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Withers et al. v. Hackett
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 164
Docket:	Cum-97-487
Submitted
on Briefs:	April 24, 1998
Decided:	June 30, 1998

Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, JJ.



JACK WITHERS et al.
  v.
ROBERT HACKETT

ROBERTS, J.

	[¶1]  Robert Hackett appeals from the judgment entered in the
Superior Court (Cumberland County, Saufley J.) after a jury verdict in favor of
Jack and Lorna Withers.  On appeal Hackett contends that the evidence is
insufficient to support both the jury's verdict and its assessment of damages. 
He also asserts that the court erred in granting the Witherses' request for
attorney fees.  Because we conclude that the evidence is insufficient to
support the jury's finding that Hackett defamed the Witherses, we vacate
the judgment.
I. 
	[¶2]  In August 1994 the Witherses entered into an agreement with
Hackett to purchase property and a trailer home that Hackett owned in
Topsham.  The agreement provided that their monthly payments of $450
would be applied towards the purchase price.  After moving into the home,
the Witherses began having problems with the gas heater and noticed
several other problems with the premises.  Although they notified Hackett
about these problems, he did little to rectify them.  In July 1995 they
entered into a purchase and sale agreement with a company to buy a new
trailer home and informed Hackett of their decision to vacate the premises. 
They did not vacate the premises until September 1995.  At trial Jack
Withers was uncertain whether they made payments in August or September
1995.  
	[¶3]  On September 18, 1995, Jack returned home to find Hackett
and Hackett's associate removing personal property of the Witherses from
the trailer.  Hackett was visibly upset, and he informed Jack that he was
evicting the Witherses.  Jack called the police, and Hackett left the
premises after being told by the officer not to return.  According to Jack,
approximately 40% of his family's belongings were strewn across the lawn. 
Some of the family's clothing was ruined, and a coin collection consisting of
some silver dollars, silver certificates, a gold piece, and foreign coins was
never recovered.  After the incident Hackett continued to harass the
Witherses.  He violated the officer's order and returned to the premises.  He
also approached the Witherses' new landlord and informed him that the
Witherses had "trashed" the trailer home and had failed to make rental
payments.   
	[¶4]  In May 1996 the Witherses filed a complaint in the Superior
Court that recited counts for trespass, conversion, breach of the implied
warranty of habitability, illegal eviction, emotional distress, defamation, and
punitive damages.   In his answer, Hackett asserted a counterclaim, alleging
that the Witherses had breached the rental agreement resulting in $875 of
damages.  In June 1997 at the trial management conference, Hackett
conceded liability for trespass and illegal eviction.  Before the trial began,
the Witherses agreed not to pursue their separate claim for the intentional
infliction of emotional distress.  They, however, reserved the right to seek
damages for the emotional distress that they suffered as a result of Hackett's
wrongful conduct. 
	[¶5]  The jury found that Hackett had converted the Witherses'
property, had defamed them, and had acted with malice.   The jury awarded
the Witherses $2,000 for the damages that resulted from Hackett's
conversion of their property, $3,000 for the damage to their dignity that
Hackett's defamatory statements caused, $10,000 for the emotional distress
that they suffered as a result of Hackett's wrongful conduct, and $15,000 in
punitive damages.   The jury further found that the Witherses had breached
the rental agreement and awarded Hackett $750.   Hackett subsequently
filed a motion for a judgment notwithstanding the verdict, a new trial, and a
remittitur.  The court denied Hackett's motion and directed that a
judgment be entered for the Witherses in the amount of $30,000, plus
$19,786.69 in attorney fees and costs, plus interest, and that a judgment be
entered on Hackett's counterclaim in his favor for $750, plus interest.  This
appeal followed.  
II.
	[¶6]  Hackett contends that the evidence is insufficient to support the
jury's verdict in favor of the Witherses on the conversion and the defamation
counts.  We disagree that the evidence is insufficient to support the jury's
finding that Hackett converted the Witherses' property, but agree that the
jury's finding that he defamed the Witherses cannot stand.
	[¶7]  In determining the sufficiency of the evidence, we must
consider whether, by any reasonable view of the evidence, including
inferences to be drawn therefrom, taken in the light most favorable to the
prevailing party, the verdict can be sustained.  Danforth v. Ruotolo, 650 A.2d
1334, 1336 (Me. 1994).  "The gist of conversion is the invasion of a party's
possession or right to possession at the time of the alleged conversion." 
General Motors Acceptance Corp. v. Anacone, 160 Me. 53, 82, 197 A.2d
506, 524 (1964).  The necessary elements to make out a claim for
conversion are: (1) a showing that the person claiming that his property was
converted has a property interest in the property; (2) that he had the right
to possession at the time of the alleged conversion; and (3) that the party
with the right to possession made a demand for its return that was denied
by the holder.  Leighton v. Fleet Bank of Me., 634 A.2d 453, 457 (Me. 1993). 
The person with the right to possession need only make a demand if the
holder took the property rightfully, and "[w]here the circumstances show
that a demand would be useless, a demand is not necessary."   General
Motors Acceptance Corp. v. Anacone, 160 Me. at 83, 197 A.2d at 524.
	[¶8]  Hackett does not dispute that the Witherses had a property
interest in the property that he removed from the trailer or that they had
the right to possess the property at the time of the incident.  Rather he
challenges their assertions that he was responsible for the loss of the coins
and that some of their clothing was ruined by his actions.  The jury,
however, was in a better position to judge the credibility of the witnesses,
see Manchester v. Dugan, 247 A.2d 827, 829 (Me. 1968), and could have
reasonably believed that some of the Witherses' property was lost or ruined.
	[¶9]  Hackett also contends that the evidence is insufficient to
support the jury's verdict in favor of the Witherses on their defamation
count.  We agree.
	Common law defamation consists of:

	(a) a false and defamatory statement concerning another;	

	(b) an unprivileged publication to a third party;

	(c) fault amounting at least to negligence on the part of
	the publisher; and

	(d) either actionability of the statement irrespective of
	special harm or the existence of special harm caused by
	the publication. 
Haworth v. Feigon, 623 A.2d 150, 156 (Me. 1993) (citing Restatement
(Second) of Torts § 558 (1977)).  The drafters of the Restatement (Second)
of Torts define "special harm" as "the loss of something having economic
or pecuniary value."  Restatement (Second) of Torts § 575 cmt. b (1977). 
The loss of reputation or social standing alone are insufficient to subject the
publisher to liability.  Id.  However, if the plaintiff can show that the loss of
reputation or social standing resulted in a loss of material advantages, then
the loss can be considered a special harm.  Id.  Once the plaintiff has shown
special harm, he can recover not only for the special harm, but for the
general loss of his reputation and any emotional distress or other bodily
harm of which the slander is the legal cause.  Id. § 575 cmt. a; see also id.
§§ 621, 623.  Emotional distress is not special harm.  Id. ¶ 575 cmt. c.
	[¶10]  Although we give a properly instructed jury enormous
deference, there is no evidence that the Witherses suffered any harm as a
result of Hackett's statements to their current landlord.  The landlord still
rented the premises to them.  There is also no evidence that the landlord
required them to pay a security deposit of a greater amount than they would
have been required to pay if Hackett had not made the statements. 
Moreover, they do not contend that the statement was of such a nature that
it was actionable irrespective of special harm.  
	[¶11]  Unfortunately, the parties failed, in the verdict form, to request
that the jury distinguish the emotional distress and punitive damages that
resulted from Hackett's allegedly defamatory comments from the emotional
distress and punitive damages that resulted from Hackett's other tortious
conduct.{1}  Because we cannot conclude that the jury's punitive damage
award and its award of damages for the emotional distress suffered by the
Witherses were not based, at least in part, on its finding that Hackett was
liable to the Witherses for defamation, these awards cannot stand.
	[¶12]  Finally, Hackett contends that the court erred in its award of
attorney fees.  14 M.R.S.A.§ 6014 (Supp. 1997) provides that a tenant who
has been illegally evicted by his landlord can recover the reasonable attorney
fees that he incurs in the prosecution of his claim.  Hackett asserts that the
court erred by allowing the Witherses to recover fees that were incurred
after he conceded liability at the trial management conference.  We disagree. 
Although Hackett conceded liability on the illegal eviction count before trial,
the issue of damages still needed to be determined.  Moreover, he does not
contest the court's conclusion that the claims in this case were "inextricably
interwoven" and based upon the same conduct.{2}  We also find Hackett's
assertions that the court erred by allowing the Witherses to recover fees for
multiple counsels and to recover fees in spite of a contingent fee agreement
unconvincing.  In its determination of reasonable attorney fees, the court
refused to award both of the Witherses' attorneys for their duplicated work
product and considered the contingent fee agreement.  The court's award
was, therefore, within the bounds of its discretion.  VanVoorhees v. Dodge,
679 A.2d 1077, 1082 (Me. 1996).
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with this opinion. 

Attorney for the Plaintiffs: John F. Shepard, Jr., Esq. Shepard & Shepard, P.A. 5 Royal Ave. P.O. Box 208 Freeport, Maine 04032 Attorney for the Defendant: Richard W. Elliott, Esq. Elliott & Elliott 19 McKown St. Boothbay Harbor, Maine 04538
FOOTNOTES******************************** {1}. Hackett failed to furnish this Court with a complete transcript on appeal. The transcript does not include the court's charge to the jury. We assume therefore that the jury award of damages was based on appropriate instructions. {2}. We do not interpret the court's conclusion to have shifted to Hackett the burden of separating counsels' efforts.