MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	26	
Docket:	   Cum-18-98	
Argued:	   December	11,	2018	
Decided:	  February	21,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                          HEARTS	WITH	HAITI,	INC.,	et	al	
                                      	
                                     v.	
                                      	
                               PAUL	KENDRICK	
	
	
JABAR,	J.	

      [¶1]		Hearts	with	Haiti,	Inc.,	and	Michael	Geilenfeld	(collectively	“HWH”)	

filed	 a	 multicount	 complaint	 alleging	 defamation,	 false	 light,	 tortious	

interference	 with	 advantageous	 business	 relationships,	 and	 intentional	

infliction	of	emotional	distress	by	Paul	Kendrick.		Kendrick	subsequently	filed	

a	special	motion	to	dismiss	pursuant	to	Maine’s	anti-strategic	lawsuit	against	

public	 participation	 statute	 (anti-SLAPP	 statute),	 14	 M.R.S.	 §	 556	 (2018).		

Kendrick	also	moved	for	partial	judgment	on	the	pleadings	based	on	the	statute	

of	limitations,	14	M.R.S.	§	753	(2018),	and	for	dismissal	of	HWH’s	intentional	

infliction	 of	 emotional	 distress	 claim	 on	 the	 ground	 that	 the	 claim	 was	

subsumed	 by	 HWH’s	 defamation	 claim.	 	 See	 M.R.	 Civ.	 P.	 12(c).	 	 The	 Superior	

Court	 (Cumberland	 County,	 Mills,	 J.)	 denied	 Kendrick’s	 special	 motion	 to	
2	

dismiss	and	his	motion	for	partial	judgment	based	on	the	statute	of	limitations,	

but	 it	 granted	 in	 part	 his	 motion	 for	 partial	 judgment	 by	 dismissing	 HWH’s	

intentional	infliction	of	emotional	distress	claim.			

      [¶2]		Kendrick	appeals	from	the	court’s	order	denying	his	special	motion	

to	 dismiss	 pursuant	 to	 the	 anti-SLAPP	 statute	 and	 the	 portion	 of	 the	 court’s	

order	denying	his	motion	for	partial	judgment	on	the	pleadings	based	on	the	

statute	of	limitations.		HWH	cross-appeals	from	the	portion	of	the	court’s	order	

dismissing	 HWH’s	 claim	 for	 intentional	 infliction	 of	 emotional	 distress.		

Because	we	hold	that	Kendrick’s	appeal	and	HWH’s	cross-appeal	of	the	court’s	

order	on	the	motion	for	partial	judgment	on	the	pleadings	are	interlocutory,	we	

address	 only	 the	 court’s	 denial	 of	 Kendrick’s	 special	 motion	 to	 dismiss.		

Discerning	no	error,	we	affirm	that	part	of	the	court’s	judgment	and	remand	the	

matter	to	the	trial	court.	

                                  I.		BACKGROUND	

      [¶3]	 	 The	 following	 facts	 are	 derived	 from	 HWH’s	 complaint	 and	

Kendrick’s	 affidavit	 filed	 in	 conjunction	 with	 his	 special	 motion	 to	 dismiss	

pursuant	 to	 the	 anti-SLAPP	 statute.	 	 See	 Nader	 v.	 Me.	 Democratic	 Party	

(Nader	II),	 2013	 ME	 51,	 ¶	2,	 66	 A.3d	 571;	 Nader	 v.	 Me.	 Democratic	 Party	

(Nader	I),	2012	ME	57,	¶	33,	41	A.3d	551.	
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       [¶4]		Michael	Geilenfeld,	a	United	States	citizen,	founded	the	St.	Joseph’s	

Home	 for	 Boys	 in	 Haiti,	 which	 provides	 residence	 and	 schooling	 to	

disadvantaged	 children.	 	 Hearts	 with	 Haiti,	 Inc.,	 is	 a	 nonprofit	 organization	

registered	in	North	Carolina	and	supports	St.	Joseph’s	Home	for	Boys	through	

fundraising	and	mission	trips.		Paul	Kendrick	is	a	resident	of	Freeport,	Maine,	

who	describes	himself	as	a	volunteer	and	advocate	who	acts	for	the	protection	

of	children	by	bringing	those	whom	he	alleges	are	perpetrators	of	sexual	abuse	

to	justice.			

       [¶5]		Kendrick	alleges	that	he	received	information	that	Geilenfeld	was	

sexually	 abusing	 children	 being	 cared	 for	 at	 St.	 Joseph’s	 in	 Haiti.	 	 Kendrick	

claims	 that	 he	 reached	 out	 to	 HWH	 with	 this	 information	 but	 that	 HWH	

provided	no	assistance	in	addressing	these	allegations.		As	a	result,	Kendrick	

began	to	publicly	speak	out	about	the	alleged	sexual	abuse	for	the	purpose	of	

raising	 public	 awareness	 to	 pressure	 law	 enforcement	 agencies	 into	 an	

investigation.		Over	the	next	several	years,	Kendrick	continuously	contacted	the	

donors	 of	 both	 HWH	 and	 St.	 Joseph’s	 with	 allegations	 that	 Geilenfeld	 was	

sexually	abusing	children	and	that	HWH	was	complicit	in	covering	up	the	abuse.			

       [¶6]	 	 In	 February	 2013,	 HWH	 filed	 a	 complaint	 in	 the	 United	 States	

District	 Court	 for	 the	 District	 of	 Maine	 alleging	 that	 Kendrick’s	 actions	 have	
4	

resulted	in	severe	financial	loss	as	a	result	of	decreased	support	and	irreparable	

harm	to	its	reputation.		After	two	years	of	litigation,	a	federal	jury	found	in	favor	

of	HWH,	awarding	a	total	of	$14.5	million	in	damages.		Kendrick	appealed	to	the	

United	States	Court	of	Appeals	for	the	First	Circuit,	but	while	the	appeal	was	

pending	 it	 was	 discovered	 that	 the	 federal	 court	 lacked	 subject	 matter	

jurisdiction	from	the	outset,	and	the	case	was	ultimately	dismissed.		See	Hearts	

with	Haiti,	Inc.	v.	Kendrick,	192	F.	Supp.	3d	181,	184,	208	(D.	Me.	2016).			

      [¶7]	 	 In	 August	 2016,	 HWH	 filed	 an	 almost	 identical	 complaint	 in	 the	

Maine	 Superior	 Court	 (Cumberland	 County).	 	 In	 response,	 Kendrick	 filed	 a	

motion	for	partial	judgment	on	the	pleading,	arguing	that	HWH’s	complaint	was	

barred	 by	 the	 applicable	 statute	 of	 limitations	 and	 that	 HWH’s	 claim	 for	

intentional	 infliction	 of	 emotional	 distress	 was	 subsumed	 by	 its	 defamation	

claim.	 	 A	 stay	 was	 granted	 pending	 the	 outcome	 of	 HWH’s	 appeal	 of	 the	

dismissal	in	the	federal	case,	which	was	ultimately	affirmed.		See	Hearts	with	

Haiti,	Inc.	v.	Kendrick,	856	F.3d	1,	4	(1st	Cir.	2017).		Following	the	First	Circuit’s	

affirmance,	Kendrick	filed	a	special	motion	to	dismiss	HWH’s	complaint	in	the	

Superior	Court	pursuant	to	Maine’s	anti-SLAPP	statute,	alleging	that	his	activity	

was	protected	by	the	First	Amendment.		The	court	denied	Kendrick’s	special	

motion	to	dismiss	and	his	motion	for	partial	judgment	based	on	the	statute	of	
                                                                                                             5	

limitations,	 but	 it	 partially	 granted	 his	 motion	 for	 partial	 judgment	 by	

dismissing	HWH’s	intentional	infliction	of	emotional	distress	claim.		Kendrick	

timely	 appealed	 the	 denials,	 and	 HWH	 cross-appealed	 the	 dismissal	 of	 its	

emotional	distress	claim.		See	14	M.R.S.	§	1851	(2018);	M.R.	App.	P.	2B(c)(1),	

2C(a)(2).			

                                            II.		DISCUSSION	

A.	      Kendrick’s	Special	Motion	to	Dismiss	

         [¶8]		Kendrick	first	appeals	from	the	court’s	denial	of	his	special	motion	

to	dismiss,	arguing	that	the	court	erred	by	finding	that	the	activity	alleged	in	

HWH’s	complaint	is	not	protected	petitioning	activity.1		“We	review	the	denial	

of	 an	 anti-SLAPP	 motion	 de	 novo.”	 	 See	 Gaudette	 v.	 Mainely	 Media,	 LLC	

(Gaudette	II),	2017	ME	87,	¶	10,	160	A.3d	539.			

         [¶9]		A	“Strategic	Lawsuit	Against	Public	Participation	(SLAPP)	refers	to	

litigation	instituted	not	to	redress	legitimate	wrongs,	but	instead	to	dissuade	or	

punish	the	defendant’s	First	Amendment	exercise	of	rights	through	the	delay,	


     Although	Kendrick’s	appeal	from	the	court’s	denial	of	his	special	motion	to	dismiss	is	
   1		

interlocutory,	we	have	consistently	allowed	such	appeals	“because	a	failure	to	grant	review	
of	these	decisions	at	this	stage	would	impose	additional	litigation	costs	on	defendants,	the	
very	harm	the	statute	seeks	to	avoid,	and	would	result	in	a	loss	of	defendants’	substantial	
rights.”	 	 Schelling	 v.	 Lindell,	 2008	 ME	 59,	 ¶	 8,	 942	 A.2d	 1226;	 see	 also	 Morse	 Bros.,	 Inc.	 v.	
Webster,	2001	ME	70,	¶	15,	772	A.2d	842	(“Precluding	the	moving	party	from	appealing	a	
decision	on	the	motion	would	result	in	continued	litigation,	which	is	the	precise	harm	that	
the	statute	seeks	to	prevent.”).			
6	

distraction,	 and	 financial	 burden	 of	 defending	 the	 suit.”	 	 Gaudette	 v.	 Davis	

(Gaudette	I),	2017	ME	86,	¶	4,	160	A.3d	1190	(quotation	marks	omitted);	see	

also	Morse	Bros.,	Inc.	v.	Webster,	2001	ME	70,	¶	10,	772	A.2d	842.		To	combat	

such	 lawsuits,	 Maine	 enacted	 its	 anti-SLAPP	 statute,	 14	 M.R.S.	 §	 556,	 which	

“purports	to	provide	a	means	for	the	swift	dismissal	of	such	lawsuits	early	in	

the	 litigation	 as	 a	 safeguard	 on	 the	 defendant’s	 First	 Amendment	 right	 to	

petition.”	 	 Gaudette	 I,	 2017	 ME	 86,	 ¶	 4,	 160	 A.3d	 1190.	 	 In	 relevant	 part,	 the	

anti-SLAPP	statute	provides	that		

     [w]hen	a	moving	party	asserts	that	the	civil	claims,	counterclaims	
     or	cross	claims	against	the	moving	party	are	based	on	the	moving	
     party’s	 exercise	 of	 the	 moving	 party’s	 right	 of	 petition	 under	 the	
     Constitution	of	the	United	States	or	the	Constitution	of	Maine,	the	
     moving	party	may	bring	a	special	motion	to	dismiss.	.	.	.		The	court	
     shall	grant	the	special	motion,	unless	the	party	against	whom	the	
     special	motion	is	made	shows	that	the	moving	party’s	exercise	of	
     its	right	of	petition	was	devoid	of	any	reasonable	factual	support	or	
     any	arguable	basis	in	law	and	that	the	moving	party’s	acts	caused	
     actual	injury	to	the	responding	party.		In	making	its	determination,	
     the	court	shall	consider	the	pleading	and	supporting	and	opposing	
     affidavits	 stating	 the	 facts	 upon	 which	 the	 liability	 or	 defense	 is	
     based.	
             	
14	M.R.S.	§	556.	

       [¶10]	 	 The	 application	 of	 the	 anti-SLAPP	 statute	 results	 in	 an	 inherent	

tension	between	the	coexisting	constitutional	right	to	freedom	of	speech	and	

the	 right	 to	 access	 the	 courts	 to	 seek	 redress	 for	 claimed	 injuries.	 	 See	
                                                                                      7	

Gaudette	I,	2017	ME	86,	¶¶	6,	15,	160	A.3d	1190.		Accordingly,	in	addressing	a	

special	 motion	 to	 dismiss,	 the	 reviewing	 court	 must	 be	 careful	 to	 recognize	

these	 competing	 rights	 and	 work	 to	 achieve	 an	 appropriate	 balance.	 	 See	

Nader	I,	2012	ME	57,	¶¶	21-22,	41	A.3d	551.		In	an	effort	to	achieve	this	balance,	

we	 require	 that	 the	 reviewing	 court	 use	 a	 three-step	 burden-shifting	

procedure.		See	Gaudette	I,	2017	ME	86,	¶¶	16-22,	160	A.3d	1190.		

      [¶11]		At	the	first	step,	“the	moving	party	(usually	the	defendant)	must	

demonstrate,	 as	 a	 matter	 of	 law,	 that	 the	 anti-SLAPP	 statute	 applies	 to	 the	

conduct	that	is	the	subject	of	the	plaintiff’s	complaint	by	establishing	that	the	

suit	 was	 based	 on	 some	 activity	 that	 would	 qualify	 as	 an	 exercise	 of	 the	

defendant’s	First	Amendment	right	to	petition	the	government."		Desjardins	v.	

Reynolds,	2017	ME	99,	¶	8,	162	A.3d	228	(footnote	omitted)	(quotation	marks	

omitted).		If	the	moving	party	fails	to	meet	this	burden,	then	the	special	motion	

to	dismiss	must	be	denied.		See	Gaudette	I,	2017	ME	86,	¶	16,	160	A.3d	1190.		

Here,	the	court	found	that	Kendrick	failed	to	meet	his	burden	at	the	first	step,	

and	it	properly	denied	his	special	motion	to	dismiss.			

      [¶12]	 	 Pursuant	 to	 the	 anti-SLAPP	 statute,	 petitioning	 activity	 includes	

“any	 written	 or	 oral	 statement	 made	 before	 or	 submitted	 to	 a	 legislative,	

executive	or	judicial	body,	or	any	other	governmental	proceeding.”		14	M.R.S.	
8	

§	556;	see	Nader	II,	2013	ME	51,	¶	16,	66	A.3d	571.		“This	definition	is	informed	

by	 the	 First	 Amendment,”	 and	 therefore,	 “a	 petition	 conveys	 the	 special	

concerns	of	its	author	to	the	government	and,	in	its	usual	form,	requests	action	

by	 the	 government	 to	 address	 those	 concerns.”	 	 Nader	 II,	 2013	 ME	 51,	 ¶	 16,	

66	A.3d	571	(quotation	marks	omitted).	

      [¶13]	 	 HWH’s	 complaint	 alleges	 a	 string	 of	 conduct	 and	 statements	 by	

Kendrick	that	were	specifically	aimed	at	HWH’s	benefactors	and	various	other	

third	 parties,	 not	 governmental	 entities.	 	 The	 statements	 generally	 urge	

benefactors	not	to	donate	to	HWH	and	pressure	third	parties	not	to	do	business	

with	 HWH.	 	 Few	 of	 the	 statements	 include	 any	 call	 to	 action;	 rather,	 the	

statements	 include	 multiple	 threatening	 or	 derogatory	 messages.	 	 Such	

statements	 are	 fundamentally	 different	 from	 those	 that	 we	 have	 previously	

held	to	be	protected	by	the	anti-SLAPP	statute.		See,	e.g.,	Gaudette	I,	2017	ME	

86,	¶¶	2,	23,	160	A.3d	1190	(statements	about	sexual	abuse	by	a	police	officer	

made	 to	 a	 local	 newspaper	 and	 read	 aloud	 at	 a	 public	 forum);	 Schelling	 v.	

Lindell,	 2008	 ME	 59,	 ¶¶	 3,	 13,	 942	A.2d	 1226	 (letter	 submitted	 to	 local	

newspaper);	Maietta	Constr.,	Inc.	v.	Wainwright,	2004	ME	53,	¶	7,	847	A.2d	1169	

(letters	 addressed	 to	 the	 city	 council	 and	 mayor,	 and	 statements	 made	 to	

newspapers);	see	also	Morse	Bros.,	2001	ME	70,	¶	10,	772	A.2d	842	(recognizing	
                                                                                      9	

that	“[t]he	typical	mischief	that	the	anti-SLAPP	legislation	intended	to	remedy	

was	lawsuits	directed	at	individual	citizens	of	modest	means	for	speaking	out	

publicly	against	development	projects”	(quotation	marks	omitted)).			

      [¶14]	 	 While	 the	 court	 did	 acknowledge	 that	 some	 of	 Kendrick’s	

statements	could	be	considered	petitioning	activities,	it	correctly	determined	

that	a	substantial	majority	of	his	statements	and	conduct	are	not.		The	purpose	

of	the	anti-SLAPP	statute	is	to	protect	against	meritless	claims	brought	to	delay,	

distract,	and	punish	activists	for	speaking	out.		See	id.	(“Because	winning	is	not	

a	 SLAPP	 plaintiff’s	 primary	 motivation,	 defendants’	 traditional	 safeguards	

against	 meritless	 actions[]	 (suits	 for	 malicious	 prosecution	 and	 abuse	 of	

process,	requests	for	sanctions)	are	inadequate	to	counter	SLAPPs.”	(quotation	

marks	omitted)).		Thus,	the	statute	seeks	to	protect	those	exercising	their	First	

Amendment	rights	from	retaliatory	lawsuits.		Id.		But	where	a	lawsuit	alleges	a	

string	 of	 tortious	 and	 defamatory	 conduct,	 only	 a	 small	 portion	 of	 which	

possibly	includes	petitioning	activity,	the	protections	of	the	anti-SLAPP	statute	

are	not	applicable.	

      [¶15]		Accordingly,	because	HWH’s	complaint	is	not	based	on	Kendrick’s	

petitioning	 activities	 within	 the	 meaning	 of	the	 anti-SLAPP	 statute,	 the	 court	

did	not	err	by	denying	Kendrick’s	special	motion	to	dismiss.	
10	

B.	   Kendrick’s	Motion	for	Partial	Judgment	

	     [¶16]	 	 Kendrick	 also	 appeals	 the	 court’s	 order	 denying	 his	 motion	 for	

partial	judgment	based	upon	the	statute	of	limitations,	and	HWH	cross-appeals	

the	court’s	order	dismissing	HWH’s	intentional	infliction	of	emotional	distress	

claim.		Neither	of	these	appeals	is	taken	from	a	final	judgment,	and	therefore,	

an	exception	to	the	final	judgment	rule	must	be	applicable	for	these	appeals	to	

be	cognizable.		See	Dep’t	of	Human	Servs.	v.	Poulin,	2002	ME	54,	¶	3,	794	A.2d	

639.		These	exceptions	include	(1)	the	death	knell	exception,	(2)	the	collateral	

order	 exception,	 and	 (3)	 the	 judicial	 economy	 exception.	 	 See	 Tornesello	 v.	

Tisdale,	 2008	 ME	 84,	 ¶	 12,	 948	 A.2d	 1244.	 	 None	 of	 these	 exceptions	 is	

applicable	here.	

	     [¶17]		For	either	the	death	knell	or	the	collateral	order	exception	to	be	

applicable,	a	party	must	suffer	an	irreparable	loss	of	rights	absent	immediate	

review.		U.S.	Dep’t	of	Agric.,	Rural	Hous.	Serv.	v.	Carter,	2002	ME	103,	¶¶	8,	12,	

799	 A.2d	 1232.	 	 Because	 Kendrick’s	 statute	 of	 limitation	 defense	 can	 be	

reviewed	on	an	appeal	from	a	final	judgment,	no	irreparable	loss	of	right	exists	

if	the	case	proceeds	to	trial.		See	Tornesello,	2008	ME	84,	¶	18,	948	A.2d	1244;	

Porazzo	v.	Karofsky,	1998	ME	182,	¶	5,	714	A.2d	826.		Likewise,	the	dismissal	of	

HWH’s	claim	for	intentional	infliction	of	emotional	distress	would	not	result	in	
                                                                                11	

irreparable	harm	or	“be	effectively	mooted	if	not	immediately	addressed,”	as	it	

could	also	be	reviewed	on	an	appeal	from	a	final	judgment.		See	State	v.	Me.	State	

Emps.	Ass’n,	482	A.2d	461,	464	(Me.	1984).	

      [¶18]		The	third	exception,	judicial	economy,	is	applicable	only	“in	those	

rare	cases	in	which	appellate	review	of	a	non-final	order	can	establish	a	final,	

or	practically	final,	disposition	of	the	entire	litigation.”		Carter,	2002	ME	103,	

¶	13,	 799	 A.2d	 1232	 (quotation	 marks	 omitted).	 	 Immediate	 review	 of	 the	

court’s	order	on	Kendrick’s	motion	for	partial	judgment	would	not	accomplish	

this	goal	of	finality	as	a	substantial	number	of	issues	would	remain	in	dispute.		

Further,	any	finality	that	immediate	review	could	provide	would	depend	on	the	

outcome	 of	 our	 decision,	 which	 “would	 eviscerate	 the	 final	 judgment	 rule	

because	we	would	have	to	decide	the	merits	in	order	to	determine	if	the	appeal	

was	properly	before	us.”		Carter,	2002	ME	103,	¶	13,	799	A.2d	1232.			

      [¶19]		Therefore,	because	no	applicable	exception	to	the	final	judgment	

rule	exists,	we	do	not	reach	the	merits	of	the	appeals	from	the	other	portions	of	

the	court’s	judgment.	

      The	entry	is:	
      	
                  Denial	 of	 Kendrick’s	 special	 motion	 to	 dismiss	
                  affirmed.		Remainder	of	the	appeal	dismissed	as	
                  interlocutory.		Remanded	to	the	Superior	Court	
12	

                            for	 further	 proceedings	 consistent	 with	 this	
                            opinion.			
	
	      	     	      	      	      	
	
F.	David	Walker,	IV,	Esq.,	Brent	A.	Singer,	Esq.	(orally),	and	Jonathan	P.	Hunter,	
Esq.,	Rudman	Winchell,	Bangor,	for	appellant	Paul	Kendrick	
	
Russell	B.	Pierce,	Jr.,	Esq.	(orally),	and	David	A.	Goldman,	Esq.,	Norman,	Hanson	
&	 DeTroy,	 LLC,	 Portland,	 for	 cross-appellants	 Hearts	 with	 Haiti,	 Inc.,	 and	
Michael	Geilenfeld	
	
	
Cumberland	County	Superior	Court	docket	number	CV-2016-313	
FOR	CLERK	REFERENCE	ONLY	
