Fratello v. Mann

• Docket Number: Cum-24-378
• Decision Date: 26 June 2025
• Citation: Fratello v. Mann, 2025 ME 54, Cum-24-378 (Me. Jun 26, 2025)
• Parties: KATHERINE FRATELLO v. RUSSELL A. MANN
• Court: Maine Supreme Court

1

2025 ME 54

KATHERINE FRATELLO v. RUSSELL A. MANN

No. Cum-24-378

Supreme Court of Maine

June 26, 2025

Argued: May 8, 2025

Reporter of Decisions

Jeffrey Bennett, Esq.(orally), Legal-Ease, LLC, South Portland, for appellantKatherine Fratello

Matthew H. Bowen, Esq.(orally), and Bruce W. Hepler, Esq.Law Offices of Bruce W. Hepler, LLC, Portland, for appelleeRussell A. Mann

Panel: STANFILL, C.J., and MEAD, HORTON, LAWRENCE, and DOUGLAS, JJ.

LAWRENCE, J.

[¶1]Katherine Fratello appeals from an order of the Superior Court(Cumberland County, Lipez, J.) denying her special motion to dismiss pursuant to Maine's anti-SLAPP statute, 14 M.R.S. § 556(2024), a counterclaim by Russell A. Mann.^[1] Because we determine that Mann's counterclaim was not based on petitioning activity protected under 14 M.R.S. § 556, we affirm the court's denial of the special motion to dismiss Mann's counterclaim.

I.BACKGROUND

[¶2] On August 22, 2023, Mann executed a secured promissory note payable to Fratello in the amount of $60,000, and Mann received the money that same day.Under the terms of the note, Mann would make equal installment payments of $799.04 each month beginning October 15, 2023.

[¶3] On September 29, 2023, Mann tendered to Fratello a cashier's check in the amount of $3,500, which Mann claims covered the first two payments due on the note as well as payment toward other loans.Fratello claims that the check was not valid and therefore did not satisfy Mann's payment obligations under the note.^[2] Consequently, on November 29, 2023, Fratello served Mann with a demand letter titled "Notice of Default, Right to Cure, and Demand for Payment," asserting that Mann was in default for failing to make the first two payments that were due on the note.

[¶4] On January 5, 2024, Fratello filed an eight-count complaint in the Superior Court based largely on Mann's alleged failure to make his first two payments.Mann filed a counterclaim, asserting that Fratello breached the parties' contract by failing to cash the cashier's check that he gave to Fratello before the first due date that was meant to cover the first two payments.Specifically, Mann claimed that Fratello "breached her duty of good faith and fair dealing by refusing payment" and that the notice of default was therefore unlawful, as were the fees assessed in the notice.

[¶5] On May 3, 2024, Fratello filed a special motion to dismiss Mann's counterclaim under 14 M.R.S. § 556, Maine's anti-SLAPP statute.In the motion, Fratello alleged that Mann's counterclaim should be dismissed because it is based on the default notice she sent and the complaint she filed, which constitute protected petitioning activity under section 556.On May 24, 2024, Mann filed an opposition to Fratello's special motion to dismiss.

[¶6] On August 5, 2024, the court denied Fratello's special motion to dismiss, allowing the counterclaim to proceed.In its order, the court concluded that the anti-SLAPP statute did not warrant dismissal of the counterclaim because (1) the default notice is not petitioning activity and (2) Mann's counterclaim was not "based on" Fratello filing her complaint nor any other petitioning activity.Fratello timely appealed.^[3]SeeM.R. App. P. 2B(c)(1).

II.DISCUSSION

[¶7]"We review the denial of an anti-SLAPP motion de novo."Gaudette v. Mainely Media, LLC,2017 ME 87, ¶ 10, 160 A.3d 539.

[¶8] The analysis governing special motions to dismiss under 14 M.R.S. § 556 involves a two-step burden-shifting procedure.SeeThurlow v. Nelson,2021 ME 58, ¶¶ 11-19, 263 A.3d 494.In the first step, the party bringing the special motion to dismiss must establish that the nonmoving party's claim is based on petitioning activity protected by 14 M.R.S. § 556. Id.¶ 22.If the moving party so demonstrates, then, in the second step, the burden shifts to the nonmoving party, who must present prima facie evidence that the moving party's petitioning activity both (a)"was devoid of any reasonable factual support or any arguable basis in law" and (b)"caused actual injury."Id.¶ 19(quotation marks omitted);see also14 M.R.S. § 556.In this second step of the analysis, "all favorable inferences must be given to the . . . nonmoving party."Thurlow, 2021 ME 58, ¶ 26 n.8, 263 A.3d 494.Thus, if either (i) the moving party fails to meet her burden in the first step, or (ii) the nonmoving party successfully meets his burden in the second step, then the special motion to dismiss must be denied.Seeid.¶¶ 25, 31.

[¶9] Fratello contends that the court erred in denying her special motion to dismiss because Mann's counterclaim was based on her default notice, which, combined with her subsequent complaint, constituted protected petitioning activity under 14 M.R.S. § 556.

[¶10]We"review de novo whether the claims asserted against the moving party are based on 'petitioning activity.'"Pollack v. Fournier,2020 ME 93, ¶ 12, 237 A.3d 149.Section 556 defined "petitioning activity" as

any written or oral statement made before or submitted to a legislative, executive or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to encourage consideration or review of an issue by a legislative, executive or judicial body, or any other governmental proceeding; any statement reasonably likely to enlist public participation in an effort to effect such consideration; any written or oral statement made in connection with a discrimination complaint pursuant to the Maine Human Rights Act; any written or oral statement made in connection with a complaint pursuant to Title 20-A,chapter 445 or the so-called Title IX provisions of the federal Education Amendments of 1972, Public Law 92-318; or any other statement falling within constitutional protection of the right to petition government.

14 M.R.S. § 556.^[4] Under the statute, the nonmoving party's claim must have been "based on" such petitioning activity.Seeid.

[¶11] Here, Mann's counterclaim alleges that Fratello breached their contract by refusing to cash Mann's cashier's check that would have covered the first and second payments due on the note.Specifically, Mann states: "[Fratello] prevented [Mann] from performing his obligations under the contract by not accepting his payment" and "[Fratello] breached her duty of good faith and fair dealing by refusing payment."Mann also asserts that Fratello "unlawfully sent a 'Notice of Default' and demand for payment" and that the fees and payments assessed in the Notice of Default, in addition to his own attorney fees, are damages that he has incurred.

[¶12] Contrary to Fratello's assertions, Mann's claim for breach of contract is not "based on" the default notice and complaint; it is based on Fratello's refusal to accept the payments made by cashier's check on September 29, 2023.The parties agree that the dispute over the payment took place before Fratello served Mann with the default notice on November 29, 2023, or filed her complaint on January 5, 2024.As the trial court rightfully stated, "[n]ot every pleading that chronologically follows petitioning activity is 'based on' that petitioning activity."

[¶13] Accordingly, the trial court did not err in concluding...