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Morse Brothers v. Webster, part 2

2.  Appeal of the BEP Decision

	[¶26]  Webster and Platz contend that their appeal to the BEP was
successful because it resulted in the imposition of new conditions. 
According to them, the court's decision to deny Morse Brothers' motion to
dismiss their appeal as frivolous contradicts the court's subsequent decision
to deny the special motion to dismiss the present action.  They contend that
the court, in a footnote in its judgment, recognized that the appeal raised
legitimate concerns when it stated that, because the DEP has required
monitoring of the facility once it begins to operate, "the applicant will
proceed with the project at its peril."  In addition, Webster and Platz
contend that some delays related to the DEP permit came about because
Morse Brothers filed its own appeal of the BEP's decision.
	[¶27]   Although the court concluded in favor of Morse Brothers on the
appeal, it also concluded in favor of Webster and Platz on the cross appeal. 
That the court reached its decision without difficulty cannot alone establish
that the appeal lacked any factual or legal support.  See Donovan, 740 N.E.2d
at 643 ("The fact that the incidents were resolved in the plaintiffs' favor . . .
does not mean that there was no colorable basis for [the defendants']
petitions").  Moreover, the court denied Morse Brothers' motion to dismiss
the BEP appeal as frivolous, and remarked on the legitimate concerns raised
by the appeal.  The court contradicts its earlier ruling that the appeal was
not frivolous by concluding that Webster and Platz's "exercise of its right of
petition was devoid of any reasonable factual support or any arguable basis in
law . . . ."  14 M.R.S.A. § 556.  The evidence presented is inadequate to
establish that the Morse group met its burden of proof pursuant to 14
M.R.S.A. § 556.

	3.  Appeal of the Drive Entrance Permit

	[¶28]  Webster and Platz contend that, because the court dismissed
their claim for lack of standing, the court never reached the merits of their
appeal of the City of Auburn's decision to grant a drive entrance permit to
Tim Morse.  They contend that, if the court had determined that they had
standing, it would have found merit in the question raised by their appeal:
whether the permit required further review because the project is really a
solid waste plant, not a truck terminal.  Webster and Platz also contend that,
because neither Morse Brothers nor MB Bagging was the applicant for the
permit, neither may raise this appeal in their wrongful use of civil process
complaint.
	[¶29]  The tort of wrongful use of civil proceedings lies where:
(1) one initiates, continues, or procures civil proceedings
without probable cause, (2) with a primary purpose other than
that of securing the proper adjudication of the claim upon which
the proceedings are based, and (3) the proceedings have
terminated in favor of the person against whom they are brought.

Palmer Dev. Corp. v. Gordon, 1999 ME 22, ¶ 4, 723 A.2d 881, 883 (quoting
Pepperell Trust Co. v. Mountain Heir Fin. Corp., 1998 ME 46, ¶ 15, 708
A.2d 651, 656).  Although we have not had the occasion to decide whether a
dismissal for lack of standing constitutes a judgment in favor of the
defendant, see Pepperell, ¶ 16, 708 A.2d at 656, we have held that "[a]
successful statute of limitations defense does not reflect on the merits of an
action."  Palmer, ¶ 11, 723 A.2d at 884.  Other state courts have
determined that a dismissal granted on procedural grounds does not
constitute a judgment terminating proceedings in favor of the successful
defendant.  See, e.g., Rowen v. Holiday Pines Prop. Owners' Ass'n, Inc., 759
So. 2d 13, 16 (Fla. Dist. Ct. App. 2000) (dismissal for lack of subject matter
jurisdiction is not a favorable termination because a court must first have
jurisdiction over the action that it terminates); Sierra Club Found. v. Graham,
85 Cal. Rptr. 2d 726, 734 (Cal. Ct. App. 1999) (a favorable termination
"reflect[s] on the merits of the action and the plaintiff's innocence of the
misconduct alleged. . . .  If resolution of the underlying action leaves a
residue of doubt about the plaintiff's innocence or liability, it is not a
favorable termination sufficient to support a cause of action for malicious
prosecution").
	[¶30]  The court never addressed the merits of the appeal, and could
not, therefore, determine whether the exercise of the right of petition "was
devoid of any reasonable factual support or any arguable basis in law . . . ." 
14 M.R.S.A. § 556.  The dismissal of Webster and Platz's appeal of the
decision to grant a drive entrance permit does not constitute a termination
in favor of Tim Morse for which the Morse group may allege the wrongful
use of civil proceedings.  Even if the decision did constitute a termination in
favor of Tim Morse, however, the court's seven page decision and order on
the motion to dismiss establishes that there was a bona fide issue regarding
whether Webster and Platz had standing to appeal the decision based on
their claim that the drive would, de facto, be an impermissible accessory use
like the one prohibited by the court's decision in the Auburn site plan
appeal.  Because the pleadings and evidence presented by the Morse group
are, as a matter of law, inadequate to establish that the drive entrance appeal
terminated in its favor, the same pleadings and evidence are also insufficient
to meet the burden imposed by 14 M.R.S.A. § 556.
	[¶31]  The court committed legal error by concluding:  (1) that the
Poland site plan appeal lacked factual or legal support, (2) that the BEP
appeal, which the court earlier found not to be frivolous, lacked any basis in
fact or law, and (3) that the Morse group met its burden in the drive
entrance appeal when the allegations and evidence do not even support a
prima facia case for wrongful use of civil proceedings because the Morse
group failed to establish that the proceeding terminated in its favor.
	[¶32]  Because we have concluded that the Morse group's complaint
should be dismissed pursuant to the anti-SLAPP statute, we need not
address Webster and Platz's additional arguments that MB Bagging lacked
standing to raise the three appeals to which it was not a party, that Morse
Brothers lacked standing to raise Tim Morse's drive entrance appeal, and
that the Morse group suffered no actual injury.
	The entry is:
Judgment vacated.  Remanded to the Superior
Court with instructions to dismiss.
 
Attorneys for plaintiffs: James B. Haddow, Esq., (orally) Thomas C. Bradley, Esq. Petruccelli & Martin, LLP P O Box 9733 Portland, ME 04104-5033 Attorneys for defendants: Julian L. Sweet, Esq., (orally) Jack H. Simmons, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 James M. Bowie, Esq., (orally) Thompson & Bowie P O Box 4630 Portland, ME 04112
FOOTNOTES******************************** {1} . M.R. Civ. P. 72(c) provides: (c) Report of Interlocutory Rulings. If the court is of the opinion that a question of law involved in an interlocutory order or ruling made by it in any action in the Superior Court ought to be determined by the Law Court before any further proceedings are taken therein, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein. Had this appeal been commenced by notice of appeal on or after January 1, 2001, the Maine Rules of Appellate Procedure would apply. M.R. App. P. 24 (c) provides: (c) Report of Interlocutory Rulings. If the trial court is of the opinion that a question of law involved in an interlocutory order or ruling made by it ought to be determined by the Law Court before any further proceedings are taken, it may on motion of the aggrieved party report the case to the Law Court for that purpose and stay all further proceedings except such as are necessary to preserve the rights of the parties without making any decision therein. {2} . The Massachusetts Supreme Court has recognized that the competing interests in SLAPP suits present difficulties for courts. Duracraft, 691 N.E.2d at 943. "By protecting one party's exercise of its right of petition, unless it can be shown to be sham petitioning, the statute impinges on the adverse party's exercise of its right to petition, even when it is not engaged in sham petitioning." Id. {3} . The Massachusetts Supreme Court expressly refused to adopt the Massachusetts Appeals Court's interpretation of the language "shall grant . . . [the] special motion" to mean "may" grant it. Duracraft, 691 N.E.2d at 943 (internal quotation marks omitted). {4} . The Maine Constitution provides that "[t]he people have a right at all times in an orderly and peaceable manner to assemble to consult upon the common good, to give instructions to their representatives, and to request, of either department of the government by petition or remonstrance, redress of their wrongs and grievances." Me. Const. art. I, § 15. The federal constitution provides that "Congress shall make no law . . . abridging . . . the right of the people peaceably to . . . petition the Government for a redress of grievances." U.S. Const. amend. I. {5} . The anti-SLAPP statute provides, in relevant part, that "a party's exercise of its right of petition" means 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; or any other statement falling within constitutional protection of the right to petition government. 14 M.R.S.A. § 556.

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