The opinion
STATE OF MAINE SUPERIOR COURT
CIVIL ACTION
KENNEBEC, ss. DOCKET NO. CV-99-94
SAS- KEN ~% At /deec
LEWIS PELLETIER,
Plaintiff
Vv. SUMMARY JUDGMENT
A. E. HODSDON,
Defendant
This matter came on for hearing on the defendant’s motion for summary
judgment. After fully reviewing the parties’ statements of material facts and
considering their written and oral arguments, the motion will be granted.
Background
In October, 1997, the parties, both professional engineers, submitted bids to the
Town of Fairfield for the construction of a new public works building. In
conjunction with his bid, Pelletier submitted a document titled, “Project Manual for
the Construction of the Public Works Building,” dated October 1, 1997. Funding for
the project was approved at a special town meeting in early June, 1998, and Pelletier
was awarded the contract as the lowest bidder. Hodsdon had previously served as a
consulting engineer on another project for the Town of Fairfield, involving the
construction of the Fairfield police building expansion. After the contract was
awarded to Pelletier, Hodsdon asked town councilor Dawnalysce Clifford if he could
see Pelletier’s document submitted in conjunction with the project. Upon
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reviewing the document, Hodsdon commented, “This looks like my work.” It is
undisputed that parts of Pelletier’s manual for the public works building are similar
to or identical to Hodsdon’s manual for the police building expansion. Pelletier has
testified that he “used” Hodsdon’s manual in creating his own manual. Upon
discovering the similarity, Hodsdon began making comments in this regard,
including private telephone calls to town councilors and comments at a town
council meeting on June 10, 1998. In his comments, Hodsdon accused Pelletier of
plagiarism and stealing Hodsdon’s work, and characterized Pelletier as being a “fly-
by-night” and an “upstart.” There is also evidence that Hodsdon referred to
Pelletier’s designs as inadequate.
In addition to the comments made to the councilors, both privately and at the
council meeting, Hodsdon filed a letter of complaint against Pelletier with the Board
of Registration for Professional Engineers, asserting that Pelletier used his manual
without authorization and that this action was deceitful and constituted gross
negligence as well as gross misconduct. The Board ultimately found that Pelletier
had not engaged in any misconduct and did not violate the Engineers Code of
Ethics.
As the result of the statements by Hodsdon, Pelletier has filed a four-count
complaint asserting claims for defamation, interference with advantageous business
relationships, malicious prosecution/abuse of process, and punitive damages.
Hodsdon has filed a motion for summary judgment on all of these counts.
Discussion
The primary claim by Pelletier is his claim of defamation contained in count
I. Common law defamation consists of:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third-party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the
existence of special harm caused by the publication.
Withers v. Hackett, 1998 ME 164, { 9, 714 A.2d 798, 801 (quoting Haworth v. Feigon,
623 A.2d 150, 156 (Me. 1993)). Since Pelletier must prove all of these elements in
order to prevail on his claim, it follows that Hodsdon needs only to show no dispute
of material fact and entitlement to judgment as a matter of law on any one of the
elements in order to obtain summary judgment.
Although easy to state, the common law elements are often difficult to
analyze due to an overlay of case law which shifts depending upon the status of the
speaker and the nature of the speech or forum in which it is made. These two issues
are fact-based, but are ultimately decisions of law for the court. They are also issues
which must be addressed initially to determine how the ultimate issues are
approached. First, there does not appear to be any disagreement that Pelletier’s
status was as a private figure rather than a public one. Second, Hodsdon asserts, and
Pelletier does not dispute, that Hodsdon’s statements involved issues of public
concern.
With regard to the first element of defamation -- that a false and defamatory
statement was made -- the fact that the statements were on a matter of public
interest or concern places the burden on the plaintiff to prove that the statements
were false. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 1563
(1986). The court does not accept the defendant’s argument that the burden on the
plaintiff in this regard on a motion for summary judgment is a more strict standard
because of the public interest or concern (Hudson v. Guy Gannett Publishing Co.,
521 A.2d 714, 716 (Me. 1986)). However the burden still remains upon the plaintiff to
prove the falsity by a preponderance of the evidence. With regard to statements
made to the town councilors and during the town meetings, a review of the
plaintiff’s statement of material facts supports a finding that the statements were
made, but not that they were false. The essence of Hodsdon’s statements was that
Pelletier had used his materials from the earlier town project without his
permission by incorporating them in Pelletier’s project manual for the project under
consideration, and that the specifications which Pelletier incorporated were
inadequate for the second project. The plaintiff's statement of material facts, taken
as true, fails to establish as a contested material fact that Pelletier did not use
Hodsdon’s materials or that the specifications which were used were adequate for
the new project. Nor does the plaintiff’s statement address his burden of proving
the falsity of the statements that he is a “fly-by-night” and an “upstart.” In
summary, with regard to the statements to the town councilors and at the town
meetings, the plaintiff's statement of material facts is not sufficient to sustain his
burden by a preponderance of the evidence and there are no disputed material facts
y
for a fact finder to fill this gap.
Nor has the plaintiff sustained his burden with regard to the statements made
by Hodsdon in his complaint to the Board of Registration for Professional Engineers.
It is clear from the Board’s response dated January 28, 1999, that the Board assumed
the facts in the complaint were true for purposes of their review, but concluded that
they did not present evidence of a violation of the Board’s statutes or rules. The
Board did not conclude that the statements were untrue, and its decision does not
provide any support on this issue.
With regard to the second element of the common law of defamation, it must
_ be shown that the publication of the statement was unprivileged. Our Law Court
has recognized a conditional privilege for statements made on matters of public
interest recognizing the privileges set forth in the Restatement (Second) of Torts.
Rippett v. Bemis, 672 A.2d 82, 87 (Me. 1996). In addition, the Law Court has
generally held that “[a] conditional privilege against liability for defamation arises in
settings where society has an interest in promoting free, but not absolutely
unfettered, speech.” Selander v. Rossignol, 1998 ME 216, 9 5, 717 A.2d 380, 382
(quoting Lester v. Powers, 596 A.2d 65, 69 (Me. 1991)). Information concerning the
bidding process for a public construction project, the adequacy of the design
incorporated in the bids, and possible violations of statute or the rules and
regulations of a State Board are on matters of public interest which raise the
conditional privilege. Statements made during telephone conversations to the
town councilors likewise are entitled to the privilege since the councilors were
~e
called because of their official positions.
Pelletier argues that any public interest privilege must be deemed waived
because he allegedly made similar statements to third parties including friends,
acquaintances, and staff members. The Restatement (Second) of Torts, § 604, does
suggest that the conditional privilege may be abused by excessive publication.
However, the comment to that section leads the court to conclude that even if
Hodsdon abused the privilege by excessive publication, it would not deprive him of
the privilege entirely but only as to the statements to those third persons. In other
words, Hodsdon would still be entitled to assert. the privilege with regard to
statements made to the town councilors and at the town meetings and in his
complaint to the Board, even if he were denied that privilege with regard to similar
statements made in a context which went beyond communication necessary to
assert the public interest.
The court also has considered whether any statements Hodsdon made to
third persons, and which arguably would not be protected by the public interest
privilege, could be actionable in themselves. The court concludes that such
statements could be actionable, but in the present case they have not been
sufficiently alleged in the complaint. As stated in Picard v. Brennan, 307 A.2d 833,
834-35 (Me. 1973), “Having in mind that proof of the truth of statements alleged to
be slanderous is always a defense, and that the defendant is therefore entitled to
know precisely what statement is attributed to him, we have always required that
‘the words must be proved strictly as alleged.’” A review of the complaint indicates
no sufficiently specific allegations pertaining to defamatory statements to
unspecified third parties.
Finally, there is the question of whether the plaintiff has made the necessary
showing of actual malice. “[A] private individual who seeks damages for a
defamatory statement involving a matter of public concern cannot recover
presumptive or punitive damages absent a showing of actual malice.” Levinsky’s,
Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir. 1997) (citing Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 751, 756, 105 S.Ct. 2939, 2941, 2943
(1985); Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011 (1974)). The
“actual malice” noted is the standard announced in New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964). Thus, in order to recover presumed or
punitive damages, which are sought here, Pelletier must show by clear and
convincing evidence that Hodsdon’s statements were made with knowledge of their
falsity or with reckless disregard as to whether they were true or false. Beal v.
Bangor Publishing Co., 1998 ME 176, { 6, 714 A.2d 805, 807. The focus is upon the
defendant's state of mind regarding the truth or falsity of the statements and
involve a subjective inquiry as to whether he entertains serious doubts as to the
truth. Michaud v. Town of Livermore Falls, 381 A.2d 1110, 1113 (Me. 1978). The
question is not one of animosity or even a desire to injure the other party. Id.
Pelletier has failed to generate a genuine issue of material fact as to whether
Hodsdon acted with actual malice.
In summary, since Pelletier has not shown facts sufficient to support a finding
et
that Hodsdon’s statements were false and since in any event the statements were
privileged, Hodsdon is entitled to judgment as a matter of law. For these reasons,
the court will grant the defendant’s motion as to count I of the complaint.
Counts II, II, and IV allege intentional interference with an advantageous
business relationship, malicious prosecution or abuse of process, and punitive
damages. However, these claims are all based-upon the speech which formed the
basis for the defamation claim. Therefore, for reasons set forth in Hustler Magazine
v. Falwell, 485 U.S. 46 (1988) and its progeny, those claims must also fail.
The entry will be:
Motion for summary judgment GRANTED on all four counts.
Dated: August. | , 2000 Atti
S. Kirk Studstrup t
Justice, Superior Court
agate Filed 4/29/99 Kennebec Docket No. CV¥99-94
County
Action Other. personal injury
Lewis Pelletier VS: ALE. Hodson
Plaintiff’s Attorney Defendant’s Attorney
William D. Robitzek, Esq. Mark E Dunlap Esq (5/24/99)
129 Lisbon Street 415 Congress St
PO Box 961 PO Box 4600
Lewiston, Maine 04243-0961 Portland Me 04112
eep 4 ifk
Date of SEP 21 2006
Entry
4/30/99 Complaint, filed. s/Robitzek, Esq.
Pretrial Scheduling Statement and Jury Demand mailed to atty.
5/10/99 Original summons with return service on A E Hodsdon on 5/4/99 filed.
> s/Robitzek,Esq.
5/24/99 Defendant A.E. Hodsdons answer and affirmative defenses filed. s/Dunlap,Esq.
5/27/99 SCHEDULING ORDER FILED, Atwood, J. (dated 5/25/99)
Discovery deadline is January 25, 2000.
Copies mailed to attys of record.
6/1/99 Pretrial Scheduling Statement, filed. s/Robitzek, Esq.
ARRKARK Jury fee paid
6/7/99 Notification of Discovery Service, filed. s/Dunlap, Esq.
Defendant's Request for Production of Documents Propounded to Plaintiff
served on William D. Robitzek, Esq. on 6/4/99
‘ Notification of Discovery Service, filed. s/Duniap, Esq.
Defendant's Interrogatories Propounded to Plaintiff served on William D.
Robitzek, Esq. on 6/4/99
7/13/99 Notification of Discovery Service, filed. s/Robitzik, Esq. (filed 7/8/99)
Plaintiff Lewis Pellitier's Objections to Interrogatories Propounded by
Defendant served on Mark E. Dunlap, Esq. on 7/6/99
7/28/99 Notice of discovery service filed. s/Robitzek,Esq.
Plaintiff Lewis Pelletiers responses to request for production of
documents served on Mark E Dunlap on 7/27/99.
> 7/30/99 Notice of discovery service filed. s/Robitzek,Esq.
Plaintiff Lewis Pelletier Answers interrogatories propounded by defendant
and plaintiffs request for production of documents propounded to defendant
served on Mark E. Dunlap on 7/28/99.
8/11/99 © Notice of discovery service filed. s/Dunlap Esq
Notice to take oral deposition of Lewis Pelletier served on William
D. Robitzek Esq on 8/10/99.