Bakal v. Weare

• Decision Date: 18 December 1990
• Citation: 583 A.2d 1028
• Parties: Peter A. BAKAL v. Kathryn M. WEARE et al.
• Court: Maine Supreme Court

Page 1028

583 A.2d 1028

Peter A. BAKAL v. Kathryn M. WEARE et al.

Supreme Judicial Court of Maine.

Argued Nov. 13, 1990.

Decided Dec. 18, 1990.

Richard N. Sharood (orally), Kennebunk, for plaintiff.

Theodore H. Kirchner (orally), Norman, Hanson & Detroy, Portland, for defendant.

Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD, COLLINS, and BRODY, JJ.

McKUSICK, Chief Justice.

Plaintiff Peter Bakal appeals from the summary judgment entered by the Superior Court (York County, Cole, J.) in this libel action in favor of defendants Kathryn Weare and The Cliff House & Motels, Inc. ¹ Because we find that the complained-of statement in context cannot reasonably be interpreted as defamatory, we affirm.

Kathryn Weare is the manager and owner of the Cliff House, an oceanfront resort in York. Peter Bakal owns nearby oceanfront property. The relationship between Bakal and Weare has been strained over the years. At various times Bakal has written her to complain about real or perceived problems with sewage disposal at the Cliff House or the validity of permits granted Weare to perform renovations and expansions at the resort. He has complained about these same problems to the Town Planning Board and has three times appealed the Town's rulings in Weare's favor to the Superior Court, never with any success. In 1988 tests of the hotel's septic system, conducted at Bakal's insistence, revealed no leaks or contamination of surface water. Because Bakal was suspicious that the tests had been improperly done, he wrote the Town Code Enforcement Officer, Timothy DeCouteau, reminding DeCouteau of written complaints already filed by himself and other neighbors and asking that the septic system at the hotel be closed until further tests were performed. New tests were scheduled and plans made for Bakal to show DeCouteau's assistant exactly where on the cliffs below the hotel he believed there was contaminated outflow. When Weare learned of this plan, she wrote DeCouteau telling him that she did not want Bakal on her land at the time of the upcoming inspection by DeCouteau, stating, "Considering the ten years of complaints and threats, I'm sure you understand our position." After CEO DeCouteau showed Bakal this letter, Bakal demanded that Weare retract the statement. When she refused, he filed this suit for libel, alleging that the reference to "ten years of ... threats" was false and defamatory.

On her motion for summary judgment, Weare argued that there had been no defamation because the addressee and as she argues the sole recipient of the letter, CEO DeCouteau, stated by affidavit that the letter did not convey any defamatory meaning to him. The court found this argument persuasive and entered judgment for Weare. Bakal appeals.

To make out a claim for libel, the plaintiff must show that there has been publication to a third party of a false and defamatory statement. See Restatement (Second) of Torts § 558 (1977). A communication is defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Id. § 559. The issue of publication is a question of fact for the jury. Id. § 617.

At the motion hearing Weare argued that publication had been made only to CEO DeCouteau. Bakal disagreed, pointing to DeCouteau's deposition testimony that he had placed the letter in a file open to the public and, further, that the file was consulted by individuals involved in construction work at the Cliff House. Because there exists a genuine issue of fact in regard to the scope of the publication of Weare's letter, the court erred in entering summary judgment on the basis of the non-defamatory reading that DeCouteau gave the letter. See M.R.Civ.P. 56(c). Nonetheless, even though the basis for the court's entry of summary judgment for Weare was erroneous, we affirm the judgment because there exists another reason why she is entitled to judgment as a matter of law. See Small v. Colbeth, 447 A.2d 82, 82 (Me.1982).

Whether the statement complained of is capable of conveying a defamatory message at all is a question of law. See Chapman v. Gannett, 132 Me. 389, 391, 171 A. 397, 398 (1934); Bradburg v. Segal, 121 Me. 146, 148, 116 A. 65, 66 (1922); see also Restatement (Second) of Torts § 614. We reject Bakal's approach that interprets the word "threats" in the most negative possible way to mean threats of physical violence. Weare's statement is simply too vague to bear such an interpretation. See Bradburg v. Segal, 121 Me. at 149, 116 A. at 66-67. That Bakal's asserted interpretation is...