Cianchette v. Tucker Chevrolet, Inc.

• Docket Number: Civil Action AUGSC-CV-2021-94
• Decision Date: 06 January 2023
• Parties: MICHAEL J. CIANCHETTE, Plaintiff, v. TUCKER CHEVROLET, INC., JACK STEERUM, LLC, TUCKER J. CIANCHETTE, KELLY, REMMEL, & ZIMMERMAN, and TIMOTHY NORTON, Defendants.
• Court: Maine Superior Court

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MICHAEL J. CIANCHETTE, Plaintiff, v. TUCKER CHEVROLET, INC., JACK STEERUM, LLC, TUCKER J. CIANCHETTE, KELLY, REMMEL, & ZIMMERMAN, and TIMOTHY NORTON, Defendants.

Civil Action No. AUGSC-CV-2021-94

Superior Court of Maine, Kennebec

January 6, 2023

DECISION AND ORDER

WILLIAM R. STOKES, JUSTICE

INTRODUCTION

On June 7, 2019, Defendant Tucker Cianchette ("Tucker") submitted a bar complaint against Plaintiff with the Maine Board of Bar Overseers ("the Board"). In response to the allegations in that bar complaint, Plaintiff initiated the present action against Tucker, Jack Steerum, LLC, and Tucker Chevrolet, Inc. as well as Tucker's attorneys Kelly, Remmel, & Zimmerman and Timothy Norton (collectively "the Attorney Defendants"). In the motions pending before the court, all Defendants seek to dismiss Plaintiffs complaint under M.R. Civ. P. 3. Additionally, Defendants Tucker, Jack Steerum, LLC, and Tucker Chevrolet separately move for dismissal pursuant to Maine's Anti-SLAPP statute and M.R. Civ. P. 12(b)(6). All motions have been fully briefed, and a decision is in order.

FACTS/BACKGROUND

By way of some background, Plaintiff and Tucker are half-brothers. Many of the allegations in the bar complaint center around Plaintiffs representation of PET LLC ("PET"), an entity owned by three members of the Cianchette family. Those three family members are: Tucker Eric Cianchette (the father of Plaintiff and Tucker), and Peggy Cianchette (Plaintiffs mother and Tucker's stepmother). For additional context regarding the interfamilial dispute that preceded this action, see Cianchette v. Cianchette, 2019 ME 87, 209 A.3d 745.

Plaintiffs Complaint. Plaintiff filed the complaint in this matter on June 3, 2021. He alleges that Tucker made certain statements within the bar complaint and during the Board proceedings that were false and defamatory and/or unsupported. Specifically, Plaintiff asserts that:

• Tucker accused Plaintiff of absconding with his mail as well as "engag[ing] and/or aid[ing] directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit, unauthorized taking, and self-serving among other things." Tucker made these allegations notwithstanding the fact that Plaintiff has never been formally accused or convicted of a crime.

• With respect to a Merrill Lynch bank account Plaintiff opened on PET's behalf, Tucker stated that the opening balance of the account was $750,000 when it was actually $600,000.

• Tucker claimed that Peggy requested to pick up the check providing for the opening balance of the Merrill Lynch account, when in fact it was Tucker who delivered the check to Plaintiff.

• Tucker requested that the board investigate certain deeds executed by Plaintiff without citing any legal authority.

Moreover, Plaintiff alleges that Tucker told third parties about the bar complaint and its content. The complaint also names Tucker's attorneys, the firm Kelly, Remmel, and Zimmerman as well as Attorney Timothy Norton, and accuses them of providing material assistance with respect to the bar complaint. According to Plaintiff, responding to the bar complaint was time consuming and necessitated the hiring of experts and counsel, which required plaintiff to expend funds. Plaintiff requests damages, including punitive damages, as well as an order enjoining Defendants from filing complaints against Plaintiff without prior leave of the court.

Plaintiff pursues relief in four counts. Counts I-III pertain to the conduct of Tucker, Jack Steerum, LLC, and Tucker Chevrolet, Inc., asserting claims of Defamation/False Light (Count I), Wrongful Use of Civil Proceedings/Malicious Prosecution (Count II), and Tortious Interference with an Advantageous Relationship (Count III). Count IV, meanwhile, brings a claim of Civil Conspiracy/Aiding and Abetting against Attorney Defendants.

Service/Defendants' Rule 3 Motions. After filing the complaint in this matter, Plaintiff submitted three motions seeking additional time to serve process on the Defendants-the first filed on September 1, 2021, the second on December 28, 2021, and the third on March 2, 2022. The first motion was granted, but the second and third were denied. On April 11, 2022, the court issued a form notice indicating that the action would be dismissed pursuant to M.R. Civ. P. 3 unless Plaintiff filed a timely motion to remain on the docket. Plaintiff filed such a motion, which the court granted. The Defendants were thereafter served, with Plaintiff filing the returns of service on July 11, 2022. All Defendants have moved for dismissal pursuant to M.R. Civ. P. 3. The facts relevant to the Rule 3 motions are set forth in greater detail below.

Special Motion to Dismiss. In August 2022, Tucker filed a special motion to dismiss pursuant to Maine's anti-SLAPP statute, asserting that all claims against him are based on his constitutionally protected petitioning activity-specifically, his filing of the bar complaint with the Board.^[1] Additionally, Tucker, Jack Steerum, LLC, and Tucker Chevrolet, Inc. have moved for dismissal on Rule 12(b)(6) grounds. In support, Tucker has submitted his own affidavit and various accompanying documents, including a copy of the bar complaint itself. A brief summary of the allegations in the bar complaint is in order.

In the bar complaint, Tucker accused Plaintiff of multiple violations of the rules of professional conduct, and-as Plaintiff asserts in his complaint-"engag[ing] and/or aid[ing] directly in fraud, forgery, perjury, misrepresentations, dishonesty, deceit, unauthorized taking, and self-serving among other things." To support these allegations, Tucker provided a multi-page narrative, in which he cited to deposition testimony and various exhibits. In that narrative, Tucker asserted, among other things, that:

• Plaintiff helped orchestrate the opening of a Merrill Lynch bank account where hundreds of thousands of dollars of PET money was deposited.

• Plaintiff forged Tucker's signature on several documents needed to open the Merrill Lynch account.

• Plaintiff facilitated a $375,000 "no interest or repayment schedule loan" from PET funds held in the Merrill Lynch account to a corporate entity in which Plaintiff held a beneficial interest. Plaintiff, however, failed to disclose his interest to Tucker.

• Plaintiff perjured himself in a separate proceeding. Specifically, Plaintiff falsely testified that Tucker signed the Merrill Lynch documents when Plaintiff collected a check from Tucker on September 15, 2014.^[2]

• Plaintiff engaged in unethical behavior with respect to Tucker's proposed buyout of Peggy and Eric's interests in PET.

• After Tucker involved authorities regarding some mail that went missing, it was discovered that "[Plaintiff] did have knowledge of [Tucker's] absconded mail." This created unnecessary work for the investigating authorities and made "an outright mockery of the U.S. Postal Service."

Along with the bar complaint, Tucker's motion papers also included a copy of the Board's decision dated March 3, 2022. In that decision, a three-member panel unanimously found violations with respect to three of the four counts alleged. Specifically, the Board determined that Plaintiff (1) violated M.R. Prof. C. 4.1 by "intentionally" signing the Merrill Lynch documents without Tucker's authorization; (2) violated M.R. Prof. C. 1.8(a) by failing to obtain informed consent prior to facilitating a loan to an entity in which Plaintiff held a financial interest, and; (3) violated M.R. Prof. C. 1.13(f) by failing to disclose his representation of Peggy and Eric during the proposed buyout of PET and by failing to obtain Tucker's consent.

In opposition to the motion, Plaintiff has submitted his own affidavit. Plaintiffs affidavit notes that he has never been arrested, charged, or convicted of a crime. He further characterizes Tucker's claim that Peggy requested to pick up the check as false.

Additionally, Plaintiff provided his account of the circumstances surrounding Tucker's missing mail. Plaintiff explained that mail addressed to Tucker's business, Tucker Chevrolet, had been delivered to a property that Plaintiff managed. A tenant of that property contacted Plaintiff, and Plaintiff retrieved the mail. Plaintiff then provided the mail to his attorney with a request that the mail be delivered to Tucker's counsel. In a separate affidavit, Plaintiffs attorney confirmed that Plaintiff had given him the mail, after which it was hand-delivered to Tucker's attorneys.

With respect to his injuries, Plaintiff states that "[a]fter the Bar Complaint was filed ... [he] expended funds to retain and obtain the assistance of counsel from the firm of Rudman Winchell." Moreover, "[a]fter the Board's investigation was complete, [he] expended funds to retain and obtain the assistance of counsel from the firm of Richardson, Whitman, Large, and Badger. [H]e further expended funds for expert witness testimony with the firm of Thompson Bowie, and Hatch."

While Tucker provided the court with a copy of the Board's decision and the bar complaint, Plaintiff has not produced copies of any of the documents filed in connection with the underlying proceedings before the Board.

DISCUSSION

I. Special Motion to Dismiss (anti-SLAPP)

A Strategic Lawsuit Against Public Participation ("SLAPP") is a lawsuit filed with the goal of stopping "'citizens from exercising their political rights or to punish them for having done so.'" Thurlow v. Nelson, 2021 ME 58, ¶ 8, 263 A.3d 494. To avoid a chilling effect on the right to petition, many states have passed anti-SLAPP statutes. Id. Maine's is found at 14 M.R.S. § 556:

When a moving party asserts that the civil claims . . . against the moving party are based on the moving party's exercise of the moving party's right

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