Opinion
CV-13-277
04-17-2014
DOUGLAS J. GOING, Plaintiff v. NEIL SMITH AKA NEAL SMITH and JENS PETER BERGEN, Defendants
ORDER ON MOTION FOR SUMMARY JUDGMENT
Hon. Roland A. Cole, Justice
Before the Court is Defendant Neal Smith's Motion for Summary Judgment, Filed on January 14, 2014, pursuant to Maine Rule of Civil Procedure 56. Plaintiff Douglas Going has not submitted an opposition to Mr. Smith's Motion. Accordingly, Mr. Smith's statements that are properly supported by record citations are deemed admitted. See M.R. Civ. P. 56(h)(4),
Mr. Going may be under the misimpression that he won his case against Mr. Smith by default. This is not the case. Mr. Smith's default was set aside by this court's November 21, 2013 order. In addition, while Mr. Going filed an opposition to Mr. Smith's August 2, 2013 Motion for Summary Judgment, that objection cannot be considered for purposes of this Motion.
Mr. Going filed his Complaint against Neal Smith and Attorney Jens Peter Bergen. Mr. Going's Complaint contains four counts: Count I is for false complaint with malice; Count II is unlabeled, but it discusses emotional distress damages and appears as if it could be an attempt at a claim for negligent infliction of emotional distress; Count III is for punitive damages; and Count IV is for declaratory damages and essentially seeks Attorney Bergen's disbarment.
I. Factual Background
The instant case stems from a lawsuit that Mr. Smith and his wife Alayna Laprel filed against Mr. Going. (Laprel v. Going , YORSC-RE-2011-165 (Me. Super. Ct., Yor. Cnty., July 31, 2013)). (Pl.'s S.M.F. ¶ ¶ 1-2.) The suit includes claims for declaratory judgment, slander of title, libel, slander, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. (Pl.'s S.M.F. ¶ 2.)
On October 7, 2010, Richard Going, the Plaintiffs father, conveyed a piece of property, 300 Log Cabin Road, to Mr. Smith and Ms. Laprel. (Pl.'s S.M.F. ¶ 3.) On April 8, 2011, the Plaintiff proceeded to record a commercial lien for $550,000 on Mr. Smith and Ms. Laprel's properties, including the 300 Log Cabin Road property. (Pl.'s S.M.F. ¶ 4.) While the Plaintiff subsequently purported to release the $550,000 lien, the Plaintiff then recorded a commercial lien on the 300 Log Cabin Road property for $600,000. (Pl.'s 5.M.F. ¶ 5.)
In Laprel , the Superior Court (Androscoggin County, MG Kennedy, J .) granted a partial summary judgment to Mr. Smith and Ms. Laprel on the declaratory judgment count of their Complaint, thereby finding that there was no basis for a lien on Mr. Smith and Ms. Laprel's property. (Pl.'s S.M.F. ¶ ¶ 6-8.) The liens that Mr. Going had filed were meritless. (Pl.'s S.M.F. ¶ 8.) After trial, the court (York County, Brodrick, J .) also granted judgment in favor of Mr. Smith and Ms. Laprel on Count II of their Complaint, slander of title, awarding $1.00 plus costs, and on Count III, libel, the court found in favor of Ms. Laprel and against Mr. Going and awarded $10,000.00 plus costs. (Pl.'s S.M.F. ¶ ¶ 9-11.) On the other claims, Justice Brodrick found in favor of Mr. Going, but he was awarded no costs. (Pl.'s S.M.F. ¶ 12.)
II. Standard of Review
" Summary judgment is appropriate when the record reveals no issues of material fact in dispute. A fact is material if it has the potential to affect the outcome of the case." Lepage v. Bath Iron Works Corp ., 2006 ME 130, ¶ 9, 909 A.2d 629 (citations omitted).
If " a defendant moves for summary judgment, the plaintiff 'must establish a prima facie case for each element of her cause of action' that is properly challenged in the defendant's motion." Curtis v. Porter , 2001 ME 158, ¶ 8, 784 A.2d 18 (quoting Champagne v. Mid-Maine Med. Ctr ., 1998 ME 87, ¶ 9, 711 A.2d 842). Rule 56 specifies that if an adverse party fails to respond in the manner specified in Rule 56, then " summary judgment, if appropriate, shall be entered against the adverse party." M.R. Civ. P. 56(e). However, '" a party who moves for a summary judgment must properly put the motion and, most importantly, the material facts before the court, or the motion will not be granted, regardless of the adequacy, or inadequacy, of the nonmoving party's response.'" Cach, LLC v. Kulas , 2011 ME 70, ¶ 9, 21 A.3d 1015 (quoting Levine v. R.B.K. Caly Corp ., 2001 ME 77, ¶ 5, 770 A.2d 653).
III. Discussion
While Count I of Mr. Going's Complaint is titled " false complaint with malice", which is not an actual cause of action, this court agrees with Mr. Smith that Count I most closely resembles a claim for wrongful use of civil proceedings. Mr. Smith asserts that his Motion should be granted since Mr. Going cannot demonstrate that the Laprel case, which is the basis for Mr. Going's claims, constituted a wrongful use of civil proceedings. The court agrees and notes that Mr. Going has not attempted to make a prima facie case for any of the elements of his claim, since he has not responded to Mr. Smith's Motion.
Wrongful use of civil proceedings is the correct term for this cause of action, as malicious prosecution applies to criminal actions. See Pepperell Trust Co. v. Mountain Heir Fin. Corp ., 1998 ME 46, ¶ ¶ 14, 15 n. 11, 708 A.2d 651.
The tort of wrongful use of civil proceedings exists where (1) one initiates, continues, or procures civil proceedings without probable cause, (2) with a primary purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based, and (3) the proceedings have terminated in favor of the person against whom they are brought.Pepperell Trust Co. v. Mountain Heir Fin. Corp ., 1998 ME 46, ¶ 15, 708 A.2d 651 (citing RESTATEMENT (SECOND) OF TORTS § 674).
" Probable cause exists when there is a reasonable belief in the existence of facts upon which the claim is based and either a correct or reasonable belief that, under those facts, the claim is valid under the applicable law." Lumb v. Cimenian , 2012 WL 3061784 (Me. Super. June 28, 2012) (citing RESTATEMENT (SECOND) OF TORTS § 675). From reading Justice Kennedy's and Justice Brodrick's decisions in Laprel , the court agrees with Mr. Smith that he had probable cause to initiate his lawsuit. See RESTATEMENT (SECOND) OF TORTS § 675, cmt. b. (" a decision by a competent tribunal in favor of the person initiating civil proceedings is conclusive evidence of probable cause. This is true although it is reversed upon appeal and finally terminated in favor of the person against whom the proceedings were brought.") Furthermore, there is nothing in the summary judgment record to suggest that Mr. Smith sued Mr. Going " with a primary purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based . . . ." Pepperell Trust Co ., 1998 ME 46, ¶ 15, 708 A.2d 651. The court notes, however, that even without finding that Mr. Smith had probable cause, Mr. Going cannot prevail. The proceedings did not terminate in Mr. Going's favor, and the proceedings have not fully terminated as the Laprel case has been appealed.
The Law Court has held that " [f]avorable termination of the offending proceeding is an essential element of the claim." Pepperell Trust Co ., 1998 ME 46, ¶ 16, 708 A.2d 651. Mr. Smith and his wife were granted a summary judgment finding that there was no lien on their property, Mr. Smith also prevailed on his slander of title claim. Mr. Smith's wife prevailed on her libel claim against Mr. Going. While Mr. Going was granted judgment on the other counts, Mr. Smith and Ms. Laprel were the parties awarded monetarily and with the finding that Mr. Going had not placed any valid liens on their property. Mr. Going's Complaint is grounded on the claim that Defendant Smith's lawsuit was baseless. Clearly, the court found that Laprel was not baseless.
In addition, post-trial and appellate remedies have not yet been exhausted in the Laprel action. The Law Court has held that:
there can be no allegation that the proceedings have terminated in the claimant's favor until the possibility of change in the outcome of the offending action has been eliminated through the exhaustion of post-trial or appellate remedies. When an appeal is taken, 'the proceedings are not terminated until the final disposition of the appeal and of any further proceedings that it may entail.'Pepperell Trust Co ., 1998 ME 46, ¶ 18, 708 A.2d 651 (quoting RESTATEMENT (SECOND) OF TORTS § 674, cmt. j). As the Laprel case has not ended in Mr. Going's favor, Mr. Going cannot succeed on a wrongful use of civil proceedings claim.
Nor can Mr. Going succeed on an abuse of process claim, if that is the claim that he was attempting to bring as Count I. Mr. Going has failed to allege that Mr. Smith abused any individual legal procedures. See Pepperell Trust Co ., 1998 ME 46, ¶ 14 n. 8, 708 A.2d 651 (quotations and citations omitted) (abuse of process characterized by use of procedures " in a manner not proper in the regular conduct of the proceedings where there is an ulterior motive. ... [A]buse of process covers the allegedly improper use of individual legal procedures after a suit has been filed properly.") " [A]n action for abuse of process cannot be based solely on the filing of a complaint." Potter, Prescott, Jamieson & Nelson, P.A. v. Campbell , 1998 ME 70, ¶ 7, 708 A.2d 283.
The First Circuit has held that abuse of process can be applied in a wider scope of cases, for example in the context of cases that were initiated to force another action. See Simon v. Navon , 71 F.3d 9, 15 (1st Cir. 1995)(finding that a defendant can be liable for both abuse of process and malicious prosecution when a defendant initiates a lawsuit after " explicitly threaten[ing] to file a baseless lawsuit solely for the purpose of forcing the plaintiffs action in an unrelated matter ... In such a case, the otherwise normal procedure of filing a lawsuit is transformed into an act of abuse by the coincidence of the threat."). Mr. Going has not alleged that this scenario occurred in the Laprel case.
Accordingly, the court ORDERS that Defendant Smith's Motion for Summary Judgment is GRANTED. Costs are awarded to Defendant Smith,
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).