Bradbury v. City of Eastport

• Citation: 2013 ME 72,72 A.3d 512
• Decision Date: 01 August 2013
• Docket Number: Docket No. Was–12–579.
• Parties: Phyllis BRADBURY et al. v. CITY OF EASTPORT et al.
• Court: Supreme Judicial Court of Maine (US)

72 A.3d 512

2013 ME 72

Phyllis BRADBURY et al.

v.CITY OF EASTPORT et al.

Docket No. Was–12–579.

Supreme Judicial Court of Maine.

Argued: June 11, 2013.

Decided: Aug. 1, 2013.

Kristin M. Collins, Esq. (orally), Kelly & Collins, LLC, Belfast, for appellants Phyllis Bradbury and David Gholson.

Dennis L. Mahar, Esq. (orally), Fletcher & Mahar, Calais, for appellees City of Eastport, Friends of the Boat School, Marine Services Development Corp., and Moose Island Marine, Inc.

Paul M. Koziell, Esq. (orally), and Julia G. Pitney, Esq, Drummond & Drummond, LLP, Portland, for appellees First Perry Realty, LLC and CPM Constructors.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SILVER, J.

[¶ 1] Phyllis Bradbury and David Gholson (collectively, plaintiffs) appeal from an order of the Superior Court (Washington County, R. Murray, J.) denying their special motion to dismiss the counterclaims of First Perry Realty, LLC, CPM Constructors, and the City of Eastport (collectively, defendants) pursuant to Maine's anti-SLAPP statute, 14 M.R.S. § 556 (2012). ¹ This appeal gives us the opportunity to determine the limits of a court's discretion to disallow the late filing of an anti-SLAPP motion. Plaintiffs argue that the court erred or abused its discretion in declining to address the merits of their special motion to dismiss despite their failure to file the motion within the sixty-day period provided by the statute. Plaintiffs further argue that the court should have granted their special motion to dismiss because defendants' counterclaims for tortious interference with a contract and slander of title are based on plaintiffs' petitioning activity. We affirm the judgment.

I. BACKGROUND

[¶ 2] In early 2011, the City began efforts to sell a seventeen-acre, oceanfront property located at 16 Deep Cove Road, known as “the Boat School.” The City's charter gives the City Manager the power to sell City property “only after such sale has been authorized and advertised by the City Council.” The charter does not define “advertised.”

[¶ 3] After widely publicized negotiations for the sale of the Boat School failed, the City Council entertained offers to purchase the Boat School at properly noticed public meetings in August and September 2011. At a September 1 meeting, after public comment, including comment by plaintiff Gholson, the City Council voted to approve a sale of the Boat School to First Perry and CPM. The details of the purchase and sale agreement were discussed at another meeting on September 21, 2011. After further public comment, again including comment by Gholson, the Council voted to authorize the City Manager to execute the agreement, which he did the next day. At another properly noticed public meeting on October 12, 2011, the date of the closing was identified as October 28, 2011, and the Council authorized the City Manager to effectuate the sale.

[¶ 4] The transaction did not close on October 28, as planned. On October 20, 2011, plaintiffs filed a complaint in the Superior Court seeking a declaratory judgment that the agreement was invalid due to the City's failure to advertise in accordance with its charter, and moved for a temporary restraining order to prevent the sale of the property. The court denied the motion on October 28, 2011. On December 1, 2011, after placing notices of the sale of the Boat School in the Bangor Daily News on November 17 and 20, 2011, the City conveyed the Boat School to First Perry. On January 3, 2012, plaintiffs recorded a notice of lis pendens in the Washington County Registry of Deeds.

[¶ 5] On January 11, 2012, the court permitted plaintiffs to file an amended complaint adding several parties in interest, and denied defendants' motions to dismiss pursuant to M.R. Civ. P. 12. Later that month, defendants filed counterclaims against plaintiffs for slander of title and tortious interference with a contract. First Perry and CPM's counterclaims alleged that plaintiffs had slandered First Perry's title to the Boat School and tortiously interfered with First Perry's contract with the City “[b]y alleging that the City did not ‘advertise’ the sale of the Boat School Property in accordance with the City's Charter.” The City likewise alleged that plaintiffs “filed their complaint in an attempt to intimidate or induce the City of Eastport to renege” on the contract. The parties in interest filed a counterclaim similar to the City's on April 5, 2012.

[¶ 6] On May 22, 2012, plaintiffs moved for summary judgment on their claim seeking a declaratory judgment, and on the defendants' counterclaims. In their supporting memorandum, plaintiffs argued that the “sole basis” for the counterclaims was plaintiffs' filing of the complaint. In opposing plaintiffs' motion, defendants raised the plaintiffs' recording of the notice of lis pendens as a basis for their counterclaims, and presented evidence of emails from plaintiff Gholson to third parties during the pendency of the litigation disparaging defendants and the sale of the Boat School as a “backroom deal.” On June 19, 2012, First Perry and CPM filed a motion for summary judgment on plaintiffs' complaint. On August 30, 2012, while the motions for summary judgment remained pending, plaintiffs filed a special motion to dismiss the defendants' counterclaims pursuant to the anti-SLAPP statute. A hearing on the various motions was held on September 28, 2012.

[¶ 7] On November 15, 2012, the court granted First Perry and CPM's motion for summary judgment on plaintiffs' complaint, concluding that the City had sufficiently advertised the sale of the Boat School. The court also granted plaintiffs' motion for summary judgment as to defendants' counterclaim for tortious interference with a contract because the counterclaim was based on the plaintiffs' recording of a notice of lis pendens, which was “directly related to this judicial proceeding ... [and] absolutely privileged.” As to defendants' counterclaim for slander of title, the court granted plaintiffs' motion for summary judgment to the extent that the counterclaim was based on the plaintiffs' notice of lis pendens, but denied the motion insofar as the counterclaim rested upon evidence of “separate allegedly slanderous statements” by the plaintiffs, which defendants had not yet had an adequate opportunity to develop through discovery.

[¶ 8] In the same order, the court declined to consider the merits of plaintiffs' special motion to dismiss because it was filed more than sixty days after service of the counterclaims. Although recognizing its discretion to permit the filing of a motion after the expiration of the sixty-day statutory period, the court declined to do so, noting that (1) plaintiffs provided “[n]o valid reason” for their delay in filing the motion, (2) plaintiffs failed to submit a request to file the motion late, (3) plaintiffs filed the motion “after the filing of all the other pending motions and responses,” and (4) plaintiffs' motion was “contemporaneous with certain efforts to engage in further discovery activity in this case” and had the effect of staying discovery pursuant to the anti-SLAPP statute. The court therefore denied the motion. Plaintiffs appealed,² and proceedings in the trial court were stayed.

II. DISCUSSION

A. The Anti–SLAPP Statute

[¶ 9] Maine's anti-SLAPP statute, 14 M.R.S. § 556, “permits defendants to file a special motion to dismiss civil claims against them that are based on the defendants' exercise of the constitutional right to petition.” Nader v. Me. Democratic Party (Nader II), 2013 ME 51, ¶ 12, 66 A.3d 571. “SLAPP,” an acronym for “Strategic Lawsuit Against Public Participation,” refers to meritless lawsuits filed to dissuade or punish a party's exercise of its constitutional rights by imposing on it the delays and costs associated with litigation. Morse Bros. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842. The purpose of the anti-SLAPP statute and the special motion to dismiss is to provide a “procedural mechanism to dispose of baseless lawsuits that are brought not to vindicate the plaintiff's rights but to punish the defendant for exercising her constitutional right to petition the government, and to do so at an early stage before the defendant incurs great expense.” Nader II, 2013 ME 51, ¶ 12 n. 8, 66 A.3d 571 (emphasis added) (quotation marks omitted); see also Schelling v. Lindell, 2008 ME 59, ¶ 6, 942 A.2d 1226 (indicating that the special motion to dismiss is “designed to minimize the litigation costs associated with the defense of ... meritless suits”).

[¶ 10] “[T]he typical mischief that [the statute] intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects.” Maietta Constr., Inc. v. Wainwright, 2004 ME 53, ¶ 7, 847 A.2d 1169 (quotation marks omitted); see also Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ¶ 14, 41 A.3d 551 (stating that the purpose of the statute is to prevent chilling of First Amendment rights by “threatening would-be activists with litigation costs” (quotation marks omitted)). Anti–SLAPP statutes, however, have proven to be capable of abuse and tactical manipulation. See, e.g., Olsen v. Harbison, 134 Cal.App.4th 278, 35 Cal.Rptr.3d 909, 913, 916 (2005) (recognizing the “ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse” and the possibility of “tactical manipulation of the stays that attend anti-SLAPP proceedings”).

[¶ 11] In this appeal, we are called upon for the first time to interpret a provision of the statute limiting the time in which a special motion to dismiss may be brought. The statute provides that “[t]he special motion to dismiss may be filed within 60 days of the service of the complaint ³ or, in the court's discretion, at any later time upon terms the court determines proper.” 14 M.R.S. § 556. Plaintiffs argue that courts should permit the...