Opinion
Civil Action BCD-RE-2019-00014
05-02-2023
RANDY SLAGER and SYBIL BAIRD, Plaintiffs v. LORI L. BELL and JOHN W. SCANNELL, Defendants
ORDER GRANTING PLAINTIFFS'/ COUNTERCLAIM-DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON SLANDER OF TITLE
Thomas R. McKeon Justice, Business &Consumer Court
INTRODUCTION
Before the court is a motion for summary judgment filed by Plaintiffs'/Counterclaim-Defendants' Randy Slager and Sybil Baird (collectively, "Plaintiffs"). By and through their motion, Plaintiffs request a summary judgment on the slander of title claim contained in Count III of Defendants'/Counterclaim-Plaintiffs' amended counterclaim (the "Motion"). For the reasons discussed below, the court GRANTS Plaintiffs' Motion.
Plaintiff Baird was named a Counterclaim-Defendant by Defendants'/Counterclaim-Plaintiffs' Amended Counterclaim filed with this court on June 6, 2022. (Pls.' S.M.F. ¶ 14.)
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when the parties' statements of material facts and the portions of the record referenced therein "disclose no genuine issues of material fact and reveal that one party is entitled to judgment as a matter of law." Currie v. Indus. Sec., Inc., 2007 ME 12, ¶ 11,915 A.2d 400 (citing M.R. Civ. P. 56(c)). "A material fact is one that can affect the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact finder to choose between competing versions of the fact." Lougee Conservancy v. CitiMortgage, Inc., 2012 ME 103, ¶ 11, 48 A.3d 774 (quoting Steyvart-Dore v. Webber Hosp. Ass'n, 2011 ME 26, ¶ 8, 13 A.3d 773). The Court must view the record facts in the light most favorable to the non-moving party and must draw all reasonable inferences in favor of the same. Watt v. UniFirst Corp., 2009 ME 47, ¶ 21, 969 A.2d 897 (citations omitted).
When the defendant is the moving party, it must establish that there is no genuine dispute of fact and that the undisputed facts would entitle it to judgment as a matter of law. Diviney v. Univ, of Me. Sys., 2017 ME 56, ¶ 14,158 A.3d 5. To withstand a defendant's motion for summary judgment, the plaintiff must in turn establish a prima facie case for each element of their cause of action. Watt, 2009 ME 47, ¶ 21, 969 A.2d 897 (citations omitted). If the plaintiff does not present sufficient evidence on the essential elements of their claim, then the defendants is entitled to a summary judgment thereon. Id.
BACKGROUND
For the limited purpose of deciding Plaintiffs' Motion, the record evidence is sufficient to support the following material facts.
The parties are the owners of neighboring properties on Ocean Avenue in the Town of Kennebunkport, State of Maine. (Pls.' S.M.F. ¶¶ 1-2.) On or about November 1, 2019, Slager filed a three-count Complaint that initiated the present lawsuit against Defendants. (Defs.' S.M.F. ¶ 1.) On December 23, 2019, Slager filed an Amended Complaint. (Pls.' S.M.F. ¶ 3; Defs.' S.M.F. ¶ 6.) Neither of these filings state that "Title to Real Estate is Involved" in the lawsuit. (Defs.' S.M.F. ¶¶ 2, 7.) The Summary Sheet that Slager filed with the Complaint also does not indicate that title to real estate is involved in this case, nor does it qualify the case as a "Title Action." (Defs.' S.M.F. ¶¶ 3-4.)
On March 16, 2020, Slager received an email from his counsel Attorney David Lourie, wherein Attorney Lourie stated that he thought Slager "should file a lis pendens in case [Defendants] sell out, and also to show we are serious." (Defs.' S.M.F. ¶ 9.) Attorney Lourie was not aware of any plan of the Defendants' to sell their property. (Defs.' S.M.F. ¶ 10.) Slager replied, in part, "[n]ow is better than later to me," or, in effect "if you're going to do it, then do it" sooner rather than later. (Defs.' S.M.F. ¶ 12.) On March 22, 2020, Attorney Lourie provided Slager with a copy of the Notice of Lis Pendens at issue (the "Notice") and stated that it would "put the world on notice of the lawsuit, and give it priority over claims of future mortgagees and purchasers of [Defendants'] property." (Defs.' S.M.F. ¶ 15.) Attorney Lourie believed this was a valid basis for recording the Notice. (Pls.' S.M.F. ¶¶ 35-36; Defs.' S.M.F. ¶ 20.) Slager, through Attorney Lourie, caused the Notice to be recorded against Defendants' Ocean Avenue property on April 3, 2020. (Pls.'S.M.F. ¶ 4.)
The Notice provides, in pertinent part:
Plaintiff hereby provides notice pursuant to 14 M.R.S. § 4455 of the Complaint filed by Plaintiff Randy Slager against Defendants Lori L. Bell and John W. Scannell originally filed in York County Superior Court on November 1, 2019 as RE-ALF-RE 19-75 concerning property located at 200 Ocean Avenue, Kennebunkport, York County Maine, the property being further described in a deed recorded at the York County Registry of Deeds in Book 17372, Page 727, which action was later transferred to the Business &Consumer Court.(Pls.'S.M.F. ¶ 42.)
Section 4455 provides:
No action in which the title to real estate is involved is effectual against any person not a party thereto or having actual notice thereof until either:
1, Attachment made and recorded. An attachment of such real estate is duly made and recorded in the registry of deeds, in and for the county or district in which such real estate is situated, in the same manner as attachments of real estate in other actions are now recorded; or
2. Certificate recorded. A certificate setting forth the names of the parties, the date of the complaint and the filing thereof and a description of the real estate in litigation as described in said complaint, duly certified by the cleric of courts in and for the county where said complaint is pending is recorded in the registry of deeds in the county or district in which such real estate is situated.14 M.R.S, § 4455 (2022).
Slager had seen the term "lis pendens," but he had not heard of the device before and did not know what the term meant. (Pls.' S.M.F. ¶ 24; Defs.' S.M.F. ¶ 11.) Slager did not ask Attorney Lourie what the term meant, but he testified during his deposition that he understood that the Notice was one of many papers Attorney Lourie indicated would be filed with the court and that Attorney Lourie informed him about what the Notice covered. (Pls.' S.M.F. ¶¶ 24, 33; Defs.' S.M.F. ¶ 11.) Likewise, Slager did not wonder what the Notice was, whether its recording was appropriate, or what the impact of it might be on Defendants. (Defs.' S.M.F. ¶ 11.) He did not undertake any independent research on the topic. (Pls.' S.M.F. ¶ 17.) Attorney Lourie advised Slager that the filing of a notice of lispendens was a recommended and normal procedure. (Pls.' S.M.F. ¶ 25; Defs.'S.M.F. ¶ 11.)
Slager was deposed on July 8,2022, at which time he was asked a series of questions by Defendants about the Notice. (Pls.' S.M.F. ¶ 16.) During the deposition, Slager reaffirmed that the only communications that he had with counsel concerning the Notice comprised his email exchange with Attorney Lourie. (Pls.' S.M.F. ¶ 23.)
On April 7, 2020, Defendants, by and through counsel, wrote to Attorney Lourie to notify Slager that the Notice was improper, and requested that it be withdrawn. (Defs.' S.M.F. ¶ 26.) Defendants also requested that Attorney Lourie provide authority for his position that the Notice was proper. (Defs.' S.M.F. ¶ 27.) Attorney Lourie refused Defendants' requests. (Defs.' S.M.F. ¶ 28.) Defendants filed a Motion to Cancel Notice of Lis Pendens in this matter on April 13,2020, requesting that this court cancel the Notice on the grounds that Stager's Amended Complaint did not involve claims affecting title to real estate, (Pls.' S.M.F. ¶ 5; Defs.' S.M.F. ¶ 32.)
By order docketed April 30, 2020, the court granted Defendants' Motion to Cancel Notice of Lis Pendens, Order on Defendants' Motion to Cancel Notice of Lis Pendens, Slager v. Bell, No. BCD-RE-2019-00014, slip op. at 1-2 (Me. B.C.D. Apr. 30, 2020) (Murphy, J.). (Pls.' S.M.F. ¶ 6; Defs.' S.M.F. ¶ 36.) In its order, the court stated that "[w]hile the issue presented has not been directly addressed by the Law Court, this [c]ourt is persuaded by the Superior Court's decision in Brunswick Citizen's for Collaborative Government v. Town of Brunswick' and granted Defendants' motion because "title for the real estate is not at issue in this case." (Defs.' S.M.F. ¶¶ 37, 45.) Slager caused a copy of the order to be recorded with the York County Registry of Deeds on May 11,2020. (Pls.'S.M.F. ¶ 7.)
The court referred to Brunswick Citizens for Collaborative Government v. Town of Brunswick, No. AP20170006, 2017 WL 6513574 (Me. Super. March 16, 2017).
On May 5, 2020, Defendants filed an answer to Slager's Amended Complaint, as well as their counterclaim that included their cause of action for slander of title related to the Notice. (Pls.' S.M.F. ¶¶ 8-9; Defs.' S.M.F. ¶ 38.) Slager filed a Motion to Dismiss Defendants' counterclaim. (Pls.' S.M.F. ¶ 10; Defs.' S.M.F. ¶ 39.) Regarding Defendants' counterclaim for slander of title, Slager argued that the Notice was entitled to absolute privilege, that it did not assert a claim to the title to Defendants' property, and that Defendants' allegations were otherwise insufficient to support the cause of action. (Pls.' S.M.F. ¶ 11; Defs.' S.M.F. ¶ 39.)
On July 15, 2021, the court issued an order wherein it denied Slager's Motion to Dismiss with respect to Defendants' counterclaim for slander of title, Order on Counterclaim-Defendant's Motion to Dismiss, Slager v. Scannell, No. BCD-RE-2019-00014, 2021 Me. Bus. &Consumer LEXIS 36 (July 15,2021) (Murphy, J.). (Pls.' S.M.F. ¶ 12; Defs.' S.M.F. ¶40.) Regarding Slager's claim that the Notice is entitled to absolute privilege, the court reasoned that Defendants' allegation that the litigation does not concern title to their property "at least generates an inference that the filing was 'unnecessary' at [the motion to dismiss] stage of the case where the [c]ourt must accept the well-pleaded allegations as true and view the complaint in the light most favorable to the [Defendants]," Slager, 2021 Me. Bus. &Consumer LEXIS 36, at *12. (Defs.' S.M.F. ¶ 40.) Further, the court stated that "[w]hilc the Law Court has upheld the application of privilege to a slander of title claim at the motion to dismiss stage, Raymond [v. Lyden], 1999 ME 59, ¶ 6, 728 A.2d 124, the [c]ourt believes that determination is better left for a different procedural stage in the context of this case," Slager, 2021 Me. Bus. &Consumer LEXIS 36, at *13. (Pls.' S.M.F. ¶ 13; Defs.'S.M.F. ¶ 40.)
DISCUSSION
To prevail on a slander of title claim, a plaintiff must prove the following elements: (1) a publication of a slanderous statement disparaging claimant's title; (2) that was false; (3) made with malice or reckless disregard of its falsity; and (4) that caused actual or special damages. Raymond V. Lyden, 1999 ME 59, ¶ 6 n.6, 728 A.2d 124 (citation omitted). One limitation placed upon this species of defamation is the litigation privilege; "[a] party to a private litigation is privileged to publish slanderous material concerning the title of another 'in the institution of ... a judicial proceeding in which he participates, if the matter has some relation to the proceeding.'" Id. ¶ 6 (quoting Restatement (Second) of Torts §§ 635, 587 (Am. Law Inst. 1977)) (emphasis supplied). "The privilege is absolute and 'protects a party to a private litigation ... from liability ... irrespective of his purpose in publishing the defamatory matter, of his belief in its truth or even his knowledge of its falsity.'" Id. (quoting Restatement (Second) of Torts § 587 cmt. a).
I. Whether the Law of the Case Doctrine bars Plaintiffs' Motion.
In their opposition to Plaintiffs' Motion, Defendants first argue that the law of the case doctrine bars Plaintiffs' argument that they are entitled to summary judgment on Defendants' slander of title counterclaim. (Defs.' Opp'n to Pls.' Mot. Summ. J. 8.) Specifically, Plaintiffs argue that in denying Slager's Motion to Dismiss, this court ruled that the Notice consists of a statement that Slager was engaged in litigation involving title to Defendants' property. (Id.) The law of the case doctrine requires a trial court justice to not, in a subsequent proceeding involving the same case, overrule or reconsider a prior decision by another justice. Grant v. Saco, 436 A.2d 403, 405 (Me. 1981). However, the doctrine is "not as rigidly applied as the doctrine of res judicata." Id. (citation omitted). For example, "the rule does not serve as a complete bar to reconsideration of an issue when the prior ruling is provisional." Id. (citation omitted).
Here, in its provisional Order on Counterclaim-Defendant's Motion to Dismiss, the court specifically declined to decide whether the Notice is entitled to absolute privilege. It specifically left that decision for a procedural stage with a more robust record; one different than the motion to dismiss. Slager, 2021 Me. Bus. &Consumer LEXIS 36, at *13. Even if Defendants are correct that the facts that the Notice contains a false statement and was thusly unnecessarily and improperly filed are already established, they are not dispositive concerning Plaintiffs' fault. See Raymond, 1999 ME 59, ¶ 6, 728 A.2d 124 (citation and quotation marks omitted). Thus, the law of the case doctrine does not apply to the determination of absolute privilege.
IL Whether the Notice is entitled to the absolute "litigation privilege."
As noted above, in Maine a party is not liable for publication of otherwise slanderous material if there is a pending judicial proceeding involving the publishing party and the party about whom the publication is made, and the subject matter of the publication has some relation to that proceeding. Id. (citation and quotation marks omitted).
Each prong of the test articulated in Raymond are satisfied in this case; there was a pending proceeding at the time when the Notice was recorded, and the Notice relates to that proceeding. Accord Seagull Condo. Ass 'n v. First Coast Realty & Development, LLC, No. CV-09-93,2012 Me. Super. LEXIS 103, at *8, * 10-12 (July 12,2012) (finding that the plaintiff's notice of lis pendens, which referenced it's amended complaint, was entitled to absolute privilege, and declining to accept the plaintiff's act of filing the notice of lis pendens as a factual basis for the defendant's slander of title action); Pond Place Partners, Inc. v. Poole, 567 S.E.2d 881, 888-97 (S.C. Ct. App. June 17, 2002) (discussing cases); Marroco v. Hill, No. 2:12-CV-28 JCM, 2012 U.S. Dist. LEXIS 72270, at *5-6 (D. Nev. May 24, 2012); Duncan Fam. Tr. v. Chesapeake Expl., LLC, No. 4:08-cv-325, 2008 U.S. Dist. LEXIS 123281, at *4-6 (E.D. Tex. Nov. 21, 2008); Ex parte Boykin, 656 So.2d 821, 826 (Ala. Civ. App. Aug. 19, 1994).
There is no question there was a pending proceeding. Furthermore, the Notice has some relation to the proceeding, which involved a dispute over construction on the Defendant's property. The court ultimately ruled that the litigation over the Defendant's retaining wall did not involve title as required by statute and that the Notice should be dissolved. That outcome was not certain. There is no Law Court precedent on the issue. Although it turned out to be wrong, Plaintiff, relying on the advice of counsel, recorded the Notice. The privilege allows room for error. That is why the publication need only be related to the proceeding. That is the case here.
The Notice's representation that "title to real estate is involved" in the underlying proceeding resulting from its citation to section 4455 may be false. Consistent with longstanding public policy observed in the State of Maine, the litigation privilege is broadly construed to protect even false statements from liability. See Raymond, 1999 ME 59, ¶ 6, 728 A.2d 124 (citation and quotation marks omitted); Garing v. Fraser, 76 Me. 37, 42 (Me. 1884). It applies here to protect Plaintiffs from liability related to their publication of the Notice.
CONCLUSION
Based on the foregoing, the entry will be: Plaintiffs'/Counterclaim-Defendants' Motion for Summary Judgment on Count III of Defendants'/Counterclaim-Plaintiffs' Amended Counterclaim and cause of action for slander of title is GRANTED.
So ordered.
The Clerk is requested to enter this Order on the Docket, incorporating it by reference pursuant to Maine Rule of Civil Procedure 79(a).
Entered on the docket: 05/03/2023