Campbell v. Lyon , 26 F. App'x 183 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LARRY A. CAMPBELL; EASTERN 
KENTUCKY RESOURCES; BLUE ASH
DEVELOPMENT, INCORPORATED,
Plaintiffs-Appellants,
and
THE JOAN CAMPBELL TRUST, by its
trustee, Larry A. Campbell; J.
MILLER ESHLEMAN & SON,
INCORPORATED; EXECUTIVE
PROPERTIES, INCORPORATED,
Plaintiffs,
v.  No. 00-2275
JOHN W. LYON,
Defendant & Third Party
Plaintiff-Appellee,
v.
THE CHUBB CORPORATION; PACIFIC
INDEMNITY COMPANY, a subsidiary of
The Chubb Corporation,
Third Party Defendants.
REUBEN GUTTMAN,
Movant.

Appeal from the United States District Court
for the District of Maryland at Greenbelt.
Alexander Williams, Jr., District Judge.
(CA-97-904-AW)
Argued: September 24, 2001
Decided: December 27, 2001
2 CAMPBELL v. LYON
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion. Judge Traxler wrote an
opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: Arnold Murray Weiner, SNYDER, WEINER, WELT-
CHEK, JACOBS & SLUTKIN, Baltimore, Maryland, for Appellants.
Barry Coburn, COBURN & SCHERTLER, Washington, D.C., for
Appellee. ON BRIEF: Thomas J. Zagami, Lynn Edwards Brenne-
man, HODES, ULMAN, PESSIN & KATZ, P.A., Towson, Maryland,
for Appellants.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Larry Campbell, Eastern Kentucky Resources ("EKR") and Blue
Ash Development, Inc. ("Blue Ash") (collectively, "Campbell") filed
this suit against John Lyon,1 Campbell’s former business associate,
alleging various counts of invasion of privacy, tortious interference
with business and economic relations, abuse of process, and conspir-
acy. Campbell claims that Lyon organized and directed the dissemina-
1
Campbell captioned his appellate briefs as "Larry A. Campbell et al
v. John W. Lyon v. The Chubb Corporation; Pacific Indemnity Company
and Reuben Guttman." It is unclear why he did so, as he did not name
Chubb, Pacific Indemnity, or Guttman in his Complaint. They are not
parties to this appeal.
CAMPBELL v. LYON 3
tion of private, harmful, and/or false information about him to third
parties who conspired with Lyon by further disseminating the infor-
mation to members of the public. Campbell claims that Lyon’s activi-
ties caused the failure of a landfill project in Magoffin County,
Kentucky, in which Campbell was the principal investor.
Campbell appeals the district court’s decision granting summary
judgment to Lyon. We affirm.
I.
The Magoffin County landfill project began in September 1991,
when EKR formed a joint venture with Blue Ash and Royalton
Resources ("Royalton") for the purpose of developing and operating
a municipal solid waste landfill in Magoffin County. William Polan
was affiliated with Royalton and, ultimately, Campbell alleged that
Polan misused substantial amounts of the joint venture’s funds. The
parties eventually terminated the joint venture and removed Polan
from the project.
Campbell alleges that Lyon and Polan formed a conspiracy to
effectuate the failure of the landfill project by spreading inflammatory
information about Campbell. Campbell claims that Lyon, through
Polan, disseminated copies of a complaint filed against Campbell, dis-
seminated Campbell’s criminal record, that Lyon made lump sum
payments to Polan or Polan’s wife totaling approximately $50,000,
that Lyon caused the arrest of an EKR official during an open house
event intended to promote the landfill project, and that Polan gener-
ally made defamatory statements about Campbell.2
On March 24, 1998, Campbell voluntarily withdrew four tortious
interference and conspiracy claims. Upon Lyon’s motion for sum-
mary judgment, the district court granted summary judgment against
Campbell’s remaining tortious interference claims, explaining that
Campbell failed to show that Lyon’s actions resulted in the landfill
project’s failure. The court held that the project more likely than not
failed because of grass-roots opposition to the project, Campbell’s
2
Campbell did not name Polan as a defendant in this suit.
4 CAMPBELL v. LYON
inability to obtain regulatory approval, and a Kentucky Supreme
Court ruling invalidating the agreement between Magoffin County
and Campbell to develop the landfill. The district court also granted
summary judgment against Campbell’s invasion of privacy claims,
explaining that the information Lyon allegedly disseminated about
Campbell was true and public. Finally, the district court granted sum-
mary judgment against Campbell’s abuse of process claims. Campbell
claimed that Lyon previously filed a RICO action in Maryland federal
court and abused that process by providing copies of the complaint to
third parties. The district court rejected this claim, stating that it was
"merely a regurgitation of the invasion of privacy and tortious inter-
ference claims." Campbell v. Lyon, Civil Action No. AW-97-904,
Mem. Op. at 15 (D. Md. 2000). The court also noted that no authority
exists for the proposition "that the mere dissemination of public docu-
ments filed in court constitutes sufficient basis for an abuse of process
claim." Id.
II.
We review a grant of summary judgment de novo. Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is appropriate only when there are no material
facts in dispute and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). A material fact is in dispute when its existence or
non-existence could lead a jury to different outcomes. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists
when there is sufficient evidence on which a reasonable jury could
return a verdict in favor of the non-moving party. Id. Mere specula-
tion by the non-moving party cannot create a genuine issue of mate-
rial fact. Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). The
Court must view the evidence in the light most favorable to the non-
moving party, which, in this case, is Campbell. Smith v. Virginia
Commonwealth Univ., 84 F.3d 672, 675 (4th Cir. 1996).
III.
To establish a tortious interference claim under Maryland law,3 a
3
The parties agree that Maryland law applies to this dispute.
CAMPBELL v. LYON 5
plaintiff must prove: (1) that the defendant committed an "‘intentional
and wilful act[ ];’" (2) that was "‘calculated to cause damage to the
plaintiffs in their lawful business;’" (3) was "‘done with the unlawful
purpose to cause such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes malice);’" and
(4) that "‘actual damage and loss result[ed].’" Willner v. Silverman,
71 A. 962, 964 (Md. 1909) (quoting Walker v. Cronin, 107 Mass.
555, 562 (1871)). See also Lyon v. Campbell, 707 A.2d 850 (Md.
App. 1998) (same). To establish causation in a tortious interference
action, a plaintiff must prove that the defendant’s wrongful or unlaw-
ful act caused the harm done to the business that was the target of the
interference. Alexander v. Evander, 650 A.2d 260, 269 (Md. 1994).
See also Macklin v. Logan Associates, 639 A.2d 112, 119 (Md. 1994)
("to be actionable, the improper or wrongful conduct must induce the
breach or termination of the contract").
The district court correctly ruled that other factors, rather than
Lyon’s actions, brought about the end of Campbell’s involvement in
the landfill project. As the district court explained,
there was no shortage of community attention to an involve-
ment in the trash landfill issue. The proposed project
appears to have been a highly politically charged issue. In
fact, the grass-roots opposition to the project, its inability to
obtain regulatory approval, and the Kentucky Supreme
Court’s ruling (that the agreement between the county and
EKR was not a valid agreement) are the likely causes of the
landfill project’s failure.
Campbell, Mem. Op. at 9.
In Eastern Kentucky Resources v. Arnett, 934 S.W.2d 270 (Ky.
1996), the Kentucky Supreme Court voided the agreement between
EKR and Magoffin County to build the landfill. It is undisputed that
Lyon was not involved in that litigation in any way. Additionally, it
is undisputed that Campbell never tried to renegotiate the agreement
after the decision, thereby effectively ending Campbell’s involvement
with the landfill project. Finally, it is undisputed that the landfill faced
extensive grass-roots opposition, with more than 6,000 people signing
petitions opposing the landfill. In light of these undisputed facts,
6 CAMPBELL v. LYON
Campbell cannot prove that Lyon’s alleged wrongful acts were the
acts that more likely than not caused the demise of the landfill project.
That demise was more likely than not caused by other factors, includ-
ing the Kentucky Supreme Court’s decision. Thus, summary judg-
ment was appropriate against Campbell’s tortious interference claims.
IV.
Campbell purports to make two types of invasion of privacy
claims: one for false light invasion of privacy and another under
§ 652D of the Restatement (Second) of Torts for "unreasonable pub-
licity given to the other’s private life." Summary judgment was appro-
priate as to both.
A.
To state a claim for false light invasion of privacy, a plaintiff must
prove (1) that the defendant gave "publicity to a matter concerning
another that places the other before the public in a false light"; (2) that
"the false light in which the other person was placed would be highly
offensive to a reasonable person"; and (3) that "the actor had knowl-
edge of or acted in reckless disregard as to the falsity of the publi-
cized matter and the false light in which the other would be placed."
Bagwell v. Peninsula Regional Medical Center, 665 A.2d 297, 318
(Md. App. 1995). As in defamation cases, a defendant in a false light
case is entitled to judgment as a matter of law if the statements made
are true. Id.
Campbell’s complaint states that by "disseminating and publicizing
information, . . . including Campbell’s FBI criminal record, Lyon
unreasonably invaded Campbell’s privacy by giving publicity to the
private facts of Campbell’s life." The Complaint further asserts that
Lyon "continued to satisfy Polan’s thirst for scandalous information
about Campbell’s background . . . by relating to Polan numerous
embellished and grossly exaggerated accounts of mysterious investi-
gations of which Campbell had allegedly been the subject."
As the district court held, the information allegedly disseminated
by Lyon about Campbell was both true and public. For example,
CAMPBELL v. LYON 7
Campbell does have a criminal record, and that criminal record is a
matter of public record.4 The RICO complaint that Lyon filed against
Campbell similarly is a public record. Additionally, while Campbell
alleges that Lyon sent Polan other documents to disseminate to the
public, he fails to provide any specifics about the documents.
However, Campbell claims that the district court ignored his alle-
gations that Lyon disseminated other, false information about him,
including that Campbell wrote bad checks, committed mail fraud,
wire fraud, and racketeering, was imprisoned for committing racke-
teering offenses, was a murderer, was blacklisted from jobs nation-
wide, was involved in organized crime, and was a career criminal. In
support of these allegations, Campbell relies on the affidavits of Tim-
othy Weddington and Angela Siegel Clark.
However, the Weddington and Clark affidavits are inadmissible
hearsay. Both relay out-of-court statements allegedly made to the affi-
ants by Polan. Campbell claims the affidavits are admissible under
Fed. R. Ev. 801(d)(2)(E), which allows the admission of a hearsay
statement against a party if the statement was made "by a coconspira-
tor during the course and in furtherance of the conspiracy." The Rule
further states that "[t]he contents of the statement shall be considered
but are not alone sufficient to establish . . . the existence of the con-
spiracy and the participation therein of the declarant and the party
against whom the statement is offered[.]"
This Court reviews for abuse of discretion a district court’s refusal
to admit evidence under Fed. R. Ev. 801(d)(2)(E). United States v.
Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). The Court reviews the
district court’s factual findings regarding admissibility under the
clearly erroneous standard. United States v. Shores, 33 F.3d 438 (4th
Cir. 1994).5
4
Polan, who is accused of disseminating this information on Lyon’s
behalf, averred in an affidavit that he obtained information about Camp-
bell’s criminal record from public sources in Danville, Virginia. Camp-
bell does not point this Court to any evidence to the contrary.
5
Federal Rule of Evidence 104(a) states that "[p]reliminary questions
concerning the qualification of a person to be a witness, the existence of
a privilege, or the admissibility of evidence shall be determined by the
court . . . . In making its determination it is not bound by the rules of evi-
dence except for those with respect to privileges."
8 CAMPBELL v. LYON
In Bourjaily v. United States, the United States Supreme Court
explained that a court may not admit a statement under Rule
801(d)(2)(E) without first determining that a conspiracy actually
existed between the third party and the party-opponent. 483 U.S. 171,
175 (1987). See also Blevins, 960 F.2d at 1255; Fed. R. Ev. 104(a).
The existence of a conspiracy must be shown with independent evi-
dence, but may be supplemented by the disputed hearsay statement.
Id. at 181. The party seeking to admit the statement must prove the
existence of a conspiracy by a preponderance of the evidence.
Blevins, 960 F.2d at 1255.
The district court refused to admit the Weddington and Clark affi-
davits because Campbell failed to offer independent evidence of a
conspiracy. In fact, the only arguably independent evidence Campbell
proffered (other than his own conclusory statements) was proof that
Lyon gave Polan approximately $50,000. Neither Polan nor Lyon
deny that Lyon gave Polan the money, but claim that the money trans-
fers represented a series of collateralized loans, albeit as yet unpaid.
Campbell claims the transfers were pay-offs in furtherance of the con-
spiracy, but fails to advance any evidence in support of this conclu-
sory assertion. As the district court explained, Campbell "has not
presented evidence to the Court that the loans were in any way con-
nected to an alleged conspiracy or plot to cause the failure of [Camp-
bell’s] business and economic pursuits. . . . [Campbell] present[s] no
evidence beyond mere speculation and compilation of inferences."
Campbell, Mem. Op. at 13. Campbell fails to proffer any independent
evidence of a conspiracy. The district court did not abuse its discre-
tion by finding the Weddington and Clark affidavits inadmissible.6
6
Campbell also argues that this Court may find the existence of a con-
spiracy solely by reviewing the disputed hearsay statements themselves.
However, the plain language of Rule 801(d)(2)(E) counsels against such
an approach. The Rule explicitly states that "[t]he contents of the state-
ment shall be considered but are not alone sufficient to establish . . . the
existence of the conspiracy[.]" Fed. R. Ev. 801(d)(2)(E) (emphasis
added). The Rule plainly states that the disputed hearsay statements,
alone, cannot establish the prerequisite conspiracy. See also United
States v. Padilla, 203 F.3d 156, 161 (2nd Cir. 2000) (an out-of-court
statement may not be admitted if the statements themselves are the only
evidence of the defendant’s participation in a conspiracy); United States
CAMPBELL v. LYON 9
Because the affidavits are inadmissible, the allegations contained
in those affidavits cannot support a false light invasion of privacy
claim. Because these inadmissible affidavits are the only "evidence"
Campbell has to support his claim that Lyon told others that Campbell
wrote bad checks, committed mail fraud, wire fraud, and racketeering,
was imprisoned for committing racketeering offenses, was a mur-
derer, was blacklisted from jobs nationwide, was involved in orga-
nized crime, and was a career criminal, summary judgment was
appropriate against this claim.
B.
Section § 652D of the Restatement (Second) of Torts states that
[o]ne who gives publicity to a matter concerning the private
life of another is subject to liability to the other for invasion
of his privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
To come within this branch of the invasion of privacy tort, the matter
disclosed must be a private fact and it must be made public. Pember-
ton v. Bethlehem Steel Corp., 502 A.2d 1101, 1118 (Md. App. 1986).
The requirement that the information publicized be private is rooted
in constitutional law. In Cox Broadcasting Corp. v. Cohn, 420 U.S.
469 (1975), the Supreme Court noted that "even the prevailing law of
invasion of privacy generally recognizes that the interests in privacy
fade when the information involved already appears on the public
record." The First and Fourteenth Amendments prohibit States from
v. Portela, 167 F.3d 687, 702-03 (1st Cir. 1999) ("While a trial court
may consider the contents of the statements at issue as evidence" of a
conspiracy, "the determination must rest at least in part on corroborating
evidence beyond that contained in the [hearsay] statements at issue");
United States v. Kelly, 989 F.2d 980 (8th Cir. 1993) ("in supporting co-
conspirator statements . . . the government must provide evidence inde-
pendent of the challenged statements").
10 CAMPBELL v. LYON
imposing sanctions "on the publication of truthful information con-
tained in official court records open to public inspection." Id. at 494-
95. Thus, as the Pemberton court explained, "[t]here is no liability
when the defendant merely gives further publicity to information
about the plaintiff that is already public." 502 A.2d at 1118. In Pem-
berton, the Maryland court held that "the circulation of court records
pertaining to [the appellant’s] conviction is Constitutionally protected
and cannot, therefore, form the basis of tort liability." Id. Similarly,
the commentary to § 652D states that "there is no liability for giving
publicity to facts about the plaintiff’s life that are matters of public
record, such as the date of his birth, the fact of his marriage, his mili-
tary record, the fact that he is admitted to the practice of medicine or
is licensed to drive a taxicab, or the pleadings that he has filed in a
lawsuit."
Campbell claims that Lyon publicized his criminal record and the
RICO complaint. Both documents are public records. Thus, summary
judgment was appropriate against Campbell’s § 652D claim.
V.
To maintain an abuse of process claim, a plaintiff must prove "(1)
wilful use of process for an illegal purpose, (2) with an underlying
ulterior motive, and (3) resulting damages." Humphrey v. Herridge,
653 A.2d 491, 493 (Md. App. 1995). Abuse of process claims are
concerned with "improper use of criminal or civil process in a manner
not contemplated by law after it has been issued[.]" Walker v. Ameri-
can Security & Trust Co., 205 A.2d 302, 307 (Md. App. 1964) (inter-
nal citations omitted).
Campbell claims that Lyon filed a RICO suit against him on
December 31, 1992, which was dismissed by the U.S. District Court
for the District of Maryland. Lyon appealed the dismissal order to this
Court, which affirmed. See Lyon v. Campbell, 28 F.3d 1210, 1994
WL 369453 (4th Cir.) (unpublished). Campbell claims that Lyon filed
the suit "for the illegal purposes" of invading Campbell’s privacy and
tortiously interfering with his business, and for the "ulterior motives
of causing [Campbell] to suffer financial ruin, causing the personal
and business reputations of [Campbell] to be damaged and causing
interference with the conduct of the business affairs of [Campbell]."
CAMPBELL v. LYON 11
In other words, as Campbell states in his appellate brief, Campbell
claims that Lyon filed the suit with the ulterior motive of "adopting
the dismissed claims as truths, and disseminating the complaint to
others in furtherance of their conspiratorial objectives." Appellants’
Br. at 51.
The district court held that Campbell’s abuse of process claims
were "merely a regurgitation of the invasion of privacy and tortious
interference claims." Campbell, Mem. Op. at 15. Additionally, the
court explained that Campbell failed to allege any illegal purpose. Id.
Indeed, the only allegation Campbell made is that Lyon provided a
copy of the RICO complaint to Polan. The mere dissemination of a
public document cannot constitute a sufficient basis for an abuse of
process claim. Because Campbell failed to establish that the dissemi-
nation was somehow illegal, see Humphrey, 653 A.2d at 493, sum-
mary judgment was appropriate against this claim.
VI.
For the foregoing reasons, the judgment of the district court is
affirmed.7
AFFIRMED
TRAXLER, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority’s opinion except as to Part IV, as to which
I take a different view. At summary judgment, Campbell presented
affidavits from Angela Siegel Clark, the public relations consultant
for EKR (a company in which Campbell was a principal) and Timo-
thy Weddington, the President of Salyersville National Bank where
EKR banked. These individuals stated that Polan made quite a few
statements to them about Campbell’s character, his criminal history
and his past business dealings. While some of what Polan told them
was true and verifiable, there is much that was not. For example,
Weddington stated that Polan told him that Campbell was alleged to
7
We have reviewed Campbell’s remaining arguments and find them to
be equally without merit.
12 CAMPBELL v. LYON
have murdered a business associate, that he had been found guilty of
price fixing and was consequently barred from government contracts,
and that he had been convicted of RICO violations. See J.A. 2780.
Weddington also indicated that Polan told him that he, Polan, was
working with Lyon to discredit and ruin Campbell. See J.A. 2781.
Clark stated Polan told her that Campbell had served time in jail
for a RICO violation, that he was a murderer, and that he had been
blacklisted from jobs across the United States. See J.A. 2793-95.
Polan also stated, according to Clark, that he was working with Lyon
to hurt Campbell and that Lyon had paid Polan between $200,000 and
$300,000 for that purpose. See J.A. 2794.
The parties apparently agree that these statements, if indeed made
and proven false as Campbell states they are, would support a claim
under Maryland law for false light invasion of privacy. See Bagwell
v. Peninsula Reg’l Med. Ctr., 665 A.2d 297, 318 (Md. Ct. Spec. App.
1995); Allen v. Bethlehem Steel Corp., 547 A.2d 1105, 1108 (Md. Ct.
Spec. App. 1988). However, in order to make such a claim actionable
against Lyon, Campbell must be able to tie Polan’s statements to
Lyon, which Campbell asserts he can do through the Clark and Wed-
dington affidavits, provided they are admissible. I agree that the state-
ments of Clark and Weddington are admissible under Federal Rule of
Evidence 801(d)(2)(E).
Rule 801(d)(2)(E) instructs that a statement is not inadmissible
hearsay if
[t]he statement is offered against a party and is . . . (E) a
statement by a coconspirator of a party during the course
and in furtherance of the conspiracy. The contents of the
statement shall be considered but are not alone sufficient to
establish . . . the existence of the conspiracy and the partici-
pation therein of the declarant and the party against whom
the statement is offered under subdivision (E).
The statements attributed to Polan by Clark and Weddington provide
strong evidence of a conspiracy, but under Rule 801(d)(2)(E) they are
not enough in and of themselves. Here, though, the admissibility of
this testimony is established by other independent evidence which
CAMPBELL v. LYON 13
corroborates the existence of the conspiracy reflected in Polan’s state-
ments. Campbell has produced a substantial number of financial doc-
uments showing large and frequent transfers of money from Lyon to
Polan and, in some instances, to Polan’s eleven-year-old daughter.
See J.A. 2394-2594.
If there were some legitimate relationship between Lyon and Polan
to justify the payments, Campbell might fall short on his proof. But
here Campbell alleges, and apparently can show, that the only com-
mon ground shared by Lyon and Polan was their animosity toward
Campbell. The payments from Lyon to Polan and his family between
1993 and 1998 approximated $300,000, see J.A. 231-233, 517-519,
856-862, which substantiates Clark’s affidavit, and Campbell has evi-
dence that Lyon did not attempt to characterize these payments as
"loans" until long after they were made. In my view, the giving of a
large amount of money in an extremely suspicious manner is very
incriminating and sufficient to corroborate the existence of a conspir-
acy between Poland and Lyon and to make the statements of Clark
and Weddington admissible under Rule 801(d)(2)(E). Because the
admission of this evidence would preclude summary judgment against
Campbell on his claim for false light invasion of privacy, I respect-
fully dissent.