Platt v. Oliver

1

THOMAS PLATT, et al., Plaintiffs v. SHANNON OLIVER, et al., Defendants

Civil Action No. RE-23-001

Superior Court of Maine, Cumberland

May 30, 2023

ORDER

Thomas D. Warren Active Retired Justice, Superior Court

Before the court is a motion by plaintiffs Thomas and Nancy Platt to dismiss the counterclaim filed by defendants Shannon Oliver and Hello Doggie LLC on the grounds that (1) the counterclaim fails to state a cognizable claim and (2) the counterclaim is barred by Maine's anti-SLAPP statute, 14M.R.S. § 556.

The Platts' complaint asserts claims of common law and statutory nuisance against Oliver and Hello Doggie (collectively, "Oliver") based on Oliver's operation of a kennel and canine day care facility in the town of Casco which allegedly subjects the Platts, owners of neighboring properties, to unreasonable noise and other disturbance. Oliver then counterclaimed for nuisance against the Platts, alleging that the Platts have made a series of unfounded complaints to the town authorities that have resulted in multiple intrusions and unreasonable interference with Oliver's home and the operation of her business.

One issue in the case involves the status of Oliver's kennel under the Town of Casco's zoning ordinance. Oliver's counterclaim alleges that Oliver obtained a license to operate a boarding kennel from the Maine Department of Agriculture, Conservation, and Forestry and that the Town subsequently approved her business.^[1] Oliver further alleges however, that in response to allegedly unfounded complaints by the Platts, the Town subsequently issued Oliver with a notice of zoning code violation, from which Oliver had filed an appeal.

After the Platts' motion was fully briefed, the Platts filed a motion for leave to file a surreply - really a supplemental motion to bring new facts to the attention of the court - to advise the court that Oliver had subsequently dismissed her appeal from the notice of violation. That motion was not opposed by counsel for Oliver. In a telephone conference on May 23, 2023, counsel for Oliver acknowledged that the zoning violation appeal had been withdrawn but stated that Oliver intended to file a petition for a variance. Counsel for both parties agreed that there remains a live dispute between the parties and that the court should decide the pending motion to dismiss.

Anti-SLAPP Statute

Because 14 M.R.S. § 556 provides that anti-SLAPP motions shall be advanced on the docket and receive priority when the interests of justice so require, the court will address the anti-SLAPP motion first.

While it is probably not an understatement to state that in some cases the Maine anti-SLAPP statute has bedeviled the courts charged with interpreting it, see Thurlow v. Nelson, 2021 ME 5 8 ¶¶ 11-19, 263 A.3d 494, this case appears to present a relatively straightforward application of the statute as interpreted by the Law Court in its most recent cases.

The first step is to determine whether the claims asserted against the Platts are based on the Platts' exercise of the right to petition pursuant to the federal or state constitution. Thurlow, 2021 ME 58 ¶ 12. If so, the motion shall be granted unless Oliver has presented "prima facie evidence" that at least one of the Platts' petitioning activities was "devoid of any reasonable factual support or any arguable basis in law and caused actual injury to [Oliver]." Id. ¶ 19.

Oliver's nuisance claim against the Platts is based on their repeated (although allegedly unfounded) complaints to the town code enforcement and animal control officers. Those complaints whether unfounded or not, constitute the exercise of the Platts' right of petition as defined in the final paragraph of 14 M.R.S. § 556.^[2] The remaining question is whether Oliver has presented prima facie evidence that the Platts' complaints to town authorities were devoid of any reasonable factual or legal support and have caused actual injury to Oliver.

On the issue of whether there has been a sufficient showing that petitioning activities were devoid of reasonable factual support, the Law Court has looked to the showing made through "pleadings and affidavits." See Weinstein v Old Orchard Beach Family Dentistry, 2022 ME 16 ¶ 5 271 A.3d 758. In Thurlow the Court found that Thurlow's "detailed affidavit," in conjunction with his complaint, provided adequate prima facie evidence why the complaints made by his adversaries were devoid of reasonable factual support. 2021 ME 58 ¶¶ 27-28.

In this case neither party has submitted affidavits. The court has before it only the Platts' allegations that they were subjected to excessive and unreasonable barking noise and Oliver's denial that any excessive noise or disturbance has been generated by dogs on her property. The court cannot decide on this record whether excessive or unreasonable noise has or has not been generated by dogs on Oliver's property. For purposes of this motion, however, Oliver has not presented "prima facie evidence" that the Platts' complaints of excessive noise were devoid of any reasonable factual support. Indeed, regardless of whether the Platts' excessive noise complaints were unfounded, their complaint that the kennel violates the town zoning code has been substantiated.

In addition, Oliver has not presented prima facie evidence that the Platts' complaints have caused "actual injury" to Oliver, as interpreted to mean "a reasonably certain monetary valuation" of the injury allegedly suffered. Weinstein v Old Orchard Beach Family Dentistry, 2022 ME 16...