MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision: 2014 ME 154
Docket:   Yor-14-124
Argued:   December 9, 2014
Decided:  December 31, 2014

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



                                  ROBERT M.A. NADEAU

                                                  v.

                                   LYNNANN FRYDRYCH

PER CURIAM

         [¶1] Robert M.A. Nadeau appeals from a judgment of the District Court

(York, Cantara, J.) dismissing his complaint for protection from harassment

against Lynnann Frydrych. The judgment was entered after a non-testimonial

hearing.

         [¶2] Nadeau argues that the court erred by determining that he failed to

allege three or more acts of harassment pursuant to 5 M.R.S. § 4651(2)(A) (2014)

or, alternatively, by failing to consider the alleged conduct as harassment by a

single act or course of conduct constituting a violation of Maine’s stalking statute,

5 M.R.S. § 4651(2)(C) (2014); 17-A M.R.S § 210-A (2014).1                             Nadeau also

contends that, because his complaint was not frivolous, the court erred or abused

   1
      Nadeau’s complaint stated that he was not seeking relief on a stalking theory. Thus, the stalking
issue is not preserved for appeal, and we do not address it further. See Berg v. Bragdon, 1997 ME 129,
¶ 9, 695 A.2d 1212 (“[I]ssues raised for the first time on appeal are generally unpreserved.”).
2

its discretion by awarding Frydrych attorney fees and costs, and that the fees as

assessed were unreasonable. Reviewing the legal sufficiency of the dismissed

complaint de novo and in the light most favorable to Nadeau, see Ramsey v. Baxter

Title Co., 2012 ME 113, ¶ 6, 54 A.3d 710, we conclude that Nadeau alleged

sufficient facts to entitle him to seek relief pursuant to section 4651(2)(A).

Accordingly, we vacate the judgment and remand for consideration on the merits.

                                        I. CASE HISTORY

        [¶3] On December 23, 2013, Nadeau filed a complaint for protection from

harassment against Frydrych in the District Court pursuant to 5 M.R.S. § 4652

(2014). In a twenty-three-page attachment to the complaint, Nadeau alleged that

Frydrych had engaged in several incidents of harassment against him since the end

of their personal relationship. On February 12, 2014, Frydrych filed a motion to

dismiss Nadeau’s complaint pursuant to M.R. Civ. P. 12(b)(6), asserting that

Nadeau failed to state a claim of harassment and did not attach a copy of a notice

to cease harassment, as required by 17-A M.R.S. § 506-A (2014) and 5 M.R.S.

§ 4653(1)(B) (2014).2 Frydrych’s motion also sought attorney fees on the basis


    2
      Except in narrow circumstances, a plaintiff seeking a protection from harassment order based upon a
“[t]hree or more acts” theory must file with the court “a copy of a notice to stop harassing the plaintiff
issued to the defendant pursuant to [17-A M.R.S. § 506-A(1)(A)(1)(a) (2014)] or a statement of good
cause why such a notice was not sought or obtained.” 5 M.R.S. § 4653(1)(B) (2014). The notice
requirement was added to the protection from harassment statute in 2011, see P.L. 2011, ch. 559, § C-3
(effective Aug. 30, 2012) (codified at 5 M.R.S. § 4653(1)(B) (2014)), replacing a more basic requirement
that the plaintiff include in the complaint an affidavit stating that “[e]ither the plaintiff has or has not
                                                                                                    3

that the complaint was frivolous and contained unwarranted personal attacks on

Frydrych regarding her character and the history of the relationship between the

parties.

       [¶4] The court held a hearing on the motion on March 3, 2014. Through a

dismissal order and subsequent clarification order, the court dismissed the

complaint with prejudice, concluding that Nadeau had not sufficiently alleged

harassment as defined by 5 M.R.S. § 4651(2)(A). In an accompanying order, the

court awarded Frydrych $7,257.50 in attorney fees and costs pursuant to 5 M.R.S.

§ 4655(1-A) (2014) and the court’s inherent authority. Nadeau filed this timely

appeal pursuant to M.R. App. 2(b)(3) and 5 M.R.S. § 4658(1) (2014).

                                   II. LEGAL ANALYSIS

       [¶5] “In reviewing a trial court’s decision on a motion to dismiss pursuant

to M.R. Civ. P. 12(b)(6), we view the facts alleged in the complaint as if they were

admitted.” Ramsey, 2012 ME 113, ¶ 2, 54 A.3d 710. We review the legal

sufficiency of the complaint de novo and view the complaint “in the light most

favorable to the plaintiff to determine whether it sets forth elements of a cause of


contacted any law enforcement officials concerning the alleged harassment,” P.L. 2011, ch. 559, § C-4
(effective Aug. 30, 2012) (formerly codified at 5 M.R.S. § 4654(2)(A)(2) (2011)).

   The court denied Nadeau’s request for a temporary order for protection from harassment, determining
that Nadeau failed to attach a copy of a notice to cease harassment with the complaint pursuant to
17-A M.R.S. § 506-A (2014) and 5 M.R.S. § 4653(1)(B) or otherwise show good cause for not seeking or
obtaining such a notice. The court may address on remand the effect of the missing cease harassment
order on the complaint for a final order of protection from harassment.
4

action or alleges facts that would entitle the plaintiff to relief pursuant to some

legal theory.” McCormick v. Crane, 2012 ME 20, ¶ 5, 37 A.3d 295; see also

Saunders v. Tisher, 2006 ME 94, ¶ 8, 902 A.2d 830 (allegations in the complaint

are evaluated to determine if there is “any cause of action that may reasonably be

inferred from the complaint”). The notice pleading standard, see M.R. Civ. P. 8(a),

requires only that the complaint “give fair notice of the cause of action by

providing a short and plain statement of the claim showing that the pleader is

entitled to relief, and then make a demand for that relief.” Howe v. MMG Ins. Co.,

2014 ME 78, ¶ 9, 95 A.3d 79.

      [¶6] Legally actionable harassment can comprise either “[t]hree or more

acts of intimidation, confrontation, physical force or the threat of physical force . . .

that are made with the intention of causing fear, intimidation or damage to personal

property and that do in fact cause fear, intimidation or damage to personal

property,” 5 M.R.S. § 4651(2)(A), or a “single act or course of conduct

constituting a violation of” listed criminal statutes, including Maine’s stalking

statute, 5 M.R.S § 4651(2)(C); see 17-A M.R.S. § 210-A.

      [¶7] A plaintiff seeking protection from harassment can meet his or her

burden to overcome a Rule 12(b)(6) motion by alleging in the complaint that the

defendant committed three or more acts of intentional intimidation, including

non-physical acts, that the plaintiff has interpreted as directly threatening. See
                                                                                   5

Staples v. Michaud, 2003 ME 133, ¶¶ 3, 10-12, 836 A.2d 1288; see also Jefts v.

Dennis, 2007 ME 129, ¶ 7-8, 931 A.2d 1055 (holding that “repeated email

messages and embarrassing facsimile messages” sent to an ex-spouse’s office may

be sufficient to warrant an order of protection from harassment).

      [¶8] Viewing the complaint in the light most favorable to Nadeau, the

allegations in the complaint are, as a matter of law, sufficient to overcome a

Rule 12(b)(6) motion because they create a reasonable inference of three or more

acts of harassment. See McCormick, 2012 ME 20, ¶ 5, 37 A.3d 295; Saunders,

2006 ME 94, ¶ 8, 902 A.2d 830. In reaching this conclusion, we consider only the

allegations in the complaint, which we accept as true; we do not address the

credibility, or the provability, of Nadeau’s allegations. Such questions are reserved

for the fact-finder and can be addressed only following a trial on the merits of the

complaint.

      [¶9]   Based on a de novo review of the complaint and viewing the

allegations in the light most favorable to Nadeau, the allegations in the complaint

are sufficient to overcome a 12(b)(6) motion to dismiss. Because the court’s award

of attorney fees to Frydrych rested at least in part on a conclusion that Nadeau’s

complaint was without legal basis, the award must also be vacated.
6

        The entry is:

                           Judgment and order awarding attorney fees
                           vacated. Remanded for further proceedings
                           consistent with this opinion.



On the briefs and at oral argument:

        Robert M.A. Nadeau, appellant pro se

        Tyler J. Smith, Esq., Libby O’Brien Kingsley & Champion,
        LLC, Kennebunk, for appellee Lynnann Frydrych



York District Court docket number PA-2013-185
FOR CLERK REFERENCE ONLY
