MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 201 3 ME 72 Docket: Was

- 12

- 579 Argued: June 11, 2013 Decided: August 1, 2013 Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER , MEAD, GORMAN, and JABAR , JJ.
PHYLLIS BRADBURY et al.

v. CITY OF EASTPORT et al.
SILVER, J. [¶1] Phyllis Bradbury and David Gholson (collectively, plaintiffs) appeal from an order of the Superior Court (Washington County, R. Murray, J. ) denying their special motion to dismiss the counterclaims of First Perry Realty , LLC, CPM Constructors, and the City of Eastport (collectively, defendants) pursuant to Maine’s anti

- SLAPP statute, 14 M.R.S. § 556 (2012)

. 1 This appeal gives us the opportunity to determine the limits of a court’s di scretion to disallow the late filing of an anti

- SLAPP motion. Plaintiffs argue that the court erred or abused its discretion in declining to address the merits of their special motion to dismiss despite their failure to file the motion within the sixty

- day period provided by the statute. Plaintiffs further argue that the court should have granted their special

1 Parties in interest Friends of the Boat School Marine Services Development Corporation and Moose Island Marine, Inc., are also parties to this appeal.2 motion to dismiss because defendants’ counterclaims for tortious interference with a contract and slander of title are based on plaintiffs’ petitioning activity. We

a ffirm the judgment.
I. BACKGROUND [¶2 ] In early 2011, the City began efforts to sell a seventeen

- acre, oceanfront property located at 16 Deep Cove Road, known as “the Boat School.” The City’s charter gives the City Manager the power to sell City property “only after such sale has been authorized and a d vertised by the C ity C ouncil.” The charter does not define “advertised.” [¶3 ] After widely publicized negotiations for the sale of the Boat School failed, the City Council entertained offers to pur chase the Boat School at properly noticed public meetings in August and September 2011. At a September 1 meeting , after public comment, including comment by plaintiff Gholson, the City Council voted to approve a sale of the Boat School to First Perry and CPM. The details of the purchase and sale agreement were discussed at another meeting on September 21, 2011. After further public comment, again including comment by Gholson, the Council voted to authorize the City Manager to execute the
agreem ent, which he did the next day. At another properly noticed public meeting on October 12, 2011, the date of the closing was identified as October 28, 2011, and the Council authorized the City M anager to effectuate the sale.3 [¶4 ] The transaction did not c lose on October 28, as planned. On October 20 , 2011, plaintiffs filed a complaint in the Superior Court seeking a declaratory judgment that the agreement was invalid due to the City’s failure to advertise in accordance with its charter, and moved for a te mporary restraining order to prevent the sale of the property

. The court denied the motion on October 28, 2011. On December 1, 2011, after placing notices of the sale of the
Boat School in the Bangor Daily News on November 17 and 20, 2011, the City

conve yed the Boat School to First Perry. On January 3, 2012, plaintiffs recorded a notice of lis pendens in the Washington County Registry of Deeds

. [¶5 ] On January 11, 2012, the court permitted plaintiffs to file an amended complaint adding several parties i n interest, and denied defendants’ motion s to dismiss pursuant to M.R. Civ. P. 12

. Later that month, defendants filed counterclaims against plaintiffs for slander of title and tortiou s interference with a
contract. First Perry and CPM ’s counterclaims all eged that plaintiffs had slandered First Perry’s title to the Boat School and tortiously interfered with First Perry’s contract with the City “[b]y alleging that the City did not ‘advertis e’ the sale of the Boat School P roperty in accor dance with the City’ s Charter.” The City likewise alleged that plaintiffs “filed their complaint in an attempt to intimidate or induce the City of Eastp ort to renege” on the contract. The parties in interest filed a counterclaim similar to the City’s on April 5, 2012

.4 [¶6 ] On May 22, 2012, plaintiffs moved for summary judgment on their claim seeking a declaratory judgment, and on the defendants’ counterclaims. In their supporting memorandum, plaintiffs argued that the “sole basis” for the counterclaims was plain tiffs’ fi ling of the complaint. In opposing plaintiffs’ motion, defendants raised the plaintiffs’ recording of the notice of lis pendens as a basis for their counterclaims , and presented evidence of emails from plaintiff Gholson to third parties during the pendenc y of the litigation disparaging defendants and the sale of the Bo at School as a “backroom deal.” On
June 19, 2012, First Perry and CPM filed a motion for summary jud gment on plaintiffs’ complaint. On August 30, 2012, while the motions for summary judgmen t remained pending, plaintiffs filed a special motion to dismiss the defendants’ counterclaims purs uant to the anti

- SLAPP statute. A hearing on the variou s motions was held on September 28, 2012. [¶7 ] On November 15, 2012, the court granted First Perry and CPM’s motion for summary judgment on plaintiffs’ complaint, concluding that the City had sufficiently advertis ed the sale of the Boat School. The court also granted plaintiffs’ motion for summary judgment as to defendants’ counterclaim for tortious in terference with a contract because the counterclaim was based on the plaintiffs’ recording of a notice of lis pendens, which was “directly related to this judicial proceeding . . . [and] absolutely privileged.” As to defendants’5 counterclaim for slander o f title, the court granted plaintiffs’ motion for summary judgment to the extent that the counterclaim was based on the plaintiffs’ notice of lis pendens, but denied the motion insofar as the counterclaim rested upon evidence of “separate allegedly slander ous statements” by the plaintiffs , which defendants had not yet had an adequate opportunity to develop through discovery. [¶8 ] In the same order, the court declined to consider the merits of plaintiffs’ special motion to dismiss because it was filed more than sixty days after service of the counterclaims. Although recognizing its discretion to permit the filing of a motion after the expiration of the sixty

- day statutory period, the court declined to do so, noting that (1) plaintiffs provided “ [ n ] o valid r eason” for their delay in filing the motion , (2) plaintiffs failed to submit a request to file the motion late , (3) plaintiffs filed the motion “after the filing of all the other pending motions and responses , ” and (4) plaintiffs’ motion was “contemporaneo us with certain efforts to engage in further discovery ac tivity in this case ” and had the effect of staying discovery purs uant to the anti

- SLAPP statute. The cou rt therefore denied the motion. Plaintiffs appealed, 2 and proceedings i n the trial court were stayed.

2 We allow interlocutory appeals from denials of anti

- SLAPP special motions to dismiss. Nader v. Me. Democratic Party (Nader II) , 2013 ME 51, ¶ 12, 66 A.3d 571

.6 II. DISCUSSION
A. The Anti

- SLAPP Statute [¶9 ] Maine’s anti

- SLAPP statute, 14 M.R.S. § 556 , “permits defendants to file a special motion to dismiss civil claims against them that are based on the defendants’ exercise of the constitutional right to petition.” Nader v. Me. Democratic Party (Nader II) , 2013 ME 51, ¶ 12, 66 A.3d 571

. “SLAPP , ” an acronym for “Strategic Lawsuit Against Public Participation ,” refers to meritless lawsuits filed to dissuade or punish a party’s exercise of its constitutional rights by imposing on it the delay s and costs associated with litigation

. Morse Bros. v. Webste r , 2001 ME 70, ¶ 10, 772 A.2d 842

. The purpose of the anti

- SLAPP statute and the special motion to dismiss is to provide a “procedural mechanism to dispose of baseless lawsuits that are brought not to vindicate the plaintiff’s rights but to punish the def endant for exercising her constitutional right to petition the government, and to do so at an early stage before the defendant incurs great
expense .” Nader II , 2013 ME 51, ¶ 12 n.8, 66 A.3d 571 (emphasis added) (quotation marks omitted); see also Schellin g v. Lindell , 2008 ME 59, ¶ 6,
942 A.2d 1226 (indicating that the special motion to dismiss is “designed to minimize the litigation costs associated with the defe nse of . . . meritless suits ”)

. [¶1 0 ] “[T]he typical mischief that [the statute] intended to remedy was lawsuits directed at individual citizens of modest means for speaking publicly7 against development projects .” Maietta Constr., Inc. v. Wainwright , 2004 ME 53, ¶ 7, 847 A.2d 116 9 (quotation marks omitted) ; see also Nader v. Me. Democratic Party (Nader I) , 2012 ME 57, ¶ 14, 41 A.3d 551 (stating that the purpose of the statute is to prevent chilling of First Amendment rights by “threatening would

- be

ac tivists with litigation costs” (quotation m arks omitted)). Anti

- SLAPP statute s , however, have proven to be capable of abuse and tactical manipulation

. See , e.g. , Olsen v. Harbison , 35 Cal. Rptr. 3d 909, 913 , 916 (Ct. App. 200 5 ) (recognizing the “ironic unintended consequence that anti

- SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse” and the possibility of “tactical manipulation of the stays that attend anti

- SLAPP proceedings” ). [¶1 1 ] In this appeal, we are called upon for the first time to interpret a provision of the statute limiting the time in which a special motion to dismiss may be brought. The statute provides that “[t] he special motion to dismiss may be filed within 60 days of the service of the complaint 3 or, in the court’s discretion, at any later time upon terms the court determines proper.” 14 M.R.S. § 556. Plaintiffs argue that courts should permit the filing of special motion s beyond the sixty

- day

3 Although the statute uses the word “complaint,” we interpret the sixty

- day period as running from the date of service of the challenged pleading, as the statute expressly permits special motions to dismiss “civil claims, counterclaims or cross claims,” whi ch may or may not themselves be served within sixty days of the complaint. See 14 M.R.S § 556; see also Eagle Rental, Inc. v. State Tax Assessor , 2013 ME 48, ¶ 11, 65 A.3d 1278 (stating that we interpret the plain language of statutes to “avoid absurd, il logical, or inconsistent resul ts” (quotation marks omitted)).8 period unless “the motion is filed so late in the litigation process as to frustrate the
purpose s of t he statute, where the motion is without merit, or where the late filing has caused prejudice to the respondent.” [¶1 2 ] On the few occasions we have interpreted the anti

- SLAPP statute, “[ w ] e have striven to interpret the anti

- SLAPP statute in accordance wi th its plain language.” Nader I , 2012 ME 57, ¶ 18, 41 A.3d 551. We interpret any statute according to its plain language , and only look to other indicia of legislative intent , including the purpose of the statute, if the statute is ambiguous. See Sparks v. Sparks , 2013 ME 4 1, ¶ 14, 65 A.3d 1223

. The statute clearly leaves the filing of a special motion to dismiss after the sixty

- day period to the discretion of the co urt

. See 14 M.R.S. § 556. O ur review for an abuse of discretion generally involves thr ee questions: (1) are factual findings, if any, supported by the record according to the clear error standard [?] (2) did the court understand the law applicable to its exercise of discretion [?] and (3) given all the facts and applying the appropriate law, was the court’s weighing of the applicable facts and choices within the bounds of reasonableness [?] Pettinelli v. Yost , 2007 ME 121, ¶ 11, 930 A.2d 1074 ; see also Smith v. Rideout , 2010 ME 69, ¶ 13, 1 A.3d 441 (outlining circumstances in which we have found an abuse of discretion). [¶1 3 ] Plaintiffs’ interpretation of the statute

— that courts are required to permit the late filing of an anti

- SLAPP motion unless the nonmoving party would9 be prejudiced or the motion is meritless

— would con flict with the statute’s language. Nothing in the statute indicates that the court’s discretion depends upon a showing of prejudice to the nonmoving party. See Olsen , 35 Cal. Rptr. 3d at 91 5

- 16 (declining to read into the sixty

- day provision of California’s anti

- SLAPP
statute a requirement that the nonmoving party demonstrate prejudice). Moreover, if the court’s discretion to permit an untimely special motion were tied to the merits of the motion, the sixty

- day provision would be entirely meaningless. See Chitsazzadeh v. Kramer & Kaslow , 130 Cal. Rptr. 3d 910, 914 (Ct. App. 2011) (holding that an interpretation requiring courts to consider the merits of an untimely anti

- SLAPP motion would “negate” the sixty

- day provision of California’s anti

- SLAPP statute); Olsen , 35 Cal. Rptr. 3d at 915 (“ Discretion to permit or deny an untimely motion cannot turn on the final determination of the merits of the motion. ”); see also Cobb v. Bd. of Counseling Prof’ls Licensure , 2006 ME 48, ¶ 11, 896 A.2d 271 ( “ All words in a statute are to be given meaning, and none are to be treated as surplusage if they can be reasonably construed. ” ). [¶14] We therefore hold that, in declining to exercise its discretion to permit

a special mo tion to dismiss after the expiration of the sixty

- day statutory period, a court need not consider the merits of the motion or find that the nonmoving par ty would be prejudiced. Rather, after the sixty

- day period, the court has broad discretion in determin ing whether, consistent with the purposes of the anti

- SLAPP10 statute, a party may file a special motion to dismiss

. In light of the interpretation of the statute we have now articulated, we turn to the facts of this case.
B. Analysis [¶1 5 ] Plaintiffs file d their special motion to dismiss approximately seven months after defendants filed their counterclaims, and approximately five months after the parties in interest filed their counterclaim

. I n declining to address the merits of plai ntiffs’ special motion , t he court noted that (1) plaintiffs provided

“ [ n ] o valid reason” for their delay in filing the motion, (2) plaintiffs failed to submit a request to file the motion late, (3) plaintiffs filed the motion “after the filing of all of the other pending motions and responses,” and (4) plaintiffs’ motion was “contemporaneous with certain efforts to engage in further discovery activity in this case ” and had the effect of staying discovery purs uant to the anti

- SLAPP
statute. Plaintiffs contend that “[e]ach o f these findings is in error.” [¶1 6 ] Plaintiffs argue that, contrary to the court’s findings, they “did request acceptance of their late filing and explai n the reasons” for their delay. Specifically, plaintiffs note that they stated in their special mot ion: While reviewing the affidavits presented by the Defendants [in opposition to plaintiffs’ motion for summary judgment], it became clear to Plaintiffs that Defendants’ factual claims relate exclusively to statements made by Plaintiffs in pursuing the pr esent lawsuit, or in encouraging others to take political or judicial action to prevent or remedy the Sale of the Boat School. As such, Plaintiffs are asking11 that the Court recognize the present Motion despite the fact that it is being filed more than 60 days after the filing of the counterclaims. Contrary to plaintiffs’ contentions, the record reflects that, although plaintiffs recognized in their special motion to dismiss that their motion was untimely, they filed the motion without first requ esting lea ve of court to do so. Plaintiffs’ argument also fails to take into account the court’s finding that plaintiffs had presented no valid reason for th eir delay in filing the motion. The record belies plaintiffs’ claim that they only became aware of the basi s of the counterclaims from the defendants’ summary judgment filings. The counterclaims explicitly stated that they were based on the filing of the plaintiffs’ complaint, and the plaintiffs recognized in their memorandum in support of their motion for sum mary judgment that their complaint was the “sole basis” for the counterclai ms. I n any event, plaintiffs’ special motion was not filed within sixty days of service of the affidavits that plaintiffs claim finally alerted them to the basis for the countercla ims. [¶1 7 ] Plaintiffs also appear to suggest that the timing of their motion was “reasonable given the procedural history of the case,” because their motion for summary judgment, filed May 22, 2012, “was intended to resolve all of Plaintiffs’ claims and D efendants’ counterclaims without th e need for further litigation.” Plaintiffs do not explain how the mere possibility that the court might grant their12 motion for summary judgment renders their five

- to seven - month delay in filing their special motion to d ismiss reasonable or the court’s decision an abuse of discretion. The purpose of the special motion to dismiss is to terminate SLAPP litigation “at an early stage before the [moving party] incurs great expense.” Nader II , 2013 ME 51, ¶ 12 n.8, 66 A.3d 57 1 (quotation marks omitted). This purpose was not served by plaintiffs’ postponement of their special motion until after the parties had expended significant time and resources litigating the

cross - motions for summary judgment. [¶1 8 ] Finally, plaintiffs argue that the court improperly relied on the contemporaneous filing of the special m otion to dismiss with “ certain efforts to engage in further discovery , ” because the purpose of the anti

- SLAPP statute is to “prevent movants from havi ng to endure litigati on costs to defend meritless claims brought as retaliation for exercise of their First Amendment rights .” While plaintiffs are correct that the special motion is “designed to minimize the litigation costs associated with the defense of . . . meritless sui ts,” Schelling , 2008 ME 59, ¶ 6, 942 A.2d 1226, nothing in the statute prohibits the court from considering the procedural posture of the case in evaluating an untimely special motion to dismiss, especially given the recognized potential for abuse and tact ical manipulation of anti

- SLAPP statutes , see Olsen , 35 Cal . Rptr. 3d at 913 , 916 . The court did not abuse its discretion in declining to consider the merits of plaintiffs’ untimely13 special motion to dismiss. Because we conclude that the court did not ab use its discretion in so ruling , we do not reach plaintiffs’ argument on the merits of their motion. The entry is: Judgment affirmed.

___________________________________ On the briefs: Kristin M. Collins, Esq. , Kelly & Co l lins, LLC, Belfast, for appe llants Phyllis Bradbury and David Gholson Dennis L. Maha r, Esq., Fletcher & Mahar, Calais, for app ellees City of Eastport, Friends of the Boat School, Marine Services Development Corp., and Moose Island Marine, Inc. Paul M. Kozie l l , Esq., and Julia G. Pit ney, Esq, Drummond & Drummond, LLP, Portland, for appellees First Perry Realty, LLC and CPM Constructors At oral argument: Kristin M. Collins, Esq., for appellants Phyllis Bradbury, et al. Dennis L. Maha r, Esq., for appellees City of Eastport, Friends o f the Boat School, Marine Services Development Corp., and Moose Island Marine, Inc. Paul M. Koz i el l, Esq., for appellees First Perry Realty, LLC, et al.

Washington County Superior Court docket number 2011

- 39 F OR CLERK REFERENCE ONLY