Petit v. Key Bank of Maine

688 A.2d 427, 1996 Me. LEXIS 267

• Court: Supreme Judicial Court of Maine
• Decided: December 31, 1996
• Status: Published

Opinions

GLASSMAN, Justice.

Catherine Duffy Petit, Old Orchard Ocean Pier Company, CDP, Inc., and Whiteway Amusements, Inc. (collectively Petit)¹ appeal from the summary judgment entered in the Superior Court (York County, Brennan, J.) in favor of Key Bank of Maine on Petit’s complaint² against Key Bank alleging a claim for damages for its wrongful interference with Petit’s existing and prospective advantageous economic relationships, inter alia, with Pepperell Trust Company.³ We agree with Petit’s contention that because the evidence on the record generates a genuine issue of material fact the trial court erred by granting Key’s motion for a summary judgment, and accordingly, we vacate the judgment.

For the purposes of the summary judgment, the following facts are undisputed: At all relevant times, the Depositors Corporation, a predecessor of Key Bank, was the sole owner of Depositors Trust Company of Southern Maine, also a predecessor of Key Bank. Wallace Haselton was the chief executive officer of Depositors Corporation acting on behalf of that corporation and Depositors Trust Company. Robert Mitchell was the president of Pepperell Trust Company. In September 1979, Petit borrowed $1,850,000 from a group of lenders, including Pepperell Trust Company, the lead lender, and Depositors Trust, for the purpose of acquiring a pier and amusement park business at Old Orchard Beach. In the fall of 1981, Petit initiated discussions with the participating lenders for the refinancing of the 1979 loan. In early December 1981, in connection with an ongoing investigation of the Depositors Corporation and the Depositors Trust conducted by the Maine Attorney General’s office in conjunction with the Federal Bureau of Investigation with regard to possible violations of state and federal laws, Haselton stated to an agent of the Attorney General’s office that Catherine Petit had alleged that Mitchell took an illegal fee or “kickback” in connection with Pepperell’s participation in the 1979 loan to Petit, knowing such statement to be false.

On January 8, 1982, Petit met with the 1979 participating lenders to present a refinancing proposal. At this meeting Mitchell refused to speak with Petit, acted in a “cool and aloof’ manner toward her, and left the meeting while it was in progress. By a letter dated February 3, 1982, Mitchell informed Petit that Pepperell and the other banks that had participated in the 1979 loan had declined her refinancing proposal and that “unless your loan account is brought current by March 4, 1982, foreclosure proceedings will commence in order to effect collection.” In September 1982, Pepperell filed foreclosure proceedings for the September 1979 loans. Thereafter, Petit filed for bankruptcy resulting in her loss of ownership of the amusement park and pier.

Following Key Bank’s answer to Petit’s fourth amended complaint, it filed a motion for a summary judgment on the ground that the record before the court does not generate any genuine issue of material fact and that Key is entitled to a judgment as a matter of law. By its memorandum in support of its motion, Key Bank focused on the inability of Petit to establish that Mitchell knew of Ha-selton’s false statement prior to February 3, 1982, and alleged that, although adequately pleaded, Petit could not establish causation or, accordingly, that Mitchell justifiably relied on such statement as true or acted on it to Petit’s damage. Attached to and incorporated in Petit’s responsive memorandum opposing Key Bank’s motion, is an affidavit of Craig J. Rancourt, a personal Mend of Mitchell, asserting in pertinent part that during conversations with Mitchell in December 1981 and January 1982: (1) “Mitchell stated ... Petit had accused him of accepting a bribe in connection with loans from Pepperell to Petit,” (2) “expressed extreme personal animosity toward Mrs. Petit,” and (3) “stated ... that he intended to foreclose on Petit’s loans.”

At the January 25, 1995, hearing on Key Bank’s motion, it advanced the same argument set forth in its memorandum and argued against the trial court’s consideration of the Rancourt affidavit on the ground that “it was late in the discovery period” and that it was hearsay. In the course of the hearing, and in response to Key Bank’s argument that discovery had closed, the trial court advised Key Bank it could conduct further discovery if it did so prior to the court’s ruling on the summary judgment motion. Key Bank chose to rely on its argument on that issue.

By its order dated May 4, 1995, the trial court granted the motion for a summary judgment in favor of Key Bank, stating:

On the record before this Court, as a matter of law, Plaintiffs cannot prove all of the essential elements necessary under Maine law to support their claim for tor-tious interference with advantageous economic relationships. Specifically, Plaintiffs cannot on that record carry their burden to prove a causal connection between the tortious interference alleged and termination of the economic relationship alleged. ... For purposes of this Motion, I have considered Mr. Rancourt’s affidavit for its substantive value. Notwithstanding this affidavit, Plaintiff has failed to generate genuine issues of material fact requiring trial.

From the judgment entered in accordance with the court’s order, Petit appeals.

“A summary judgment is proper when the party that bears the burden of proof of an essential element at trial has presented evidence that, if it presented no more, would entitle the opposing party to a judgment as a matter of law.” Jacques v. Pioneer Plastics, Inc., 676 A.2d 504, 506 (Me.1996). In our review of the grant of a summary judgment, we view the evidence in the light most favorable to the nonprevailing party and independently determine whether the record supports the trial court’s determination that there is no genuine issue of material fact and the prevailing party is entitled to a judgment as a matter of law. Id.

Relying primarily on the Rancourt affidavit, as Petit did before the trial court, Petit contends the record contains sufficient evidence to generate a genuine issue of a material fact to be determined by a factfinder at the trial of this ease as to whether the false statement of Haselton caused the termination of the advantageous economic relationships alleged by Petit. Viewing that affidavit in the light most favorable to Petit, as we must, we agree with Petit’s contention. Accordingly, we conclude that it was error for the trial court to grant Key Bank’s motion for a summary judgment in its favor.

Contrary to Key Bank’s contention, we find no error in the trial court’s consideration of the Rancourt affidavit, nor do the assertions contained in the affidavit constitute inadmissible hearsay. The affiant’s first assertion is not hearsay because it is not a statement “offered in evidence to prove the truth of the matter asserted.” M.R.Evid. 801(c). The second and third assertions are admissible pursuant to M.R.Evid. 803(3) as statements of Mitchell’s “then existing state of mind....”

Although not raised by either of the parties before the trial court or before us, some time after oral argument on this case we requested that each of the parties file a supplemental brief addressing the standard of proof required to allow a plaintiff to prevail on a claim for the wrongful interference with existing and prospective advantageous economic relationships. We made the request in the interest of judicial economy, being cognizant that we have not previously specifically addressed the precise issue, that it may become an issue in any future pretrial proceedings, that it will be essential for the guidance of a factfinder at the trial of this case, that this proceeding has been pending since 1986, and that the present appeal is the third pretrial appeal in the course of this litigation.

We have previously stated that the “[¡Interference with an advantageous relationship requires the existence of a valid contract or prospective economic advantage, interference with that contract or advantage through fraud or intimidation, and damages proximately caused by the interference.” Barnes v. Zappia, 658 A.2d 1086, 1090 (Me.1995). We have also previously set forth the elements of interference by “fraud” as: “(1) mak[ing] a false representation (2) of a material fact (3) with knowledge of its falsify or in reckless disregard of whether it is true or false (4) for the purpose of inducing another to act or refrain from acting in reliance on it, and (5) the other person justifiably relies on the representation as true and acts upon it to the damage of the plaintiff.” Grover v. Minette-Mills, Inc., 638 A.2d 712, 716 (Me.1994).

We have long recognized and applied the general rule that a plaintiffs burden of proof in a civil action is to establish each factual element of a claim by a preponderance of the evidence. Notwithstanding this general rule, in certain circumstances, including civil actions involving allegations of fraud, we have required the higher standard of clear and convincing evidence. See, e.g., Arbour v. Hazelton, 534 A.2d 1303, 1305 (Me.1987) (stating clear and convincing evidence standard for claim that real estate agent of defendant-seller had fraudulently misrepresented source of store’s gross sales). But see Harmon v. Harmon, 404 A.2d 1020, 1026 (Me.1979) (stating preponderance of evidence standard for claim of tortious interference by fraud and undue influence with plaintiffs expected legacy).

The question before us is whether to extend application of that higher standard of clear and convincing evidence to the proof required for the “fraud or intimidation” element of the tort of 'wrongful interference with an advantageous economic relationship. We decline to do so.

Application of the higher standard of proof apparently arose in courts of equity when the chancellor faced claims that were unenforceable at law because of the Statute of Wills, the Statute of Frauds, or the parol evidence rule. Concerned that claims would be fabricated, the chancery courts imposed a more demanding standard of proof. The higher standard subsequently received wide acceptance in equity proceedings to set aside presumptively valid written instruments on account of fraud.

Herman & MacLean v. Huddleston, 459 U.S. 375, 389 n. 27, 103 S.Ct. 683, 691 n. 27, 74 L.Ed.2d 548 (1983) (citations omitted). Thus, the clear and convincing requirement “was first applied in equity to claims which experience had shown to be inherently subject to fabrication, lapse of memory, or the flexibility of conscience.” Note, Appellate Review in the Federal Courts of Findings Requiring More Than a Preponderance of the Evidence, 60 Harv.L.Rev. 111, 112 (1946) (cited in Huddleston, 459 U.S. at 388 n. 27, 103 S.Ct. at 690 n. 27); see also Note, Horner v. Flynn: A Preponderance of Clear & Convincing Evidence, 28 Me.L.Rev. 240, 241^2 (1976). As one commentator has explained,

[conceding the validity of policies which the parol evidence rule and the Statutes of Wills and Frauds were designed to carry out, the chancery courts compromised between becoming a meeca for the trumped-up prayer for relief and refusing altogether to mitigate the stem fulfillment of these policies in the law courts, by granting relief only in cases where the evidence in support of this type of claim was “clear and convincing.”

60 Harv.L.Rev. at 112.

Such fears that innovative plaintiffs would fabricate equitable claims regarding documents to avoid restrictions at law were the impetus for adoption of a higher proof requirement at equity in Maine. Horner v. Flynn, 334 A.2d 194, 196-200 (Me.1975). The equitable standard of proof, however, was in fact a modified preponderance of the evidence standard. See, e.g., Parlin v. Small, 68 Me. 289, 290-291 (1878) (“A deed seen and read as this was is a wall of evidence against oral assaults, to begin with. It should not be battered down for alleged deceits or misunderstandings, unless the proof of them is clearly and abundantly established. The plaintiff must prevail, not only upon a preponderance of the evidence, but such preponderance must be based upon testimony that is clear and strong, satisfactory and convincing.” (Emphases added)). In Homer we reviewed an action for common law fraud, traced the history of the relevant equity case law, and preserved the contours of the equitable formulation of the standard of proof. 334 A.2d at 196-200. Homer affirmed the standard that held the plaintiff, to “meet his burden of proof by a preponderance of the evidence!,] [must produce] evidence having strong capability to induce belief. ... [such that] the jury should be told that because of the nature of the issue, i.e., fraud, evidence will constitute preponderance only if it is clear evidence, convincing evidence and unequivocal evidence.” 334 A.2d at 200 (emphases added). Moreover, Homer specifies that the adjectives used in the case law to describe the higher standard of proof “were intended to describe the quality of the evidence required and not the extent to which the factfinder must be persuaded or convinced.” Id. Thus, in Homer, we did not adopt a different standard of proof, but rather required a higher quality of evidence.⁴

We later overruled Homer’s formulation of the higher standard, after a lengthy discussion of the difficulties with its application, in Taylor v. Commissioner of Mental Health, 481 A.2d 139, 152-54 (Me.1984) " We adopt the ... definition [of “clear and convincing evidence”] by which the party with the burden of persuasion may prevail only if he can ‘place in the ultimate factfinder an abiding conviction that the truth of [his] factual contentions are “highly probable”.’” (citing Colorado v. New Mexico, 467 U.S. 310, 317, 104 S.Ct. 2433, 2438, 81 L.Ed.2d 247 (1984) (determination of water rights between states)). • In Taylor, we modified the standard of proof from that of “beyond a reasonable doubt” to that of “clear and convincing” when determining the eligibility for modified release treatment of a criminal defendant found not guilty by reason of insanity. Id. at 150-51 (collecting cases where “a reasoned balancing of all the interests, public and private, that are implicated in the factual determination” justifies adoption of the higher standard necessary to meet “the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions” involved in those adjudications).⁵ However, neither equitable nor common law fraud was alleged in Taylor, which overruled Homer without addressing the questionable transferability of the higher standard of proof to common law fraud actions that do not raise issues of document fabrication. 481 A.2d at 149-50, 154 (noting only the appropriateness of using the higher standard in “equity-type cases” of fraud); cf. Huddleston, 459 U.S. at 388-90, 103 S.Ct. at 690-92 (declining to depart from the preponderance of the evidence standard for purposes of securities fraud actions given the questionable pertinence of the historical reasons for imposing a higher standard of proof in fraud cases in equity and at common law).

The case before us is a tort dispute between private parties that involves no reliance interest in the validity of a written document, and presents neither one of the statutory causes of action in which a higher standard of proof has been applied, nor the balancing of public and private interests of the kind at stake in Taylor, 481 A.2d at 150-51, nor the “constitutional and other policy considerations” identified in Taylor as justifying the higher standard. The rationales advanced in other jurisdictions for importing a higher standard of proof into the common law fraud context never have been emphasized in our case law and are of questionable persuasiveness.

Thus, we conclude that in a cause of action seeking damages for the wrongful interference with an advantageous existing valid contract or prospective economic advantage, through fraud or intimidation, there exists no compelling reason requiring the factfinder to have a higher degree of confidence in the correctness of its factual conclusions than can be established by a preponderance of the evidence. If punitive damages are sought, those damages must be established by clear and convincing evidence that the defendant’s conduct was motivated by actual ill will or the conduct must be so outrageous that malice is implied. Grover v. Minette-Mills, Inc., 638 A.2d at 717-18.

The entry is:

Judgment vacated. Remanded for further proceedings consistent with the opinion herein.

ROBERTS, J. and LIPEZ, J. concurring.

1 . Catherine Duffy Petit was the sole owner of the Old Orchard Beach Pier Company; CDP, Inc. and Whiteway Amusements, Inc. CDP and Whiteway were merged into Old Orchard. See Petit v. Key Bancshares of Maine, Inc., 635 A.2d 956, 957 n. 1 (Me.1993).

2 . Following our decision in Petit v. Key Bancshares of Maine, Inc., 635 A.2d 956 (Me.1993), affirming the summary judgment entered in the trial court in favor of Key on all but one count, the trial court granted Petit’s motion to file a fourth amendment to the original complaint filed in November 1986. It is the fourth amended complaint that is the subject of the present proceedings.

3 . By the present complaint, Petit alleges that Key wrongfully interfered with Petit’s advantageous economic relationships with “Pepperell Trust Company, the participating banks, the United States Small Business Administration, the Town of Old Orchard Beach, and the businesses dealing with Petit’s pier and amusement park businesses.”

4 . According to one commentator, in the process of importing the equitable standard of proof into the common law fraud context, Homer altered the traditional allocation of functions between the court and the jury. Note, 28 Me.L.Rev. 240 (1976). Whereas in equity the court determines whether both the subjective degree of belief in the evidence (burden of persuasion) and the belief-inducing capacity or quality of the evidence (burden of production) are met, at law those functions are assigned to the jury and the court, respectively. Under the Homer formulation, the jury in common law fraud cases must both “be convinced by a preponderance of the evidence as a measure of persuasion, [and] find the evidence to he of a clear and convincing quality.... [essentially a] delegation of a judicial function to the jury.” Id. at 245-48; accord Taylor v. Commissioner of Mental Health, 481 A.2d 139, 153-55 (Me.1984). Taylor addresses this problem by converting the formulation to a straight "clear and convincing” standard of proof, but without addressing the appropriateness of importing such a standard into common law fraud cases that involve no questions of document fabrication. Id. at 149-50 (noting the appropriateness of a higher standard of proof only in “equity-type cases” of fraud).