Packard v. Central Maine Power Co.

• Decision Date: 30 May 1984
• Citation: 477 A.2d 264
• Parties: Arnold PACKARD v. CENTRAL MAINE POWER COMPANY.
• Court: Maine Supreme Court

Page 264

477 A.2d 264

Arnold PACKARD v. CENTRAL MAINE POWER COMPANY.

Supreme Judicial Court of Maine.

Argued March 5, 1984.

Decided May 30, 1984.

Rose L. Duggan (orally), Portland, for plaintiff.

William J. Kayatta, Jr. (orally), Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Ralph I. Lancaster, Jr., John J. O'Leary, Portland, for defendant.

Before NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ.

VIOLETTE, Justice.

The plaintiff Arnold Packard appeals from an order of the Superior Court, Kennebec County, granting the defendant Central Maine Power Company's motion for judgment notwithstanding the verdict. The plaintiff also appeals from the court's entry of a directed verdict for the defendant on the plaintiff's abuse of process claim. The defendant cross-appeals, assigning error to two rulings made by the presiding justice. Finding no error in the entry of the judgment NOV, or in the directed verdict, we affirm the judgment in all respects. It is therefore unnecessary for us to address the merits of the defendant's cross-appeal.

I.

On April 7, 1980, a criminal complaint was filed against Arnold Packard, after an investigation by the Cumberland County Sheriff's Department which had been prompted by CMP's representations that it believed Packard had tampered with and bypassed the electric meter on his house and had stolen electricity. Lieutenant Harry Hanscom of the Sheriff's Department signed the complaint, charging Packard with theft of services (17-A M.R.S.A. § 357) and criminal mischief (17-A M.R.S.A. § 806). Packard, who was employed as a deputy in the Cumberland County sheriff's office, was suspended from his job "pending the outcome of the investigation of alleged criminal charges lodged against you by the Central Maine Power Company." The criminal mischief charge was subsequently dismissed, and Packard was acquitted in the Bridgton District Court on the theft charge on May 19, 1980. Packard was reinstated to his Sheriff's Department job on May 22, 1980.

Packard instituted this action on August 8, 1980, alleging three causes of action against CMP. Count I of the complaint charged CMP with malicious prosecution for bringing the criminal complaint against Packard for theft of services; Count II charged CMP with defamation for communicating with Packard's employer regarding the criminal allegations and causing the attendant media publicity; Count III charged CMP with causing Packard extreme mental distress and anxiety during the defense of the criminal charges. In Count IV, Packard sought $5,000,000 in punitive damages. CMP counterclaimed for theft of services, damage to its equipment, and related expenses.

On October 27, 1982, the court granted the plaintiff's motion to amend his complaint by adding a count alleging abuse of process. Subsequently, just before trial, the plaintiff withdrew his malicious prosecution claim.

The plaintiff moved in limine to exclude evidence he had taken and failed two polygraph exams--one given during CMP's preliminary investigation of the case, and one given later by the Cumberland County Sheriff's Department. The court granted the motion, despite the defendant's objection.

On January 3, 1983, the 2 1/2 week jury trial began in the Superior Court, Kennebec County. At the close of the plaintiff's evidence, CMP moved for a directed verdict on all three counts of the complaint (abuse of process, defamation, and infliction of emotional distress), and the punitive damages claim. The court granted the motion only as to the abuse of process claim. At the close of all the evidence, CMP moved for a directed verdict on all remaining counts. This motion was denied.

The presiding justice instructed the jury on Packard's claims for defamation and negligent infliction of emotional distress, punitive damages, and CMP's counterclaim for loss of services.

The jury returned a verdict finding the defendant not liable on the defamation claim, and allowed no punitive damages. The jury found CMP liable for negligent infliction of emotional distress, and awarded the plaintiff $20,000 in compensatory damages. The jury also found for the plaintiff on CMP's counterclaim for conversion of services. The court ordered judgment for the plaintiff in the amount of $20,000 on January 19, 1983.

On January 26, 1983, the defendant moved for judgment notwithstanding the verdict, pursuant to M.R.Civ.P. 50(b). After briefing and argument, the court granted CMP's motion, and entered final judgment for CMP on all counts of the complaint and against CMP on its counterclaim.

Packard appeals the entry of judgment NOV and the directed verdict for CMP on the abuse of process claim. CMP cross-appeals, assigning error to the court's exclusion of evidence concerning the two polygraph tests Packard had taken, and to the court's failure to rule Packard a "public official" under the New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), standard, for purposes of the defamation claim. ¹

II.

We note at the outset that the standard of review for testing the propriety of granting a motion of a defendant for judgment notwithstanding the verdict is the same as that for reviewing the grant of a directed verdict for the defendant. Cox v. Dela Cruz, 406 A.2d 620, 621 (Me.1979). "[W]e must view the evidence, 'including every justifiable inference,' in the light most favorable to the plaintiff so that we may decide whether by any reasonable view of this evidence a jury verdict for the plaintiff could be sustained." Boetch v. Rockland Jaycees, 288 A.2d 102, 104 (Me.1972). Accord Everson v. Ham, 411 A.2d 687, 689 (Me.1980); Schultz v. Gould Academy, 332 A.2d 368, 369 (Me.1975).

We first address the plaintiff's claim that the court erred in directing a verdict for the defendant on the abuse of process claim. In opposing the motion, the plaintiff argued he had adduced evidence showing CMP had initiated the criminal complaint only after Packard had refused to pay for the electricity CMP claimed he had stolen. The plaintiff alleged this constituted use of the criminal process for collections, and supported his abuse of process claim. The court was not persuaded by the plaintiff's argument, and ordered judgment for the defendant on the abuse of process count. In Nadeau v. State, 395 A.2d 107, 117 (Me.1978), we explained that abuse of process is the employment of process in a manner not contemplated by the law. "It differs from malicious prosecution in that it lies for the improper use of process after it has been issued, not for maliciously causing process to issue." Id., quoting Lambert v. Breton, 127 Me. 510, 514, 144 A. 864, 866 (1929). "Elements necessary to sustain such an action include 1) a use of the process in a manner not proper in the regular conduct of the proceedings and 2) the existence of an ulterior motive." Nadeau, 395 A.2d at 117. See Goucher v. Dineen, 471 A.2d 688, 689 (Me.1984). Even if the plaintiff could prove CMP acted wrongfully in reporting the matter to the law enforcement officials, such evidence is not relevant to an allegation of abuse of process. We have examined the record, and find no reason to disagree with the trial justice's conclusion that the plaintiff did not adduce sufficient evidence that would justify a jury verdict finding CMP had improperly used the criminal process after the complaint had been issued. We therefore affirm the judgment for the defendant on the abuse of process claim.

III.

In reviewing an appeal from an entry of judgment notwithstanding the verdict, it is usually necessary for this court to review the record to see if there is sufficient evidence of facts that would support the jury's conclusion. E.G., Minott v. F.W. Cunningham & Sons, 413 A.2d 1325, 1332 (Me.1980); Gilbert v. Cliche, 398 A.2d 387, 388 (Me.1979). In the present case, however, we must focus on the trial justice's conclusion that he erred in instructing the jury and that if...