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Katz v. Turesky

Superior Court of Maine, Cumberland

November 29, 2018

ROBYN KATZ, Individually and as Beneficiary of the Reuben Katz Testamentary Trust, and WAYNE LAWSON, Plaintiffs
v.
DAVID TURESKY, Defendant

          ORDER ON MOTIONS

          Nancy Mills, Justice.

         I. Defendant's Motion to Dismiss Counts VI, VII, and VIII of Plaintiffs' Complaint

         Plaintiffs have stated a cause of action for fraud, deceit, and misrepresentation in count VI. See Brawn v. Oral Surgery Assocs., 2003 ME 11, ¶ ¶ 21-22, 819 A.2d 1014 ("When a special relationship exists, that is a fiduciary relationship, omission by silence may constitute the supplying of false information. . . in such a relationship, where the defendant knows particular facts and does not disclose them causing the plaintiff to rely on those facts, an inference of fraud is appropriate."); (Pis.' Compl. ¶¶ 51-59, 110-17.)

         Plaintiffs have stated a cause of action for defamation in count VII. See Morgan v. Kooistra. 2008 ME 26, ¶ 26, 941 A.2d 447; (Pis.' Compl. ¶¶ 118-23.) Plaintiffs' failure to specifically allege date of defamatory publication is not necessarily fatal. Vahlsing Christina Corp. v. Stanley. 487 A.2d 264, 267 (Me. 1985). Plaintiffs are not required to disprove defendant's affirmative defenses. See Cunningham v. Haza. 538 A.2d 265, 267 (Me. 1988).

         As to count VIII, in order to survive a motion to dismiss a claim of malicious prosecution and wrongful civil proceedings, plaintiffs must allege that the defendant "(1) [] 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." Pepperell Trust Co. v. Mountain Heir Fin. Corp., 1998 ME 46. ¶ 17, 708 A.2d 651.

         With regard to the third element, the Law Court has concluded that a favorable termination must be on the merits. Palmer Dev. Corp. v. Gordon. 1999 ME 22, ¶ 10, 723 A.2d 881 ("[T]here is a requirement in the malicious prosecution action that the proceeding has terminated favorably to the plaintiff, and that the favorable termination be on the merits, or at least reflect on the merits, of the action."). The Law Court has emphasized that the alleged wrongful proceeding must be final and cannot be an ongoing proceeding no matter the likelihood of success for the plaintiff alleging malicious prosecution. Pepperell Trust Co., 1998 ME 46, ¶ 20, 708 A.2d 651 ("[T]here can be no allegation that the proceedings have terminated in the claimant's favor until the possibility of change in the outcome of the offending action has been eliminated through the exhaustion of post-trial or appellate remedies."). The Maine District Court, applying Maine law, held that a settlement is not a favorable termination of a prior lawsuit as a matter of law. Simon v. Navon. 951 F.Supp. 279, 283 (D. Me. 1997). "A successful statute of limitations defense does not reflect on the merits of an action." Palmer. 1999 ME 22, ¶ 11, 723 A.2d 881. A dismissal for lack of standing is not a favorable termination. Morse Bros, v. Webster. 2001 ME 70, ¶¶ 29-30, 772 A.2d 842. Plaintiffs' exhibit I, attached to the amended complaint, makes clear that the outcomes of the FED actions are not considered favorable to plaintiffs in the context of a malicious prosecution claim.

         Defendant's motion to dismiss is denied as to counts VI and VII and granted as to count VIII. Count VIII of plaintiffs' amended complaint is dismissed.

          II. Plaintiffs' Motion to Dismiss Counterclaims

         Defendant's counterclaims were not contained in a recognized pleading under M.R. Civ. P. Rule 7(a). The Law Court has adhered strictly to Rule 7(a) and limited what pleadings are authorized in Maine civil cases. See S. H. Nevers Corp. v. Husky Hydraulics. Inc., 408 A.2d 676, 679 (Me. 1979) ("[U]nder the Maine rule a plaintiff may not assert his claim against a third-party defendant by a new and separate pleading; we reach this conclusion because Rule 7(a) enumerating the pleadings which may be filed in a civil action does not enumerate any pleading that could be used to assert the plaintiffs claim."). The pleadings recognized under Rule 7(a) are a complaint, an answer, a reply to a counterclaim, an answer to a cross-claim, a third-party complaint, and a third-party answer; "[n]o other pleading shall be allowed." M.R. Civ. P. 7(a); see also Lee v. Maier, 1999 ME 62, ¶ 14, 728 A.2d 154 ("Rule 7(a) addresses the various forms of pleadings by referring to the complaint, answer, reply to a counterclaim, answer to a cross-claim, third-party complaint, and third-party answer.") Counterclaims are not a separate pleading and must be contained in one of the pleadings enumerated in Rule 7(a).

         Plaintiffs' motion to dismiss counterclaims is granted. Defendant's counterclaims are dismissed without prejudice. M.R. Civ. P. 7(a).

         III. Plaintiffs' Motion for Leave to File Reply to Counterclaims Based on the above discussion, plaintiffs' motion is moot.

         IV. Defendant/Counterclaim Plaintiff's Request for Entry of Default against Plaintiffs/Counterclaim Defendants on Counterclaim for Declaratory Judgment

         Based on the above discussion, defendant/counterclaim plaintiff's motion is denied.

         V. Defendant/Counterclaim Plaintiffs Request for Entry of Default against ...


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