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STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-21-52
JEFFREY P. THURLOW,
Plaintiff V. ORDER
JOHN P. THURLOW, et al.,
Defendants
Before the court is motion by plaintiff Jeffrey Thurlow ("Jeffrey") to dismiss the three
counterclaims asserted by defendant John Thurlow ("John").
Jeffrey and John are brothers. Jeffrey's complaint seeks partition of certain property in
Scarborough allegedly owned by Jeffrey and John as tenants in common. The complaint alleges
that a physical partition of the property is impractical and therefore seeks a court order directing a
sale ofthe property with an appropriate distribution of the proceeds after satisfaction ofthe existing
mo1tgage.
John opposes partition and alleges that there is an express agreement between the parties
with respect to the management, occupancy, and disposition of the property and that the agreement
included a waiver of any right to seek partition. With his answer, John asserted three counterclaims,
denominated as claims for breach of contract, tortious interference, and abuse of process. John is
not represented by an attorney.
On Jeffrey's motion to dismiss, the material allegations of the counterclaims must be taken
as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ,r 2, 54 A.3d 710. The counterclaims must
be read in the light most favorable to John to determine if they set forth the necessary elements of John's causes of action or allege facts that would entitle John to relief pursuant to some legal
theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ~ 2, 909 A.2d 1010. Dismissal would
be appropriate only when it appears beyond doubt that John is not entitled to relief under any set
of facts that he might prove in support of his claim. Moody v. State Liquor & Lottery Commission,
2004 ME 20 ~ 7, 843 A.2d 43. However, John may not proceed if his counterclaims fail to allege
essential elements of his causes of action. See Potter, Prescott, Jamieson & Nelson P.A. v.
Campbell, 1998 ME 70 ~~ 6-7, 708 A.2d 283.
1. Breach of Contract
As far as the court can tell, John's breach of contract claim may have been primarily
asserted as a defense to Jeffrey's partition action because the only alleged breach of contract by
Jeffrey that the court can discern is the commencement of this action.
In any event, Jeffrey seeks dismissal of John's contract claim because, he contends, any
reliance by John on an alleged contract is barred by the Statute of Frauds because the agreement
is not in writing. Assuming that the alleged agreement relied on by John is not in writing (which
John appears to concede), the court does not agree that the Statute of Frauds would apply/
The Statute of Frauds applies to "any contract for the sale of lands ...or of any interest in
or concerning them." 33 M.R.S. § 51(4) (emphasis added). The alleged agreement set forth in
John's counterclaim is not a contract for the sale of land or the sale of an interest in land. Instead,
it id an agreement between the brothers with respect to the disposition of the land and their relative
rights with respect to the land. John is not seeking to enforce an unwritten contract for the sale of
land. See Belanger v. Yorke, 2020 ME 24 ~ 23,226 A.3d 215.
2 In addition, even if the Statute of Frauds were otherwise applicable, it can be overcome if
there is a sufficient showing of pmi performance or a sufficient showing that there has been a
change of position induced by the unwritten agreement. See Sullivan v. Porter, 2004 ME 134 ,r,r
10-11, 930 A.2d 1025; Gagne v. Stevens, 1997 ME 88 ,r 14,696 A.2d 411.
Jeffrey's motion to dismiss John's contract claim is denied.
2. Tortious Interference
John's second counterclaim alleges that Jeffrey has tortiously interfered in John's "business
of renting, maintaining, and otherwise enjoying the property." Counterclaim II ,r 1.
Maine appears to recognize two causes of action under the rubric of"tortious interference."
The first involves a claim of tortious interference with a contract or advantageous business
opportunity. The elements of that claim are (1) that a valid contract or prospective economic
advantage exist; (2) that the defendant interfere with that contract or advantage through fraud or
intimidation; and (3) that dmnages have resulted from the allege interference. Rutland v. Mullen,
2001 ME 98 ,r,r 13-16, 798 A.2d 1104.
The second category of "tortious interference" is for allegedly wrongful interference with
an interest in property. See Estate ofHodgkins, 2002 ME 154 'i[l 6, 807 A.2d 626.
John alleges both kinds oftortious interference in his counterclaim. However, in both cases
the actual interference alleged by John appears solely to consist of Jeffrey's commencement of
this action. John does not allege how his rental business has been dmnaged or how he has been
deprived by Jeffrey of the enjoyment of his property. On this claim, therefore, the court will grant
Jeffrey's motion to dismiss with leave for John to replead, ifhe has a basis to do so, with allegations
as to how his rental business has been damaged through fraud or intimidation and/or as to how his
3 past and current enjoyment of the property has been interfered with - other than by Jeffrey's
commencement of this action. Any such amendment shall be filed on or before March 28, 2022.
John's tortious interference counterclaim includes an allegation that Jeffrey has defamed
him. That issue will be addressed further below.
3. Abuse of Process
John's third counterclaim is for abuse of process. However, that is also based on the filing
ofthis lawsuit. The filing of a lawsuit, even with an ulterior or improper motive, does not constitute
a valid basis for an abuse of process claim. Advanced Construction Corp. v. Pilecki, 2006 ME 84
123, 901 A.2d 189.
Litigants (even those represented by counsel) often file so-called abuse of process claims
when they are actually alleging wrongful use of civil proceedings (the civil analog of malicious
prosecution). John's third counterclaim, however, also does not state a cognizable claim of
wrongful use of civil proceedings. Under Maine law the tort of wrongful use of civil proceedings
requires proof that the defendant initiated or continued a lawsuit (1) without probable cause, (2)
with a motive other than that of securing proper adjudication of the claim, and (3) the proceedings
have terminated in favor of the plaintiff. Pepperell Trust Co. v. Mountain Heir Financial Corp.,
1998 ME 46117, 708 A.2d 651. John's third counterclaim- if intended as a claim for wrongful
use of civil proceedings - fails because the proceedings have not been terminated in his favor.
4. Defamation Claim
As noted above, John's tortious interference claim includes an allegation that Jeffrey made
an allegedly defamatory statement about John to local law enforcement.
4 John's abuse of process claim also contains a litany of alleged disputes between John and
his brother and includes various allegations that Jeffrey's commencement of this lawsuit
constitutes retaliation for John's objections to various allegedly wrongful actions by Jeffrey. The
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(
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKET NO. RE-21-52
JEFFREY P. THURLOW,
Plaintiff V. ORDER
JOHN P. THURLOW, et al.,
Defendants
Before the court is motion by plaintiff Jeffrey Thurlow ("Jeffrey") to dismiss the three
counterclaims asserted by defendant John Thurlow ("John").
Jeffrey and John are brothers. Jeffrey's complaint seeks partition of certain property in
Scarborough allegedly owned by Jeffrey and John as tenants in common. The complaint alleges
that a physical partition of the property is impractical and therefore seeks a court order directing a
sale ofthe property with an appropriate distribution of the proceeds after satisfaction ofthe existing
mo1tgage.
John opposes partition and alleges that there is an express agreement between the parties
with respect to the management, occupancy, and disposition of the property and that the agreement
included a waiver of any right to seek partition. With his answer, John asserted three counterclaims,
denominated as claims for breach of contract, tortious interference, and abuse of process. John is
not represented by an attorney.
On Jeffrey's motion to dismiss, the material allegations of the counterclaims must be taken
as admitted. Ramsey v. Baxter Title Co., 2012 ME 113 ,r 2, 54 A.3d 710. The counterclaims must
be read in the light most favorable to John to determine if they set forth the necessary elements of John's causes of action or allege facts that would entitle John to relief pursuant to some legal
theory. Bisson v. Hannaford Bros. Co., Inc., 2006 ME 131 ~ 2, 909 A.2d 1010. Dismissal would
be appropriate only when it appears beyond doubt that John is not entitled to relief under any set
of facts that he might prove in support of his claim. Moody v. State Liquor & Lottery Commission,
2004 ME 20 ~ 7, 843 A.2d 43. However, John may not proceed if his counterclaims fail to allege
essential elements of his causes of action. See Potter, Prescott, Jamieson & Nelson P.A. v.
Campbell, 1998 ME 70 ~~ 6-7, 708 A.2d 283.
1. Breach of Contract
As far as the court can tell, John's breach of contract claim may have been primarily
asserted as a defense to Jeffrey's partition action because the only alleged breach of contract by
Jeffrey that the court can discern is the commencement of this action.
In any event, Jeffrey seeks dismissal of John's contract claim because, he contends, any
reliance by John on an alleged contract is barred by the Statute of Frauds because the agreement
is not in writing. Assuming that the alleged agreement relied on by John is not in writing (which
John appears to concede), the court does not agree that the Statute of Frauds would apply/
The Statute of Frauds applies to "any contract for the sale of lands ...or of any interest in
or concerning them." 33 M.R.S. § 51(4) (emphasis added). The alleged agreement set forth in
John's counterclaim is not a contract for the sale of land or the sale of an interest in land. Instead,
it id an agreement between the brothers with respect to the disposition of the land and their relative
rights with respect to the land. John is not seeking to enforce an unwritten contract for the sale of
land. See Belanger v. Yorke, 2020 ME 24 ~ 23,226 A.3d 215.
2 In addition, even if the Statute of Frauds were otherwise applicable, it can be overcome if
there is a sufficient showing of pmi performance or a sufficient showing that there has been a
change of position induced by the unwritten agreement. See Sullivan v. Porter, 2004 ME 134 ,r,r
10-11, 930 A.2d 1025; Gagne v. Stevens, 1997 ME 88 ,r 14,696 A.2d 411.
Jeffrey's motion to dismiss John's contract claim is denied.
2. Tortious Interference
John's second counterclaim alleges that Jeffrey has tortiously interfered in John's "business
of renting, maintaining, and otherwise enjoying the property." Counterclaim II ,r 1.
Maine appears to recognize two causes of action under the rubric of"tortious interference."
The first involves a claim of tortious interference with a contract or advantageous business
opportunity. The elements of that claim are (1) that a valid contract or prospective economic
advantage exist; (2) that the defendant interfere with that contract or advantage through fraud or
intimidation; and (3) that dmnages have resulted from the allege interference. Rutland v. Mullen,
2001 ME 98 ,r,r 13-16, 798 A.2d 1104.
The second category of "tortious interference" is for allegedly wrongful interference with
an interest in property. See Estate ofHodgkins, 2002 ME 154 'i[l 6, 807 A.2d 626.
John alleges both kinds oftortious interference in his counterclaim. However, in both cases
the actual interference alleged by John appears solely to consist of Jeffrey's commencement of
this action. John does not allege how his rental business has been dmnaged or how he has been
deprived by Jeffrey of the enjoyment of his property. On this claim, therefore, the court will grant
Jeffrey's motion to dismiss with leave for John to replead, ifhe has a basis to do so, with allegations
as to how his rental business has been damaged through fraud or intimidation and/or as to how his
3 past and current enjoyment of the property has been interfered with - other than by Jeffrey's
commencement of this action. Any such amendment shall be filed on or before March 28, 2022.
John's tortious interference counterclaim includes an allegation that Jeffrey has defamed
him. That issue will be addressed further below.
3. Abuse of Process
John's third counterclaim is for abuse of process. However, that is also based on the filing
ofthis lawsuit. The filing of a lawsuit, even with an ulterior or improper motive, does not constitute
a valid basis for an abuse of process claim. Advanced Construction Corp. v. Pilecki, 2006 ME 84
123, 901 A.2d 189.
Litigants (even those represented by counsel) often file so-called abuse of process claims
when they are actually alleging wrongful use of civil proceedings (the civil analog of malicious
prosecution). John's third counterclaim, however, also does not state a cognizable claim of
wrongful use of civil proceedings. Under Maine law the tort of wrongful use of civil proceedings
requires proof that the defendant initiated or continued a lawsuit (1) without probable cause, (2)
with a motive other than that of securing proper adjudication of the claim, and (3) the proceedings
have terminated in favor of the plaintiff. Pepperell Trust Co. v. Mountain Heir Financial Corp.,
1998 ME 46117, 708 A.2d 651. John's third counterclaim- if intended as a claim for wrongful
use of civil proceedings - fails because the proceedings have not been terminated in his favor.
4. Defamation Claim
As noted above, John's tortious interference claim includes an allegation that Jeffrey made
an allegedly defamatory statement about John to local law enforcement.
4 John's abuse of process claim also contains a litany of alleged disputes between John and
his brother and includes various allegations that Jeffrey's commencement of this lawsuit
constitutes retaliation for John's objections to various allegedly wrongful actions by Jeffrey. The
allegations of wrongful action by Jeffrey that are listed in John's abuse of process counterclaim
appear to be included to demonstrate Jeffrey's alleged animus against John.
However, it is unclear why John has included a defamation allegation in his tortious
interference claim. If John is in fact seeking to assert a counterclaim for defamation against Jeffrey,
he shall file a motion for leave to amend his counterclaims to add such a claim, along with a
pleading setting forth the proposed defamation claim itself, 1 on or before April 4, 2022.
The entry shall be:
I. Plaintiff Jeffrey Thurlow's motion to dismiss is denied as to defendant John Thurlow's counterclaim for breach of contract.
2. Jeffrey's motion to dismiss is granted as to John's counterclaim for tortious interference. John is granted leave to replead his claim of tortious interference on or before March 28, 2022 if he has a basis to allege that he has been damaged other than by the institution of this lawsuit and sets forth sufficient allegations to that effect.
3. Jeffrey's motion to dismiss is granted as to John's counterclaim for abuse of process.
4. If John is seeking to assert a defamation claim against Jeffrey, he shall file a motion for leave to do so on or before April 4, 2022.
5. The clerk shall incorporate this order in the docket by reference pursuant to Rule 79(a).
1 Any such pleading must provide notice of the date, content, and circumstances of the allegedly
defamatory statement. See Picard v. Brennan, 307 A.2d 833, 834-35 (Me. 1973). If John asserts that the alleged defamation resulted in special damages, those must be pleaded as well. See Restatement 2d of Torts§ 575.
5 Dated: March --2:'__, 2022
Thomas D. Warren Active Retired Justice, Superior Court
Plaintiff-David Goldman, Esq. Defendant-Pro Se PII Saco & Biddeford Saving Institution William Kany, Esq.