Can ordinary people stung by an illegal SLAPP (Strategic Lawsuit Against Public Participation) turn the tables and collect damages?

That question will soon come before the Maryland Supreme Court, which has announced it will take up an “anti-SLAPP lawsuit” filed by residents at North Baltimore’s Clipper Mill complex against developers Larry E. Jennings Jr. and P. David Bramble.

At immediate stake is a rather narrow proposition: “Can the victims of an action determined to be a bad faith SLAPP suit . . . maintain a cause of action for damages under the malicious use of process doctrine?”

More broadly, the court could set new ground rules for – and add potential costs to – developers and other business interests who threaten legal action against citizens who oppose their projects.

Such threats have been made against a community group objecting to a long-stalled housing project in Poppleton, and twice (here and here) against Fells Point residents protesting expansion plans by the Atlas Restaurant Group.

“This is a freedom of speech issue,” says John C. Murphy, an attorney for the Clipper Mill plaintiffs. “It centers around the constitutional right of people to express their opinions at zoning and other hearings without fear of litigation, and whether people can get redress for lawsuits designed to intimidate.”

• Maryland lawmakers must stop the powerful from SLAPPing down free speech (5/21/24)

State law bars “bad faith” SLAPP lawsuits, but that didn’t stop developer Jennings from dispatching his lawyers upon residents who testified against Jennings’ plans to build apartments and townhouses at the historic Clipper Mill complex in July 2020.

Suing the opponents for $25 million in damages, the lawyers sent out “demand” letters requiring residents and an HOA to turn over emails, texts, memos, audio recordings, voicemail messages and five years worth of banking and other financial records, together with full access to cell phones, computer hard drives and other electronic devices.

Years of Litigation

Even after a Baltimore Circuit Court judge stopped the discovery process and dismissed the lawsuit as an illegal SLAPP, Jennings and Bramble – whose MCB Woodberry Developer purchased Jennings’ property interests in 2021 – persisted for the next 1½ years.

They ran the case up to the Court of Special Appeals, where another judge likened the suit to “a killer asteroid” intended to “make extinct the complaints and complainants” who had exercised their right to speak out.

“The developer did not allege any facts showing that the residents acted with malice in making any communications,” Judge Glenn T. Harrell Jr. ruled, and could not plausibly claim they had violated a community association pact.

• Clipper Mill court hearing lifts veil on developer’s tactics to keep residents in line (10/24/20)

• Socked by SLAPP suit, Clipper Mill residents punch back (6/28/23)

There the matter lay until four residents and two homeowner associations sued Jennings, attorney David B. Applefeld, law firm Shapiro Sher, and two LLCs controlled by Bramble.

Accusing the parties of abuse of process and infringing on their constitutional rights to free speech, the complainants sought over $75,000 in compensatory damages and undetermined punitive damages.

Since then, a Baltimore Circuit Court judge and the Maryland Appellate Court ruled that the residents and HOAs have not attained the high bar of special injury to recover damages.

To prove “special injury,” Appellate Court Judge C. J. Well said in an opinion last November, the damages inflicted upon the plaintiffs must be severe, including arrest, imprisonment or seizure of property.

The plaintiffs “do not assert any of them were arrested or their property was seized,” Judge Well said.

Instead, their injuries involved the routine “expense and annoyance” that comes with any lawsuit, Well opined, citing a 1997 case decided by the Maryland Supreme Court.

Recent changes in the law by the Maryland General Assembly adjusts some of the conditions for liability, but a very high burden of proof is still required for plaintiffs to secure anything more than attorneys’ fees.

The Supreme Court has set aside May 4 and 5 to hear oral arguments on the plausibility of assessing further damages.

Jennings and Bramble did not respond to a request for comment by The Brew. Plans for upscale apartment units inside the cavernous Tractor Building – and for new townhouses nearby – remain dormant.

Murphy said he’s itching to go before the high court and ask the judges “to send a clear message to developers that they can’t get away with this stuff anymore.”