[¶ 1] Camden National Bank appeals from the Superior Court's (Knox County, Billings, J.) denial of its special motion to dismiss Ilene Weintraub's counterclaim for intentional infliction of emotional distress. See 14 M.R.S. § 556 (2015). On appeal, the Bank contends that the court erred in determining that section 556, Maine's "anti-SLAPP"
[¶ 2] The following facts, relevant to this appeal, are alleged in the parties' pleadings and are part of the motion record in this action. See Nader v. Me. Democratic Party (Nader II), 2013 ME 51, ¶ 2, 66 A.3d 571 (per curiam). Ilene Weintraub and her brother had two mortgage
[¶ 3] The Bank filed a complaint for foreclosure in July 2013,
[¶ 4] Three weeks later, the Bank filed a motion for leave to file a special motion to dismiss, coupled with a special motion to dismiss pursuant to 14 M.R.S. § 556. The Bank argued in its special motion to dismiss that Maine's anti-SLAPP statute protects its right to make an accurate report to the police of matters of public safety without suffering the burden of a lawsuit, and that Weintraub's counterclaims were based on its exercise of petitioning rights. See Lynch v. Christie, 815 F.Supp.2d 341, 346 n. 6 (D.Me.2011) (stating that "reports to [law enforcement] ... would clearly be covered [by the statute] as well"). Weintraub opposed the Bank's motion for leave to file on the ground that the special motion to dismiss was untimely.
[¶ 6] The court also addressed the merits of the motion, however, and concluded that Weintraub's affidavit alleged physical injury and missed work due to the Bank's actions, which were more than just claims of mental suffering and embarrassment that were not sufficient in Schelling v. Lindell, 2008 ME 59, ¶ 18, 942 A.2d 1226. It found that Weintraub's claims were of a kind for which damages may be established without mere guess or conjecture; that the statute did not require expert medical testimony on causation at this point, as the Bank contended; and that Weintraub's "affidavit [made] a sufficient connection between [the Bank's] actions and her injuries to meet her burden of establishing a prima facie case of actual injury." The Bank timely appealed to us.
A. Dismissal of Some But Not All Counts
[¶ 7] The Bank argues that the trial court erred when it held that "selective dismissal of only certain claims" was unavailable as a matter of law under Maine's anti-SLAPP statute because the plain meaning of the statute indicates that it applies to any claims that seek to punish petitioning activity and does not require that all claims asserted in the complaint be directed at petitioning activity for the statute to apply. We review a trial court's ruling on a special motion to dismiss de novo. See Town of Madawaska v. Cayer, 2014 ME 121, ¶ 8, 103 A.3d 547. We review the interpretation of a statute de novo as a question of law. See Strout v. Cent. Me. Med. Ctr., 2014 ME 77, ¶ 10, 94 A.3d 786.
[¶ 8] We have adopted a two-step analysis for determining whether a special motion to dismiss should be granted.
Town of Madawaska, 2014 ME 121, ¶ 9, 103 A.3d 547 (alterations in original) (citations omitted); see also 14 M.R.S. § 556. The anti-SLAPP statute allows a defendant, at an early stage, to file a special motion to dismiss claims that deter, chill, or punish the free exercise of the First Amendment right to petition the government
[¶ 9] "We have striven to interpret the anti-SLAPP statute in accordance with its plain language." Nader v. Me. Democratic Party (Nader I), 2012 ME 57, ¶ 18, 41 A.3d 551. Section 556 allows a party to seek dismissal of "the civil claims, counterclaims or cross claims" that are based on that party's right to petition the government. The phrase "the civil claims, counterclaims or cross claims" does not include a modifier, i.e. "all civil claims, counterclaims or cross claims," and it does not use the term "civil action." A plain reading of the statute indicates that the language does not denote an "all or nothing" proposition; rather, discrete claims within a single action may be individually dismissed pursuant to a special motion to dismiss, and only the claims specifically based on the moving party's petitioning activity are properly considered for dismissal. We conclude that the trial court erred in holding that the anti-SLAPP statute did not allow for selective dismissal of some but not all of Weintraub's counterclaims. However, given that the court reached the merits of the Bank's special motion, the Bank cannot be said to have been prejudiced, thus the error was harmless. See M.R. Civ. P. 61; Ireland v. Tardiff, 2014 ME 153, ¶ 10 n. 1, 107 A.3d 618.
B. Denial on the Merits
[¶ 10] The Bank also argues that the court erred in concluding that Weintraub met her burden of proving "actual injury" and "causation" through prima facie evidence. In the second step of the anti-SLAPP analysis, we review a court's determination that the nonmoving party met its prima facie burden of production de novo. See Nader II, 2013 ME 51, ¶ 12 n. 9, 66 A.3d 571 (per curiam).
[¶ 11] Section 556 provides that 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[
1. Actual Injury
[¶ 12] "Like other matters of statutory interpretation, the meaning of the phrase `actual injury' as used in 14
[¶ 13] Noting that the party opposing a special motion to dismiss must show a reasonably certain monetary valuation of the injury she has suffered, see id., the Bank contends that Weintraub's affidavit is devoid of legally cognizable evidence showing any reasonably definite figure for monetary damages resulting from her asserted harms. Weintraub stated in her affidavit that, as an immediate consequence of hearing the Bank's accusation and absorbing both its magnitude and utter falsity, her blood sugar numbers spiked dangerously; that blood chemistry changes gave her nausea, which in turn triggered such a violent cough that she could not work; and that she was able to resume work after a few weeks, but even with an increase in her insulin dosage, it took nearly a year before her blood sugar levels returned to where they were before she received the call from the Rockport Police Department. The court concluded that Weintraub's affidavit alleged physical injury and missed work due to the Bank's actions, which "is more than claims of mental suffering and embarrassment that [we] found are insufficient in Schelling."
[¶ 14] Contrary to the Bank's contention, and unlike in Schelling, Weintraub did not allege "purely emotional or psychic harm" — she alleged loss of work and the need for increased medication caused by the Bank's activity. See Schelling, 2008 ME 59, ¶¶ 20-21, 25-27, 942 A.2d 1226. Although the catalyst for her degraded condition was emotional distress, development of a "violent cough" and blood sugar "spike" are identifiable physical ailments or actual physical injuries, and not purely minor emotional injuries. See id.; see also Lynch, 815 F.Supp.2d at 351. The statute does not require "an actuarial analysis of her damages," only an amount that is not "mere guess or conjecture." Schelling, 2008 ME 59, ¶¶ 17-18, 942 A.2d 1226 (quotation marks omitted). Given that it would be a simple matter to calculate the monetary loss of a few weeks of work
[¶ 15] The Bank also contends that the court erred in concluding that Weintraub met her burden to prove causation through prima facie evidence. Section 556 requires the nonmoving party to show that "the moving party's acts caused actual injury to the responding party" (emphasis added). Citing Maravell v. R.J. Grondin & Sons, 2007 ME 1, ¶ 11, 914 A.2d 709, the Bank argues, specifically,
[¶ 16] As noted, the burden of a prima facie showing is met when there is a presentation of "some evidence on every element of proof necessary to obtain the desired remedy." Nader I, 2012 ME 57, ¶ 34, 41 A.3d 551 (quotation marks omitted). Here, Weintraub alleged in her affidavit that the sudden stress of learning of the Bank's accusation caused the immediate consequence of dangerously spiking blood sugar levels, followed by nausea and a violent cough that prevented her from working. The court determined that Weintraub's affidavit made a sufficient connection between the Bank's actions and her injuries to meet her burden of establishing a prima facie case of actual injury. Cf. Daniels v. Narraguagus Bay Health Care Facility, 2012 ME 80, ¶ 21, 45 A.3d 722 ("Temporal proximity of an employer's awareness of protected activity and the alleged retaliatory action may serve as the causal link for purposes of a prima facie case."). It also stated that it was unpersuaded that the statute requires expert medical testimony on causation at this point in the proceeding.
[¶ 17] The cases cited by the Bank in support of its contention that the allegations concerning causation in Weintraub's affidavit were conclusory, unsupported, entirely speculative, and insufficient to meet her burden because they involve complex medical facts that can only be established by a medical expert are inapposite.
The entry is: