F. Whittington v. T. Whittington

• Court: Superior Court of Delaware
• Decided: February 8, 2024
• Docket: N23C-08-123 SPL N23C-08-195 SPL
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

FRANK C. WHITTINGTON, ) ) Plaintiff, ) ) v. ) C.A. No. N23C-08-123 SPL ) C.A. No. N23C-08-195 SPL1 THOMAS WHITTINGTON, ) SEAN T. O’KELLY, and ) ANDREW H. LIPPSTONE, ) ) Defendants. )

ORDER

This 8th day of February 2024, upon consideration of Defendants’, Sean T.

O’Kelly, Esq. (“O’Kelly”),2 Andrew H. Lippstone, Esq. (“Lippstone”),3 and Thomas

Whittington, Esq. (“Thomas”),4 motions to dismiss, Plaintiff’s, Frank Whittington

(“Frank”), Response,5 and the parties’ January 16, 2024, arguments,6 it appears to

the Court that:

1 C.A. No. N23C-08-195 SPL is consolidated with C.A. No. N23C-08-123 SPL. See infra ¶2. Docket items from C.A. No. N23C-08-123 SPL are cited as “D.I.(123) __,” and docket items from C.A. No. N23C-08-195 SPL are cited as “D.I.(195) __.” 2 D.I.(123) 10 (“O’Kelly Mot.”). 3 D.I.(195) 7 (“Lippstone Mot.”). 4 D.I.(123) 13 (“Thomas Mot. 123”); D.I.(195) 15 (“Thomas Mot. 195”). The Court refers to the Whittingtons by first name for clarity; no disrespect or familiarity is intended by this reference. 5 D.I.(123) 14. 6 D.I.(123) 18. 1. On August 14, 2023, Frank sued Thomas and O’Kelly for defamation

based on statements in a letter Thomas sent to Lippstone in an earlier matter that

O’Kelly’s firm subsequently admitted in a judicial proceeding.7 A week later, Frank

filed a second, nearly identical, defamation case against Thomas and Lippstone

premised on the same letter.8

2. Defendants moved to dismiss under Superior Court Civil Rule 12.9 On

January 16, 2024, with the agreement of the parties, the Court consolidated the cases

under Superior Court Civil Rule 42(a). After hearing argument from the parties, the

Court took the motions under advisement.10

3. Under Delaware law, a complaint must provide general notice of the

claim to withstand dismissal under Rule 12(b)(6).11 The Court will accept the well

pleaded allegations in the complaint and “draw all reasonable factual inferences in

favor of the party opposing the motion.”12 A motion to dismiss will be denied if the

plaintiff may recover under any reasonably conceivable set of circumstances

susceptible of proof supported by the complaint.13 Conversely, a motion to dismiss

7 D.I.(123) 1 (“Compl. 123”). 8 D.I.(195) 1 (“Compl. 195”). 9 See O’Kelly Mot., Lippstone Mot., Thomas Mot. 123, Thomas Mot. 195. 10 D.I.(123) 18. 11 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005). 12 Id. (cleaned up). 13 Spence v. Funk, 396 A.2d 967, 968 (Del 1978). will be granted if the complaint lacks sufficient factual assertions to warrant relief.14

The Court will not accept unsupported conclusory statements or draw unreasonable

inferences favoring the non-moving party.15

4. “A statement is defamatory when it ‘tends so to harm the reputation of

another as to lower him in the estimation of the community or to deter third persons

from associating or dealing with him.’”16 To be actionable, “a defamation plaintiff

must plead and ultimately prove that the defendant made a statement about the

plaintiff that would be understood as defamatory by a reasonable third party and was

published, meaning that it was ‘communicat[ed] by any method, to one or more

persons who can understand the meaning.’”17

5. Defamation claims require additional scrutiny at the dismissal stage

because dismissal under Rule 12(b)(6) “not only protects against the costs of

meritless litigation, but provides assurance to those exercising their First

14 Central Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del. 2011) (“[T]he governing pleading standard in Delaware to survive a motion to dismiss is reasonable conceivability.”). 15 Nemec v. Shrader, 991 A.2d 1120, 1125 (Del. 2010) (cleaned up). 16 Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022) (quoting Restatement of Torts § 559 (1938)). 17 Cousins, 283 A.3d at 1148 (quoting Dobbs, et. al., The Law of Torts § 520, p.176 (2011)). Amendment rights.”18 The Court will consider the substance of Thomas’s letter

because it is integral to, and incorporated in, Frank’s complaints.19 And because the

context of alleged defamatory speech matters, particularly with respect to the

application of certain privileges, Frank’s recent litigation will also be considered.

6. On May 25, 2021, Frank retained the law firm of O’Kelly & O’Rourke

under an “Agreement for Legal Services” (the “Agreement”) to “research causes of

action against [Thomas], other family members, and several entities controlled by

them in a decades-long dispute over land and money.”20 Defendants O’Kelly and

Lippstone, attorneys with the O’Kelly & O’Rourke law firm, performed legal

services on Frank’s behalf under the Agreement.21 Lippstone drafted and served

upon Thomas a demand for the inspection of certain books and records.”22

7. Thomas responded to Lippstone’s demand.23 In his response, Thomas

offered his impressions of Frank’s mental state and his belief that Frank engaged in

deceptive and harassing conduct in personal and professional contexts.24

18 ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, at *6 (Del. Super. Jun. 30, 2022) (cleaned up). 19 See generally, ShotSpotter, 2022 WL 2373418 at *4. O’Kelly Mot. at Ex. A, Justice of the Peace Court Notice of Judgment (“JP Court 20

Notice of Judgment”) at 2. 21 See JP Court Notice of Judgment at 2-3. 22 Id. at 3. 23 See Letter. 24 Id. 8. Ultimately, O’Kelly & O’Rourke did not take any formal legal action

on Frank’s behalf.25 Thereafter, Frank refused to pay the legal fees he owed O’Kelly

& O’Rourke under the Agreement.26

9. To collect the unpaid legal fees, O’Kelly & O’Rourke filed an action in

the Justice of the Peace Court (“JP Court”) against Frank for breach of the

Agreement.27 In the JP Court trial, O’Kelly & O’Rourke offered its demand and

Thomas’s Letter as evidence of services performed for which payment was owed.

10. The JP Court found that “[O’Kelly & O’Rourke] performed $13,020 in

billed Work for [Frank],” and that Frank “breached the Agreement by refusing to

pay for legal services rendered on his behalf,” and entered a judgment in favor of

O’Kelly & O’Rourke.28

11. Frank then filed the defamation cases presently before this Court.

Frank alleges that Thomas defamed him in his response to Lippstone’s demand and

that O’Kelly and Lippstone defamed him by introducing Thomas’s response in the

JP Court trial.29 Defendants argue a number of bases support dismissal, including

25 JP Court Notice of Judgment at 2-3. 26 Id. 27 Id. at 1. 28 Id. at 3-4. 29 Compl.(123) at 2; Compl.(195) at 2. what is referred to as the “absolute litigation privilege” or “judicial proceedings

privilege.”

12. “Generally, defamation is subject to liability. However, affirmative

defenses to a prima facie case exist for statements made in certain contexts where

there is a particular public interest in unchilled freedom of expression.”30 Statements

made in the context of judicial proceedings are entitled to an “absolute

privilege.”31 The doctrine of privilege is “founded [upon] public policy,”32 and

“whether the privilege attaches is a question of law.”33 The privilege derives from:

a common law rule, long recognized in Delaware, that protects from actions for defamation statements of judges, parties, witnesses and attorneys offered in the course of judicial proceedings so long as the party claiming the privilege shows that the statements [were] issued as part of a judicial proceeding and were relevant to a matter at issue in the case. However, statements made outside of the course of judicial proceedings, such as those made during a newspaper interview concerning judicial proceedings, are not accorded the protection of the absolute privilege.34

“Traditionally, [the absolute litigation privilege] applied only to statements made

during judicial proceedings. However, many jurisdictions ‘have recognized the

utility in extending the privilege to cover communications made in advance of

30 Barker v. Huang, 610 A.2d 1341, 1344 (Del. 1992) 1344. 31 Tatro v. Esham, 335 A.2d 623, 625-26 (Del. Super. Ct. 1975). 32 Tatro, 335 A.2d at 627. 33 Walker v. Parson, 2016 WL 3130093, at *3 (Del. Super. Ct. Apr. 21, 2016). 34 Barker, 610 A.2d at 1345 (cleaned up). anticipated litigation.’”35 If the statement “is reasonably germane to the pending

action” or “has some connection to the subject matter of the pending action” then it

is relevant to a matter at issue in the case.36 “To the extent statements were made

prior to, or during judicial proceedings, so long as the statements were made in an

effort to address the alleged grievance between the parties, the absolute privilege

doctrine applies.”37

13. The absolute litigation privilege applies here. The Court will not,

because it need not in the context of this privilege, assess the veracity of the

statements contained within Thomas’s letter as suggested by Defendants.

14. O’Kelly and Lippstone offered Thomas’s letter as evidence in the JP

Court litigation to substantiate work done on Frank’s behalf for which Frank was

obligated to pay. The substance of the correspondence – the alleged defamatory

remarks – was incidental to the letter’s admission but, nonetheless, precisely the type

of communication the absolute litigation privilege exists to protect. O’Kelly and

Lippstone offered the document as evidence in fee dispute litigation. The privilege

35 Feenix Payment Systems, LLC v. Michael Blum, 2022 WL 215026, at *6 (Del. Super. Ct. Jan. 25, 2022) (quoting Paige Cap. Mgmt., LLC v. Lerner Master Fund, LLC, 22 A.3d 710, 716-17 (Del. Ch. 2011)). 36 Walker, 2016 WL 3130093 at *4 (cleaned up). 37 BRP Hold Ox, LLC v. Chilian, 2018 WL 5734648, at *5 (Del. Super. Ct. Oct. 31, 2018) (applying the absolute litigation privilege to communications “to address the potential violation of contract claims between the parties.”) applies to this communication, and Frank’s defamation claims against O’Kelly and

Lippstone must be dismissed.

15. The privilege applies with equal force to Thomas’s response to

Lippstone’s demand letter. Absolute privilege extends to “all communications

appurtenant” to judicial proceedings, including “conversations between witnesses

and counsel.”38 Statements made “prior to the possible commencement of judicial

proceedings” are “deserving of privilege … where the purposes underlying the

privilege are satisfied.”39 The purpose of the absolute privilege is to “facilitate the

flow of communication between persons involved in judicial proceedings and, thus,

to aid in the complete and full disclosure of facts necessary to a fair adjudication.”40

16. Frank retained O’Kelly and O’Rourke to research potential causes of

action against Thomas and others. To this end, Lippstone engaged in preliminary

investigation to determine whether any cause of action could be pursued and issued

a letter to Thomas demanding information. Thomas’s response included his

impressions of Frank as it related to Frank’s mental state and prior litigation.

Thomas wrote of Frank’s “significant litigation,” that “Frank is not after information

[but rather seeks] to punish his siblings,” and his belief that Frank suffers from some

38 Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. Ct. Jul. 21, 1983). 39 Tatro, 335 A.2d at 627. 40 Barker, 610 A.2d at 1345.