Baker v. Manter
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 26
Docket:	Ken-00-280
On Briefs:	November 21, 2000
Decided:	January 31, 2001

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

JOHN BAKER


v.

DAVID L. MANTER 
and
ROBERTA J. MANTER {1} 

					

RUDMAN, J.

	[¶1]	David and Roberta Manter appeal from the Superior Court's
(Kennebec, Marden, J.) award of $18,208.06 in attorney fees to John Baker. 
The Manters argue, inter alia, that given the American Rule, there is no legal
basis for awarding Baker attorney fees.{2}  We agree and vacate the award of
attorney fees.

I.  BACKGROUND

	[¶2]	John Baker brought a suit seeking, inter alia, preliminary and
permanent injunctions enjoining the Manters from interfering with his and
the public's use of the Young Road, other and further relief as the court
deemed appropriate, his costs, and punitive damages.  
	[¶3]	In response to Baker's complaint, the Manters filed
counterclaims against Baker alleging that Baker and his logging trucks
harmed the Manters by using the whole, but maintaining only a portion, of
the Young Road. 
	[¶4]	The court granted Baker's motion for a summary judgment and
ordered that "Defendants David L. Manter and Roberta J. Manter, all of their
agents, servants, employees and attorneys, and all persons in active concert
or participation with them, are permanently enjoined from taking any action
which interferes in any way with John Baker's and the public's use of the
Young Road . . . ."   
	[¶5]	The Manters live on the southerly end of the Young Road.  Baker
owns woodlots a short distance northerly from the Manters, and prefers to
access his lots via the southerly end of the Young Road.  The southerly
portion of the Young Road has been rebuilt by the Manters and is in a
generally good condition, while the northerly portion, though it has been
occasionally repaired, is not well maintained and has, at times, been used for
logging traffic. 
	[¶6]	The Manters assert that the southerly portion of the Young Road
should not be used by Baker's heavy logging trucks because the weight of the
trucks damage the road.  Baker has attempted to make repairs to the
southerly portion of the road, but the Manters objected to the "manner in
which the work [has been] done." 
	[¶7]	In late September or early October 1997, the Manters dug a
ditch, varying in depth from one to three feet, across the Young Road.  The
court found that "the ditch was dug by [the Manters] ostensibly for the
purposes of installing a culvert."  The Manters did not install a culvert, nor
did they erect signs or place warning devices to notify others of the ditch. 
Moreover, the Manters admitted that they were aware that the ditch would
obstruct traffic on the Young Road. 
	[¶8]	Seeing the pile of dirt and attempting to avoid it, Baker drove
his truck through another portion of the ditch, which he had not seen,
resulting in immediate damage to the truck.  Baker discovered other
damage to the truck during the month following the accident.  Baker
subsequently had the ditch filled in, but the Manters, or their daughter, dug
it out.  It was left unfilled until the following spring. 
	[¶9]	The court noted that, throughout the history between the
parties, the Manters have denied the validity of the rights of others to use
the Young Road and that the Manters' behavior toward Baker has been
outrageous and malicious.  The court further stated that, 

it was necessary for [Baker] to undertake this action and
undertake these expenses in prosecuting this litigation in order
to attempt to bring some finality in the relationship between he
and the [Manters].  It is clear that the expenses of litigation as
represented by attorney's fees and other costs are the direct
result of the outrageous behavior of the defendants.

	[¶10]  The court awarded Baker $5,000 in punitive damages,
$1,186.15 for damages to his truck, and attorney fees in the amount of
$18,208.06. 
	[¶11]  On appeal, the Manters contest the award of attorney fees.{3} 

II.  DISCUSSION

	[¶12]  The Manters argue that the Superior Court erred in awarding
Baker attorney fees.  Baker asserts that it was within the Superior Court's
"inherent authority" to sanction the Manter's conduct by awarding attorney
fees.  Whether the court was authorized to award attorney fees to Baker is a
question of law.  Linscott v. Foy, 1998 ME 206, ¶ 16, 716 A.2d 1017, 1021
(citing Gibson v. Farm Family Mut. Ins. Co., 673 A.2d 1350, 1354 (Me.
1996)).
	[¶13]  A court's authority to award attorney fees "may be determined
by statute, by the 'American Rule' at common law [which] generally prohibits
taxing the losing party in litigation with a successful opponent's attorney
fees, or by certain recognized common law authorizations of attorney fees."
Id.  "Although the prevailing party is not ordinarily entitled to an award of
attorney fees, courts may award fees as damages for certain egregious
conduct[,]" id. (citation omitted), and for some kinds of tortious conduct,
Murphy v. Murphy, 1997 ME 103, ¶ 15, 694 A.2d 932, 935.  See also
Chiappetta v. LeBlond, 544 A.2d 759, 760 (Me. 1988) (holding that trial
court possess inherent authority to sanction parties and attorneys for abuse
of the litigation process).
	[¶14]  Because of the "American Rule," trial "courts should exercise
their inherent authority to award attorney fees as a sanction only in the most
extraordinary circumstances."  Linscott v. Foy, 1998 ME 206, ¶ 17, 716
A.2d 1017, 1021.  The trial court's authority to sanction parties and
attorneys for abuse of the litigation process "should be sparingly used and
sanctions imposed only when the abuse of process by parties or counsel is
clear."  Chiappetta v. LeBlond, 544 A.2d 759, 761 (Me. 1988) (emphasis
added). 
	[¶15]  While the record clearly establishes that the Manters' behavior
toward Baker has, at times, been malicious and outrageous, such behavior
does not, without more, merit the award of attorney fees.  Baker argues that
this case is analogous to Linscott v. Foy, 1998 ME 206, 716 A.2d 1017.  In
Linscott we found that Foy's actions were "unquestionably egregious"
because Foy repeatedly refused to comply with a final order of the court. Id.
1998 ME 206, ¶ 18, 716 A.2d at 1021.  Foy had perpetuated the litigation
by filing multiple suits in several jurisdictions, rather than complying with a
valid court order compelling him to close in accordance with a settlement
agreement. Id. 1998 ME 206, ¶ 18, 716 A.2d at 1021.  Under those facts,
the actions by Foy were "undertaken in bad faith and were abusive of the
court and other parties, thereby providing the court with authority to
consider imposition of attorney fees."  Id.
	[¶16]  Unlike in Linscott, where Foy's actions were abusive of the
litigation process, the Manters' actions, though egregious towards Baker,
were not abusive of the litigation process.  Rather, they were abusive of their
neighbors.  When litigants abuse the litigation process, as Foy did in the
Linscott matter, by filing multiple frivolous lawsuits or through other
litigation misconduct, the court may use its inherent power over the
proceedings to sanction the miscreant by awarding attorney fees.  When the
litigant acts outside of the proceedings in contempt of the court's order, or
with malice toward other parties, other remedies are available.
	[¶17]  Thus, the court erred in basing an award of attorneys fees on its
inherent power, as articulated in Linscott.  Because attorney fees may only
be awarded to a prevailing party when that award is within the authority of
the court, we must determine whether the court could award fees in this
matter on any other basis.  A court may award attorney fees based on the
following:

(1) the contractual agreement of the parties, see McTeague v.
Dep't of Transp., 2000 ME 183, ¶ 11, 760 A.2d 619, 622;

(2) clear statutory authority, Goodwin v. Sch. Admin. Dist. No.
35, 1998 ME 263, ¶ 13, 721 A.2d 642, 646; or

(3) the court's inherent authority to sanction egregious conduct
in a judicial proceeding, Linscott v. Foy, 1998 ME 206, ¶¶ 16-
18, 716 A.2d 1017, 1021-22 ("courts should exercise the
inherent authority to award attorney fees as a sanction only in
the most extraordinary circumstances").

	[¶18] In the context of this case it was error to base the award on
Linscott.  We are unable to determine whether the court would have entered
a different punitive damage award,{4} had it been aware that it lacked
authority to award attorney fees.  Thus, we remand the matter to the court
for reconsideration of its punitive damage award in the light of our vacation
of its award of attorney fees
The entry is:

Judgment affirmed in part and vacated in
part.  The award of attorney fees is
vacated.  Remanded for reconsideration
of the court's award of punitive damages.

                                                 				

Attorney for plaintiff:

Jed Davis, Esq.
Jim Mitchell and Jed David, P.A.
86 Winthrop Street
Augusta, ME 04330

Attorney for defendants:

Stephen C. Whiting, Esq.
The Whiting Law Firm, P.A.
75 Pearl Street, suite 207
Portland, ME 04101

FOOTNOTES******************************** {1} . The Manters were previously before the Law Court on a related issue in Town of Fayette v. Manter, 528 A.2d 887 (Me. 1987), cert. denied, 485 U.S. 937, 108 S.Ct. 1116, 99 L.Ed.2d 276 (1988) (finding that the Young Road is a public easement); See also Manter v. Town of Fayette, 556 A.2d 665 (Me. 1989), cert. denied, 493 U.S. 939, 110 S.Ct. 337, 107 L.Ed.2d 326 (1989). {2} . The Manters also argue that the court erred in awarding attorney fees because such relief was not requested. Since we are vacating the award of attorney fees, we need not reach this issue. {3} . We address only those issues that are properly before the court and will not address any of the issues raised in the appellant's supplemental pro se brief which were not only improperly raised, but are meritless. {4} . We have consistently held in awarding punitive damages "the fact finder must weigh 'all relevant aggravating and mitigating factors' presented by the parties, including the egregiousness of the defendant's conduct, the ability of the defendant to pay such award, and any criminal punishment imposed for the conduct in question." Tuttle v. Raymond, 494 A.2d 1353, 1359 (Me. 1985) (quoting Hanover Ins. Co. v. Hayward, 464 A.2d 156, 158-159 (Me. 1983)).