Doyle v. Nappi

• Court: Superior Court of Maine
• Decided: April 23, 2013
• Docket: CUMcv-12-247
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION D_ofket No. CV-12~2 / ~-r:.vw ' c rn- l LJ ·~ e/;;>oJ3 . MICHAEL DOYLE,

Plaintiff

v. ORDER

NICK NAPPI, et al., STATE OF MAINE Cumberland ~~. Ck:rk's Office Defendants ~1AR os zon Rr"CE p;:p-o·-. c "~;1"'\!11:: Before the court is a motion for summary judgment by defendants Nick Nappi

and Brent Nappi.

Summary judgment should be granted if there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. In considering a

motion for summary judgment, the court is required to consider only the portions of the

record referred to and the material facts set forth in the parties' Rule 56(h) statements.

~., Johnson v. McNeil, 2002 ME 99

considered in the light most favorable to the non-moving party. Id. Thus, for purposes

of summary judgment, any factual disputes must be resolved against the movant.

Nevertheless, when the facts offered by a party in opposition to summary judgment

would not, if offered at trial, be sufficient to withstand a motion for judgment as a

matter of law, summary judgment should be granted. Rodrigue v. Rodrigue, 1997_ME

99

In this action plaintiff Michael Doyle is suing Nick Nappi, Brent Nappi, and

Colleen Franke for malicious prosecution based on a criminal summons served on Doyle for stalking Franke. Doyle's complaint alleges that the stalking summons was

subsequently dismissed by the District Attorney. 1

As against Nick and Brent Nappi, Doyle's claim is that Franke is "not smart

enough" to come up with the idea of making a complaint about stalking on her own

and that Franke was "coached " by Nick Nappi and/ or Brent Nappi to make that

complaint.

In support of their motion for summary judgment, Nick and Brent Nappi have

stated under oath that they never instructed, forced, or insisted that Franke make a

stalking complaint against Doyle and that as far as they know, Franke made a stalking

complaint for her own reasons. See Nappi SMF '}['}[ 14-16. In his opposition to the

motion for summary judgment, Doyle has not filed any opposing statement of material

facts and the statements in the Nappis' SMF are therefore deemed admitted. M.R.Civ.P.

56(h)(4).

Doyle's opposition is based on the theory that the motion for summary judgment

should not be based on affidavits and that the Nappis' credibility should be tested in

court. Doyle has not offered any sworn affidavits or other evidence admissible on

summary judgment to controvert the Nappis' affidavits. Moreover, all of the unsworn

factual assertions in Doyle's opposition to summary judgment appear to relate to the

protection from harassment proceeding as opposed to the stalking complaint.

On this record, Doyle has not controverted the Nappis' evidence that they did

not instigate Franke's stalking complaint. The only basis for Doyle's claims against the

1 After the stalking summons was dismissed, Franke sought and obtained a protection from harassment order against Doyle. Doyle now argues that the protection order was obtained based on false testimony and that the order is currently under appeal. Although the subsequent protection from harassment case may be relevant to whether Ms. Franke had probable cause to initiate a complaint against Doyle, which is an issue in a malicious prosecution case, see Trask v. Devlin, 2002 ME 10 CJI 11, 788 A.2d 179, Doyle's complaint in this action is based only on the stalking summons.

2 Nappis- his statements to the effect that Franke is "not smart enough" to have made a

stalking complaint on her own- constitute invective and conjecture that is insufficient

to demonstrate the existence of a genuine factual dispute for trial. See Holland v.

Sebunya, 2000 ME 160 <]I 16, 759 A.2d 205.

The entry shall be:

The motion for summary judgment by defendants Nick Nappi and Brent Nappi is granted, and the complaint is dismissed as against Nick Nappi and Brent Nappi. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: March ? , 2013

Thomas D. Warren Justice, Superior Court

3 MICHAEL DOYLE VS NICK NAPPI ET AL CASE#: PORSC-CV-2012-00247

SELVD REPRESENTATION TYPE DATE

003871 ATTORNEY: WALSH, NICHOLAS H ADDR: 120 EXCHANGE STREET SUITE 202 PO BOX 7206 PORTLAND ME 04112-7206 FOR: COLLEEN FRANCKE DEF RTND 05/31/2012

004602 ATTORNEY: CAHOON, JOSEPH L ADDR: 465 CONGRESS STREET PO BOX 9545 PORTLAND ME 04112-9545 FOR: NICK NAPPI DEF RTND 01/11/2013 FOR: BRENT NAPPI DEF RTND 01/11/2013

PL TF MICHAEL DOYLE IS PRO SE. STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. CV-12~2 , ' I

I '--.!}')/. ''/ ,.; · -- ') ~./r --~ -c I·" I C' -:''-- I MICHAEL DOYLE,

v. ORDER ··=-·"'! ...

NICK NAPPI, et al.,

Defendants

Before the court is a motion for summary judgment by defendant Colleen

Francke seeking dismissal of the claim brought against her by plaintiff Michael Doyle. 1

In this action Doyle sued Nick Nappi, Brent Nappi, and Francke for malicious

prosecution based on a criminal summons served on Doyle for allegedly stalking

Francke. Doyle's complaint alleges that the stalking summons was subsequently

dismissed by the District Attomey. 2

In its March 8, 2013 order the court granted summary judgment dismissing

Doyle's claims as against Nick and Brent Nappi. The law governing motions for

summary judgment is set forth in the court's March 8, 2013 order and is incorporated

here by reference.

1 Francke's name is spelled "Franke" in the complaint and in various pleadings. The court will use the spelling of her name from her affidavit, which is signed "Colleen Francke." 2 After the stalking summons was dismissed, Francke sought and obtained a protection from harassment order against Doyle. In various pleadings filed in this action and in opposition to Francke's motion for summary judgment, see page 2 below, Doyle argues that the protection order was obtained based on false testimony and that the order is currently under appeal. The subsequent protection from harassment case may be relevant to whether Francke had probable cause to initiate a stalking complaint against Doyle, but Doyle's claims against Francke are is based solely on the stalking summons. In support of her motion for summary judgment, Francke has filed a statement of

material facts setting forth evidence that when she filed a stalking complaint with the

Falmouth Police Department, she had probable cause to believe to believe that Doyle

had intentionally or knowingly engaged in two or more acts to observe, surveil, follow,

or intimidate her with the intent of causing her to suffer serious inconvenience or

emotional distress. Francke SMF <]!:<]!: 2, 4. See Francke Affidavit<]!:<]!: 2-23. If Francke had

probable cause to initiate a criminal complaint against Doyle, this is fatal to Doyle's

claim that Francke engaged in malicious prosecution. Trask v. Devlin, 2002 ME 10 <]I 11,

788 A.2d 179.

In his opposition to the motion for summary judgment, Doyle has not filed any

opposing statement of material facts nor any affidavits or other evidence admissible for

purposes of summary judgment. See M.R.Civ.P. 56(e). The statements in Francke's SMF

are therefore deemed admitted. M.R.Civ.P. 56(h)(4).

Doyle's opposition to Francke's summary judgment motion consists solely of a

series of contentions that Ms. Francke and another witness committed perjury at the

protection of harassment hearing held on June 25, 2012, after the stalking summons had

been dismissed. See footnote 2 above. However, Doyle has not adequately controverted

the evidence offered by Francke in support of her summary judgment motion.

Accordingly, he has not demonstrated the existence of a factual dispute for trial on his

malicious prosecution claim against Ms. Francke.

Francke has filed counterclaims against Doyle, and Doyle has never filed a reply

to those counterclaims. As a result, a default has been entered against Doyle on

Francke's counterclaims. The counterclaims are not affected by the instant motion.

2 The entry shall be:

The motion for summary judgment by defendant Colleen Francke is granted, and plaintiff's claims against defendant Francke are dismissed. Ms. Francke's counterclaims against plaintiff remain and shall be set for a damages hearing. The Clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: April 2-5, 2013 ~~ Thomas D. Warren Justice, Superior Court

3 MICHAEL DOYLE VS NICK NAPPI ET AL UTN:AOCSsr -2012-0052365 CASE #:PORSC-CV-2012-00247

02 0000003871 ~W~AL~SH~,~N~I~C~H~O~L~A~S~H~------------------------------------- 120 EXCHANGE STREET SUITE 202 PO BOX 7206 PORTLAND ME 04112-7206 F COLLEEN FRANCKE DEF RTND 05/31/2012