suggests the court erred by not considering causes of action not named in his complaint
or raised by the Appellant at trial, specifically 1) invasion of privacy by intrusion into
seclusion, 2) invasion of privacy by publication of private facts, and 3) invasion of
privacy by appropriation of his name or likeness. Once again, Md. Rule 8-131 states that
[o]rdinarily, the appellate court will not decide any other issue unless it plainly appears
by the record to have been raised in or decided by the trial court[.] Having failed to
properly raise these issues before or during the trial and having failed to explain why this
case fits in any exception, the Appellant is procedurally barred from raising these issues.
And, contrary to the Appellants claims, he did not make out a cause of action for
any of these claims. Although his failures are legion, this brief will focus on one or two
failings per cause of action.
With respect to appropriation of likeness, the most absurd part is that it requires a
showing that the Appellees were benefitting from his good reputation. See Lawrence v.
A.S. Abell Co., 299 Md. 697, 702 (1982) (stating that a plaintiff must show the defendant
was taking advantage of his reputation, prestige, or other value associated with him, for
purposes of publicity) (emphasis added). The entire thrust of Appellants case is that the
Appellees allegedly ruined his reputation. Moreover, the Appellant would have to show
his name had valuea dubious prospect given his long criminal history. Id. at 706 (a
persons name or likeness must have commercial or other value before an appropriation is
actionable). There was not a scintilla of evidence that the Appellants name or likeness
has any value. Therefore, the Appellant presented no evidence of appropriation of name
or likeness.

26

Even more absurd is his assertion that the Appellees gave publicity to private facts.
Hollander v. Lubow, 277 Md. 47, 55, 351 A. 2d 421 (1976) lays out the elements of this
cause of action, but at its most basic he must first prove that the matters given publicity is
1) private and 2) a fact. That is, he must prove that the Appellees told the truth. As stated
in Doe v. U.S., 83 F. Supp. 2d 833, 841 (S.D. Tex. 2000), discussing the cause of action:
[t]o say that something is a fact is necessarily to say that it is true. Is the Appellant
now confessing he is a pedophile after all, that he did commit statutory rape on his future
wife, tried to frame Mr. Walker for a crime, and cost Mr. Walker his job, but it is a private
matter? Well, even if this were his confession that they are facts, they wouldnt be private
facts.
Finally, the Appellant also failed to offer any evidence of intrusion into seclusion.
Hollander provides the elements of this claim, 351 A. 2d at 55, but most basically a
plaintiff needs to show some kind of wrongful method of intrusion. Unlike defamation,
the intrusion on seclusion tort deals with the manner in which Defendant obtained the
information rather than the truth or falsehood of the information itself. Trundle v.
Homeside Lending, Inc., 162 F. Supp. 2d 396, 401 (D. Md., 2001). The Appellant never
proves that any of the Appellees did anything outside of using the ordinary tools of
journalismasking people questions, examining public records or reciting eyewitness
accountsand, therefore, the Appellant has failed to allege intrusion in a manner which
would be highly offensive to a reasonable person. Id. See also Beaumont v. Brown, 65
Mich. App. 455, 463, 237 N.W. 2d 501 (1975) (holding that merely writing a letter was
not an unlawful method of intrusion); Wilson v. Sysco Food Services of Dallas, Inc., 940
F. Supp. 1003, 1014 (N.D. Tex. 1996) (holding that inquiries into Plaintiffs private
affairs, particularly her sexual activities was not an unlawful method of intrusion).
Rather, [a]n essential element of this tort is a physical intrusion analogous to a trespass.
Pierson v. News Group Publications, Inc., 549 F. Supp. 635, 640 (S.D. Ga. 1982). Like in
Beaumont, the Appellant in reality objects to the allegedly false and scurrilous
comments, an objection not going to the method used to secure information. 237 N.W.
2d at 463. Thus, the Appellant has failed to allege that there is any unlawful intrusion.

27

Therefore, even if it was somehow error on Judge Johnsons part not to have
considered, sua sponte, causes of action the Appellant hadnt even raised, each of these
claims would have been included in the judgment, because the Appellant had presented
absolutely no evidence of critical elements of each claim. Therefore, the lower court
should be affirmed in regards to these invasion of privacy torts.
V.
THE APPELLANT SERIALLY FAILS TO ARTICULATE ANY REASON WHY IT
WAS ERROR TO EXCLUDE ANY OF HIS ALLEGED EVIDENCE
The Appellant articulates as this fourth major point that the trial court prejudiced
Appellant by depriving him of the right to put on evidence to prosecute his case. (KBr.
32). Judge Johnson didnt say he couldnt put evidence on at all, just that he had to
comply with the rules of evidence. This is the real crux of the Appellants complaint in
this section. The Appellant seems to believe that if the evidence is arguably relevant, it is
automatically admissible, hearsay rules, privileges, authentication be darned. Thus he
uses this section to state that he believes Judge Johnsons evidentiary rulings were wrong,
without any argument for why they were wrong.
Mr. Walker has already addressed the Appellants claim that K.K. should have
been allowed to testify to the Appellants state of mind, supra 24. As for the claim that
K.K. would have testified as to the harm to his reputation, Judge Johnson made it clear
that it could not come in unless he could connect it to anything the Appellees wrote. (E.D.
44, 48)
The Appellant vaguely claims that the court refused to allow Appellant to present
complete evidence about the courthouse assault by Appellee Walker. (KBr. 33) This
appears to be a reference to the courts refusal to admit alleged medical records on the
grounds that they were not authenticated. (Md. Rule 5-901, E.D. 70) The Appellant also
claims that [t]he judge would not allow Appellant to present evidence about the
employment termination of Appellee Walker, which would have shown that Appellees
defamed him by accusing him of causing that termination. (KBr. 33). This appears to be
an objection to a series of rulings that the Appellant could not introduce hearsay evidence

28

under Md. Rule 5-802 (E.D. 76-77), and he makes no attempt to explain why this hearsay
should be admitted. Hearsay was also the difficulty, as well as attorney client privilege
(MD CODE Cts. & Jud. Proc. 9-108), when [t]he judge would not allow Appellant to
present any evidence of emails sent to Appellees Walker and Hoge from Appellants
wife (E.D. 113-122, KBr. 33). The Appellant simply notes he was not allowed to present
that evidence, without making any argument as to why it should be admitted.
Each of these items of alleged evidence was excluded under basic evidentiary
rules. With the Appellant offering absolutely no argument why these decisions were
wrong, the judgment below should be affirmed.
VI.
MD CODE CTS. & JUD. PROC. 9-104 WOULD BE CONSTITUTIONAL AS
APPLIED TO THE APPELLANT
As noted above, supra 5-8, the Appellant is barred from raising this issue on
appeal because he won on this issue. However, in case this Court decides to consider his
challenge, Mr. Walker would like to address this issue.37
The Appellant has argued, in essence, that it would be unfair and thus a violation
of due process38 to apply 9-104 to him as a plaintiff in a civil suit. But Maryland courts
have been utterly unsympathetic even to criminal defendants burdened by this statute.
This is true even when the criminal defendant is seeking the testimony of third parties
The Appellant also speciously claims that 9-104 conflicts with other laws and rules.
He states, for instance, that the person filing a petition for a peace order, protective order,
or an application for a criminal charge must testify in court or else the Peace/Protective
Order and criminal charge will be denied. This is false. There is no law saying that the
person filing those petitions or applications must testify, and criminal cases can be built
without the victims cooperation. He also quotes Md. Rule 5-601 as saying [e]xcept as
otherwise provided by law, every person is competent to be a witness and thinks this is
somehow in conflict with 9-104, failing to recognize that 9-104 is an example of a law
declaring a person incompetent as a witness. Hourie v. State, 53 Md. App. 62, 84 n. 22
(1982) ([a] convicted perjurer is incompetent as a witness in Maryland). He also thinks
this contradicts Md. Rule 5-609(b) which limits the impeachment of witnesses based on
criminal history, forgetting the difference between impeaching a witness and excluding
one entirely.
38
U.S. CONST. amend 5 cl. 4 and MD. DECL. OF RTS. art. 24.
37

29

who had been convicted of perjury. In other words, even when a person is on trial with
her freedom in the balance, and it is not the defendants fault that the testimony was
subject to exclusion, the statute has still been applied.
For instance, in State v. Latham, 182 Md. App. 597 (2008), a criminal defendant
sought to overturn his conviction based on ineffective assistance of counsel and sought
that attorneys testimony to support his claim. However, even though Mr. Lathams
freedom was on the line, and even though he had not himself been convicted of perjury,
his attorneys testimony was excluded under this statute.
The most extreme application of this principle, however, comes only three years
ago in Colkley v. State, 204 Md. App. 593 (2012). In that case, two men were charged
with attempted murder. In the first trial, William Courts testified and the defendants
believed his testimony was helpful to them in terms of raising a reasonable doubt as to
their guilt in the alleged attempted murder. In Fields v. State, 172 Md. App. 496 (2007)
this Court reversed that conviction and remanded for a new trial. Between the first trial
and the second trial, Mr. Courts was convicted of perjury and therefore the defendants
could not call him as a witness at the second trial. In Colkley, the defendants argued that
the statute excluding of Mr. Courts testimony shouldnt apply because the state allegedly
engaged in selective prosecution of Mr. Courts for the specific purpose of excluding his
testimony in the second trial. If there was ever a time to limit the application of 9-104
because of an as applied challenge to its constitutionality, it was there. Instead, this Court
refused to do so.
The reason why this statute applies even in these extreme circumstances isnt to
punish the perjurer, but to protect the courts and parties from the testimony of a person
whose dishonest conduct was severe enough to motivate prosecutors to go to the trouble
to convict him or her of perjury. As written in Hourie v. State:
A convicted perjurer is incompetent as a witness in Maryland. Md. Cts. &
Jud. Proc. Code Ann. 9-104 (1980). The disqualification as a witness is
generally deemed to serve the collateral purpose of barring evidence
thought not to be entitled to credence. It is not looked upon as an additional
penalty imposed upon the perjurer himself R. Perkins, CRIMINAL LAW 454

30

2d ed. 1969).
53 Md. App. at 84 n. 22. This is also why 9-104 meets the equal protection requirements
of the Maryland and Federal Constitutions 39because there is a rational basis for this
distinction.40
Unlike the criminal defendants in Colkley and Latham, the Appellant was not a
defendant on trial for his freedom in the case below. He did not seek this testimony as a
shield to defend himself against incarceration. Instead, he wished to use his unreliable
word as a sword against the Appellees. Nor can he claim that he is suffering the
consequences of a third partys misconduct as the criminal defendants in Colkley and
Latham did. If the Appellant wanted to preserve his right to testify in Maryland, he
shouldnt have perjured himself.41 Thus, even if this Court might wonder if the statute
might be unconstitutional as applied in a case similar to Colkley and Latham, it would not
be unconstitutional as applied here.
The Appellant places great reliance on Rock v. Arkansas, 483 U.S. 44 (1987),
which held that per se exclusion of testimony induced by hypnosis was unconstitutional
when applied to a defendant in a criminal case, as a violation of ones right to testify in
U.S. CONST. amend 14 1 cl. 4 and MD. DECL. OF RTS. art. 24. See also Murphy v.
Edmonds, 325 Md. 342, 353 (1990) (holding that Article 24 has an equal protection
component coextensive with U.S. Constitutions).
40
Plainly, discrimination against convicted perjurers would be subjected to the rational
basis test. Murphy v. Edmonds, 325 Md. 342, 355-57 (1990) (describing the three tiers of
scrutiny under the equal protection requirements of the federal and Maryland
constitutions). As stated in State v. Good Samaritan Hosp., 299 Md. 310, 328 (1984), [a]
statutory classification tested by the rational basis standard enjoys a strong presumption
of constitutionality and a reasonable doubt as to its constitutionality is sufficient to
sustain it. Indeed, [t]he constitutional safeguard is offended only if the classification
rests on grounds wholly irrelevant to the achievement of the States objective, Gowan v.
Maryland, 366 U.S. 420, 425 (1961). It almost goes without saying that excluding the
testimony of perjurers is rationally related to the objective of ensuring accurate
determinations of fact in the trial process.
41
See, e.g., State v. Bryan, 145 Wash. App. 353, 362 (2008) (rejecting an equal protection
claim based on differing treatment according to a persons criminal record because [t]he
only reason Bryan is subject to this result is because of his own criminal acts).
39

31

ones own defense. However, even in Rock, the Supreme Court stated that this right is
not without limitation. The right may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process. Id. at 55 (internal quotation marks
omitted). For instance, Rock relied on Washington v. Texas, 388 U.S. 14 (1967) where, in
concurrence, Justice Harlan endorsed the rule excluding perjurers from testifying.
Specifically Harlan said the rule at issue in that caseforbidding certain co-defendants
from testifyingdid not present
a situation in which the State has determined, as a matter of valid state
evidentiary law, on the basis of general experience with a particular class of
persons, as for example, the mentally incompetent or those previously
convicted of perjury, that the pursuit of truth is best served by an acrossthe-board disqualification as witnesses of persons of that class.
Id. at 24-25. Rock also relied on Chambers v. Mississippi, 410 U.S. 284, 298 (1973)
which explained that hearsay is ordinarily excluded because they are statements that
lack the conventional indicia of reliability such as that it is not made under oath... that
impress the speaker with the solemnity of his statement. Here, the Appellant is
proposing to take an oath to tell the truth, but he has a verified history of disregarding that
oath. Indeed, given his serial dishonesty in his brief, it can be said that the Appellant is
the poster boy for why 9-104 exists. He cannot be expected to tell the truth even when
his falsehoods are certain to be exposed.
Further, Rock has not been applied in Maryland outside of the specific
circumstances of that case. By way of background, in State v. Collins, 296 Md. 670
(1983), the Court of Appeals held that hypnotically induced testimony was excluded
across the board. Obviously, Rock modified that decision four years later. In Burral v.
State, 352 Md. 707 (1999), the Court of Appeals was asked to extend Rocks holding
beyond the right of a defendant to testify, to witnesses for a defendant in a criminal case.
The Court of Appeals refused, holding that this right to testify only applied to a criminal
defendant and no one else.
There might very well come a day when this Court decides that a criminal
defendant has a right to testify on her own behalf that 9-104 abridges, but even if we

32

assume arguendo that 9-104 is unconstitutional as applied to a criminal defendant, it


doesnt follow that it is unconstitutional in this case. The Appellant seems to be
attempting to apply an overbreadth argument to 9-104, when the correct approach is an
as applied challenge. See, e.g. Schall v. Martin, 467 U.S. 253, 269 n. 18 (1984).
The Appellant also claims that Article 19 of the Maryland Declaration of Rights is
violated by this provision. As stated in Piselli v. 75th Street Medical:
An examination of our opinions concerning Article 19 discloses that the
constitutional provision generally protects two interrelated rights: (1) a right
to a remedy for an injury to ones person or property; (2) a right of access to
the courts.
371 Md. 188, 808 A.2d 508, 518 (2002). The Appellant seems to be confusing the right to
a legal remedy and a right to access the courts with a right to win, which doesnt exist
under any law. He seems to think that because certain evidence is inadmissiblenamely
his testimonyand because such exclusion might prove critical in future cases, that,
therefore, he is being denied a remedy or access to the courts. However, evidence is
excluded all the time without a violation of Article 19. For instance, a woman might seek
compensation against someone who raped her while unconscious only to find even
bystanders invoking their privilege against self-incrimination under MD CODE Cts. &
Jud. Proc. 9-107, making it impossible to prove her case. Or her rapist might have
confessed to a priest who invokes the priest-penitent privilege under MD CODE Cts. &
Jud. Proc. 9-111. None of these exclusions are a bar to the right to recovery, and the
exclusion of the testimony of perjurers is no different. The Appellant has a right to a
remedy for any defamation or false light, but only if he can prove he is entitled to it with
admissible evidence.
The Appellant also spends a great deal of time discussing an attempt several years
ago to repeal this statue in the Maryland Assembly. He thinks this demonstrates that 9104 should go. Instead, it demonstrates that the legislature has heard the arguments of
activists, discussing far more sympathetic factual scenarios, and has not been convinced.
This Court should respect the wisdom of the people of Maryland on this point, and hold
that 9-104 is valid under the Maryland and Federal Constitutions, at least as applied to a

33

plaintiff in a civil suit.


CONCLUSION
In the end, this is an appeal that should not have been brought. First, the Appellant
is procedurally barred from challenging the constitutionality of MD CODE Cts. & Jud.
Proc. 9-104, because he won the right to testify and his real objectionthat he was
unfairly surprised with victorywas not preserved. Second, he is procedurally barred
from challenging the summary judgment in favor of the Appellees because he has not
submitted a proper Summary Judgment Record. Third, the judgment on the defamation
and false light claims should be affirmed because he serially failed to show that Mr.
Walker made a false statement about him, either because he failed to show Mr. Walker
made the alleged statement, or he failed to offer sufficient evidence it was false. Fourth,
the Appellant is procedurally barred from raising new causes of action on appeal. Fifth,
the Appellant serially fails to present any reason to overturn various evidentiary rulings
based on an ordinary application of the rules requiring authentication, barring hearsay
and barring testimony in violation of the attorney-client privilege. Finally, should this
Court consider it, 9-104 would survive an as applied challenge in this case. While Mr.
Walker has focused on his part of the case, he notes that the majority of these arguments
apply with equal or greater force for all of the Appellees. Accordingly, this Court should
affirm the court below on all issues and for all Appellees.
WHEREFORE, Appellee Walker respectfully requests that this Court affirm the decision
of the Montgomery County Circuit Court.

34

Tuesday, August 18, 2015

Respectfully submitted,

Aaron J. Walker, Esq. (Va Bar# 48882)


P.O. Box 3075
Manassas, Virginia 20108
Phone: (703) [redacted] (no fax)
AaronJW72@gmail.com
STATEMENT ON FONT
This document was typed in Times New Roman, 13-point font.

CERTIFICATE OF SERVICE
I certify that on Tuesday, August 18, 2015, I served copies of the Motion for Leave,
Motion to Dismiss and Appellees Brief on Brett Kimberlin at [redacted], Bethesda,
Maryland 20817, via U. S. Mail, on the following co-Appellees via email: William Hoge,
Robert Stacy McCain and Ali Akbar with their consent.

35

TEXT OF CITED CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

Maryland Declaration of Rights Article 19


That every man, for any injury done to him in his person or property, ought to have
remedy by the course of the Law of the Land, and ought to have justice and right, freely
without sale, fully without any denial, and speedily without delay, according to the Law
of the Land.
Maryland Declaration of Rights Article 24
That no man ought to be taken or imprisoned or disseized of his freehold, liberties or
privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life,
liberty or property, but by the judgment of his peers, or by the Law of the land.
U.S. Constitution Amendment 5
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases arising in the land or naval
forces, or in the Militia, when in actual service in time of War or public danger; nor shall
any person be subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law; nor shall private property be taken
for public use, without just compensation.
U.S. Constitution Amendment 14
Section 1:

All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State
wherein they reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due
process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

Section 2:

Representatives shall be apportioned among the several States according to


their respective numbers, counting the whole number of persons in each
State, excluding Indians not taxed. But when the right to vote at any

36

election for the choice of electors for President and Vice President of the
United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to
any of the male inhabitants of such State, being twenty-one years of age,15
and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such male citizens
shall bear to the whole number of male citizens twenty-one years of age in
such State. affects 2
Section 3:

No person shall be a Senator or Representative in Congress, or elector of


President and Vice President, or hold any office, civil or military, under the
United States, or under any State, who, having previously taken an oath, as
a member of Congress, or as an officer of the United States, or as a member
of any State legislature, or as an executive or judicial officer of any State, to
support the Constitution of the United States, shall have engaged in
insurrection or rebellion against the same, or given aid or comfort to the
enemies thereof. But Congress may by a vote of two-thirds of each House,
remove such disability.

Section 4:

The validity of the public debt of the United States, authorized by law,
including debts incurred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.

Section 5:

The Congress shall have power to enforce, by appropriate legislation, the


provisions of this article.

MD CODE Cts. & Jud. Proc. 9-104. Convicted perjurer


A person convicted of perjury may not testify.
MD CODE Cts. & Jud. Proc. 9-107. Defendant in criminal trial
A person may not be compelled to testify in violation of his privilege against selfincrimination. The failure of a defendant to testify in a criminal proceeding on this basis
does not create any presumption against him.

37

MD CODE Cts. & Jud. Proc. 9-108. Attorney-client privilege


A person may not be compelled to testify in violation of the attorney-client privilege.
MD CODE Cts. & Jud. Proc. 9-111. Privileged communications -- Minister,
clergyman, or priest
A minister of the gospel, clergyman, or priest of an established church of any
denomination may not be compelled to testify on any matter in relation to any confession
or communication made to him in confidence by a person seeking his spiritual advice or
consolation.
MD CODE Crim. L. 3-307. Sexual offense in the third degree
(a) Prohibited. -- A person may not:
(1)

(2)

(i)

engage in sexual contact with another without the consent of the


other; and

(ii)

1.

employ or display a dangerous weapon, or a physical object


that the victim reasonably believes is a dangerous weapon;

2.

suffocate, strangle, disfigure, or inflict serious physical injury


on the victim or another in the course of committing the
crime;

3.

threaten, or place the victim in fear, that the victim, or an


individual known to the victim, imminently will be subject to
death, suffocation, strangulation, disfigurement, serious
physical injury, or kidnapping; or

4.

commit the crime while aided and abetted by another;

engage in sexual contact with another if the victim is a mentally defective


individual, a mentally incapacitated individual, or a physically helpless
individual, and the person performing the act knows or reasonably should
know the victim is a mentally defective individual, a mentally incapacitated
individual, or a physically helpless individual;

38

(b)

(3)

engage in sexual contact with another if the victim is under the age of 14
years, and the person performing the sexual contact is at least 4 years older
than the victim;

(4)

engage in a sexual act with another if the victim is 14 or 15 years old, and
the person performing the sexual act is at least 21 years old; or

(5)

engage in vaginal intercourse with another if the victim is 14 or 15 years


old, and the person performing the act is at least 21 years old.

Penalty. -- A person who violates this section is guilty of the felony of sexual
offense in the third degree and on conviction is subject to imprisonment not
exceeding 10 years.

MD CODE Crim. L. 3-323. Incest


(a)

Prohibited. -- A person may not knowingly engage in vaginal intercourse with


anyone whom the person may not marry under 2-202 of the Family Law Article.

(b)

Penalty. -- A person who violates this section is guilty of a felony and on


conviction is subject to imprisonment for not less than 1 year and not exceeding 10
years.

MD CODE Crim. L. 3-803. Harassment


(a)

Prohibited. -- A person may not follow another in or about a public place or


maliciously engage in a course of conduct that alarms or seriously annoys the
other:
(1)

with the intent to harass, alarm, or annoy the other;

(2)

after receiving a reasonable warning or request to stop by or on behalf of


the other; and

(3)

without a legal purpose.

(b)

Exception. -- This section does not apply to a peaceable activity intended to


express a political view or provide information to others.

(c)

Penalty. -- A person who violates this section is guilty of a misdemeanor and on


conviction is subject to:

39

(1)

for a first offense, imprisonment not exceeding 90 days or a fine not


exceeding $ 500 or both; and

(2)

for a second or subsequent offense, imprisonment not exceeding 180 days


or a fine not exceeding $ 1,000 or both.

MD CODE Fam. L. 2-202. Marriages within certain degrees of relationship void;


penalties
(a)

In general. -- Any marriage performed in this State that is prohibited by this


section is void.

(b)

Marriages within 3 degrees of direct lineal consanguinity or within first degree of


collateral consanguinity prohibited; penalties. -(1) An individual may not marry the individuals:

(2)
(c)

(i)

grandparent;

(ii)

parent;

(iii)

child;

(iv)

sibling; or

(v)

grandchild.

An individual who violates any provision of this subsection is guilty of a


misdemeanor and on conviction is subject to a fine of $ 1,500.

Certain marriages within other degrees of affinity or consanguinity prohibited;


penalties. -(1) An individual may not marry the individuals:
(i)

grandparents spouse;

(ii)

spouses grandparent;

(iii)

parents sibling;

40

(iv)

stepparent;

(v)

spouses parent;

(vi)

spouses child;

(vii)

childs spouse;

(viii) grandchilds spouse;

(2)

(ix)

spouses grandchild; or

(x)

siblings child.

An individual who violates any provision of this subsection is guilty of a


misdemeanor and on conviction is subject to a fine of $ 500.

Md. Rule 1-101. Applicability


(a)

Title 1. Title 1 applies to all matters in all courts of this State, except the Orphans
Courts and except as otherwise specifically provided.

(b)

Title 2. Title 2 applies to civil matters in the circuit courts, except for Juvenile
Causes under Title 11 of these Rules and except as otherwise specifically provided
or necessarily implied.

(c)

Title 3. Title 3 applies to civil matters in the District Court, except as otherwise
specifically provided or necessarily implied.

(d)

Title 4. Title 4 applies to criminal matters; post conviction procedures; and


expungement of records in the District Court and the circuit courts, including
records of civil offenses or infractions, except juvenile offenses, under a State or
local law enacted as a substitute for a criminal charge.

(e)

Title 5. Title 5 applies to all actions in the courts of this State, except as otherwise
provided by statute or rule.

(f)

Title 6. Title 6 applies to matters in the Orphans Courts and before the registers of
wills relating to the settlement of decedents estates.

(g)

Title 7. Title 7 applies to appellate and other judicial review in the circuit courts.

41

(h)

Title 8. Title 8 applies to appellate review in the Court of Appeals and the Court of
Special Appeals.

(i)

Title 9. Title 9 applies to proceedings under Code, Family Law Article, Title 5,
Subtitles 3 (Guardianship to and Adoption through Local Department), 3A (Private
Agency Guardianship and Adoption), and 3B (Independent Adoption); and
proceedings relating to divorce, annulment, alimony, child support, and child
custody and visitation; and proceedings under Code, Family Law Article, Title 4,
Subtitle 5 (Domestic Violence).

(j)

Title 10. Title 10 applies to fiduciary matters in the courts of this State, except for
matters relating to the settlement of decedents estates governed by Title 6 of these
Rules and guardianships governed by Title 9 of these Rules.

(k)

Title 11. Title 11 applies to juvenile causes and expungement of juvenile records
under Code, Courts Article, Title 3, Subtitles 8 and 8A.

(l)

Title 12. Title 12 applies to property actions relating to writs of survey, lis
pendens, actions for release of lien instruments, condemnation, mechanics liens,
partition, redemption of ground rents, replevin, and detinue.

(m)

Title 13. Title 13 applies to proceedings relating to estates of assignees and


receivers.

(n)

Title 14. Title 14 applies to proceedings relating to sales of property.

(o)

Title 15. Title 15 applies to special proceedings relating to arbitration, catastrophic


health emergencies, contempt, habeas corpus, health claims arbitration,
injunctions, judicial releases of individuals confined for mental disorders,
mandamus, the Maryland Automobile Insurance Fund, name changes, and
wrongful death.

(p)

Title 16. Title 16 applies to the courts, judges, and attorneys.

(q)

Title 17. Title 17 applies to alternative dispute resolution proceedings in civil


actions in the District Court, a circuit court, and the Court of Special Appeals,
except for actions or orders to enforce a contractual agreement to submit a dispute
to alternative dispute resolution. Title 17 also applies to collaborative law
processes under the Maryland Uniform Collaborative Law Act.

(r)

Title 18. [Reserved]

(s)

Title 19. [Reserved]

42

(t)

Title 20. Title 20 applies to electronic filing and case management in the trial and
appellate courts of this State as specified in Rule 20-102.

Md. Rule 1-341. Bad faith -- Unjustified proceeding


(a)

Remedial Authority of Court. In any civil action, if the court finds that the conduct
of any party in maintaining or defending any proceeding was in bad faith or
without substantial justification, the court, on motion by an adverse party, may
require the offending party or the attorney advising the conduct or both of them to
pay to the adverse party the costs of the proceeding and the reasonable expenses,
including reasonable attorneys fees, incurred by the adverse party in opposing it.
A memorandum in support of a motion filed for an award of costs and expenses
shall comply with Rule 2-433 (e). In deciding a motion under this Rule, the court
may consider the Guidelines Regarding Compensable and Non-compensable
Attorneys Fees and Related Expenses contained in the Appendix to these Rules.

(b)

Statement Regarding Costs and Expenses, Including Attorneys Fees.


(1)

Generally. A motion requesting an award of costs and expenses, including


attorneys fees, shall include or be separately supported by a verified
statement that sets forth the information required in subsections (b)(2) or
(b)(3) of this Rule, as applicable.

(2)

Costs and Expenses Other than Attorneys Fees. The statement in support of
a request for costs and expenses other than attorneys fees shall itemize the
type and amount of the costs and expenses requested and shall include any
available documentation of those costs and expenses.

(3)

Attorneys Fees.
(A)

Except as otherwise provided in subsection (b)(3)(B) of this Rule or


by order of court, the statement in support of a request for attorneys
fees shall set forth:
(i)

a detailed description of the work performed, broken down by


hours or fractions thereof expended on each task;

(ii)

the amount or rate charged or agreed to in writing by the


requesting party and the attorney;

(iii)

the attorneys customary fee for similar legal services;

43

(B)

(iv)

the customary fee prevailing in the attorneys legal


community for similar legal services;

(v)

the fee customarily charged for similar legal services in the


county where the action is pending; and

(vi)

any additional relevant factors that the requesting party


wishes to bring to the courts attention.

Unless otherwise ordered by the court, a statement in support of a


request for attorneys fees not exceeding $ 500 need not contain the
information set forth in subsection (b)(3)(A)(iv) and (v) of this Rule.

(c)

Response. Within 15 days after the filing of the statement, the offending party may
file a response.

(d)

Guidelines. In determining an award of attorneys fees and related expenses in


excess of $ 500 under this Rule, the court may consider the Guidelines Regarding
Compensable and Non-Compensable Attorneys Fees and Related Expenses
contained in an Appendix to these Rules.

Md. Rule 2-519. Motion for judgment


(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 partys 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.

(c)

Effect of denial. A party who moves for judgment at the close of the evidence
offered by an opposing party may offer evidence in the event the motion is not

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granted, without having reserved the right to do so and to the same extent as if the
motion had not been made. In so doing, the party withdraws the motion.
(d)

Reservation of decision in jury cases. In a jury trial, if a motion for judgment is


made at the close of all the evidence, the court may submit the case to the jury and
reserve its decision on the motion until after the verdict or discharge of the jury.
For the purpose of appeal, the reservation constitutes a denial of the motion unless
a judgment notwithstanding the verdict has been entered.

Md. Rule 5-601. General rule of competency


Except as otherwise provided by law, every person is competent to be a witness.
Rule 5-602. Lack of personal knowledge
Except as otherwise provided by Rule 5-703, a witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Evidence to prove personal knowledge may, but need not,
consist of the witnesss own testimony.
Md. Rule 5-609. Impeachment by evidence of conviction of crime
(a)

Generally. For the purpose of attacking the credibility of a witness, evidence that
the witness has been convicted of a crime shall be admitted if elicited from the
witness or established by public record during examination of the witness, but
only if (1) the crime was an infamous crime or other crime relevant to the
witnesss credibility and (2) the court determines that the probative value of
admitting this evidence outweighs the danger of unfair prejudice to the witness or
the objecting party.

(b)

Time limit. Evidence of a conviction is not admissible under this Rule if a period
of more than 15 years has elapsed since the date of the conviction.

(c)

Other limitations. Evidence of a conviction otherwise admissible under section (a)


of this Rule shall be excluded if:
(1)

the conviction has been reversed or vacated;

(2)

the conviction has been the subject of a pardon; or

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(3)

(d)

an appeal or application for leave to appeal from the judgment of


conviction is pending, or the time for noting an appeal or filing an
application for leave to appeal has not expired.

Effect of plea of nolo contendere. For purposes of this Rule, conviction includes
a plea of nolo contendere followed by a sentence, whether or not the sentence is
suspended.

Md. Rule 5-802. Hearsay rule


Except as otherwise provided by these rules or permitted by applicable constitutional
provisions or statutes, hearsay is not admissible.
Md. Rule 5-901. Requirement of authentication or identification
(a)

General provision. The requirement of authentication or identification as a


condition precedent to admissibility is satisfied by evidence sufficient to support a
finding that the matter in question is what its proponent claims.

(b)

Illustrations. By way of illustration only, and not by way of limitation, the


following are examples of authentication or identification conforming with the
requirements of this Rule:
(1)

Testimony of witness with knowledge. Testimony of a witness with


knowledge that the offered evidence is what it is claimed to be.

(2)

Non-expert opinion on handwriting. Non-expert opinion as to the


genuineness of handwriting, based upon familiarity not acquired for
purposes of the litigation.

(3)

Comparison with authenticated specimens. Comparison by the court or an


expert witness with specimens that have been authenticated.

(4)

Circumstantial evidence. Circumstantial evidence, such as appearance,


contents, substance, internal patterns, location, or other distinctive
characteristics, that the offered evidence is what it is claimed to be.

(5)

Voice identification. Identification of a voice, whether heard firsthand or


through mechanical or electronic transmission or recording, based upon the
witness having heard the voice at any time under circumstances connecting
it with the alleged speaker.

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(6)

Telephone conversation. A telephone conversation, by evidence that a


telephone call was made to the number assigned at the time to a particular
person or business, if
(A)

in the case of a person, circumstances, including self-identification,


show the person answering to be the one called, or

(B)

in the case of a business, the call was made to a place of business


and the conversation related to business reasonably transacted over
the telephone.

(7)

Public record. Evidence that a writing authorized by law to be recorded or


filed and in fact recorded or filed in a public office, or a purported public
record, report, statement, or data compilation, is from the public office
where items of this nature are kept.

(8)

Ancient document or data compilation. Evidence that a document or data


compilation:
(A)

is in such condition as to create no suspicion concerning its


authenticity,

(B)

was in a place where, if authentic, it would likely be, and

(C)

has been in existence twenty years or more at the time it is offered.

(9)

Process or system. Evidence describing a process or system used to produce


the proffered exhibit or testimony and showing that the process or system
produces an accurate result.

(10)

Methods provided by statute or rule. Any method of authentication or


identification provided by statute or by these rules.

Md. Rule 8-131. Scope of review


(a)

Generally. The issues of jurisdiction of the trial court over the subject matter and,
unless waived under Rule 2-322, over a person may be raised in and decided by
the appellate court whether or not raised in and decided by the trial court.
Ordinarily, the appellate court will not decide any other issue unless it plainly
appears by the record to have been raised in or decided by the trial court, but the

47

Court may decide such an issue if necessary or desirable to guide the trial court or
to avoid the expense and delay of another appeal.
(b)

In Court of Appeals -- Additional limitations.


(1)

Prior appellate decision. Unless otherwise provided by the order granting


the writ of certiorari, in reviewing a decision rendered by the Court of
Special Appeals or by a circuit court acting in an appellate capacity, the
Court of Appeals ordinarily will consider only an issue that has been raised
in the petition for certiorari or any cross-petition and that has been
preserved for review by the Court of Appeals. Whenever an issue raised in
a petition for certiorari or a cross-petition involves, either expressly or
implicitly, the assertion that the trial court committed error, the Court of
Appeals may consider whether the error was harmless or non-prejudicial
even though the matter of harm or prejudice was not raised in the petition
or in a cross-petition.

(2)

No prior appellate decision. Except as otherwise provided in Rule 8-304


(c), when the Court of Appeals issues a writ of certiorari to review a case
pending in the Court of Special Appeals before a decision has been
rendered by that Court, the Court of Appeals will consider those issues that
would have been cognizable by the Court of Special Appeals.

(c)

Action tried without a jury. When an action has been tried without a jury, the
appellate court will review the case on both the law and the evidence. It will not
set aside the judgment of the trial court on the evidence unless clearly erroneous,
and will give due regard to the opportunity of the trial court to judge the credibility
of the witnesses.

(d)

Interlocutory order. On an appeal from a final judgment, an interlocutory order


previously entered in the action is open to review by the Court unless an appeal
has previously been taken from that order and decided on the merits by the Court.

(e)

Order denying motion to dismiss. An order denying a motion to dismiss for failure
to state a claim upon which relief can be granted is reviewable only on appeal
from the judgment.

Md. Rule 8-503. Style and form of briefs


(a)

Numbering of pages; binding. The pages of a brief shall be consecutively


numbered. The brief shall be securely bound along the left margin.

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(b)

References. References (1) to the record extract, regardless of whether the record
extract is included as an attachment to the appellants brief or filed as a separate
volume, shall be indicated as (E ........), (2) to any appendix to appellants brief
shall be indicated as (App ........), (3) to an appendix to appellees brief shall be
indicated as (Apx ........), and (4) to an appendix to a reply brief shall be indicated
as (Rep. App ........). If the case falls within an exception listed in Rule 8-501 (b),
references to the transcript of testimony contained in the record shall be indicated
as (T ........) and other references to the record shall be indicated as (R ........).

(c)

Covers. A brief shall have a back and cover of the following color:
(1)

(2)

In the Court of Special Appeals:


(A)

appellants brief -- yellow;

(B)

appellees brief -- green;

(C)

reply brief -- light red;

(D)

amicus curiae brief -- gray;

(E)

briefs of incarcerated or institutionalized parties who are selfrepresented -- white.

In the Court of Appeals:


(A)

appellants brief -- white;

(B)

appellees brief -- blue;

(C)

reply brief -- tan;

(D)

amicus curiae brief -- gray.

The cover page shall contain the name of the appellate court, the caption of the
case on appeal, and the case number on appeal, as well as the name, address,
telephone number, and e-mail address, if available, of at least one attorney for a
party represented by an attorney or of the party if not represented by an attorney. If
the appeal is from a decision of a trial court, the cover page shall also name the
trial court and each judge of that court whose ruling is at issue in the appeal. The
name typed or printed on the cover constitutes a signature for purposes of Rule 1311.

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(d)

Length.
(1)

Principal Briefs of Parties. Except as otherwise provided in section (e) of


this Rule or with permission of the Court, the principal brief of an appellant
or appellee shall not exceed 35 pages in the Court of Special Appeals or 50
pages in the Court of Appeals. This limitation does not apply to (A) the
table of contents and citations required by Rule 8-504 (a) (1); (B) the
citation and text required by Rule 8-504 (a) (8); or (C) a motion to dismiss
and argument supporting or opposing the motion.

(2)

Motion to Dismiss. Except with permission of the Court, any portion of a


partys brief pertaining to a motion to dismiss shall not exceed an additional
ten pages in the Court of Special Appeals or 25 pages in the Court of
Appeals. Any reply brief filed by the appellant shall not exceed 15 pages in
the Court of Special Appeals or 25 pages in the Court of Appeals.

(3)

Reply Brief. Any reply brief filed by the appellant shall not exceed 15
pages in the Court of Special Appeals or 25 pages in the Court of Appeals.

(4)

Amicus Curiae Brief. Except with the permission of the Court, an amicus
curiae brief:
(A)

if filed in the Court of Special Appeals, shall not exceed 15 pages;


and if filed in the Court of Special Appeals, shall not exceed 15
pages; and

(e)

Briefs of cross-appellant and cross-appellee. In cases involving cross-appeals, the


brief filed by the appellee/cross-appellant shall have a back and cover the color of
an appellees brief and shall not exceed 50 pages. The responsive brief filed by the
appellant/cross-appellee shall have a back and cover the color of a reply brief and
shall not exceed (1) 50 pages in the Court of Appeals or (2) in the Court of Special
Appeals (A) 35 pages if no reply to the appellees answer is included or (B) 50
pages if a reply is included.

(f)

Incorporation by reference. In a case involving more than one appellant or


appellee, any appellant or appellee may adopt by reference any part of the brief of
another.

(g)

Effect of noncompliance. For noncompliance with this Rule, the appellate court
may dismiss the appeal or make any other appropriate order with respect to the
case, including an order that an improperly prepared brief be reproduced at the
expense of the attorney for the party for whom the brief was filed.

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Md. Rule 8-504. Contents of brief


(a)

Contents. A brief shall comply with the requirements of Rule 8-112 and include
the following items in the order listed:
(1)

A table of contents and a table of citations of cases, constitutional


provisions, statutes, ordinances, rules, and regulations, with cases
alphabetically arranged. When a reported Maryland case is cited, the
citation shall include a reference to the official Report.

(2)

A brief statement of the case, indicating the nature of the case, the course of
the proceedings, and the disposition in the lower court, except that the
appellees brief shall not contain a statement of the case unless the appellee
disagrees with the statement in the appellants brief.

(3)

A statement of the questions presented, separately numbered, indicating the


legal propositions involved and the questions of fact at issue expressed in
the terms and circumstances of the case without unnecessary detail.

(4)

A clear concise statement of the facts material to a determination of the


questions presented, except that the appellees brief shall contain a
statement of only those additional facts necessary to correct or amplify the
statement in the appellants brief. Reference shall be made to the pages of
the record extract supporting the assertions. If pursuant to these rules or by
leave of court a record extract is not filed, reference shall be made to the
pages of the record or to the transcript of testimony as contained in the
record.

(5)

A concise statement of the applicable standard of review for each issue,


which may appear in the discussion of the issue or under a separate heading
placed before the argument.

(6)

Argument in support of the partys position on each issue.

(7)

A short conclusion stating the precise relief sought.

(8)

The citation and verbatim text of all pertinent constitutional provisions,


statutes, ordinances, rules, and regulations except that the appellees brief
shall contain only those not included in the appellants brief.

(9)

If the brief is prepared with proportionally spaced type, the font used and
the type size in points shall be stated on the last page.

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(b)

Appendix. Unless the material is included in the record extract pursuant to Rule 8501, the appellant shall reproduce, as an appendix to the brief, the pertinent part of
every ruling, opinion, or jury instruction of each lower court that deals with points
raised by the appellant on appeal. If the appellee believes that the part reproduced
by the appellant is inadequate, the appellee shall reproduce, as an appendix to the
appellees brief, any additional part of the instructions or opinion believed
necessary by the appellee.

(c)

Effect of noncompliance. For noncompliance with this Rule, the appellate court
may dismiss the appeal or make any other appropriate order with respect to the
case, including an order that an improperly prepared brief be reproduced at the
expense of the attorney for the party for whom the brief was filed.

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ABBREVIATIONS USED THROUGHOUT THIS FILING


The following abbreviations are introduced and used throughout this filing and collected
here for this Courts convenience:
Abbreviation

Meaning

Dkt. No.

Docket Entries in the Record

E.A.

Record Extract Athe Appellants Second Amended


Complaint

E.C.

Record Extract CMemorandum Opinion and Order


by Judge Jordan

E.D.

Record Extract DTranscript of the Second Day of


Trial, August 12, 2014

E.E.

Record Extract ETranscript of the Second Motion


for Summary Judgment before Richard Jordan, August
7, 2015

KBr.

Appellants Brief

K.K.

A person who testified in the case below, her name


initialized because she is a minor. Just so there is no
ambiguity, she is the eldest daughter of Tetyana
Kimberlin.

MTD

Appellee Walkers Motion to Dismiss

WBr.

Appellee Walkers Brief

53

IN THE COURT OF SPECIAL APPEALS


OF MARYLAND

BRETT KIMBERLIN,
Appellant

September Term, 2014:


Nos: 1553 and 2099

v.
September Term, 2015:
No. 365

AARON J. WALKER, ESQ., ET AL.


Appellees

Consolidated Appeals

ORDER AFFIRMING JUDGMENT


Upon consideration of the Appellants Brief, Appellee Walkers Brief, any other
filings in support or opposition thereto, it is this

day of

, 2015, hereby
ORDERED that the Judgment of the Circuit Court for Montgomery County is
AFFIRMED; and it is further
ORDERED that the Appellant shall pay costs.

__________________________________________
Judge, Court of Special Appeals

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