Prunier v. Good

• Decision Date: 04 February 2021
• Docket Number: Civil Action BCDWB-CV-2019-3
• Parties: DR. KATHLEEN PRUNIER, Plaintiff v. MARK GOOD, et. al., Defendants
• Court: Maine Superior Court

DR. KATHLEEN PRUNIER, Plaintiff v. MARK GOOD, et. al., Defendants

Civil Action No. BCDWB-CV-2019-3

Superior Court of Maine, Cumberland

February 4, 2021

Dr Kathleen T. Prunier, Mark Good, Earl D. Brechlin, The Mount Desert Islander.

Pro-Se, Bernard Kubetz, Esq., Christopher Uphouse, Esq.

Bob Byron Frederick Costlow, Esq. Richardson, Whitman, Large & Badger.

INTERIM ORDER REGARDING TRIAL LOCATION

Michael A. Duddy, Judge.

Discovery in this case is complete, and the matter is now awaiting jury trial. In the meantime, Plaintiff Kathleen Prunier ("Dr. Prunier") has filed a Motion for a Change of Venue. Dr. Prunier seeks to change venue from Hancock County (Ellsworth) to either Penobscot County (Bangor) or Cumberland County (Portland). Publisher Defendants oppose the Motion and seek to keep the case in Hancock County.

Technically, since this case is in the Business Court, what Dr. Prunier seeks is a not a change in venue pursuant to 14 MR. S. § 508, but rather a change of trial location pursuant to M.R. Civ. P. 137(b). Under Section 508, a party moving for a change of venue must show presumed or actual prejudice. State v. Johnson, 479 A.2d 1284, 1287 (Me. 1984); see also State v. Beckus, 229 A.2d 316, 318 (Me. 1967) (describing grounds for a change of venue). Under Rule 137(b), a trial will be held "in the geographic area of the originating court," unless the parties agree on another location, or the Court determines there are unusual circumstances that warrant conducting the trial at another location. M.R. Civ. P. 137(b). Unusual circumstances include scheduling considerations. Id. Thus, while the distinction between Section 508 and Rule 137(b) may superficially appear to be form over substance, the standards that apply to a change venue are substantively different than the standards that apply to a change of trial location.

In this case, under Rule 137(b) there are no unusual circumstances that warrant moving the trial to Cumberland County. The slight convenience that would be accorded Dr. Prunier's witnesses from Florida is outweighed by the substantial inconvenience that would be imposed on the Publisher Defendants and their witnesses, all of whom live and work in Hancock County or the surrounding geographic area. Further, even if hypothetically the Court were to determine it would be difficult for Dr. Prunier to obtain a fair trial in Hancock County (which the Court does not determine at this time, one way of the other), it would be unnecessary to relocate the trial all the way to Cumberland County. The Court therefore denies Dr. Prunier's Motion to the extent it seeks to move the jury trial location to Cumberland County (Portland).

It may or may not make sense under Rule 137(b) to move the trial location from Hancock County to Penobscot County, but the Court is not yet prepared to make that determination. The state and the nation are still in the grips of the pandemic. There is no guidance on when civil jury trials will resume in Maine, and when this particular case might get to select a jury. The wait could still be many months, and circumstances can change between now and then. Further, when civil jury trials do re-start, scheduling considerations and the availability of a jury pool may impact the analysis of whether to conduct the trial in Hancock County or Penobscot County.

Accordingly, the Court defers deciding the Motion at this time, at least as between Hancock County or Penobscot County. As the case gets closer to the point of scheduling a jury trial, Dr. Prunier can file a supplemental Motion if she still wishes to move the trial location from Hancock County to Penobscot County, adding any additional information that may be pertinent at that time. Publisher Defendants can oppose any such supplemental Motion as the rules provide.

The Clerk shall incorporate this Order on the docket by reference pursuant to M.R. Civ. P. 79(a).

SO ORDERED.

ORDER GRANTING IN PART AND DENYING IN PART PUBLISHER DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

Plaintiff Dr. Kathleen T. Prunier ("Prunier"), a veterinarian, filed a Complaint against multiple defendants alleging that she is entitled to recover damages for defamatory statements made in connection with an article captioned "Two charged in elder theft" in the Mount Desert Islander. Upon completing discovery the remaining defendants-Mark Good, Earl Brechlin, and the Mount Desert Islander (collectively, "Publisher Defendants"), and Robert Byron ("Byron")- each moved for summary judgment pursuant to M.R. Civ. P. 56(b). The Court heard oral argument on Publisher Defendants' motion and on Byron's motion on June 23, 2020. This Order only addresses Publisher Defendants' motion. ^[1] Publisher Defendants are represented by Attorneys Bernard Kubetz and Christopher Uphouse of Eaton Peabody. Prunier is self-represented. For the reasons discussed below, the Court grants in part and denies in part Publisher Defendants' Motion for Summary Judgment.

FACTS

The undisputed material facts are as follows:

Kathleen Prunier, D.V.M., moved to 910 Oak Point Road, Trenton, Maine, in 1998 and that same year became friends with her neighbor, Richard Royal. Defendants Good, Brechlin, and The Mount Desert Islander's Statement of Material Facts ("Def S.M.F.") ¶ 1. On July 12, 2014, Prunier and Royal executed a "Contract for Deed" (the "Contract"). Def. S.M.F. ¶ 2. Prunier drafted the Contract. Def. S.M.F. ¶ 6. Richard Royal was born on December 24, 1931, and was therefore 82 years old at the time he executed the Contract. Def. S.M.F. ¶ 8.

Under the terms of the Contract, Royal sold Prunier certain real property located in Trenton, Maine-identified as "Lot XB9 and Lot XB10"-for an agreed upon purchase price of $4, 000 with no interest. Def. S.M.F. ¶ 3. The area of the land was 5.27 acres. Def. S.M.F. ¶ 32. Prunier was to pay the purchase price in monthly installments of $49.38 at an interest rate of "0% annually." Def. S.M.F ¶ 4. Prunier also agreed to pay all taxes on the property for the term of the Contract. Plaintiffs Opposition to Defendants The MD1Islander`, Mark Good and Earl Brechlin's Statement of Material Facts (Pl.. Opp. S.M.F.) ¶ 3. The Contract was recorded at the Hancock County Registry of Deeds on July 21, 2014. Def. S.M.F. ¶ 9.

On October 6, 2016, Prunier was indicted by a Grand Jury for one count of Theft By Deception, 17-A M.R.S.A. § 354 (Class B) (the "Indictment"). Def. S.M.F. ¶ 10. According to the Indictment, the Grand Jury charged that Prunier committed "theft by obtaining or exercising control over the property of Richard Royal, such property consisting of real estate with a value in excess of $10, 000, with the intent to deprive Richard Royal thereof, and as a result of deception, in that the Defendant did intentionally create or reinforce the impression that the assessed value of the real estate was less than $10, 000, which impression was false and which Defendant did not believe to be true, all in violation of Maine law. Def S.M.F. ¶ 10.

On the same day of Prunier's indictment, the Grand Jury also indicted Lisa Harriman ("Harriman") for two counts: one count of Theft by Unauthorized Taking, 17-A M.R.S.A. § 353 (Class B), and one count of Misuse of Entrusted Property, 17-A M.R.S.A. § 903(1) & (4)(B) (Class B). Def. S.M.F. ¶ 11. With regard to Harriman, the Grand Jury charged that between November 19, 2012, to July 17, 2015, Harriman misused "entrusted property, in that she dealt with money of Richard Royal that had been entrusted to her as a fiduciary, in a manner which she knew to be a violation of her duty, which involved a substantial risk of loss to Richard Royal and which in fact resulted in a loss of Richard Royal's money with an aggregate value of more than $10, 000. At the time of the offense, Richard Royal was a vulnerable person." Def. S.M.F. ¶ 11.

On October 19, 2016, The Mount Desert Islander newspaper published a news article headlined "Two charged in elder theft," which was written by reporter Mark Good and edited by Earl Brechlin. Def. S.M.F. ¶ 12. A complete copy of the article is appended to this Order. When the news article appeared, Plaintiff owned and operated a veterinary clinic called Your Pet's Next Best Friend. Def. S.M.F. ¶ 16. The article identifies Prunier by name, profession, and business location. Def. S.M.F. ¶¶ 12, 16. In reporting on the indictments of Plaintiff and Harriman, reporter Good reviewed the Contract recorded at the Hancock County Registry of Deeds and records maintained on the Town of Trenton's property tax database. Def. S.M.F. ¶¶ 13 & 14. The news article also attributes some statements to co-Defendant Robert Byron, the husband of Richard Royal's niece. Def. S.M.F. ¶ 15.

On March 9, 2017, the State dropped the Theft by Deception charge, and filed a Superseding Indictment of Prunier, charging her with one count of Theft by Unauthorized Taking or Tranfer, 17-A M.R.S.A. § 353 (Class B). Plaintiffs Additional Statement of Material Facts ("Pl.. Add. S.M.F") ¶ 1. The Publisher Defendants did not report the State's abandonment of its original Theft by Deception Indictment against Prunier, or the State's issuance of a Superseding Indictment changing the charge against Prunier to Theft by Unauthorized Taking. PI. Add. S.M.F. ¶¶ 22.

On August 2, 2017, a two-day criminal bench trial was held in the Hancock County Court, Judge Michael Roberts presiding. Def S.M.F. ¶ 17. The Trial Court ultimately found that the State failed to prove Plaintiffs guilt beyond a reasonable doubt. Def. S.M.F. ¶ 21. In particular, the Trial Court noted the factual uncertainty surrounding the value of the property as a contributing factor in its decision. Def. S.M.F. ¶ 22.

STANDARD OF REVIEW

Summary judgment is appropriate if,...