         IN THE SUPREME COURT OF THE STATE OF DELAWARE

MICHAEL R. BAIZE,           §
                            §                 No. 30, 2016
         Plaintiff Below,   §
         Appellant,         §
                            §                 Court Below - Superior Court
     v.                     §                 of the State of Delaware
                            §
JOSEPH VINCENT and DANIELLE, §                C.A. No. K13C-04-034
VINCENT, Husband and Wife,  §
                            §
         Defendant Below,   §
         Appellee.          §

                          Submitted: September 14, 2016
                            Decided: October 10, 2016

Before STRINE, Chief Justice; HOLLAND and VAUGHN, Justices.

                                       ORDER

      This 10th day of October 2016, upon consideration of the parties’ briefs and the

record of the case, it appears that:

      1. Michael R. Baize filed a complaint in the Superior Court alleging claims of

malicious prosecution and defamation against Dr. Joseph Vincent and Danielle

Vincent. A jury rendered a verdict in favor of the Vincents, and Baize now appeals,

asserting two claims. He contends that the trial court abused its discretion by (1)

excluding from evidence a motion, filed by the State, to expunge a record of Baize’s

arrest on forgery charges and (2) quashing a subpoena which Baize served upon the

deputy attorney general who had prepared and filed the expungement motion.
       2. Joseph Vincent and his sister were raised by their grandfather. The

grandfather named Donna C. Baize as guardian of Joseph and his sister and trustee

of a trust for their benefit in the event of his death. He died shortly thereafter, and

Joseph and his sister, who were teenagers, were then cared for by Donna Baize and

her husband Michael.

       3. Various disputes arose concerning the trust assets which resulted in

litigation in the Court of Chancery. After that litigation was resolved, Joseph, who

by then had become Dr. Vincent, and his wife, Danielle, accused Michael of forging

Dr. Vincent’s name on six checks. Michael was arrested and charged with six counts

of Forgery in the Second Degree. Eventually the State entered a nolle prosequi on

all counts. The State then filed a motion to expunge Michael’s arrest record. The

motion was granted and the record was expunged. Michael then initiated this

litigation.

       4. A pre-trial stipulation was prepared on or about November 20, 2015. Baize

listed the motion to expunge his arrest record as a trial exhibit. The Vincents listed

a number of objections to introduction of the motion. At about the same time, Baize

had a subpoena served upon Stephen Welch, the deputy attorney general who had

prepared and filed the motion to expunge Baize’s arrest record. Baize also listed the

deputy attorney general as a witness in the pre-trial stipulation.

       5. On the same day that the parties filed their pre-trial stipulation, counsel for
Baize sent a letter to the trial judge arguing that the motion to expunge Baize’s arrest

record was admissible under Delaware Rule of Evidence 201(b)(2). That rule allows

a court to take judicial notice of adjudicative facts if such facts are “capable of

accurate and ready determination by resort to sources whose accuracy cannot

reasonably be questioned.” Baize argued that because the motion was from a docket

in an underlying action, and “from a source whose accuracy cannot be reasonably

questioned,” it fell under Rule 201(b)(2). In his letter, counsel further stated that it

was his position that if the motion could be introduced as evidence, he would prefer

to withdraw the subpoena. Counsel for the Vincents responded with a letter in which

they continued to object to the admissibility of the motion, but stated that they were

willing to stipulate that the forgery charges were expunged.

      6. On November 30, 2015, the trial court ruled that the motion to expunge

Baize’s arrest record was not admissible under Rule of Evidence 201(b)(2), noting

that the motion contained statements which were unproven and that the document

contained statements that may be unfairly prejudicial to the Vincents. The trial court

also took note of the Vincents’ offer to stipulate that the arrest record was expunged.

      7. In the meantime, the Department of Justice sent a letter to the trial court

dated November 25, 2015 asking it to quash the subpoena. By order dated December

10, 2015, the Superior Court quashed the subpoena. The court stated, “It will not be

necessary for Mr. Welch to appear for the sole purpose of testifying as to the
dismissal and/or nolle prosequi of the criminal charges.” The court further stated that

“[t]he parties may submit an appropriate stipulation,” no doubt referring to the offer

of the Vincents to stipulate to the dismissal and expungement of the charges. Baize’s

counsel did not assert any objection to the trial court’s order.

      8. A three-day trial commenced on December 14, 2016. As mentioned, the

jury returned a verdict for Dr. and Mrs. Vincent finding that they were not liable for

malicious prosecution and defamation of Mr. Baize. This appeal followed.

      9. On appeal, Baize argues that the motion to expunge his arrest record was

admissible because it contained admissions by Dr. Vincent as a party-opponent.

However, this argument was not presented to the trial court. In the trial court, Baize

relied solely on his judicial notice argument. Baize also argues that the trial court

abused its discretion by quashing the subpoena. However, in the trial court Baize

never objected to the subpoena being quashed. Under these circumstances, we find

that the arguments which Baize raises on appeal were not fairly presented to the trial

court. Therefore, under Supreme Court Rule 8, they will not be considered on appeal,

unless the interests of justice so require. Review of an alleged error under the

interests of justice exception is “limited to material defects which are apparent on the

face of the record; which are basic, serious and fundamental in their character, and

which clearly deprive [a party] of a substantial right, or which clearly show manifest
injustice.”1 Baize has not met this demanding standard.

         NOW, THEREFORE, IT IS ORDERED that the final judgment of the Superior

Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ James T. Vaughn, Jr.
                                                    Justice




1
    Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
