Camden Nat'l Bank v. Weintraub

• Decision Date: 07 July 2016
• Docket Number: Docket No. Kno–15–375.
• Citation: 2016 ME 101,143 A.3d 788
• Parties: CAMDEN NATIONAL BANK v. Ilene F. WEINTRAUB et al.
• Court: Maine Supreme Court

143 A.3d 788

2016 ME 101

CAMDEN NATIONAL BANK

v.Ilene F. WEINTRAUB et al.

Docket No. Kno–15–375.

Supreme Judicial Court of Maine.

Argued: April 6, 2016.

Decided: July 7, 2016.

Daniel J. Murphy, Esq. (orally), Bernstein Shur, Portland, for appellant Camden National Bank.

Alicia F. Curtis, Esq., Berman & Simmons, P.A., Lewiston, and J. Kimball Hobbs, Esq. (orally), Bar Mills, for appellees Ilene F. Weintraub and Paul A. Weintraub.

Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

HUMPHREY, J.

[¶ 1] Camden National Bank appeals from the Superior Court's (Knox County, Billings, J. ) denial of its special motion to dismiss Ilene Weintraub's counterclaim for intentional infliction of emotional distress. See 14 M.R.S. § 556 (2015)

. On appeal, the Bank contends that the court erred in determining that section 556, Maine's “anti-SLAPP”¹ statute, prohibits selective dismissal of claims and in concluding that Weintraub met her burden of demonstrating a prima facie case of actual injury and causation. We clarify that the anti-SLAPP statute allows for dismissal of some but not all claims in a multi-count complaint, and we affirm the court's denial of the Bank's motion.

I. BACKGROUND

[¶ 2] The following facts, relevant to this appeal, are alleged in the parties' pleadings and are part of the motion record in this action. See Nader v. Me. Democratic Party (Nader II ), 2013 ME 51, ¶ 2, 66 A.3d 571

(per curiam). Ilene Weintraub and her brother had two mortgage loans with the Bank, and, when they fell into arrears, Weintraub began receiving phone calls from the Bank's collections department. Weintraub alleged that a particular collections specialist was verbally abusive and rude to her. Another employee of the Bank attested in an affidavit that, during a phone call in August 2010, Weintraub stated that she “would like to murder” that collections specialist when the collections specialist calls. Concerned for her coworker's safety, the employee called the Rockport Police Department and reported Weintraub's threat. The police advised Weintraub that she was being investigated for criminal threatening, and they instructed her not to call the collections department but to conduct her banking business in person at a local branch, instead.

[¶ 3] The Bank filed a complaint for foreclosure in July 2013,² and thereafter the parties engaged in the processes required by the foreclosure diversion program for nearly a year. In March 2014, Weintraub filed an amended answer bringing several counterclaims against the Bank, including violations of the Maine Consumer Credit Code, breach of contract, and a claim for intentional infliction of emotional distress. She alleged that, as a direct and proximate result of the abusive conduct of the collections department and the false accusation of criminal conduct, she suffered “physical and personal injuries” resulting in emotional distress and loss of enjoyment of life and requiring an increase of her diabetes medication. In April of 2014, the Bank filed a motion to dismiss these counterclaims but, in that motion, it did not rely on Maine's anti-SLAPP statute as a ground for dismissal. The court denied that motion on December 1, 2014.

[¶ 4] Three weeks later, the Bank filed a motion for leave to file a special motion to dismiss, coupled with a special motion to dismiss pursuant to 14 M.R.S. § 556

. The Bank argued in its special motion to dismiss that Maine's anti-SLAPP statute protects its right to make an accurate report to the police of matters of public safety without suffering the burden of a lawsuit, and that Weintraub's counterclaims were based on its exercise of petitioning rights. See

Lynch v. Christie, 815 F.Supp.2d 341, 346 n. 6 (D.Me.2011) (stating that “reports to [law enforcement] ... would clearly be covered [by the statute] as well”). Weintraub opposed the Bank's motion for leave to file on the ground that the special motion to dismiss was untimely.³ After a hearing on several pending motions, Weintraub was granted leave to file amended counterclaims, and the Bank was granted leave to “reassert any pending motions,” including, presumably, its special motion to dismiss. In its renewed special motion to dismiss, the Bank requested dismissal of Count II, violation of Maine Consumer Credit Code, Count III, intentional infliction of emotional distress, and Count IV, punitive damages flowing from the intentional infliction of emotional distress, on the basis that the conduct complained of constituted protected petitioning activity. The Bank did not request dismissal of Count I, breach of contract.

[¶ 5] In July 2015, the court held a hearing on the Bank's motion. In its consideration of the special motion, which requested dismissal of only Counts II, III, and IV, the court stated that the anti-SLAPP statute did not allow for “selective dismissal of only certain claims.” It reasoned that the language of the statute, “When a moving party asserts that the civil claims, counterclaims or cross claims against the moving party,” was meant to guard against “meritless lawsuits,” and therefore allowing a party to use a “special motion to summarily dispose of only some claims ... would appear to further the ‘abuse and tactical manipulation’ with which anti-SLAPP litigation has become associated.” The court denied the Bank's special motion “because it [did] not address all of Weintraub's claims as required for the statute to be applicable.”

[¶ 6] The court also addressed the merits of the motion, however, and concluded that Weintraub's affidavit alleged physical injury and missed work due to the Bank's actions, which were more than just claims of mental suffering and embarrassment that were not sufficient in Schelling v. Lindell, 2008 ME 59, ¶ 18, 942 A.2d 1226

. It found that Weintraub's claims were of a kind for which damages may be established without mere guess or conjecture; that the statute did not require expert medical testimony on causation at this point, as the Bank contended; and that Weintraub's “affidavit [made] a sufficient connection between [the Bank's] actions and her injuries to meet her burden of establishing a prima facie case of actual injury.” The Bank timely appealed to us.

II. DISCUSSION

A. Dismissal of Some But Not All Counts

[¶ 7] The Bank argues that the trial court erred when it held that “selective dismissal of only certain claims” was unavailable as a matter of law under Maine's anti-SLAPP statute because the plain meaning of the statute indicates that it applies to any claims that seek to punish petitioning activity and does not require that all claims asserted in the complaint be directed at petitioning activity for the statute to apply. We review a trial court's ruling on a special motion to dismiss de novo. See Town of Madawaska v. Cayer, 2014 ME 121, ¶ 8, 103 A.3d 547

. We review the interpretation of a statute de novo as a question of law. See

Strout v. Cent. Me. Med. Ctr., 2014 ME 77, ¶ 10, 94 A.3d 786.

[¶ 8] We have adopted a two-step analysis for determining whether a special motion to dismiss should be granted.

The first step requires the court to determine whether the moving party has demonstrated that the nonmoving party's claim is “based on the moving party's exercise of the right ... of petition under the Constitution of the United States or the Constitution of Maine.” If the moving party makes this initial showing, the burden then shifts to the nonmoving party, and under the second step the court must dismiss the nonmoving party's lawsuit or claim unless the non moving party makes a prima facie showing that at least one of the moving party's petitioning activities was “devoid of any reasonable factual support or any arguable basis in law and ... caused actual injury to the [nonmoving party].”

Town of Madawaska, 2014 ME 121, ¶ 9, 103 A.3d 547

(alterations in original) (citations omitted); see also 14 M.R.S. § 556. The anti-SLAPP statute allows a defendant, at an early stage, to file a special motion to dismiss claims that deter, chill, or punish the free exercise of the First Amendment right to petition the government through litigation directed at such activity. Schelling, 2008 ME 59, ¶¶ 6, 8, 942 A.2d 1226

.

[¶ 9] “We have striven to interpret the anti-SLAPP statute in accordance with its plain language.” Nader v. Me. Democratic Party (Nader I ), 2012 ME 57, ¶ 18, 41 A.3d 551

. Section 556 allows a party to seek dismissal of “the civil claims, counterclaims or cross claims” that are based on that party's right to petition the government. The phrase “the civil claims, counterclaims or cross claims” does not include a modifier, i.e. “all civil claims, counterclaims or cross claims,” and it does not use the term “civil action.” A plain reading of the statute indicates that the language does not denote an “all or nothing” proposition; rather, discrete claims within a single action may be individually dismissed pursuant to a special motion to dismiss, and only the claims specifically based on the moving party's petitioning activity are properly considered for dismissal. We conclude that the trial court erred in holding that the anti-SLAPP statute did not allow for selective dismissal of some but not all of Weintraub's counterclaims. However, given that the court reached the merits of the Bank's special motion, the Bank cannot be said to have been prejudiced, thus the error was harmless. See M.R. Civ. P. 61 ; Ireland v. Tardiff, 2014 ME 153, ¶ 10 n. 1, 107 A.3d 618.

B. Denial on the Merits

[¶ 10] The Bank also argues that the court erred in concluding that Weintraub met her burden of proving “actual injury” and “causation” through prima facie evidence. In the second step of the anti-SLAPP analysis, we review a court's determination that the nonmoving party met its prima facie burden of production de novo. See Nader II, 2013 ME 51, ¶ 12 n. 9, 66 A.3d 571

(per curiam).

[¶ 11] Section 556

provides that the “court shall grant the special motion, unless the party against...