Morse Brothers v. Webster, corrected 6-26-01
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 70
Docket:	Cum-00-518
Argued:	February 14, 2001
Decided:	May 2, 2001

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

MORSE BROTHERS, INC., et al.

v.

FAYLENE WEBSTER et al.

DANA, J.

	[¶1]  Faylene Webster and James Platz appeal from a judgment of the
Superior Court (Cumberland County, Crowley, J.) denying their special
motion to dismiss a complaint for the wrongful use of civil proceedings. 
They contend that the court erred in denying their motion, filed pursuant to
Maine's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute,
14 M.R.S.A. § 556 (Supp. 2000), because Morse Brothers, Inc. and MB
Bagging Corporation (collectively, the Morse group) failed to establish that
Webster and Platz filed appeals "devoid of any reasonable factual support or
any arguable basis in law," and that they "caused actual injury" to the Morse
group.  Id.  Webster and Platz also contend that MB Bagging lacks standing
to allege the wrongful use of civil proceedings because MB Bagging was not a
party to any of the appeals described in the complaint, and that Morse
Brothers lacks standing to allege Webster and Platz's wrongful use of civil
proceedings in appealing a permit granted to Tim Morse.  The Morse group
contends that the "final judgment rule" requires the dismissal of this
appeal.  Because we conclude that the court should have dismissed the
Morse group's action pursuant to the anti-SLAPP statute, we vacate the
judgment.

I.  BACKGROUND

	[¶2]  Morse Brothers has operated a bark mulching facility in
Windham since 1984.  MB Bagging packages the mulch at the facility.  In
1993, the Department of Environmental Protection (DEP) required the
facility to seek a license as a "solid waste facility."  The DEP denied Morse
Brothers' application for a license in 1996 based on findings that the facility
polluted water, that Morse Brothers failed adequately to provide for traffic
circulation, and that the soils on the site were unsuitable for the facility. 
With plans to move its facility from Windham, Morse Brothers obtained
options on contiguous parcels of land (the Morse Brothers property) that
straddle the town line between Auburn and Poland.  In 1997, Morse
Brothers applied for and obtained the approval of a site plan in Auburn and a
conditional use permit in Poland, subject to the requirement that Morse
Brothers obtain a license from the DEP.
	[¶3]  Faylene Webster owns property in Poland abutting the Morse
Brothers property.  James Platz owns property in Poland within half a mile
of the Morse Brothers property, and has property and a business in Auburn. 
Webster, Platz, and others appealed the decisions of the two planning boards
to the Superior Court.  The court (Androscoggin County, Crowley, J.) denied
the appeal of the Poland Board's decision because, despite some
contradictory evidence in the record, the Poland Board did not abuse its
discretion, commit legal error, or make findings unsupported by substantial
evidence in the record.  The court sustained the appeal of the Auburn
Board's decision, concluding that the Auburn Board erred in approving, as
an accessory use, a site plan that includes an access drive, offices, a fuel
facility, a maintenance building, a waste storage area, scales, and a scale
house.  The court concluded that the proposed accessory use is not
permitted in the Auburn Agricultural Zone because the principal use, the
bark mulching plant, located in Poland, would not be permitted in the
Auburn Agricultural Zone.
	[¶4]  Morse Brothers obtained a conditional solid waste license from
the DEP for the proposed bark mulching plant in 1998.  Webster, Platz, and
one other person appealed the decision to the Board of Environmental
Protection (BEP), which added two new conditions regarding the boundary
line for solid waste handling and the hours of operation for loading
equipment, but otherwise affirmed the decision to grant the license. 
Webster, Platz, and their fellow plaintiff appealed the BEP's decision to the
Superior Court (Androscoggin County, Crowley, J.) contending that there
was insufficient evidence for the BEP to conclude that Morse Brothers could
comply with DEP noise standards.  Morse Brothers filed a cross appeal and a
motion to dismiss the appeal as untimely filed and frivolous.  The court
denied Morse Brothers' motion to dismiss Webster and Platz's complaint,
and dismissed the cross appeal upon motion by Webster and Platz.  After oral
argument, the court concluded that the BEP had not erred because it had
based its decision on objective scientific evidence presented at the hearing,
it included provisions for monitoring the actual noise levels, it properly
placed the risk of future noncompliance on Morse Brothers, and its order
was not unreasonable, unlawful, or unjust.
	[¶5]  Tim Morse, a principal at Morse Brothers, applied to the City of
Auburn for an entrance permit for a truck terminal on the Auburn side of the
site.  After the City granted the permit in June of 1999, Webster and Platz
appealed the decision to the Superior Court (Androscoggin County, Crowley,
J.), contending that the access drive for trucks would be an unlawful
accessory use, that the City abused its discretion and committed legal
errors, and that the City failed to provide proper notice when it approved
the permit.
	[¶6]  On July 12, 2000, the court dismissed the drive entrance appeal
for lack of standing.  The court concluded that Webster and Platz failed to
demonstrate a particularized injury from the proposed driveway cut, and
that neither the ordinance nor any other source of law provided for judicial
review.
	[¶7]  On June 28, 2000, before the court rendered a decision on the
entrance permit appeal, Morse Brothers, together with MB Bagging, which
plans to relocate its mulch packaging activities to the Morse Brothers
property, filed a complaint seeking damages and an injunction to prevent
Webster and Platz from commencing any other legal action or appeal
regarding the Morse Brothers property unless they satisfy the Superior
Court that the action or appeal presents a prima facie case.  The complaint
alleges that Webster and Platz brought all their appeals without probable
cause, except for the successful appeal against the decision of the Auburn
Board.  Further, the complaint alleges that Webster and Platz maximized
delay by filing their appeals when the appeal period had nearly expired, that
the attorney for Webster and Platz made statements that his clients' goal was
to delay, and that they intended to appeal the issuance of any building
permits that are necessary to complete the project.  In support of a motion
for a preliminary injunction, the Morse group submitted court documents
from the underlying appeals; the affidavit of Susan Oram, attorney for Morse
Brothers in the Auburn and Poland site plan appeals; a scheduling letter for
the site plan appeals from the Superior Court (Androscoggin County,
Delahanty, J.); the affidavit of John Conway, a member of the Poland
Planning Board; and the affidavit of Benjamin Hawkins, vice president of
Morse Brothers and president of MB Bagging.
	[¶8]  In response, Webster and Platz filed a special motion to dismiss
the Morse group's complaint pursuant to 14 M.R.S.A. § 556, Maine's anti-
SLAPP statute.  According to Webster and Platz, Morse Brothers' suit was an
attempt to gag them and prevent them from raising legitimate questions
about any future permits for development of the Morse Brothers property. 
Webster and Platz submitted an affidavit from Platz to supplement the
record.
	[¶9]  The court (Cumberland County, Crowley, J.) denied the special
motion to dismiss on September 6, 2000.  Webster and Platz filed a motion
for findings of fact or for reconsideration pursuant to M.R. Civ. P. 59 and 60. 
The court denied the motion, after which Webster and Platz filed a notice of
appeal pursuant to M.R. Civ. P. 73 and moved to stay proceedings pending a
decision by the Law Court.  The court granted the motion to stay pursuant to
M.R. Civ. P. 73(f).

II.  DISCUSSION

	[¶10]  "SLAPP is an acronym for Strategic Lawsuit Against Public
Participation.  SLAPP litigation, generally, is litigation without merit filed to
dissuade or punish the exercise of First Amendment rights of defendants." 
Lafayette Morehouse, Inc. v. Chronicle Publ'g Co., 44 Cal. Rptr. 2d 46, 48
(Cal. Ct. App. 1995).  "The typical mischief that the [anti-SLAPP] legislation
intended to remedy was lawsuits directed at individual citizens of modest
means for speaking publicly against development projects."  Duracraft Corp.
v. Holmes Products Corp., 691 N.E.2d 935, 940 (Mass. 1998).  "SLAPP
plaintiffs do not intend to win their suits; rather they are filed solely for
delay and distraction, and to punish activists by imposing litigation costs on
them for exercising their constitutional right to speak and petition the
government for redress of grievances."  Dixon v. Superior Court, 36 Cal.
Rptr. 2d 687, 693 (Cal. Ct. App. 1994) (citation omitted).  "Because winning
is not a SLAPP plaintiff's primary motivation, defendants' traditional
safeguards against meritless actions, (suits for malicious prosecution and
abuse of process, requests for sanctions) are inadequate to counter SLAPPs." 
Id.  (citation and internal quotation marks omitted).  Maine enacted a statute
in 1995 that allows a defendant to file a "special motion to dismiss" a SLAPP
suit.  14 M.R.S.A. § 556.  The statute provides, in part:

	When a moving party asserts that the civil claims,
counterclaims or cross claims against the moving party are based
on the moving party's exercise of the moving party's right of
petition under the Constitution of the United States or the
Constitution of Maine, the moving party may bring a special
motion to dismiss.  The court shall advance the special motion
so that it may be heard and determined with as little delay as
possible.   The court shall grant the special motion, unless the
party against whom the special motion is made shows that the
moving party's exercise of its right of petition was devoid of any
reasonable factual support or any arguable basis in law and that
the moving party's acts caused actual injury to the responding
party.  In making its determination, the court shall consider the
pleading and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.

Id.  

A.  The Final Judgment Rule

	[¶11]  The Morse group contends that the court's discretionary,
interlocutory ruling denying the special motion to dismiss was not a final
judgment from which Webster and Platz may appeal, and no exception to the
final judgment rule applies.  According to the Morse group, Webster and
Platz failed properly to move that the Superior Court report the appeal to
the Law Court pursuant to M.R. Civ. P. 72(c).{1}
	[¶12]  Webster and Platz contend that they are entitled to
interlocutory review because courts in states that have anti-SLAPP statutes
commonly grant review on an expedited basis.  Further, Webster and Platz
contend that the "death knell" and "judicial economy" exceptions to the
final judgment rule apply because Webster and Platz will lose substantial
rights if review is delayed until final judgment, Cook v. Cook, 574 A.2d 1353,
1354 (Me. 1990) (death knell), and because the review can finally dispose of
the entire litigation and the interests of justice demand immediate review,
Dep't of Human Servs. v. Lowatchie, 569 A.2d 197, 199 (Me. 1990) (judicial
economy).
	[¶13]  "It is well established that '[a]ppeals, in order to be cognizable,
must be from a final judgment.'"  Bard v. Bath Iron Works Corp., 568 A.2d
1108, 1110 (Me. 1990) (quoting In re Erica B., 520 A.2d 342, 343 (Me.
1987)).  "The judicially created final judgment rule is based on sound
reasoning.  Among other goals, it promotes judicial economy and curtails
interruption, delay, duplication and harassment.  The rule saves an appellate
court from deciding issues that may later be mooted by proceedings in other
courts . . . ."  Lowatchie, 569 A.2d at 199 (quoting In re Erica B., 520 A.2d at
343).
	[¶14]  "Exceptions to the final judgment rule have been recognized
and applied in those instances where its application would not further its
purpose."  Id. (citing State v. Maine State Employees Ass'n, 482 A.2d 461,
464 (Me. 1984)).  We have recognized exceptions to the rule without
requiring a report pursuant to Rule 72(c), see Dairyland Ins. Co. v.
Christensen, 1999 ME 160, 740 A.2d 43 (evaluating applicability of common
law exceptions in the absence of a Rule 72(c) report).  One such exception is
the "death knell" exception, which permits interlocutory review if
"substantial rights of a party will be irreparably lost if review is delayed until
final judgment."  Webb v. Haas, 1999 ME 74, ¶ 5, 728 A.2d 1261, 1264. 
"[T]he death knell exception is appropriate when the harms are imminent,
concrete, and irreparable."  Lewellyn v. Bell, 635 A.2d 945, 948 (Me. 1993). 
The exception is applicable, for instance, where a court has denied a
summary judgment raising a claim of immunity. Pratt v. Ottum, 2000 ME
203, ¶ 15, 761 A.2d 313, 318.
	[¶15]  The anti-SLAPP statute calls for an expedited hearing of the
motion, and provides a one-time opportunity to the defendant to shift the
burden of proof to the plaintiff to establish that the underlying petitions or
appeals of the defendant were devoid of support in fact or law.  14 M.R.S.A.
§ 556; see also Donovan v. Gardner, 740 N.E.2d 639, 642 (Mass. App. Ct.
2000) (construing the Massachusetts anti-SLAPP statute, which is nearly
identical to 14 M.R.S.A. § 556).  Unlike a garden variety motion to dismiss,
M.R. Civ. P. 12(b)(6), or a motion for summary judgment, M.R. Civ. P. 56(c),
this motion is a statutory creature designed to protect certain defendants
from meritless litigation.{2}  Precluding the moving party from appealing a
decision on the motion would result in continued litigation, which is the
precise harm that the statute seeks to prevent.  In these circumstances, the
cost and delay of litigating the claim does constitute "a loss of substantial
rights or permanent foreclosure of relief."  Dairyland, ¶ 8, 740 A.2d at 45. 
We do not create a generic "cost of litigation exception [that] would swallow
the final judgment rule . . . ."  Id.  Rather, we allow a limited exception to
the final judgment rule for denials of special motions to dismiss pursuant to
14 M.R.S.A. § 556 because to deny review would have a chilling effect on the
petitioning rights of the parties whom the statute seeks to protect.

B.  Standard of Review

	[¶16]  Webster and Platz contend that the Law Court should review the
motion de novo because the court did not hear testimony on the motion and
the record contains all evidence presented.  The Morse group contends that
the Law Court should review only for clear error or abuse of discretion,
similar to the standards applied in reviewing decisions on motions to
dismiss, M.R. Civ. P. 12(b)(6), motions for summary judgment, M.R.
Civ. P. 56, and motions for attachment, M.R. Civ. P. 4A.
	[¶17]  The anti-SLAPP statute provides that the court "shall grant the
special motion" unless the responding party meets its burden of proof. 
14 M.R.S.A. § 556. (emphasis added).{3}  Because the special motion requires
the consideration of both pleadings and affidavits, the standard of review
should resemble the standard for reviewing a motion for summary judgment. 
See Church of Scientology v. Wollersheim, 49 Cal. Rptr. 2d 620, 635-36 (Cal.
Ct. App. 1996) (recognizing that the requirement that the court consider
pleadings and affidavits gives rise to a test similar to the summary judgment
standard); Duracraft, 691 N.E.2d at 942 n.16 ("A standard for summary
judgment adopted in Protect Our Mountain Env't, Inc. v. District Court, 677
P.2d 1361 (Colo. 1984) . . . is a likely source of the standard for evaluating
special motions to dismiss in the Massachusetts anti-SLAPP statute."); cf.
Hometown Properties, Inc. v. Fleming, 680 A.2d 56, 63 (R.I. 1996)
(concluding that a motion for summary judgment is the "appropriate
motion" to file pursuant to the Rhode Island anti-SLAPP statute).
	[¶18]  We "review the judge's decision regarding such a special
motion to dismiss to determine whether there was an abuse of discretion or
error of law."  Vittands v. Sudduth, 730 N.E.2d 325, 337 (Mass. App. Ct.
2000) (citation omitted); see Royal Ins. Co. v. Pinette, 2000 ME 155, ¶ 4,
756 A.2d 520, 523 (summary judgments reviewed de novo for errors of law);
Black v. Ward, 633 A.2d 81, 83 (Me. 1993) (pretrial rulings of trial courts
reviewed for abuse of discretion or error of law).  When reviewing the
motion, the Court should view the evidence in the light most favorable to the
moving party because the responding party bears the burden of proof when
the statute applies.  See Kenny v. Dep't of Human Servs., 1999 ME 158, ¶ 3,
740 A.2d 560, 561 (discussing a motion for summary judgment); 14 M.R.S.A.
§ 556.

C.  Application of the Anti-SLAPP Statute

	[¶19]  In deciding a special motion to dismiss, the court must first
determine whether the claims against the moving party are based on the
moving party's exercise of the right to petition pursuant to the federal or
state constitutions.{4}  14 M.R.S.A. § 556;{5} see Donovan, 740 N.E.2d at 642
(construing Massachusetts statute).  Here, the Morse group seeks to enjoin
Webster and Platz from appealing decisions relating to the proposed
development of the Morse Brothers property.  The parties do not contest
that the claims are based on Webster's and Platz's exercise of their
constitutional rights of petition.
	[¶20]  Once the moving party has demonstrated that the statute
applies, the burden shifts to the responding party to establish, through
pleadings and affidavits, "that the moving party's exercise of its right of
petition was devoid of any reasonable factual support or any arguable basis in
law and that the moving party's acts caused actual injury to the responding
party."  14 M.R.S.A. § 556; see Donovan, 740 N.E.2d at 642.
	[¶21]  Webster and Platz contend that the Morse group failed to
establish that the appeals brought by Webster and Platz were "devoid of any
reasonable factual support or any arguable basis in law . . . ."  14 M.R.S.A.
§ 556.  We agree.  Because none of Webster and Platz's actions were "devoid
of any reasonable factual support or any arguable basis in law," we need not
decide if the Morse group could sustain its burden if some but not all of
Webster and Platz's actions were devoid of merit.

	1.  The Auburn/Poland Site Plan Appeals

	[¶22]  Webster and Platz contend that because the appeals of the
Auburn and Poland site plan decisions had merit, the Morse group has failed
to meet its burden of proof.  They contend that there was substantial
opposition to the site plans, and that Morse Brothers itself admitted to
"noise problems" at the Windham plant.  They contend that they had
probable cause for initiating the appeal because they reasonably believed that
the permits might be held invalid.  See Restatement (Second) of Torts § 674
cmt. e (1977).  Further, they contend that, because the Auburn and Poland
appeals were consolidated, and they prevailed on the Auburn appeal, the
Morse group has failed to establish that it prevailed on the merits of this
consolidated appeal.
	[¶23]  The parties do not dispute that the appeal of the Auburn
decision had merit, so we need only address the Poland appeal.  The
consolidation of the Poland and Auburn appeals does not make the Poland
appeal any more or less meritorious than it would have been if decided
alone.  Consolidated appeals do not restrict the court to an "all or nothing"
review of the decisions from which the parties appeal.  See, e.g., State v.
Bleyl, 435 A.2d 1349, 1368 (Me. 1981) (affirming some convictions and
vacating others in consolidated appeal brought by three co-defendants).
	[¶24]  The Morse group submitted the affidavit of John Conway of the
Poland Planning Board, who avers that "Mr. Rosenblatt said that his clients
intended to litigate the project to its death."  Susan Oram, who represented
Morse Brothers in the proceedings, avers that Webster and Platz's attorney
said to her, "See you next time," at the close of the hearing on the appeal,
and that he stated to her with regard to another land use matter that if her
other client did not meet his demands, "he would 'appeal and all that other
good stuff just like I have been doing in the Platz case.'"  Even assuming that
this evidence would be admissible and not excluded as hearsay, these
statements are inadequate to establish that the Poland appeal was "devoid of
any reasonable factual support or any arguable basis in law."  14 M.R.S.A.
§ 556.  Moreover, others' recollections of comments made by Webster and
Platz's attorney do not speak to Webster's or Platz's intentions, especially in
light of Platz's affidavit stating that his "intentions at all times have been to
force Morse Brothers to comply with the applicable law."
	[¶25]  Although the Morse group contends that the trial court was in
the best position to decide the special motion because it heard all the
underlying appeals, the court's legal conclusion must be supported by
pleadings and evidence that demonstrate clearly that the appeal was "devoid
of any reasonable factual support or any arguable basis in law . . . ."  Id.; see
Jenness v. Nickerson, 637 A.2d 1152, 1154 (Me. 1994) (a party seeking
summary judgment "has the burden of demonstrating clearly that there is
no genuine issue of fact") (quoting 2 Field, McKusick & Wroth, Maine Civil
Practice, § 56.4 at 39 (2d ed. 1970)).  As a matter of law, the Morse group's
evidence does not meet the burden articulated in 14 M.R.S.A. § 556.


On to part 2 of this opinion.