with whom ALEXANDER, J., joins, dissenting.
[¶ 13] I respectfully dissent. In Pepperell Trust Co. v. Mountain Heir Fin. Corp., 1998 ME 46, ¶ 15, 708 A.2d 651, 656, we defined the tort of wrongful use of civil proceedings to exist when
(1) one initiates, continues, or procures civil proceedings without probable cause, (2) with a primary purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based, and (3) the proceedings have terminated in favor of the person against whom they are brought.
[¶ 14] The instant proceedings concern not the Penobscot Indian Nation, the plaintiff in the original proceedings, but the lawyers who represented the tribe. In its complaint, Palmer Development alleged that the original lawsuit was maliciously brought by the lawyer defendants without probable cause to believe the claim was meritorious. If indeed the lawyers knowingly brought a cause of action barred by the statute of limitations with a primary purpose other than that of securing proper adjudication of the claim, they have committed the tort of wrongful use of civil proceedings as we have defined it.
[¶ 15] The court suggests that the wrong complained of can be addressed by attorney sanctions. I suggest that Rule 11 of M.R. Civ. P. has proven itself to be ineffective in holding attorneys responsible for the prosecution of baseless claims. First, to the extent the case has been dismissed, one questions whether a court would then entertain a Rule 11 motion, and secondly, both the Bar and the courts have been hesitant in both seeking and applying Rule 11 sanctions. At a time when we seek to encourage civility among lawyers, we ought not be suggesting that a Rule 11 motion be included with all affirmative defenses.
[¶ 16] I see no need to limit the third prong of the definition of the tort of wrongful use of civil proceedings to require the original suit be disposed of on its merits when the suit seeking recovery is brought against lawyers who maliciously press civil violations of the Racketeer Influenced and Corrupt Organizations Act at a time when it was allegedly known to them that the actions were barred by the applicable statute of limitations.
[¶ 17] I would allow Palmer Development to attempt to establish as fact their allegations that the lawyer defendants brought an action on behalf of the Penobscot Indian Nation with a primary purpose other than that of receiving the proper adjudication of that claim. I would vacate the trial court’s dismissal of Palmer Development’s complaint under M.R. Civ. P. 12(b).