772 A.2d 842 (Me. 2001), Cum-00-518, Morse Bros., Inc. v. Webster
| Citation | 772 A.2d 842, 2001 ME 70 |
| Opinion Judge | DANA, J. |
| Party Name | MORSE BROTHERS, INC. et al. v. Faylene WEBSTER et al. |
| Attorney | James B. Haddow (orally), Thomas C. Bradley, Petruccelli & Martin, L.L.P., Portland, for plaintiffs., Julian L. Sweet (orally), Jack H. Simmons, Berman & Simmons, P.A., Lewiston, James M. Bowie (orally), Thompson & Bowie, Portland, for defendants. James B. Haddow (orally), Thomas C. Bradley, Pet... |
| Case Date | May 02, 2001 |
| Court | Maine Supreme Court |
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Argued Feb. 14, 2001.
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[Copyrighted Material Omitted]
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Panel: WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.
DANA, J.
[¶ 1] Faylene Webster and James Platz appeal from a judgment of the Superior Court (Cumberland County, Crowley, J.) denying their special motion to dismiss a complaint for the wrongful use of civil proceedings. They contend that the court erred in denying their motion, filed pursuant to Maine's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, 14 M.R.S.A.§ 556 (Supp.2000), because Morse Brothers, Inc. and MB Bagging Corporation (collectively, the Morse group) failed to establish that Webster and Platz filed appeals "devoid of any reasonable factual support or any arguable basis in law," and that they "caused actual injury" to the Morse group. Id. Webster and Platz also contend that MB Bagging lacks standing to allege the wrongful use of civil proceedings because MB Bagging was not a party to any of the appeals described in the complaint, and that Morse Brothers lacks standing to allege Webster and Platz's wrongful use of civil proceedings in appealing a permit granted to Tim Morse. The Morse group contends that the "final judgment rule" requires the dismissal of this appeal. Because we conclude that the court should have dismissed the Morse group's action pursuant to the anti-SLAPP statute, we vacate the judgment.
I. BACKGROUND
[¶ 2] Morse Brothers has operated a bark mulching facility in Windham since 1984. MB Bagging packages the mulch at the facility. In 1993, the Department of Environmental Protection (DEP) required the facility to seek a license as a "solid waste facility." The DEP denied Morse Brothers' application for a license in 1996 based on findings that the facility polluted water, that Morse Brothers failed adequately to provide for traffic circulation, and that the soils on the site were unsuitable for the facility. With plans to move its facility from Windham, Morse Brothers obtained options on contiguous parcels of land (the Morse Brothers property) that straddle the town line between Auburn and Poland. In 1997, Morse Brothers applied for and obtained the approval of a site plan in Auburn and a conditional use permit in Poland, subject to the requirement that Morse Brothers obtain a license from the DEP.
[¶ 3] Faylene Webster owns property in Poland abutting the Morse Brothers property. James Platz owns property in Poland within half a mile of the Morse Brothers property, and has property and a business in Auburn. Webster, Platz, and others appealed the decisions of the two planning boards to the Superior Court. The court (Androscoggin County, Crowley, J.) denied the appeal of the Poland Board's decision because, despite some contradictory evidence in the record, the Poland Board did not abuse its discretion, commit legal error, or make findings unsupported by substantial evidence in the record. The court sustained the appeal of the Auburn Board's decision, concluding that the Auburn Board erred in approving, as an accessory use, a site plan that includes an access drive, offices, a fuel facility, a maintenance building, a waste storage area, scales, and a scale house. The
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court concluded that the proposed accessory use is not permitted in the Auburn Agricultural Zone because the principal use, the bark mulching plant, located in Poland, would not be permitted in the Auburn Agricultural Zone.
[¶ 4] Morse Brothers obtained a conditional solid waste license from the DEP for the proposed bark mulching plant in 1998. Webster, Platz, and one other person appealed the decision to the Board of Environmental Protection (BEP), which added two new conditions regarding the boundary line for solid waste handling and the hours of operation for loading equipment, but otherwise affirmed the decision to grant the license. Webster, Platz, and their fellow plaintiff appealed the BEP's decision to the Superior Court (Androscoggin County, Crowley, J.) contending that there was insufficient evidence for the BEP to conclude that Morse Brothers could comply with DEP noise standards. Morse Brothers filed a cross appeal and a motion to dismiss the appeal as untimely filed and frivolous. The court denied Morse Brothers' motion to dismiss Webster and Platz's complaint, and dismissed the cross appeal upon motion by Webster and Platz. After oral argument, the court concluded that the BEP had not erred because it had based its decision on objective scientific evidence presented at the hearing, it included provisions for monitoring the actual noise levels, it properly placed the risk of future noncompliance on Morse Brothers, and its order was not unreasonable, unlawful, or unjust.
[¶ 5] Tim Morse, a principal at Morse Brothers, applied to the City of Auburn for an entrance permit for a truck terminal on the Auburn side of the site. After the City granted the permit in June of 1999, Webster and Platz appealed the decision to the Superior Court (Androscoggin County, Crowley, J.), contending that the access drive for trucks would be an unlawful accessory use, that the City abused its discretion and committed legal errors, and that the City failed to provide proper notice when it approved the permit.
[¶ 6] On July 12, 2000, the court dismissed the drive entrance appeal for lack of standing. The court concluded that Webster and Platz failed to demonstrate a particularized injury from the proposed driveway cut, and that neither the ordinance nor any other source of law provided for judicial review.
[¶ 7] On June 28, 2000, before the court rendered a decision on the entrance permit appeal, Morse Brothers, together with MB Bagging, which plans to relocate its mulch packaging activities to the Morse Brothers property, filed a complaint seeking damages and an injunction to prevent Webster and Platz from commencing any other legal action or appeal regarding the Morse Brothers property unless they satisfy the Superior Court that the action or appeal presents a prima facie case. The complaint alleges that Webster and Platz brought all their appeals without probable cause, except for the successful appeal against the decision of the Auburn Board. Further, the complaint alleges that Webster and Platz maximized delay by filing their appeals when the appeal period had nearly expired, that the attorney for Webster and Platz made statements that his clients' goal was to delay, and that they intended to appeal the issuance of any building permits that are necessary to complete the project. In support of a motion for a preliminary injunction, the Morse group submitted court documents from the underlying appeals; the affidavit of Susan Oram, attorney for Morse Brothers in the Auburn and Poland site plan appeals; a scheduling letter for the site plan appeals from the Superior Court (Androscoggin County, Delahanty, J.); the affidavit
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of John Conway, a member of the Poland Planning Board; and the affidavit of Benjamin Hawkins, vice president of Morse Brothers and president of MB Bagging.
[¶ 8] In response, Webster and Platz filed a special motion to dismiss the Morse group's complaint pursuant to 14 M.R.S.A. § 556, Maine's anti-SLAPP statute. According to Webster and Platz, Morse Brothers' suit was an attempt to gag them and prevent them from raising legitimate questions about any future permits for development of the Morse Brothers property. Webster and Platz submitted an affidavit from Platz to supplement the record.
[¶ 9] The court (Cumberland County, Crowley, J.) denied the special motion to dismiss on September 6, 2000. Webster and Platz filed a motion for findings of fact or for reconsideration pursuant to M.R. Civ. P. 59 and 60. The court denied the motion, after which Webster and Platz filed a notice of appeal pursuant to M.R. Civ. P. 73 and moved to stay proceedings pending a decision by the Law Court. The court granted the motion to stay pursuant to M.R. Civ. P. 73(f).
II. DISCUSSION
[¶ 10] "SLAPP is an acronym for Strategic Lawsuit Against Public Participation. SLAPP litigation, generally, is litigation without merit filed to dissuade or punish the exercise of First Amendment rights of defendants." Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 37 Cal.App.4th 855, 44 Cal.Rptr.2d 46, 48 (1995). "The typical mischief that the [anti-SLAPP] legislation intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Duracraft Corp. v. Holmes Products Corp., 427 Mass. 156, 691 N.E.2d 935, 940 (1998). "SLAPP plaintiffs do not intend to win their suits; rather they are filed solely for delay and distraction, and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances." Dixon v. Superior Court, 30 Cal.App.4th 733, 36 Cal.Rptr.2d 687, 693 (1994) (citation omitted). "Because winning is not a SLAPP plaintiff's primary motivation, defendants' traditional safeguards against meritless actions, (suits for malicious prosecution and abuse of process, requests for sanctions) are inadequate to counter SLAPPs." Id. (citation and internal quotation marks omitted). Maine enacted a statute in 1995 that allows a defendant to file a "special motion to dismiss" a SLAPP suit. 14 M.R.S.A. § 556. The statute provides, in part:
When a moving party asserts that the civil claims, counterclaims or cross claims against the...
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