Delanna Garey v. Stanford Management, LLC

2024 ME 46

• Court: Supreme Judicial Court of Maine
• Decided: June 18, 2024
• Docket: Oxf-23-366
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2024 ME 46 Docket: Oxf-23-366 Argued: April 9, 2024 Decided: June 18, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

DELANNA GAREY

v.

STANFORD MANAGEMENT, LLC, et al.

CONNORS, J.

[¶1] Delanna Garey appeals from a judgment of the Superior Court

(Oxford County, Archer, J.) granting the motion of Stanford Management and

Eve Dunham (collectively Stanford)1 to dismiss Garey’s complaint in its entirety

for failure to state claims upon which relief can be granted. See M.R. Civ. P.

12(b)(6). Garey contends that her complaint conforms with the required notice

pleading standard. See M.R. Civ. P. 8(a); Howe v. MMG Ins. Co., 2014 ME 78, ¶ 9,

95 A.3d 79. We conclude that Garey met her burden and vacate the Superior

Court judgment with respect to her claims for defamation per se and false light

1 Although the defendants are referred to collectively as Stanford, they are referred to in their separate capacities when describing individual actions. 2

invasion of privacy; we affirm the dismissal of her claims for declaratory

judgment and injunctive relief as moot.2

I. BACKGROUND

[¶2] “The following substantive facts are taken from allegations in the

complaint and are viewed as if they were admitted.” Oakes v. Town of Richmond,

2023 ME 65, ¶ 3, 303 A.3d 650 (alteration and quotation marks omitted).

[¶3] Stanford employed Garey as the director of operations of its

apartment building (the Muskie Building) in Rumford until it terminated her in

January 2023 for alleged poor work performance.

[¶4] In early February 2023, Stanford and its current director of

operations, Eve Dunham, requested that the Rumford Police serve Garey with

a criminal trespass notice forbidding her from entering the Muskie Building for

one year. Rumford Police served Garey with the trespass notice on

February 6, 2023. In early March 2023, Stanford and Dunham posted copies of

the criminal trespass notice on the Muskie Building, and that same day,

2The complaint also initially contained a claim for reckless or intentional infliction of emotional distress, but on appeal Garey did not challenge its dismissal. Garey also initially pled a separate cause of action for punitive damages. She recognizes, however, that punitive damages are not an independent cause of action and that, to recover such damages, she must prevail on the underlying claim and show that Stanford acted with malice. See Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985). Because we reinstate causes of action for defamation and false light and because Garey’s complaint alleges that Stanford acted with malice and ill-will, punitive damages remain theoretically recoverable at this early stage of the proceedings. 3

Dunham sent a letter to the residents of the Muskie Building stating, in relevant

part:

As many of you know, Rumford Island Housing has made recent staffing changes. In accordance with these changes and as a result of the behavior of former employees, Stanford Management has had to take legal and procedural steps to protect our current employees, tenants, and community as a whole.

As a result of these changes, effective immediately, no former employees, are permitted on the premises or within the building at any time, without prior written consent from either the Company Owner, President, Vice President, or Director of Operations.

 Any tenant who invites or allows entry to any former employee of Rumford Island Housing or Stanford Management will, receive a lease violation and/or lease termination.

 If you see any former employees in the building or on the premise, please notify management immediately.

On March 10, 2023, Garey’s aunt emailed Dunham asking whether the criminal

trespass notice was for personal or professional reasons. Dunham responded

that the determination to issue the trespass notice “was made by the Rumford

Police department.”

[¶5] In May 2023, Garey filed a complaint against Stanford alleging

defamation, false light invasion of privacy, and reckless or intentional infliction

of emotional distress, and seeking declaratory judgment and injunctive relief.

She alleged that Stanford’s statements injured her “in her profession, trade, or 4

business” and “could reasonably be understood as (falsely) accusing Garey of

committing a crime” and sought compensatory and punitive damages. With

respect to her claims for declaratory and injunctive relief, Garey sought a

declaration that she was permitted to visit tenants in the Muskie Building

despite the criminal trespass notice and that Stanford be enjoined from

preventing such visits.

[¶6] Stanford filed a motion to dismiss under Maine Rule of Civil

Procedure 12(b)(6) and, after briefing from the parties, the Superior Court

granted Stanford’s motion to dismiss Garey’s complaint in its entirety,

concluding that Garey failed to state claims upon which relief could be granted.

The court reasoned that Stanford’s statements were not provably false; they

were statements of opinion, not of fact; the statements were subject to multiple

interpretations and should not be attributed their worst possible meaning; and

in the alternative, even if the statements were defamatory, they were

conditionally privileged. With respect to the claims for declaratory judgment

and injunctive relief, the court concluded that Garey did not have a legal right

to enter the Muskie Building property and, therefore, she did not have standing

to bring such a claim. Garey timely appealed. See M.R. App. P. 2B(c)(1);

14 M.R.S. § 1851 (2024). 5

II. DISCUSSION

[¶7] Maine uses the notice pleading standard, which requires only that a

complaint “give fair notice of the cause of action by providing a short and plain

statement of the claim showing that the pleader is entitled to relief.” Burns v.

Architectural Doors & Windows, 2011 ME 61, ¶ 16, 19 A.3d 823 (citations and

quotation marks omitted). When evaluating the legal sufficiency of a complaint,

we “review it de novo in the light most favorable to the plaintiff, accepting the

material facts it alleges as true, to determine whether the complaint could

entitle the plaintiff to relief on some theory.” Bog Lake Co. v. Town of Northfield,

2008 ME 37, ¶ 6, 942 A.2d 700. At the Rule 12(b)(6) stage, the complaint’s

material allegations are taken as if they were admitted, Livonia v. Town of Rome,

1998 ME 39, ¶ 5, 707 A.2d 83, and dismissal is appropriate “only when it

appears beyond doubt that a plaintiff is entitled to no relief under any set of

facts that [she] might prove in support of [her] claim.” Hall v. Bd. of Envtl. Prot.,

498 A.2d 260, 266 (Me. 1985); see also Oakes, 2023 ME 65, ¶ 16, 303 A.3d 650

(“Importantly, because Maine is a notice-pleading jurisdiction, the level of

scrutiny used to assess the sufficiency of a complaint is forgiving.” (quotation

marks omitted)). 6

A. The complaint sufficiently alleges defamation.

[¶8] The elements of a defamation claim are

(1) a false and defamatory statement concerning another;

(2) an unprivileged publication to a third party;

(3) fault amounting at least to negligence on the part of the publisher; [and]

(4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Waugh v. Genesis Healthcare LLC, 2019 ME 179, ¶ 10, 222 A.3d 1063 (alteration

in original). A defamatory communication is one that “tends . . . to harm the

reputation of another as to lower [her] in the estimation of the community or

to deter third persons from associating or dealing with [her].” Bakal v. Weare,

583 A.2d 1028, 1029 (Me. 1990) (quoting Restatement (Second) of Torts § 559

(Am. L. Inst. 1977)). Such statements, when “written falsely about a person’s

profession, occupation, or official station constitute libel per se.” Ballard v.

Wagner, 2005 ME 86, ¶ 10, 877 A.2d 1083. Although to be considered

defamatory, the statements must be more than mere opinions and constitute

either explicit or implicit assertions of fact, an opinion implying the existence

of undisclosed defamatory facts does not escape liability. See Lester v. Powers, 7

596 A.2d 65, 69 (Me. 1991); Caron v. Bangor Pub. Co., 470 A.2d 782, 784

(Me. 1984).

[¶9] Liberally construed, Garey’s complaint sufficiently alleges that

Stanford published statements to the Muskie Building residents that falsely

imply that Garey engaged in dangerous conduct such that the community needs

protection, an assertion that tends to deter other community members from

associating with her.3 See Rippett v. Bemis, 672 A.2d 82, 86 (Me. 1996).

[¶10] Stanford argues that, as the Superior Court concluded, its

“statement denotes an exercise of management’s personal judgment and

should thus be considered a statement of opinion.” But as noted in Caron, even

a statement of opinion is actionable if it falsely implies defamatory facts.

470 A.2d at 784. Stanford also contends that even if the statement implies

undisclosed facts, we should reject the most negative interpretation of the

implication. But doing so would alter the standard at this preliminary stage of

the proceedings. We evaluate whether the defendants are on notice of the

claims against them by interpreting the meaning of an allegedly defamatory

3 As the Superior Court noted, the letter to building residents does not mention Garey by name. But Stanford sent the letter the same day that it posted the criminal trespass notice—naming Garey— around the Muskie Building. The combination and timing of the criminal trespass notice and the letter to building residents is sufficient at this stage of the proceedings to satisfy that the letter is “of and concerning” Garey. See Hudson v. Guy Gannett Broad. Co., 521 A.2d 714, 717–18 (Me. 1987). 8

statement in the light most favorable to the plaintiff’s claim within the context

of the complaint. Compare Bog Lake Co., 2008 ME 37, ¶ 6, 942 A.2d 700 (“When

a complaint is dismissed as legally insufficient, we review it de novo in the light

most favorable to the plaintiff, accepting the material facts it alleges as true, to

determine whether the complaint could entitle the plaintiff to relief on some

theory.”), with Bakal, 583 A.2d at 1029-30 (considering the broader

circumstances and history between the parties to interpret the meaning of the

term “threats” in reviewing an order on a motion for summary judgment).

When viewed in the light most favorable to her claims at this preliminary stage,

Garey’s complaint sufficiently alleges Stanford’s implication of undisclosed

defamatory facts.

[¶11] Publication of a defamatory statement alone is insufficient to

support Garey’s claim; Stanford must also have acted negligently. See Waugh,

2019 ME 179, ¶ 10, 222 A.3d 1063. Here, Garey alleges that Stanford was at

least negligent in making the defamatory statements, if not acting with reckless

disregard for the statement’s truth or falsity.

[¶12] Finally, Garey’s complaint must allege either the actionability of

the statement irrespective of special harm or the existence of special harm

caused by the publication. Id. In the defamation context, special harm “means 9

economic or pecuniary harm.” Id. ¶ 11. Garey’s complaint satisfies the

actionability element for two reasons. First, the complaint alleges libel because

the alleged defamatory statement was in writing, and “[a] charge which is

published in writing is regarded as carrying more weight than one which is

made verbally. It is accordingly not necessary in a case of libel that the charge

import a crime, nor is it essential that special damage be alleged.” Briola v. J. P.

Bass Publ’g Co., 138 Me. 344, 347, 25 A.2d 489, 490 (1942). Second, even if the

alleged statements were slander as opposed to libel, the complaint alleges

defamation per se, i.e., the statement “conveys imputation of a crime . . . or of

matters affecting plaintiff in [her] business, trade, profession, office or calling.”

Cohen v. Bowdoin, 288 A.2d 106, 110 (Me. 1972).

[¶13] In sum, Garey’s defamation claim survives the motion to dismiss.

B. The complaint sufficiently alleges false light invasion of privacy.

[¶14] To successfully plead a claim for false light invasion of privacy, the

plaintiff must allege that the defendant gave publicity to a matter concerning

the plaintiff that places her before the public in a false light, that the false light

would be highly offensive to a reasonable person, and that the defendant had

knowledge of or recklessly disregarded the falsity of the publicized matter and 10

the false light in which it cast the plaintiff.4 Cole v. Chandler, 2000 ME 104, ¶ 17,

752 A.2d 1189.

[¶15] Garey alleges that Stanford falsely portrayed her as dangerous and

that a reasonable person would find being publicly labeled as dangerous highly

offensive. She alleges that, in giving publicity to this matter, Stanford acted with

reckless disregard as to the falsity of the portrayal and the light in which it

placed her. Although false light is only actionable “when there is such a major

misrepresentation of [her] character, history, activities or beliefs that serious

offense may reasonably be expected to be taken by a reasonable [person] in

[her] position,” Restatement (Second) of Torts § 652E cmt. c, we conclude that

an alleged false implication that a person is dangerous and must be protected

against sufficiently misrepresents her character or activities to support a false

light claim. See id. (distinguishing “minor errors, such as a wrong address for

[her] home, or a mistake in the date when [she] entered [her] employment or

similar unimportant details of [her] career” from misrepresentation of one’s

“character, history, activities, or beliefs”). Finally, while it is arguable that

4 The term “publicity,” as used here, differs from “publication” in the defamation context. See Cole

v. Chandler, 2000 ME 104, ¶ 17, 752 A.2d 1189. In a defamation claim, publication “is a word of art, which includes any communication by the defendant to a third person. ‘Publicity,’ on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.” Id. (quoting Restatement (Second) of Torts § 652D cmt. a (Am. L. Inst. 1977)). 11

dissemination of the allegedly false light statements only to tenants of an

apartment building falls short of communication to the public at large, we again

cannot say that the allegations necessarily fail at this preliminary stage of the

proceedings.

[¶16] We therefore conclude that Garey has sufficiently alleged a claim

for false light invasion of privacy.

C. Stanford’s assertion of a conditional privilege did not affect the sufficiency of Garey’s complaint and was not a basis for dismissal.

[¶17] The court accepted Stanford’s argument in its motion to dismiss

that, even if its statements are actionable, they are conditionally privileged and

cannot support claims for defamation or false light invasion of privacy.

Conditional privilege is an affirmative defense to claims for defamation and

false light invasion of privacy that “arises in settings where society has an

interest in promoting free, but not absolutely unfettered speech.” Rice v. Alley,

2002 ME 43, ¶ 22, 791 A.2d 932 (quotation marks omitted); see also Boulet v.

Beals, 158 Me. 53, 57, 177 A.2d 665, 667 (1962) (evaluating the application of

the privilege to a defamation claim); Sullivan v. Conway, 157 F.3d 1092, 1098-99

(7th Cir. 1998) (“[T]he same privileges are applicable to the false-light tort as

to the defamation tort. Otherwise privilege could be defeated by relabeling.”

(citations omitted)). Determining whether a conditional privilege applies in a 12

given setting is a question of law, but “whether the defendant abused the

privilege is a question of fact.” Rice, 2002 ME 43, ¶ 21, 791 A.2d 932.

[¶18] We have adopted the Restatement’s approach to determine

whether the circumstances of a statement justify a conditional privilege. See id.

In doing so, we have noted that “[t]he Restatement does not prescribe a list of

particular settings to which conditional privileges are restricted. Instead, it

uses a weighing approach based on the totality of the circumstances, in view of

the interests of the publisher and the recipient. Any situation in which an

important interest of the recipient will be furthered by frank communication

may give rise to a conditional privilege.” Lester, 596 A.2d at 70 (citation

omitted). But even if Stanford’s and the Muskie Building residents’ interests in

the communication justify a conditional privilege, Stanford can lose that

privilege through abuse, i.e., engaging in reckless disregard for the truth or

falsity of the published statements or acting with ill will. See Cole, 2000 ME 104,

¶ 7, 752 A.2d 1189. When a defendant establishes the existence of a conditional

privilege, “the burden shifts to the plaintiff ‘to come forward with evidence that

could go to a jury that [the defendant] abused the privilege.’” Id. (alteration in

original) (quoting Gautschi v. Maisel, 565 A.2d 1009, 1011 (Me. 1989)). 13

[¶19] In her complaint, Garey was not required to overcome, or even

anticipate, Stanford’s assertion of a conditional privilege, and Stanford has not

established that the privilege applies merely by including it in its motion to

dismiss. Moreover, even if the face of Garey’s complaint suggests a potentially

applicable conditional privilege, she alleges that Stanford abused the privilege

by acting with malice or ill will when it published the alleged defamatory

statements with knowledge of their falsity or with reckless disregard for their

truth or falsity. See Lester, 596 A.2d at 69 n.7 (“Loss of a conditional privilege

through abuse may also occur when the statement is made, not for the purpose

of protecting the interest giving rise to the privilege, but out of other motives

entirely, such as spite or ill-will.”).

[¶20] Hence, again, at this early stage of litigation, Garey’s claims for

defamation and false light remain actionable and should not have been

dismissed based on Stanford’s assertion of a potentially viable but

yet-to-be-established affirmative defense.

D. The declaratory judgment and injunctive relief claims are moot.

[¶21] Finally, Garey’s declaratory judgment and injunctive relief claims

are moot because she is no longer precluded from entering the Muskie Building

property. See Lewiston Daily Sun v. Sch. Admin. Dist. No. 43, 1999 ME 143, ¶ 12, 14

738 A.2d 1239 (“Courts can only decide cases before them that involve

justiciable controversies.”). Rumford Police served Garey with the criminal

trespass notice on February 6, 2023. By its terms, the trespass notice was

effective for one year, meaning that it expired on February 6, 2024. Because

Garey sought declaratory and injunctive relief to allow her to visit tenants of

the Muskie Building, something she is no longer prohibited from doing, there is

no justiciable controversy on which a decision from this Court would practically

affect either party’s position. Brunswick Citizens for Collab. Gov’t v. Town of

Brunswick, 2018 ME 95, ¶ 7, 189 A.3d 248 (“In general, a case is moot and

therefore not justiciable if there are insufficient practical effects flowing from

the resolution of the litigation to justify the application of limited judicial

resources.” (quotation marks omitted)). Therefore, we affirm the court’s

dismissal of Garey’s declaratory judgment and injunctive relief claims.

The entry is:

Judgment vacated as to Counts 1 and 2. Judgment affirmed as to Counts 5 and 6. Remanded to the Superior Court for proceedings consistent with this opinion. 15

Christopher S. Berryment, Esq. (orally), Mexico, for appellant Delanna Garey

Jeffrey D. Russell, Esq. (orally), and Emily C. Waddell, Esq., Verrill Dana LLP, Portland, for appellees Stanford Management, LLC, and Eve Dunham

Oxford County Superior Court docket number CV-2023-23 FOR CLERK REFERENCE ONLY