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Maryland Court of Special Appeals Reverses Lower Court’s Grant of Summary Judgment and Damages for Plaintiff Where Lay Witness Testimony Sufficient to Prove Defamation

Publish America, LLP v. Stern
Case No. 2965 (February 3, 2014)

by Jhanelle A. Graham, Associate
Semmes, Bowen & Semmes (

In Publish America, LLP v. Stern, the Court for the Court of Special Appeals of Maryland reversed the lower court’s judgment as to liability in favor of Plaintiff, Sally Stern, on her complaint for breach of contract against Defendant, Publish America, LLP (“Publish America”). Thereafter, a jury awarded damages of $10,880.00, after a three (3) day trial in the Circuit Court for Frederick County. On appeal, the intermediate appellate court was asked to determine, inter alia, whether the lower court erred in granting judgment as to liability in favor of Stern and whether the trial court abused its discretion in granting Publish America’s Motion for Protective Order Quashing Stern’s Notice of Deposition and to Exclude Stern’s Expert from Testifying at Trial. Writing for the Court of Special Appeals, the Honorable Judge Kenney answered each question in the affirmative.

The facts that give rise to this case stem from the production of a book titled, “The Library Diaries,” and a disagreement that ensued between the author and publisher as to the propriety of the book’s content. While working as a librarian at the Ludington Library in Ludington, Michigan, Stern developed a manuscript for a book which she sought to have published. She contacted Publish America, a publishing company, which subsequently offered to publish Stern’s manuscript. In the offer email, Stern was “advise[d]” to “obtain written permission for all quotes used and for any real life individuals mentioned.” In reply, Stern asked whether she would still need to get written permission for the quotes if she did not use any real names in the book and chose to categorize the book as fiction. Publish America responded that Stern would not have to concern herself with consent if the book were labeled as fiction. Publish America clarified that to “fictionalize” the book, Stern would also have to change the names of anyone mentioned by their real names in the book, market the book as fiction, and include a disclaimer in the book to inform the reader that all the contents are fictional. Stern and Publish America subsequently entered into a contract to publish the book.

After reviewing Stern’s proposed manuscript, which she classified as “either narrative non-fiction or current events,” Publish America emailed Stern advising that she turn the manuscript into a fictional novel unless she agreed to place a disclaimer in the book, stating that “[a]ll characters in this book are fictitious, and any resemblance to real persons, living or dead, is coincidental.” After an explanation from Publish America that some of the characters named in the book were disparaged and possible recognizable in Stern’s community, Stern reluctantly agreed to fictionalize her book. Stern’s manuscript was subsequently published as The Library Diaries, and several hundred copies were sold. On July 15, 2008, Stern received a letter from Robert Dickson, the Director of the Mason County District Library, suspending her from work. On July 25, 2008, Stern’s employment at the library was terminated.

Thereafter, Publish America was alerted to several articles in the press regarding Stern’s book. Publish America determined that The Library Diaries should be taken off the market, and contacted Lightning Source, its printer, to stop orders from printing. Publish America emailed Stern, informing her that some people were calling her book defamatory and, as a result, the company had to pull the book temporarily from the market while it investigated the matter. Two (2) weeks later, Publish America emailed Stern, saying: “Based upon public statements that you have made since your book was placed on the market, we are no longer able to continue selling your book. The contract, however, including the indemnification clause, will remain in force. If you find another publisher interested in selling your book, let us know; we may be willing to transfer publishing rights.” Stern tried to contact other publishers about publishing her book, but none were willing to do so. A few months later, Stern emailed Publish America, requesting a release from her agreement. Publish America declined to make a full release, stating instead that it needed to conduct a full investigation because third parties characterized the book as tortious. Further, Publish America stated that its indemnification and dispute resolution provisions must remain enforceable.

On February 7, 2010, Stern filed a First Amended Complaint for breach of contract against Publish America, alleging that Publish America agreed to cease manufacture of the book based solely upon public demand for the work, which was not at issue here. Further, even if Publish America found that market demand for the book was nonexistent, it would have materially breached the contract by failing to offer to Stern her work and her copyright. The complaint sought “compensatory,” “consequential,” “incidental,” and “punitive” damages “in the amount in excess of $30,000” resulting from Stern’s “lost revenues from the sale of the book, lost opportunities for capturing those sales, and other potential profits as contemplated in the Agreement.” Publish America responded that the failure to fictionalize the work would excuse any breach by Publish America, pursuant to paragraph 14 of the Agreement. Finding that the issue of whether the book was “fictionalized” could not properly be put before the jury, the trial court granted Stern’s motion “on the issue of liability,” because Publish America did not “offer” to “return” the publishing rights to The Library Diaries to Stern, as was required under paragraph 24 of the Agreement. The jury deliberated damages for the time from contract termination until the rights were returned, and awarded $10,880 in damages to Stern.

On appeal, the intermediate appellate court stated that “in order to maintain an action for libel or slander, it must appear that the defamatory words refer to some ascertained or ascertainable person, and that person must be the plaintiff.’” Great Atl. & Pac. Tea Co. v. Paul, 256 Md. 643, 651 (1970) (quoting Nat’l Shutter Bar Co. v. C.F.S. Zimmerman & Co., 110 Md. 313 (1909)). The court further stated that Publish America was not required to call an expert witness to establish what was essentially a question of fact, and the court erred in granting Stern’s motion for judgment. In the court’s view, the evidence submitted at trial was sufficient for a jury to decide whether certain characters were reasonably identifiable individuals within Stern’s community, as the characterizations in The Library Diaries were very recognizable as people within their community. On this basis, the court opined that the denial of Publish America’s lay witness’s testimony on the basis that he was not an expert was error, and his testimony would have been relevant to help the jury decide whether readers could reasonably understand that the fictional characters were actually portrayals of real and identifiable people living in Stern’s community. Accordingly, because the judgment in favor of Stern on the issue of liability was granted in error, the intermediate appellate court reversed the damages judgment in favor of Stern.