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Tanguay v. Asen
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:  	1998 ME	 277
Docket:	Cum-98-309
Argued:	November 30, 1998
Decided:	December 24, 1998

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




NORMAN TANGUAY v. MICHAEL ASEN et al.

ALEXANDER, J.

	[¶1]  Norman Tanguay appeals from the entry of a summary judgment
in favor of Michael Asen by the Superior Court (Cumberland County, Saufley,
J.).  Actions against other defendants have been resolved and are not before
this Court.   
	[¶2]  Michael Asen was the attorney for Norman Tanguay's former
wife in post-divorce litigation regarding Norman Tanguay's refusal to pay
child support and lack of contact with his daughter.  In 1995, he filed an
action against Asen, his ex-wife and her husband.  The action included
claims for:  (i) abuse of process; (ii) intentional interference with parental
relations; (iii) intentional infliction of emotional distress; (iv) negligent
infliction of emotional distress; (v)  defamation; and (vi) violation of
constitutional rights.
	[¶3]  In May of 1996, the Superior Court entered a summary
judgment for the defendants on all but one count involving Tanguay's ex-
wife.  That count was subsequently resolved.  
	[¶4]  On appeal to this Court, Tanguay only challenges the Superior
Court's actions regarding his claims for abuse of process, intentional
infliction of emotional distress and defamation.  We affirm.
	[¶5]  The elements of an abuse of process claim are that a defendant:
(i) initiated or used a court document or process in a manner not proper in
the regular conduct of proceedings, (ii) with the existence of an ulterior
motive, and (iii) resulting in damage to the plaintiff.  Potter, Prescott,
Jamieson & Nelson, P.A. v. Campbell, 1998 ME 70, ¶ 7, 708 A.2d 283, 286; 
Pepperell Trust Co. v. Mountain Heir Fin. Corp., 1998 ME 46, ¶ 14 n.8, 708
A.2d 651, 655; Kleinschmidt v. Morrow, 642 A.2d 161, 164 (Me. 1994). 
Regular use of process, such as filing a law suit, cannot constitute abuse,
even if a decision to act or a decision not to act, was influenced by a
wrongful motive.  Campbell, 1998 ME 70, ¶ 7, 708 A.2d at 286; Simon v.
Navon, 71 F.3d 9, 15-16 (1st Cir. 1995).  
	[¶6]  Here, there is no court document or initiation of court process
that is alleged to have been used improperly.  The Superior Court properly
granted a summary judgment on the abuse of process claim.
	[¶7]  On the defamation claim, it appears that any specific
defamatory statements asserted by Tanguay were made at a time outside the
two year statute of limitations for defamation actions. 14 M.R.S.A. § 753
(Supp. 1998).  The Superior Court did not rule on this issue because it is
possible that one of the asserted defamatory statements, a communication to
the parties' child, could have occurred within two years of filing of the
action.  However, taking the limited evidence about this asserted statement
most favorably to Tanguay, it would be within at least a qualified privilege of
counsel to inquire and develop evidence relevant to the proceeding.  Cf.
Dineen v. Daughan, 381 A.2d 663, 664 (Me. 1978) (recognizing absolute
privilege for statements made in a motion filed with this court).  Reaching
this conclusion, the Court need not and does not decide whether the
privilege of inquiry at issue here should be viewed as qualified or absolute.
	[¶8]  For the intentional infliction of emotional distress claim,
Tanguay concedes that he has no direct evidence of interference by Asen
with parental relations or other actions by Asen that would constitute direct
evidence to support his claim.  Rather, he asserts that he has enough
circumstantial evidence to avoid a summary judgment, including his
allegation that Asen aided and abetted his ex-wife in harming his
relationship with his daughter.  For evidence of this he points to Asen's
assertion of an attorney/client privilege, M.R. Evid. 502, and urges that,
from Asen's assertion of a privilege, an adverse inference may be drawn
against Asen pursuant to M.R. Evid. 513.{1}  In this he is mistaken.  
	[¶9]  Rule 513 allows the factfinder in a civil action to draw an
adverse inference from the assertion of a personal privilege by the party the
privilege is designed to protect.  M.R. Evid. 513.  The attorney/client
privilege asserted by Asen is to protect his client's communications with
him.  It is not to protect him individually.  The privilege is the client's
which Asen had the authority to assert.  M.R. Evid. 502(c); Field & Murray,
Maine Evidence § 502.5 (4th ed. 1997).  
	[¶10]  An adverse inference under Rule 513 may not be drawn
against one, such as the attorney here, who asserts a privilege designed to
protect communications between that person and another individual.  
	[¶11]  The Superior Court properly granted a summary judgment on
Tanguay's claims.  
	The entry is
			Judgment affirmed.
             
Attorney for plaintiff: Thomas F. Hallett, Esq., (orally) P O Box 7508 Portland, ME 04112-7508 Attorneys for defendant: Ernest J. Babcock, Esq., (orally) Tracy D. Hill, Esq. Friedman, Babcock & Gaythwaite P O Box 4726 Portland, ME 04112-4726
FOOTNOTES******************************** {1} RULE 513. CLAIM OF PRIVILEGE IN CIVIL CASES (a) Comment or Inference Permitted. The claim of a privilege by a party in a civil action or proceeding, whether in the present proceeding or upon a prior occasion, is a proper subject of comment by judge or counsel. An appropriate inference may be drawn therefrom. (b) Claim of Privilege by Nonparty Witness. The claim of a privilege by a nonparty witness in a civil action or proceeding shall be governed by the provisions of Rule 512.