Maietta Const., Inc. v. Wainwright

• Decision Date: 15 April 2004
• Parties: MAIETTA CONSTRUCTION, INC., et al. v. Theodore WAINWRIGHT.
• Court: Maine Supreme Court

847 A.2d 1169

2004 ME 53

MAIETTA CONSTRUCTION, INC., et al. v. Theodore WAINWRIGHT.

Supreme Judicial Court of Maine.

Submitted on Briefs: December 12, 2003.

Decided: April 15, 2004.

David Kreisler, Daniel G. Lilley Law Office, Portland, for the appellants.

Paul S. Douglass, Lewiston, for the appellee.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

RUDMAN, J.

[¶ 1] Maietta Construction, Inc., Louis Maietta Sr., Robert L. Maietta, Michael L. Maietta, Louis B. Maietta Jr., Vincent A. Maietta, Thomas S. Maietta, James D. Maietta, Robert D. Maietta, and Neil L. Maietta (Maietta) appeal from a judgment entered in the Superior Court (Cumberland County, Crowley, J.) in favor of Theodore Wainwright dismissing all five counts of Maietta's complaint alleging defamation, intentional infliction of emotional distress, false light, interference with an advantageous relationship, and requesting punitive damages. Maietta argues that the Superior Court erred in finding that (1) the Anti-SLAPP statute, 14 M.R.S.A. § 556 (2003), applies to its claims; (2) there is a basis in fact for Wainwright's statements; and (3) Maietta was not injured in fact by Wainwright's statements. Wainwright crossappeals, arguing that the court exceeded the bounds of its discretion in refusing to award him attorney fees. We disagree with both Maietta and Wainwright and affirm the judgment.

I. BACKGROUND

[¶ 2] This case stems from a grievance concerning a parcel of land, which Wainwright conveyed to the City of South Portland in January 1999. Wainwright had owned a 400-acre potato and turf farm partially located in South Portland. "Wainwright sold 150 acres of the property to the City subject to the condition . . . that soil or loam could not be removed from the property." Maietta was awarded a contract to develop the property into a recreational complex for the City. The contract contained terms prohibiting Maietta from removing any topsoil or loam from the property.

[¶ 3] Upon visiting the property, Wainwright became convinced that Maietta was removing loam, in violation of Maietta's contract with the City, as well as the condition of sale. Wainwright brought his concerns to the City Council, and eventually retained an attorney in the hope of encouraging the City to take action against Maietta's alleged removal of the loam from the site. Unhappy with the City's response to his concerns, Wainwright extended his campaign, allowing his attorney to contact local news reporters. This resulted in a series of newspaper articles and television reports about the dispute.

[¶ 4] Maietta filed suit against both Wainwright and his attorney, David Lourie, alleging that they had been defamed by Wainwright's public campaign accusing Maietta of stealing loam.¹ Wainwright and Lourie filed special motions to dismiss pursuant to section 14 M.R.S.A. § 556,² accompanied with supporting affidavits and exhibits. In their motions they asserted that any statements they made to City officials or the press were solely part of an effort to compel the City to enforce restrictions placed in the deed, as well as the terms of the contract between the City and Maietta.

[¶ 5] The Superior Court found that Wainwright and Lourie had satisfied their burden of asserting that the suit was based on Wainwright exercising his constitutional right of petition. Consequently, the burden shifted to Maietta to show that the Defendants' petitioning activity lacked "any arguable basis in law," or lacked any "reasonable factual support." Morse Bros. v. Webster, 2001 ME 70, ¶ 20, 772 A.2d 842, 849 (quoting 14 M.R.S.A. § 556). The Superior Court held that Maietta had been unsuccessful in showing that Wainwright's petitioning lacked an arguable basis in fact or law. The Superior Court awarded attorney fees to Lourie, determining that "the Plaintiffs were attempting to intimidate or silence an attorney who was representing a client with potentially legitimate concerns involving property sold with conditions to the City of South Portland." Conversely, the Superior Court held that there was some merit to Maietta's claims against Wainwright, and therefore the court refused to award attorney fees to Wainwright.

II. DISCUSSION

[¶ 6] Section 556 was designed to combat "litigation without merit filed to dissuade or punish the exercise of First Amendment rights of defendants." Morse Bros., 2001 ME 70, ¶ 10, 772 A.2d at 846 (quoting Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 37 Cal.App.4th 855, 44 Cal.Rptr.2d 46, 48 (1995)). Section 556 targets plaintiffs who "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." Morse Bros., 2001 ME 70, ¶ 10, 772 A.2d at 846 (quoting Dixon v. Superior Court, 30 Cal.App.4th 733, 36 Cal.Rptr.2d 687, 693 (1994)). Maietta's suit was based on the petitioning activity of Wainwright.

A. Special Motion to Dismiss

[¶ 7] Maietta's complaint cites letters written by Wainwright or Lourie, addressed to the City Council and the Mayor, as well as statements made to the newspapers. These communications clearly amount to petitioning activity. Moreover, contrary to Maietta's contention, this is the sort of petitioning activity envisioned by the statute. In Morse, we held that the "typical mischief that [section 556] intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly against development projects." Morse Bros., 2001 ME 70, ¶ 10, 772 A.2d at 846 (quoting Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 691 N.E.2d 935, 940 (1998)). Therefore, the trial court did not err in holding that section 556 applied to the facts of this case.

[¶ 8] In Morse Bros., we articulated the standard of review:

We "review the judge's decision regarding such a special motion to dismiss to determine whether there was an abuse of discretion or error of law. [] When reviewing the motion, the Court should view the evidence in the light most favorable to the moving party because the responding party bears the burden of proof when the statute applies."

Morse Bros., 2001 ME 70, ¶ 18, 772 A.2d at 849 (citations omitted). The Superior Court was required to dismiss Maietta's complaint unless Maietta could show that there was no reasonable factual basis for Wainwright's petitioning. 14 M.R.S.A. § 556. Wainwright's motion for dismissal included affidavits stating that he had personally witnessed Maietta's employees removing soil from the property. The affidavit also averred that Wainwright had presented the issue to the City Council, but had not received a satisfactory explanation. Wainwright also included in his motion photos that purport to show Maietta employees removing loam. Because this evidence is viewed most favorably to the moving party, it cannot be said that the trial court exceeded the bounds of its discretion by holding that there was enough evidence to conclude that there was "arguably a legitimate basis for Defendant Wainwright to bring his concerns to the attention of the City of South Portland and to the press."

B. Section 556 Requires Proof of Actual Damages

[¶ 9] Maietta asserts that the trial court erred in concluding that it did not suffer an actual injury based on Wainwright's petitioning activity. Maietta points out that certain categories of defamation are deemed sufficiently serious that damages are presumed. Hence, Maietta contends that because the allegations, if established, constitute defamation per se, they also constitute actual damages. Maietta misinterprets the actual injury requirement. [¶ 10] Maietta is incorrect in suggesting that damages per se are equivalent to actual damages. "Recovery for slander per se requires no showing of special harm beyond the publication itself." Rippett v. Bemis, 672 A.2d 82, 86 (Me.1996). "When recovery may be had only for actual damage sustained [however] the record must contain evidence from which damage in a definite amount may be determined with reasonable certainty." Dairy Farm Leasing Co. v. Hartley, 395 A.2d 1135, 1140 (Me.1978) (quoting McDougal v. Hunt, 146 Me. 10, 14, 76 A.2d 857, 860 (1950)). Such a determination "must not be left to mere guess or conjecture." Id. at 1141. Generally, Legislatures are deemed to draft legislation against the backdrop of the common law, and do not displace it without directly addressing the issue. See Meyer v. Holley, 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753 (2003). Therefore, the Legislature imposed the requirements of section 556 understanding that they would require plaintiffs to produce affirmative evidence of an injury.

C. Attorney Fees

[¶ 11] The trial court granted attorney fees to Lourie but not to Wainwright. Wainwright cross-appeals for attorney fees.³ "We review the Superior Court's determination of attorney fees for an abuse of discretion." Lee v. Scotia Prince Cruises Ltd., 2003 ME 78, ¶ 18, 828 A.2d 210, 215 (citations omitted). The trial court distinguished between Wainwright and Lourie based upon the premise that the lawsuit against Wainwright has more merit than the suit against his attorney, and therefore better conforms to the policy behind the statute. Wainwright contends, as does the dissent, that the distinction between Wainwright and his attorney does not further the statute's policy, and is not supported by the record. We disagree.

[¶ 12] We note at the outset that the trial court's use of the merit of the respective cases, as a measure of whether attorney fees are appropriate, is logical because the anti-SLAPP statute is aimed at preventing litigation that has no chance of succeeding on the merits. Morse Bros., 2001 ME 70, ¶ 10, 772 A.2d at 846 ("SLAPP litigation, generally, is litigation without merit filed to dissuade or punish the exercise of First Amendment ri...