Opinion
Civil Action RE 20-79
02-23-2021
RICHARD G. STEVENS, et al Plaintiffs v. PETER B. THORNTON, et al Defendants
ORDER
MarkGay Kenney, Justice
Before the court is Plaintiffs' Motion to Dismiss Count III of Defendants' Counterclaim. For the forgoing reasons, the Motion is granted.
I. Facts
The Plaintiffs brought this action claiming title to a portion of the Defendants) land by adverse possession. Plaintiffs' counsel also prepared and recorded a certificate of lis pendens in the Cumberland County Registry of Deeds indicating that an action involving title to the Defendants' property had been filed. The Defendants' Response to the Plaintiffs' Complaint included multiple Counterclaims, including Slander of Title (Count III). The Defendants allege that the lis pendens contains false statements that were made with malice or with reckless disregard of their falsity and have caused damage to the Defendants. The Plaintiffs seek to dismiss Defendants' slander of title counterclaim, arguing that a certificate of lis pendens is privileged.
II. Legal Standard
A motion to dismiss pursuant to M. R. Civ. P. 12(b)(6) "tests the legal sufficiency of the allegations in the complaint, not the sufficiency of the evidence the plaintiffs are able to present." Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993)(internal citations omitted). The court shall "consider the facts in the complaint as if they were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, ¶ 16, 17 A.3d 123. The complaint is viewed "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Id. (quoting Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830). "Dismissal is warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under any set of facts that he might prove in support of his claim." Id.
III. Discussion
Slander of title requires the claimant to show: (1) publication of a slanderous statement disparaging claimant's title; (2) the statement was false; (3) the statement was made with malice or made with reckless disregard of its falsity; and (4) the statement caused actual or special damages. See Colcjuhoun v. Webber, 684 A.2d 405, 409 (Me. 1996).
There is no dispute that the Defendants' counterclaim pleads facts necessary to prove the elements of a slander of title cause of action. The Plaintiffs argue, however, that the certificate of lis pendens filed in relation to this action is privileged and cannot give rise to a slander of title claim, regardless of whether the lis pendens contains false information. The court must determine whether a complaint that pleads the elements necessary to prove slander of title should still be dismissed when the facts giving rise to the action are found in a certificate of lis pendens.
A. Privilege
A party to private ligation is privileged to publish slanderous material concerning the title of another in the institution of a judicial proceeding in which the party participates, if the matter has some relation to that proceeding. See Raymond v. Layden, 1999 ME 59, ¶ 6, 728 A.2d 124; see also Restatement 2d Torts § 587 (1977). The Law Court has not specifically addressed whether this absolute privilege applies to a certificate of lis pendens. However, the Superior Court has previously determined that if the filing of a lis pendens is related to an underlying judicial proceeding, the "lis pendens cannot be a factual basis for [a] slander of title action." Seagull Condo Ass'n v. First Coast Realty & Dev., LLC, 2012 Me. Super. LEXIS 103, *12-13 (July 12, 2012); see also Street & Company, Inc. v. Can, 1992 Me. Super. LEXIS 173, *4-6 (July 15, 1992)(holding that a lis pendens is privileged from a slander of title action if the document was directly related to the judicial proceeding).
The Defendants argue that the privilege does not apply because filings in the registry of deeds are outside the scope of this judicial proceeding. Although not explicit, the Defendants ask this court to abandon prior Superior Court reasoning observed in both Seagull Condo and Street & Company cited above. Indeed, the Defendants' only reference to Seagull Condo is a footnote, wherein the Defendants point out that Seagull Condo acknowledged that the Law Court has not ruled definitively whether the privilege applies to a certificate of lis pendens. The Defendant attempts to distinguish Street & Company by suggesting that Colquhoun and Raymond, decided after Street & Company, require a narrower application of the slander of title privilege.
The Defendants' argument is unpersuasive. The Coloquhoun decision merely recognized the elements necessary to prove a slander of title claim and does not affect the applicability of any recognized privilege. The Raymond decision held that a publication need only bear "some relation to the proceeding" for the privilege to apply. Raymond, 1999 ME 59, ¶ 6, 728 A.2d 124 (emphasis added). In Street & Company, the Superior Court determined that a lis pendens is "directly related to a judicial proceeding" when filed to give notice of pending litigation. 1992 Me. Super. LEXIS 173, *2-3. With the benefit of the Law Court's decisions in Coloquhoun and Raymond, the Superior Court specifically found that "[t]he Street & Company decision [was] well-reasoned[.]" Seagull Condo Ass'n, 2012 Me. Super. LEXIS 103, *13. Therefore, "[i]n the absence of contradictory Maine law and because the filing of the lis pendens in this case was related to the underlying judicial proceeding, the act of filing the ... lis pendens cannot be [the] factual basis for [Defendant's] slander of title action[.]" Seagull Condo Ass'n, 2012 Me. Super. LEXIS 103, *13.
The facts alleged in support of Defendants' slander of title counterclaim are limited to the contents of the certificate of lis pendens. Although the Defendants allege that the contents of the lis pendens constitute slander of title, the Defendants have not filed a copy of the lis pendens with this court. Indeed, the counterclaim states only that the lis pendens "[refers] to [Plaintiff's] Complaint and claim[s] that the action involves title to a part of the [Defendants'] lot." (Def's. Ans. and Counterclaim ¶ 16.) As such, the allegations in the counterclaim, even when viewed in the light most favorable to the Defendants, show only that the lis pendens was filed to announce this proceeding. Therefore, the Defendants have failed to allege facts upon which relief can be granted on Count III because the facts as alleged in the counterclaim show that the lis pendens is privileged against a slander of title cause of action.
IV. Conclusion
The facts alleged in Defendants' Counterclaim would prove only that the certificate of lis pendens complained of was filed to announce pending litigation that implicates title to Defendants' property. Even when viewed in the light most favorable to the Defendants, the Counterclaim shows that the lis pendens is a publication made in relation to this proceeding and is privileged against a slander of title cause of action. As such, the Defendants have failed to allege facts necessary to show that they might be entitled to recover from the Plaintiffs' for slander of title. Therefore, Plaintiffs' Motion to Dismiss Count III of Defendants' Counterclaim is GRANTED.
The entry is:
Count III of Defendants/Counterclaim Plaintiffs' Counterclaim is hereby DISMISSED WITHOUT PREJUDICE.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).