Maietta Construction, Inc. v. Wainwright

CALKINS, J., with whom DANA and LEVY, JJ., join,

dissenting.

[¶ 21] I respectfully dissent from the Court’s decision on Wainwright’s cross-appeal to affirm the denial of attorney fees to Wainwright.

[¶ 22] I would vacate the Superior Court’s denial of attorney fees because it abused its discretion in denying attorney fees to Wainwright by (1) weighing the relative merits of Maietta’s claims against Wainwright and Lourie and concluding, without support in the record, that there was more merit to the claim against Wain*1177■wright; (2) distinguishing between Wainwright and Lourie on the basis of Lourie’s attorney/agent role; and (3) imposing impermissible burdens on Wainwright that were not imposed on Lourie. Alternatively, I would construe the anti-SLAPP6 statute as granting discretion to the trial court to deny attorney fees only when special circumstances exist that would make an award unjust, and no such circumstances exist here.

[¶ 23] My reasons for vacating are premised on the policy considerations of the anti-SLAPP statute, 14 M.R.S.A. § 556 (2003), which we described in Morse Bros., Inc. v. Webster, 2001 ME 70, ¶ 10, 772 A.2d 842, 846. In enacting the Maine anti-SLAPP statute, the Legislature intended to deter the filing of lawsuits whose purpose is to intimidate defendants from petitioning the government to redress grievances or from making statements designed to elicit public support for the defendants’ position in the controversy under consideration before the governmental body. A SLAPP is effective intimidation, even though it has no chance of succeeding on the merits, because defendants have to pay lawyers to defend the SLAPP, thereby diverting their resources from petitioning the government. The mere threat of a SLAPP, even when it will be dismissed pursuant to section 556, is intimidating because of attorney expenses. If SLAPP plaintiffs are successful in defeating the SLAPP defendants’ request for attorney fees, they will have defeated the purpose of the anti-SLAPP statute.

I. THE COURT ABUSED ITS DISCRETION IN DENYING ATTORNEY FEES TO WAINWRIGHT

[¶ 24] The trial court’s basis for granting attorney fees to Lourie and denying them to Wainwright is set forth succinctly in its decision as follows:

The awarding of costs and reasonable attorney’s fees requires additional analysis. [Footnote omitted.] One of the ways in which the Plaintiffs’ case resembles a “typical” SLAPP suit is that the Plaintiffs sued Defendant Lourie in his capacity as the attorney/agent of Defendant Wainwright. In this respect, it appear that the Plaintiffs were attempting to intimidate or silence an attorney who was representing a client with potentially legitimate concerns involving property he sold with conditions to the City of South Portland. Therefore, awarding costs and reasonable attorney’s fees to Defendant Lourie is appropriate.
On the other hand, Defendant Wainwright has not demonstrated that the Plaintiffs never intended to win their case, or were actually attempting to punish him for speaking out on a public matter, or were forcing him to incur excessive legal fees. Arguably there was some merit to the Plaintiffs’ claims against Defendant Wainwright concerning, say, allegations of improper billing. Even though the anti-SLAPP statute applies in the present case, the court in the exercise of its discretion will not award costs and reasonable attorney’s fees when the underlying policy rationale for the anti-SLAPP statute has not been met. Therefore such costs and fees are not awarded to Defendant Wainwright.

[¶ 25] By denying attorney fees to Wainwright, the trial court abused its discretion in three different ways. First, to the extent that it weighed the merits of Maietta’s claims against the two defendants and concluded that the claim against Wainwright was stronger, the conclusion is not supported by the record. Second, the trial court abused its discretion by making a *1178distinction between Lourie and Wainwright on the basis of Lourie’s role as the attorney/agent of Wainwright, and that distinction is not warranted by the purposes of the anti-SLAPP statute. Third, the trial court abused its discretion by imposing impermissible burdens on Wainwright for the recovery of attorney fees that it did not impose on Lourie.

A. Merits

[¶ 26] In spite of the fact that Maietta’s allegations against Wainwright and Lourie are almost identical, this Court and the trial court conclude that the merits of Maietta’s claims against Wainwright are stronger than the merits of Maietta’s claims against Lourie and that the difference justifies an award of attorney fees for Lourie but not for Wainwright. The trial court focused on Maietta’s allegation that Wainwright had accused Maietta of improper billing, while this Court concentrates on Maietta’s allegation that Wainwright “publicly (and falsely) accused [Maietta] of stealing, a serious criminal allegation which could irreparably injure its professional reputation.” Both allegations form the basis for Maietta’s defamation claims against Wainwright and Lour-ie.7

[¶ 27] To fully explore whether the defamation claim against Wainwright had more merit than the defamation claim against Lourie, it is necessary to provide a more extensive recitation of the record. The evi-dentiary record, consisting primarily of three affidavits provided by Maietta, does not support a determination that Maietta’s defamation claim against Wainwright had more merit than the claim against Lourie. The affidavits demonstrate that the statements were privileged, and they fail to demonstrate that Wainwright made the statements publicly. One affidavit is by the City’s attorney, and it authenticates and attaches letters received from Lourie. Another is by the city manager detailing the history of the City’s acquisition of the Wainwright Farms land and the contract with Maietta to construct the recreational complex on the land. The third is the affidavit of Maietta’s vice-president.

[¶ 28] The city manager’s affidavit lists and attaches letters from Lourie to the City and letters from City officials to Lourie. In addition, various documents related to the Maietta contract to build the recreation field are attached to the manager’s affidavit, as is a lengthy chronology of events. The chronology includes Wainwright’s first statement in July to a member of the City Council that Maietta was “using the City’s loam on the sides of the access road to Wainwright Farms.” The manager’s chronology also describes a meeting on August 27, 2002, in the city manager’s office, between Wainwright, Maietta’s vice-president, the city manager, and the parks and recreation director, during which Wainwright “stated that he felt that the City had violated the deeded covenant of the restriction to removing loam *1179from the fields” and inferring that Maietta had taken loam.

[¶ 29] The Maietta vice-president’s affidavit describes the construction on the recreational complex and denies that Maietta ever billed the City for loam. The affidavit avers that Maietta removed some loam to Maietta property for temporary storage to keep children from playing on it. The affidavit also recounts the August 27 meeting where “Wainwright accused Maietta Construction of stealing loam from the Wainwright Farms property” and at which the vice-president denied the accusation.

[¶ 30] There is nothing in the affidavits or attachments that indicates the August 27 meeting was a public meeting. There is nothing in the record that suggests that Wainwright personally went to the media or members of the public to make his accusations against Maietta. His accusations were made to City officials or council members.

[¶ 31] As stated above, the trial court gave “allegations of improper billing” as the basis for its conclusion that Maietta’s defamation claim against Wainwright had more merit than the claim against Lourie. However, the only accusation of improper billing appears in a September 27, 2002, letter from Lourie to the mayor and council members, which is attached to the City attorney’s affidavit. In this letter, Lourie asserts that Maietta’s use of loam from Wainwright Farms “appears to have been a double payment by the City to Maietta, where no payment should have been made at all.”8 This sentence in Lourie’s letter is not support for a conclusion that Maietta’s defamation claim against Wainwright has more merit than Maietta’s claim against Lourie. The allegation of improper billing was made by Lourie, albeit on behalf of Wainwright. Furthermore, it was an accusation made to City officials about City business.9 For the defamation claim concerning the accusation of improper billing to have more merit against Wainwright than Lourie, the record would have to show some differentiation between the two defendants concerning the improper billing accusation. Other than the fact that Lour-ie was the attorney/agent for Wainwright, there is no difference.

[¶ 32] With regard to the accusation of stealing loam, relied upon by this Court in concluding that Maietta’s defamation claim against Wainwright had more merit than Maietta’s claim against Lourie, the Court states: ‘While there is direct evidence that Wainwright publicly accused Maietta of stealing loam, it is not clear that Lourie made such an assertion.” The record demonstrates that Wainwright’s accusations were made to City officials and council members, not to members of the public. The matter became public with the newspaper accounts of Lourie’s September 27 letter. Again, there is virtually no distinction between Wainwright and Lourie concerning the accusation of theft, except that Lourie was acting on behalf of Wainwright.

[¶ 33] The record simply does not support the trial court’s conclusion of “[arguably ... some merit to [Maietta’s] claims against ... Wainwright concerning ... allegations of improper billing.” Nor does the record support this Court’s assertion that the merits of the defamation claim *1180against Wainwright are stronger than the merits against Lourie.

[¶ 34] Actually, neither defamation claim has merit. Both Lourie and Wainwright’s accusations are privileged because they were to City officials complaining about the implementation of a City contract. See Restatement (Second) ToRts § 594 (1977) (“An occasion makes a publication conditionally privileged if the circumstances induce a correct or reasonable belief that (a) there is information that affects a sufficiently important interest of the publisher, and (b) the recipient’s knowledge of the defamatory matter will be of service in the lawful protection of the interest.”) quoted in Rice v. Alley, 2002 ME 43, ¶¶ 22-25, 791 A.2d 932, 936-37 (holding that a club member’s accusation to the membership that another was stealing was conditionally privileged). The anti-SLAPP statute itself is the basis for a conditional privilege when the communication is one within the statutory definition of “right of petition.” 14 M.R.S.A. § 556. That definition includes statements likely to “enlist public participation.” Because the statements in question were privileged, the defamation claims against Wainwright and Lourie were equally without merit.

[¶ 35] In summary, this Court’s conclusion that the merits of Maietta’s defamation claim against Wainwright were relatively stronger than the merits of its claim against Lourie is not borne out by the record, and the trial court’s conclusion that Maietta’s claim against Wainwright arguably had more merit is not supported by the record and is, therefore, an abuse of discretion.

B. Attorney/Agent

[¶ 36] Distinguishing between Lourie and Wainwright on the basis that one is the attorney/agent of the other is not a sufficient ground for denying fees and constitutes an abuse of discretion. The distinction does not serve the purpose of the anti-SLAPP statute, which is to protect a citizen who is petitioning the government from intimidation. Sometimes, as here, citizens obtain the assistance of a lawyer for the petitioning activities. When a SLAPP is brought against the citizen and the lawyer, both may need to obtain the services of another attorney to defend against the SLAPP. The cost of retaining an attorney to bring the special motion to dismiss the SLAPP can be substantial and, in itself, chill the right to petition. It gives the citizen little comfort to know that the lawyer, who was helping the citizen petition the government, will get attorney fees. Such a distinction between the attorney/agent and the citizen/principal may foster a policy of protecting attorneys or of making attorneys more likely to help citizens in petitioning efforts, but it does little to foster the policy of protecting the citizen from intimidation or of encouraging a citizen’s public participation.

[¶ 37] If the basis for the distinction between the attorney/agent and the citizen/principal is that the attorney/agent is only acting on behalf of the principal, then the distinction will apply to all situations where the citizen/principal hires a lawyer to assist in the petitioning of the government and where, as here, the allegations in the SLAPP against both the citizen and his attorney are the same. This distinction will always place the principal/citizen more at risk than the attorney/agent engaged to assist the principal/citizen because the principal is responsible for the authorized actions of the agent.

[¶ 38] There is simply no basis in the language, spirit, or purpose of the anti-SLAPP statute for giving a court the discretion to grant or deny attorney fees based on the status of the SLAPP defendant as an attorney/agent or a citizen/principal. Such a distinction has the danger of *1181turning the attorney fee provision of the anti-SLAPP statute into an attorney protection statute and thwarting its purpose of protecting the citizen from intimidation.

C. Increased Burdens

[¶ 39] In addition to the rationale in the Court’s opinion for granting attorney fees to Lourie while denying them to Wainwright, the trial court stated that Wainwright failed to demonstrate that Maietta never intended to win the action against him. The trial court also said that Wainwright failed to demonstrate that Maietta’s lawsuit was an attempt to punish him for speaking out or to require him to incur excessive attorney fees. The court abused its discretion in imposing these burdens on Wainwright, particularly because the burdens are not customarily imposed and were not imposed on Lourie.

[¶ 40] SLAPP defendants should not have to demonstrate the SLAPP plaintiffs’ intentions. Furthermore, such a showing would be difficult to make at the stage of the special motion to dismiss. The policy behind the anti-SLAPP statute is to swiftly identify a SLAPP case and dismiss it so that the defendants’ petitioning activity can continue. L.D. 781, Statement of Fact (117th Legis. 1995) (stating that the anti-SLAPP statute is meant to allow “the motion [to be] heard as soon as possible and if the motion to dismiss is granted, to have the case dismissed as soon as possible”). To impose a greater burden of proof on SLAPP defendants for an award of attorney fees than is necessary to succeed on the special motion is contrary to the policy behind the statute. Requiring Wainwright to demonstrate that Maietta was attempting to punish him or force him to incur excessive legal fees places a further impermissible burden on a SLAPP defendant. It is highly doubtful that Wainwright could make such a showing without engaging in discovery, which defeats the purpose of the special motion to dismiss.10 The court abused its discretion by imposing these additional burdens on Wainwright.

[¶ 41] For these reasons, I conclude that the trial court abused its discretion in denying attorney fees to Wainwright, and I would vacate and remand for a determination of the amount of fees.

II. THE STATUTE SHOULD BE CONSTRUED TO GRANT ATTORNEY FEES EXCEPT IN SPECIAL CIRCUMSTANCES

[¶ 42] As an alternative ground for vacating the judgment, I would interpret the anti-SLAPP statute to give the trial courts less discretion than the Court’s opinion does in determining when fees are to be awarded. I analogize to the federal civil rights attorney fee statute, 42 U.S.C. § 1988.

[¶ 43] The anti-SLAPP statute is a civil rights statute because it protects the rights of citizens to petition them government for grievances and to express their grievances to the public in order to obtain public support. It differs from the predominant federal civil rights statute, 42 U.S.C. § 1983, in that it is more of a shield than a sword, and it applies against private actors, whereas § 1983 enforces civil rights against persons acting under color of state law. Attorney fees are awarded to prevailing parties in federal civil rights actions pursuant to 42 U.S.C. § 1988. Section 1988(b) provides that a court “in its discretion, may” award attorney fees. Following federal authority, we have construed the phrase “in its discretion, may” in § 1988 as meaning that a prevailing *1182party ordinarily recovers attorney fees “unless special circumstances would render such an award unjust.” Bangs v. Town of Wells, 2003 ME 129, ¶ 17, 834 A.2d 955, 960 (quoting Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)). Furthermore, the burden of demonstrating the special circumstances is on the party opposing the fee award. See Morscott, Inc. v. City of Cleveland, 936 F.2d 271, 273 (6th Cir.1991); Herrington v. County of Sonoma, 883 F.2d 739, 744 (9th Cir.1989); J & J Anderson, Inc., v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir.1985).

[¶ 44] I recognize that the Legislature could have chosen to use the word “shall” instead of “may” with regard to attorney fees in the anti-SLAPP statute.11 In my opinion, by using the word “may,” the Legislature decided not to compel the award of fees in all cases, but gave courts the ability to withhold fees when the circumstances warrant. The Legislature knew that in exercising its discretion a court would apply relevant case law and analogize to similar statutes.

[¶ 45] Because the anti-SLAPP statute, like § 1988, is concerned with providing attorney fees for enforcing civil rights, it is likely that the Legislature intended that the attorney fee provision be interpreted in the same manner as § 1988. I would interpret the anti-SLAPP statute similarly as the same discretionary language • in § 1988 and require the imposition of attorney fees to a party who successfully obtains a dismissal of the SLAPP unless the court finds “special circumstances.”

[¶ 46] The anti-SLAPP statute cannot completely fulfill the Legislature’s purpose if it only works to dismiss a SLAPP at a relatively early stage.12 Unless the SLAPP filer knows that it will be routinely required to pay the attorney fees of the defendant, it will be worthwhile to take the gamble of filing the SLAPP. Such a result would undermine the policy of the anti-SLAPP statute.

[¶ 47] As set forth above, the Superior Court articulated several reasons for denying fees to Wainwright. However, just as none of its stated conclusions justify distinguishing between Wainwright and Lourie, none of them constitute special circum*1183stances. For the same reasons I give above for my viewpoint that the court abused its discretion in denying fees to Wainwright, I determine that the Superior Court’s conclusions do not support a finding of special circumstances. Furthermore, I find nothing in the record that demonstrates that an award of attorney fees to Wainwright would be unjust.

. "SLAPP” stands for strategic lawsuit against public participation.

. Maietta’s complaint contained four claims against Lourie and Wainwright: defamation, intentional infliction of emotional distress, false light, and interference with an advantageous relationship. The elements of a defamation claim are: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting to at least negligence on the part of the publisher; and (4) special harm or actionability regardless of special harm. Cole v. Chandler, 2000 ME 104, ¶ 5, 752 A.2d 1189, 1193. The false light claim is similar and requires (1) the actor giving publicity to a matter that places another in a false light; (2) when the false light would be highly offensive to a reasonable person; (3) the actor knowing of, or acting in reckless disregard to, the falsity and the false light in which the other would be placed; and (4) publicity means communication to the public at large or to enough people that it is substantially certain to become public knowledge. Id. ¶ 17, 752 A.2d at 1197.

. The complaint includes an allegation that' Wainwright and Lourie embarked "on a campaign publicly accusing [Maietta] of stealing loam, and falsely charging the City of South Portland for loam used in construction of the Recreation Complex in excess of $100,000.”

. The letter was quoted in press accounts, but the record does not indicate whether it was Lourie or Wainwright or someone else that brought the letter to the attention of the press. However, the trial court found that it was Lourie who discussed the events with the media.

. The anti-SLAPP statute requires that all discovery be stayed once the special motion to dismiss is filed unless the court orders specific discovery upon a showing of good cause. 14 M.R.S.A. § 556 (2003).

. Most states with an anti-SLAPP statute mandate attorney fees by using the word "shall'' or similar language. Cal. Civ. Proc. Code § 425.16(c) (Deering, LEXIS through 2003-04 3d extra sess.); fla. stat. ch. 768.295(5) (Bender, LEXIS through 2003 sess.); 34 Haw. Rev. Stat. § 634F-2(8)(B) (Michie, LEXIS through 2003 sess.); Ind. Code Ann. § 34-7-7-7 (Burns, LEXIS through 2003 sess.); La. Code Civ. Proc. Ann. art. 971(B) (LEXIS through 2003 sess.); 231 Mass. Gen. Laws § 59H (Bender, LEXIS through Mar. 25, 2004); Minn. Stat. Ann. § 554.04(1) (LEXIS through 2003 legislation); Nev. Rev. Stat. Ann. § 41.670(1) (Bender, LEXIS through 2003 legislation); N.M. Stat. Ann. § 38-2-9.1(B) (Michie, LEXIS through July 16, 2003); Ore. Rev. Stat. § 30.144(3) (LEXIS through 2001 sess.); R.I. Gen. Laws § 9-33-2(d) (LEXIS through 2003 sess.); Tenn. Code Ann. § 4-21-1003(c) (LEXIS through 2003 sess.); and Wash. Rev. Code Ann. § 4.24.510 (Bender, LEXIS through 2003 3d spec. sess.).

States, in addition to Maine, that use "may” include: Del. Code Ann. tit. 10, § 8138(a)(1) (LEXIS through 2004 sess.); Ga. Code Ann. § 9-11-11.1(b) (LEXIS through 2003 sess.); Neb. Rev. Stat § 25-21, 241 (Bender, LEXIS through 2003 sess.); N.Y. Civ. Rights § 70-a(1)(a) (Bender, LEXIS through Mar. 10, 2004); and Utah Code Ann. § 78-58-105(1)(a) (Bender, LEXIS through 2003 2d spec. sess.).

. As this lawsuit demonstrates, the anti-SLAPP statute, in practice, does not work particularly expeditiously. Over- four months elapsed between the filing of the special motion to dismiss and an argument on the motion. The delay demonstrates, at least partially, that even the best intentions of the Legislature to expedite a process cannot be put into practical effect without the appropriate resources.