Raymond v. Lyden
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 59
Docket:	Cum-98-369
Submitted
on Briefs:	March 12, 1999
Decided:	April 21, 1999

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

ROBYN M. RAYMOND et al.
v.
JOHN F. LYDEN et al.

DANA, J.
	[¶1]  John and Iola Lyden appeal from the judgment entered in the
Superior Court (Cumberland County, Mills, J.) on the plaintiffs'{1} action for
trespass pursuant to 14 M.R.S.A. § 7551-B (Supp. 1998).{2}  In addition, the
Lydens appeal from the judgments dismissing their counterclaim for slander
of title, granting the plaintiffs' motion to retain the case on the docket, and
awarding counsel fees.  We affirm each judgment.
	[¶2] As owners of property lots in the Highland Lake Beaches
subdivision in Windham, each party owns in common Beach Road, an
unimproved way leading from Cottage Road to Highland Lake beach.  The
Lydens live on the property abutting the northerly side of Beach Road, and
the Yattaws lived{3} on the property abutting the southerly side.
	[¶3]  In August 1994, the plaintiffs filed a complaint pursuant to
14 M.R.S.A. §§ 7551-7561 (1980 & Supp. 1994) alleging that the Lydens
and the Yattaws had trespassed on Beach Road by, among other things,
constructing a fence within and down the length of the road.{4}  The Lydens
responded by claiming the land in dispute by adverse possession and
alleging that the plaintiffs had slandered the title to this property by filing
the complaint for trespass.  The court dismissed the slander of title claim.{5}
	[¶4]  After more than two years passed with no activity on the docket,
the court notified the plaintiffs that if they did not file a motion to retain the
case on the docket, the court would dismiss their case pursuant to M.R.
Civ. P. 41(b).  The plaintiffs filed the motion, and the court added the case to
the trial list.
	[¶5]  After a bench trial, the court found that the Lydens had
"intentionally entered and damaged the Beach Road," ordered the Lydens to
remove "all encroachments on the northerly side of the Beach Road," and
awarded plaintiffs $7200 in damages and $4000 in attorney fees.
	[¶6]  The Lydens contend that the court erred in dismissing their
counterclaim for slander of title.{6} 	A party to a private litigation is privileged
to publish slanderous material concerning the title of another "in the
institution of . . . a judicial proceeding in which he participates, if the matter
has some relation to the proceeding."  See Restatement (Second) of Torts §§
635, 587 (1977).{7}  The privilege is absolute and "protects a party to a
private litigation . . . from liability . . . irrespective of his purpose in
publishing the defamatory matter, of his belief in its truth or even his
knowledge of its falsity."  Id. § 587 cmt. a.  
	[¶7]  Given that the only source of slander alleged by the Lydens is the
complaint instituting this action, the court did not err in dismissing the
Lydens' claim for slander of title.  Cf. Vogt v. Churchill, 1997 ME 5, ¶ 1, 687
A.2d 961, 961 (defendants in action for defamation entitled to absolute
privilege for statements made in course of judicial proceedings).
	[¶8]  Next, the Lydens contend that the court erred in not dismissing
the plaintiffs' action for want of prosecution.  When a plaintiff has failed to
prosecute an action for more than two years, M.R. Civ. P. 41(b){8} mandates
that the court dismiss the action absent "a showing by the delinquent
plaintiff of 'good cause to the contrary.'"  Burleigh v. Weeks, 425 A.2d 623,
624 (Me. 1981) (quoting M.R. Civ. P. 41(b)).
	[¶9]  The term "good cause" is a "highly relative concept which lacks
fixed and definite meaning, and the application of it requires the court to
evaluate the circumstances of each individual case and then to make its
determination by exercising a sound discretion."  West Point-Pepperell, Inc.
v. State Tax Assessor, 1997 ME 58, ¶ 7, 691 A.2d 1211, 1213 (quoting
Emerson v. A.E. Hotels, Inc., 403 A.2d 1192, 1193 n.2 (Me. 1979)).  There
is nothing in the record to indicate that the court abused its discretion
when deciding not to dismiss the plaintiffs' claim.
	[¶10]  The Lydens also argue that the court erred in awarding attorney
fees to the plaintiffs.  The court may award to a land owner who prevails in
an action for trespass "[r]easonable attorney's fees for preparing the claim
and bringing the court action . . . plus costs."  14 M.R.S.A. § 7551-B(3)(C). 
We review the determination of a reasonable fee for abuse of discretion.  See
Poussard v. Commercial Credit Plan, Inc. of Lewiston, 479 A.2d 881, 884
(Me. 1984).  
	[¶11]  Plaintiffs' counsel filed an affidavit stating the hourly rate
charged, the total amount billed to his clients, the services performed, and
that the rate was reasonable for an attorney in the community with similar
experience performing similar work.  Faced with this affidavit,  the court
did not exceed the bounds of its discretion in its determination of a
reasonable fee.  Cf. Hebert v. Hebert, 475 A.2d 422, 426 (Me. 1984).
	[¶12]  Finally, contrary to the Lydens' contention, there was ample
evidence, expert and otherwise, to support the court's conclusion that the
Lydens had intentionally trespassed by building a fence within and down the
length of Beach Road.
	The entry is:
			Judgments affirmed.
                                                                                                                      
Attorney for the plaintiffs:			
David Marchese, Esq. 
178 Middle St.
Suite 400
Portland, Maine   04101

Attorney for the defendants:

Ralph W. Brown, Esq.
19 Candlewyck Rd.
Portland, Maine 04102

FOOTNOTES******************************** {1} . The plaintiffs are Robyn M. and Dale H. Raymond, Kurt A. Kimball, and D. Scott Forbes. {2} . Title 14 M.R.S.A. § 7551-B was enacted by P.L. 1995, ch. 585, § 1, which became effective on July 4, 1996. When the plaintiffs brought this action in August 1994, section 7551-B was not in effect and trespass damages were governed by 14 M.R.S.A. § 7552 (Supp. 1994). "The law of damages is a matter of substance which is fixed when the cause of action accrues." Howe v. Natale, 451 A.2d 1198, 1201 (Me. 1982). Because the plaintiffs "commenced their suit prior to the enactment of [section 7551-B] and the Legislature did not expressly make the new provision apply retroactively," the language of section 7552 would normally control this case. See Colquhoun v. Webber, 684 A.2d 405, 412 n.1 (Me. 1996). However, neither party objected to the award on this basis, and therefore, both have "waived their right to review on this issue." See Howe, 451 A.2d at 1201 (Me. 1982). {3} . The Yattaws sold their property in 1994. {4} . The Yattaws never responded to the complaint, but settled with the plaintiffs. {5} . The court also dismissed the claim for adverse possession for failing to join the record owners of the disputed property. The Lydens did not appeal this decision. {6} . The tort of slander of title is also commonly known as "injurious falsehood." See W. Page Keeton, Prosser and Keeton on Torts § 128, at 964 (5th ed. 1984). The elements of the tort are (1) a publication of a slanderous statement disparaging claimant's title; (2) that was false; (3) made with malice or with reckless disregard of its falsity; and (4) that caused actual or special damages. See Colquhoun v. Webber, 684 A.2d 405, 409 (Me. 1996). {7} . Restatement (Second) of Torts § 635 provides that [t]he rules on absolute privilege to publish defamatory matter . . . apply to the publication of an injurious falsehood. Restatement (Second) of Torts § 587 provides that [a] party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding. {8} . M.R. Civ. P. 41(b)(1) provides that [t]he court, on its own motion, after notice to the parties, and in the absence of a showing of good cause to the contrary, shall dismiss an action for want of prosecution at any time more than two years after the last docket entry showing any action taken therein by the plaintiff other than a motion for continuance.