MAINE SUPREME JUDICIAL COURT                                        Reporter of Decisions
Decision: 2015 ME 42
Docket:   Kno-14-328
Argued:   April 8, 2015
Decided:  April 23, 2015

Panel:       SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and CLIFFORD, JJ.


                                GEORGE JENNINGS

                                          v.

                           CHRISTOPHER K. MACLEAN

MEAD, J.

         [¶1] George Jennings appeals from a summary judgment entered by the

Superior Court (Knox County, Horton, J.) in favor of Christopher K. MacLean, an

attorney practicing in Maine, on Jennings’s complaint alleging abuse of process.

Jennings asserts that after MacLean obtained a money judgment against him on

behalf of a client, MacLean improperly sent a letter and copies of documents

related to the judgment to an attorney handling an unrelated real estate closing in a

successful attempt to have Jennings’s share of the proceeds withheld. We affirm

the judgment.

                                 I. BACKGROUND

         [¶2] The relevant facts in the summary judgment record are undisputed.

Christopher MacLean was counsel to John Jennings, and then to his estate, in a suit

against John’s conservator and John’s brother George, who signed a surety bond
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for the conservator. The suit resulted in a $58,403.67 judgment against George

Jennings (hereinafter Jennings); we affirmed the judgment on direct appeal. Estate

of Jennings v. Cumming, 2013 ME 103, 82 A.3d 132. On behalf of his client,

MacLean obtained a writ of execution for the judgment amount plus interest and

fees, totaling $65,187.46, and later obtained a turnover and sale order for

Jennings’s Camden residence. Both documents were filed in the Knox County

Registry of Deeds.

      [¶3] In a transaction unrelated to John’s lawsuit, a limited liability company

(LLC) of which Jennings was a member sold a piece of commercial real estate in

Camden in August 2013. Two days before the closing, MacLean sent a letter to

Attorney Christopher Hardy, who was handling that closing. The letter, which

included copies of the writ and the turnover order, advised Hardy that Jennings

owed a judgment debt to his brother’s estate and stated:

      Any funds under your possession or control in which George Jennings
      has an interest should be segregated and placed in escrow pending a
      further turnover order by the court. Should you disburse the funds to
      George Jennings, thereby rend[er]ing them unavailable to the estate of
      John Jennings, you may be subject to liability for the same, and you
      may be deemed to be in breach of fiduciary obligations.

As a result of receiving the letter advising him that MacLean would seek a new

turnover order from the court concerning the LLC sale, Hardy withheld Jennings’s
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share of the proceeds from the sale pending either a release from John’s estate or

further court order.

      [¶4] Jennings filed a two-count complaint against MacLean in the Superior

Court, asserting that the letter and its attachments constituted abuse of process and

seeking punitive damages.      MacLean moved for summary judgment on the

grounds that (1) the letter did not constitute legal process, (2) it was sent for a

proper purpose, and (3) there was no showing that he had any ulterior motive in

sending it. The court granted the motion and entered summary judgment for

MacLean, awarding him his costs. This appeal followed.

                                 II. DISCUSSION

      [¶5]    We review the court’s grant of summary judgment de novo,

considering the evidence in the light most favorable to Jennings as the nonmoving

party to see whether “the record reflects that there is no genuine issue of material

fact and the movant is entitled to a judgment as a matter of law.” Angell v. Hallee,

2014 ME 72, ¶ 16, 92 A.3d 1154 (quotation marks omitted). MacLean, as the

defendant and moving party, had the initial burden to “establish that there is no

genuine dispute of fact and that the undisputed facts would entitle him to judgment

as a matter of law.”       Estate of Cabatit v. Canders, 2014 ME 133, ¶ 8,

105 A.3d 439. The burden then shifted to Jennings “to make out [a] prima facie

case [of abuse of process] and demonstrate that there are disputed facts.” Id.
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      [¶6] The court found that no genuine issue of material fact existed, a finding

that Jennings does not contest.     Accordingly, the dispositive issue is whether

Jennings made out a prima facie case of abuse of process sufficient to deny

MacLean summary judgment. There are two elements to a claim of abuse of

process: “(1) the use of process in a manner improper in the regular conduct of the

proceeding, and (2) the existence of an ulterior motive.” Nader v. Me. Democratic

Party, 2012 ME 57, ¶ 38, 41 A.3d 551 (quotation marks omitted). On this record,

Jennings failed to establish a prima facie case for either element.

      [¶7] First, MacLean did not employ any process, and did nothing improper,

when he sent the letter to Hardy. We have cited as examples of the improper use

of process for purposes of this tort the “misuse [of] individual legal procedures,

such as discovery, subpoenas, and attachment, after a lawsuit has been filed,” and

“the misuse of the procedures for obtaining a lien.” Advanced Const. Corp. v.

Pilecki, 2006 ME 84, ¶ 23, 901 A.2d 189 (citations omitted).

      [¶8]    Here, MacLean sent a letter to an attorney and attached as

substantiation for its contents copies of a court’s judgment and a turnover order

that had been completed and were a matter of record. Notwithstanding Jennings’s

argument to the contrary, MacLean’s letter did not involve any “process” because

it was not a legal procedure, even though it suggested that a second turnover

order—a procedure entirely proper in the regular course of attempting to collect on
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a judgment—would be sought from the court. Unlike a true instrument of legal

process, the letter did not purport to compel Hardy to perform any legal obligation,

and he was free to ignore it if he thought that MacLean was wrong concerning his

professional responsibilities.

      [¶9] Second, Jennings makes no showing that MacLean had any ulterior

motive in sending the letter, relying only on a conclusory assertion that “[a]n

improper motive can be imputed to MacLean by implication from the facts of the

abuse.” As the attorney for John’s estate, MacLean had a professional duty to

pursue lawful avenues to collect on the judgment that his client had obtained. He

did so in this case by an unremarkable method—sending an advisory letter to an

attorney conducting a real estate closing who might have control of assets that

could satisfy the judgment. There is nothing in the record to suggest that MacLean

had anything to gain from having Jennings’s share of the sale proceeds held in

escrow beyond securing another installment toward satisfying the judgment debt

that his client was owed.

      [¶10] Because Jennings failed to make out a prima facie case for either of

the elements of his claim for abuse of process, the court properly entered summary

judgment for MacLean.

      The entry is:

                      Judgment affirmed.
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On the briefs and at oral argument:

        David Glasser, Esq., Camden, for appellant George Jennings

        Joseph W. Baiungo, Esq., Belfast, for appellee Christopher K.
        MacLean


Knox County Superior Court docket number CV-2013-31
FOR CLERK REFERENCE ONLY
