# Petit v. Key Bank of Maine

> Supreme Judicial Court of Maine · December 31, 1996 · 688 A.2d 427

URL: https://www.frixlaw.com/law-library/cases/9759922

## Case

- **Full name:** Catherine Duffy PETIT, Et Al. v. KEY BANK OF MAINE
- **Court:** Supreme Judicial Court of Maine
- **Decided:** December 31, 1996
- **Citations:** 688 A.2d 427; 1996 Me. LEXIS 267
- **Precedential status:** Published
- **Opinion:** Concurring in part by Clifford
- **Judges:** Wathen, Roberts, Glassman, Clifford, Lipez
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9759922

## How later opinions describe it (automated extraction)

- stating that certain civil actions alleging fraud require proof by clear and convincing evidence and citing Arbour v. Hazelton, 534 A.2d 1303, 1305 (Me.1987), a fraudulent misrepresentation case
- declining to apply the clear and convincing evidence standard to the "fraud or intimidation" element of the tort of wrongful interference with an advantageous economic relationship
- discussing the types of cases requiring the clear and convincing burden of proof and the history of such

## Opinion text

CLIFFORD, Justice,
with whom WATHEN, Chief Justice, joins concurring in part and dissenting in part.
I agree that summary judgment was improperly granted, the judgment must be vacated, and the case remanded to the trial court. I also agree that clear and convincing evidence should not be required for all of the elements of tortious interference with advantageous economic relationships. 1 I disagree, however, that we should abandon our heretofore consistent requirement that the clear and convincing standard of proof be applied to the fraud element of Petit’s cause of action. Accordingly, I respectfully dissent.
To recover for tortious interference with advantageous economic relationships, a plaintiff must prove that the defendant acted fraudulently or with intimidation. June Roberts Agency, Inc. v. Venture Properties, Inc., 676 A.2d 46, 50 (Me.1996); Barnes v. Zappia, 658 A.2d 1086, 1090 (Me.1995). Fraud is a unique kind of conduct to which different rules historically have been applied. The procedural rules require that the circumstances constituting fraud be pleaded with particularity. M.R.Civ.P. 9(b). Moreover, a party must prove fraud by clear and convincing evidence. Butler v. Poulin, 500 A.2d 257 , 260 n. 5 (Me.1985). The Court’s opinion concludes that this is no longer always the case for fraud actions in Maine.
Contrary to the position adopted by the Court, a higher standard of proof has been required for fraud not only when written instruments or documents are disputed but also when other fraudulent conduct is alleged. We stated in Horner v. Flynn, 334 A.2d 194 (Me.1975), that
[ejxperienee has taught us that in some types of disputed fact situations — such as where it is sought by'oral evidence to dispute the terms of a written instrument or where it is claimed that the conduct of a party, which on the surface appears to be unobjectionable, had an underlying fraudulent purpose — evidence which is of dubious probative value will not convince reasonable minds. Both this probability and strong policy considerations in assuring reliance on written agreements impel courts to scrutinize carefully efforts to dispute orally what one has asserted in writing. Similar considerations argue against ascribing fraudulent intent to conduct which is otherwise not actionable.
Id. at 200 (emphasis added). Nevertheless, whatever original historical justification required a higher burden of proof, we consistently have concluded without exception that all fraud actions, not only those concerning documents, require clear and convincing evidence. Mariello v. Giguere, 667 A.2d 588, 590-91 (Me.1995) (oral representation as to quality and type of windows); DiPietro v. Boynton, 628 A.2d 1019, 1025 (Me.1993) (intent to perform option contract at time defendant entered into it); Estate of Paine, 609 A.2d 1150, 1153 (Me.1992) (failure of conservator to inform plaintiff or court of conveyance of assets to guardian); Stearns v. Emery-Waterhouse Co., 596 A.2d 72, 75 (Me.1991) (equitable estoppel based on promisor’s fraudulent conduct can avoid application of *434 statute of frauds in breach of oral contract action); Arbour v. Hazelton, 534 A.2d 1303, 1305 (Me.1987) (real estate agent’s representation to purchasers of variety store); Butler v. Poulin, 500 A.2d 257, 260-61 (Me.1985) (oral statements concerning adequacy of parts of house); Wildes v. Ocean Nat'l Bank, 498 A.2d 601, 602 (Me.1985) (representations by bank as to amount mortgagor could borrow); Hor ner v. Flynn, 334 A.2d 194, 200, 203 (Me.1975). 2 See also F.D.I.C. v. Proia, 663 A.2d 1252 , 1254 n. 2 (Me.1995) (clear and convincing evidence necessary under Maine Fraudulent Transfers Act, 14 M.R.S.A §§ 3571-3582 (Supp.1996)); John Henry Wigmore, Wigmore on Evidence § 2498, at 424 (1981 Chadboume Rev.); Field, MeKu-sick & Wroth, Maine Civil Practice § 60.8, at 76 (1970) (fraud must be proved by clear and convincing evidence in all cases where it is asserted) (emphasis added); Zillman, Simmons & Gregory, Maine Tort Law, § 11.03, at 11-4 (1995). The motivating factor in these cases is the nature of fraud, not that the plaintiff asserted a particular species of the cause of action. Fraud involves pemi-ciousness, deception, or moral outrageousness that results in injury to the plaintiff. 3 Indeed, in Homer, we explicitly stated that more than the ordinary proof is required “because of nature of the issue, i.e., fraud_” 334 A,2d at 200 (emphasis added).
In Taylor v. Commissioner of Mental Health, 481 A.2d 139 (Me.1984), we abandoned the “clear and convincing evidence” standard of proof formerly used and set out in Horner v. Flynn. Pursuant to that standard, fraud had to be proved by a preponder-anee of the evidence and, in addition, with a special requirement that the quality of that evidence be clear and convincing, i.e., “ ‘fall, clear, and decisive.’ ” Horner v. Flynn, 334 A.2d at 200 (quoting Strout v. Lewis, 71 A. 137, 138 , 104 Me. 65, 68 (1908)) (emphasis in original). We abandoned the relationship of clear and convincing evidence and the quality of evidence and adopted a definition of clear and convincing evidence that refers to an intermediate standard of proof. To meet a clear and convincing evidence standard means that the “party with the burden of persuasion may prevail only if [she] can ‘place in the ultimate factfinder an abiding conviction that the truth of [her] factual contentions are ‘highly probable.’ ’ ” Taylor v. Commissioner of Mental Health, 481 A.2d at 153 (quoting Colorado v. New Mexico, 467 U.S. 310, 316 , 104 S.Ct. 2433, 2437-38 , 81 L.Ed.2d 247 (1984)). All actions requiring clear and convincing evidence now are subject to this intermediate “highly probable” standard of proof. Taylor left no action to which clear and convincing evidence applied, including actions involving fraud, subject to a preponderance of the evidence standard of proof. 4 Taylor does not specifically discuss fraud because the issue in Taylor had nothing to do with fraud.
I agree that a higher standard of proof should be imposed only when a balancing of the public and private interests that are implicated in the factual determination require that the factfinder should have a higher degree of confidence in the correctness of factual conclusions. See Taylor v. Commissioner of Mental Health, 481 A.2d at 150 (citation *435 omitted). This is such a case. In our free economy, economic relationships constantly change, and breach of contract remedies are available to plaintiffs when others interfere with those relationships. 5 A tort action providing redress for acts not wrongful in and of themselves, however, undermines our interests in competition and freedom of individual action. Consequently, we have achieved a comfortable balance between the two by holding that only on proof of fraud or intimidation may a plaintiff recover in tort for interference with contractual relations. Lowering the burden of proof in fraud actions upsets that balance. I would not choose to abandon our long-held requirement that fraud be proved by clear and convincing evidence in a tortious interference cause of action.
Moreover, the position adopted by the Court in this case could result in future litigants choosing the form of action and the forum for that action solely on the basis of the quantum of proof required. See Plimpton v. Gerrard, 668 A.2d 882 (Me.1995) (action for tortious interference with an expectancy or legacy properly brought in Superior Court; action to set aside will on the basis of undue influence properly brought in Probate Court). The Court’s conclusion marks a change in the long held standard of proof for fraud actions not concerning documents. In my view, the change is unwise and unjustified. On remand, I would require clear and convincing evidence to prove the conduct constituting the fraud.
. I agree with the Court that, except for the element of fraud, the burden of proof applicable to the other elements of the wrongful interference with existing and prospective economic relationship, i.e., the existence of a relationship and the causal connection between the fraud and the interference with the economic relationship and the damages, need be proven only by a preponderance of the evidence.
. The language in Harmon v. Harmon, 404 A.2d 1020, 1026 (Me.1979), cited by the Court to support a preponderance standard is dictum; we have never cited it for that proposition.
. See Eldridge v. May, 150 A. 378, 379 , 129 Me. 112, 115 (1930) (“Fraud in equity includes all willful or intentional acts, omissions, and con-cealments which involve a breach of either legal or equitable duty, a trust or confidence, and are injurious to another, or by which an undue or unconscientious advantage is taken over another.") (citation omitted); Great Northern Mfg. Co. v. Brown, 92 A. 993, 993 , 113 Me. 51, 53 (1915) (“ 'Fraud has been defined to be any cunning, deception or artifice used to circumvent, cheat or deceive another.' ") (citation omitted).
.In Butler v. Poulin, 500 A.2d 257 (Me.1985), we noted that a plaintiff in a fraud action must prove every element of her claim by "clear and convincing evidence, that is, evidence that establishes every factual element to be highly probable.” Id. at 260 n. 5. In articulating the standard, we explicitly stated that Taylor had modified Horner v. Flynn. See also Wildes v. Ocean Nat’l Bank, 498 A.2d 601, 602 (Me.1985) (citing Taylor as a modification of Horner v. Flynn); Lavery v. Kearns, 792 F.Supp. 847, 870 (D.Me.1992) (citing Horner v. Flynn for the continuing principle, after Taylor , that each of the elements of fraud must be proved by clear and convincing evidence).
. One commentator has noted in discussing intentional interference claims that
[I]n our economy, competitive acts are often encouraged and rarely considered to be wrongful in and of themselves. Usually, courts see a need to balance the protection of one party's interest in" the future enjoyment of economic gain against society’s concern that competition be unhampered and the interfering party's right to freedom of action be protected.
James V. Telfer, Interference With Prospective Gain: Must There Be A Contract?, 22 San Diego L.Rev. 401, 404 (1985). For an interesting discussion of the history and validity of the tort of interference with advantageous economic relationships, see Gary D. Wexler, Intentional Interference with Contract: Market Efficiency and Individual Liberty Considerations, 27 Conn.L.Rev. 279 (1994); Harvey S. Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U. Chi. L.Rev. 61 (1982).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759922. Public record. Not legal advice.