The opinion
STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. CIVIL ACTION
DOCKET NO. CV-02-673
MMLC P 231 RAC. CUM baw s Lf
RICHARD NEST,
Plaintiff
ORDER
Vv.
DONALD 1. fins ooyy
CASCO AEIRIE, NO. 565 FRATERNAL LAW Lis oe
ORDER OF EAGLES, JAMES W. ASHEY, IR, ~
WAYNE M. CAMPBELL, HUGH MCFARLAND DE
RICHARD BRICHETTO, and JAMES HANLON, EC Le 2003
Defendants
This matter is before the court on the defendants’ motion for summary judgment
on the plaintiff's complaint pursuant to M. R. Civ. P. 56.
FACTS
In this case, plaintiff Richard Nest (Nest) worked at the Eagles Club as Bar and
Banquet Manager. On or around January 1, 2001, money was allegedly stolen from the
Eagles Club. The defendants in this case, James W. Ashey, Jr. (Ashey), Wayne M.
Campbell (Campbell), Hugh McFarland (McFarland), Richard Brichetto (Brichetto), and
James Hanlon (Hanlon) made various statements to the Portland Police, alleging Nest’s
involvement. Nest was tried for felony theft and acquitted. Nest now brings suit
against Ashey, Campbell, McFarland, Brichetto, Hanlon, and the Fraternal Order of
Eagles for defamation, intentional infliction of emotional distress (ITED), and
conspiracy. Nest also alleges that he is entitled to punitive damages.
DISCUSSION
“A court properly enters a summary judgment pursuant to M. R. Civ. P. 56(c). If
there is no genuine issue of any material fact, a party is entitled to a judgment asa
matter of law.” Popanz v. Peregrine Corp., 1998 ME 95, 94,710 A.2d 250, 251. To reach
this conclusion, this court examines the “statement of material facts and the pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits, if any... .”
Darling v. Ford Motor Co., 2003 ME 21, 74, 825 A.2d 344, 345.) A genuine issue exists
when sufficient evidence supports a factual contest to require a fact finder to choose
between competing versions of the truth at trial. Blanchet v. Assurance Co. of Am,
2001 ME 40, J 6, 766 A.2d 71 (citation omitted).
The Law Court has stated that the elements a plaintiff must prove for defamation
are:
(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.
Lester v. Powers, 596 A.2d 65, 69 (Me. 1991) (quoting Restatement (Second) of Torts §
558 (1977)). “Words that falsely charge a punishable offense . . . constitute slander per
se” and are defamatory. Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996).
‘In this order, the court has implicitly dealt with the plaintiff’s motions to strike
portions of the Defendant's Statement of Material Facts in its independent evaluation of
all of the supporting, opposing and reply statements of material facts submitted by the
parties pursuant to M.R. Civ. P. 56(h). Accordingly, the court determines that there is
no need to separately rule on any such motion to strike and declines to do so.
In this case, the defendants argue that because they were making statements to
the police in an investigation, their communications to the police were privileged.
Therefore, the defendants argue that they are entitled to judgment as a matter of law
with regard to defamation. The Law Court has recently stated that “[a]ny person has a
qualified privilege to make statements to law enforcement... regarding the conduct of
others, where the person making the statement believes in good faith that the statement
is true and indicates that a [violation of law may have occurred].” Truman v. Browne,
2001 ME 182, 715, 788 A.2d 168, 172.’ This conditional privilege, however, is lost where
the defendant abuses the privilege. Lester, 596 A.2d at 69.
The court finds that there are genuine issues of material fact in dispute with
regard to the defamation claim.’ Absolute privilege does not apply in this case.
Although other jurisdictions in New England hold that absolute privilege applies where
a witness makes defamatory remarks while talking to a prosecutor in the context of a
proposed judicial proceeding, see, e.g., Blake-McIntosh v. Cadbury Beverages, Inc., 1999
U.S. Dist. LEXIS 12801, at *24 (D. Conn.); Wilkinson v. Balsam, 885 F. Supp. 651, 659 (D.
Vt. 1995); Correllas v. Viveiros, 572 N.E.2d 7,11 (Mass. 1991), this court will not
recognize such a broad privilege in this case.
A jury in this case may find that defendants lied to or misled the Portland Police
when they identified the figure on the videotape, falsely accusing Nest of a crime. If the
jury does so find the defendants would lose any privilege to make those statements and
* Under Maine law, absolute privilege for defamation applies to only legislative
hearings or testimony in judicial proceedings. See Lester, 596 A.2d at 69 n.6.
* The defendants make no separate argument on behalf of Casco Aerie, No. 565
Fraternal Order of Eagles.
may be subject to liability for defamation. Summary judgment, therefore, is not
appropriate at this time.
The defendants argue that if the defamation action fails, so does the IED claim.
In the alternative, the defendants argue that the conduct in this case does not reach the
level of being extreme or outrageous as required under Maine law. See Curtis v. Porter,
2001 ME 158, 410, 784 A.2d 18, 22-23 (internal quotations omitted). As the Law Court
stated in Rippett, “[i]f the statements alleged to be defamatory are not privileged, any
damages sustained by [the plaintiff] are subsumed by any award for defamation.” 672
A.2d 82. Damages for defamation, if established, “may include the elements of mental
suffering, humiliation, embarrassment, effect on reputation and loss of social standing
so far as they have been proved and may reasonably be presumed.” Id. In this case,
any damages for emotional distress would be subsumed by damages for the defamation
cause of action and IIED will not be presented to the jury as an independent claim.
The Complaint states and Nest argues in his opposition to summary judgment
that the conspiracy count is dependent on the defamation count. See Potter, Prescott,
Jamieson & Nelson, P.A. v. Campell, 1998 ME 70, 18, 708 A.2d 283, 286. Therefore, it is
unnecessary to dismiss the conspiracy count in summary judgment.
The defendants argue that as a matter of law Nest is not entitled to punitive
damages. Under Maine law, a “trial court must reject a claim for punitive damages as a
matter of law unless the plaintiff presents adequate proof that the defendant acted in a
sufficiently culpable manner.” Tuttle v. Raymond, 494 A.2d 1353, 1359 (Me. 1985).
After a plaintiff has made a prima facie case, the jury should weight the relevant
aggravating or mitigating factors. Id. The Law Court has held that actual or implied
malice is required to recover punitive damages. Id. at 1361. Malice must be proved by
clear and convincing evidence. Id. at 1363.
In the present case, issues of material fact remain with regard to punitive
damages. Because a jury may find that the defendants acted with ill will towards the
plaintiff, it would be inappropriate at this time to dismiss Nest’s claim for punitive
damages.
WHEREFORE, this court DENIES the defendants’
judgment.
Y/p/,
Rolénd A. Cole
Justice, Superior Court
Dated: December g, 2003
AY
RICHARD NEST - PLAINTIFF
Attorney for: RICHARD NEST
MARK RANDALL
THE MCARDLE AW FIRM
183 MIDDLE STREET
PO BOX 17915
PORTLAND ME 04112
vs
CASCO AERIE NO 565 FRATERNAL ORDER OF EAGLES
~ DEFENDANT
Attorney for: CASco AERIE NO 565 FRATERNAL ORDER
OF EAGLESKEON
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
JAMES W ASHEY JR - DEFENDANT
Attorney for: JAMES w ASHEY JR
THOMAS MCKEON
RICHARDSON WHITMAN LARGE ¢ BADGER
465 CONGRESS ST, SUITE 300
PO BOX 9545
PORTLAND ME 04112-9545
WAYNE P CAMPBELL - DEFENDANT
Attorney for: WAYNE Pp CAMPBELL
THOMAS MCKEON
RICHARDSON WHITMAN LARGE ¢ BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
HUGH MCFARLAND - DEFENDANT
Attorney for: EUGH MCFARLAND
THOMAS MCKEON
RICHARDSON WHITMAN LARGE ¢ BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
RICHARD BRICHETTO - DEFENDANT
Attorney for: RICHARD BRICHETTO
THOMAS MCKEON
RICHARDSON WHITMAN LARGE & BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
Page
1
of 11
SUPERIOR COURT
CUMBERLAND, ss.
Docket No PORSC-CV-2002-00673
DOCKET RECORD
Printed on:
12/04/2003
JAMES HANLON - DEFENDANT
Attorney for: JAMES HANLON
THOMAS MCKEON
RICHARDSON WHITMAN LARGE ¢& BADGER
465 CONGRESS ST, SUITE 900
PO BOX 9545
PORTLAND ME 04112-9545
Filing Document : COMPLAINT
Filing Date:
12/31/2002
Docket Events:
12/31/2002
12/31/2002
01/17/2003
01/17/2003
01/17/2003
01/17/2003
01/22/2003
01/22/2003
01/27/2003
01/27/2003
01/28/2003
01/28/2003
FILING DOCUMENT -
Party(s): RICHARD NEST
PORSC-CV~2002-0067%
DOCKET RECORI
Minor Case Type: OTHER NEGLIGENZE
COMPLAINT FILED ON 12/31/2002
ATTORNEY - RETAINED ENTERED ON 12/31/2002
Plaintiff's Attorney: MARK RANDALL
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL
UPON JAMES W. ASHEY TO
SUMMONS
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
THERESA PALMER
SERVED ON 01/14/2003
(DAUGHTER) .
FILED ON 01/17/2003
SERVED ON 01/14/2003
UPON JAMES HANLON TO LAURIE HANLON.
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL suMMONS
FILED ON 01/17/2003
FILED ON 01/22/2003
SERVED ON 01/14/2003
UPON HUGH MCFARLAND TO MRS MCFARLAND, WIFE
Party(s): RICHARD NEST
SUMMONS /SERVICE - CIVIL SUMMONS
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
UPON RICHARD S. BRICHETTO
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
Party(s): RICHARD NEST
SUMMONS/SERVICE - CIVIL SUMMONS
UPON ARTHUR WINSHIP, OR.
Page
FILED ON 01/24/2003
SERVED ON 01/17/2003
FILED ON 01/27/2003
SERVED ON 01/21/2003
2 of 11
Printed on:
12/04/2003