USCA1 Opinion

United States Court of Appeals

For the First Circuit
____________________

No. 94-1601
FRANK SIMON, II,

Plaintiff, Appellee,

v.

GERSHON NAVON,

Defendant, Appellant.

____________________

No. 94-1602
FRANK SIMON, II,

Plaintiff, Appellee,

v.

JONATHAN NAVON,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Morton A. Brody, U.S. District Judge]

___________________
____________________

Before

Selya, Circuit Judge,

_____________
Coffin, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________

James D. Poliquin for appellants.

_________________
C. Donald Briggs, III, with whom Joseph M. Cloutier was on
_____________________
__________________

brief for appellee.

____________________

November 27, 1995

____________________

COFFIN, Senior Circuit Judge.

_____________________

failed business relationship between

This case arises

out of

the plaintiff, Frank Simon,

and

defendants, Gershon and Jonathan Navon,

officers

in Maine Coast Trading

the sole owners and

Company, a fish brokerage firm.

A jury found the Navons liable for breach of contract, defamation

and

abuse

of

process,

and awarded

Simon

million in compensatory and punitive damages.

granted defendants' motion

remit $1.2 million,

and

caselaw,

we affirm

claims, but reverse the

did.

The

court's

agreed to

defendants now

After a careful review

the

$3.3

The district court

for new trial unless Simon

which he

claiming a host of errors.

approximately

rulings on

appeal,

of the record

the

judgment on abuse of process

contract

and remand

for a new trial on defamation.

I. Background
__________

At

this juncture, we shall

provide only a

brief sketch of

the

facts

underlying

the

case,

elaborating

in

subsequent

sections

of the opinion as necessary to inform our discussion of

specific

issues.

Trading"

or "MCTC")

Maine

Coast

Trading

was formed in

Navon approached Simon

Company ("Maine

November 1990

about creating a company

Coast

after Gershon

to broker fish.

Navon provided most of the capital

to form the business, and

originally

the company's equity.

who had

was

received 60 percent of

considerable experience in the

president

Wiscasset,

of the

Maine.

company and

A smaller

ran

Simon,

fish brokerage business,

its business

office at Gershon

-2-

he

office in

Navon's home in

Connecticut primarily handled checking account and line of credit

matters.

Jonathan Navon, Gershon's son, was treasurer.

Maine Coast Trading

agreements, one with

entered into two significant

a company

in which Gershon

brokerage

Navon was

the

sole shareholder (Mariculture Products, Ltd., "Mariculture"), and

one

with

company

(Aquacorporacion

in

which

Internacional

Simon

had

Sociedad

lesser

interest

Anonima,

"ACI").

Although Maine Coast Trading apparently operated smoothly through

1991, the Navons and Simon early in 1992 were discussing

wind down the

company's affairs.

signed a letter

between

them

On March 24, 1992, the parties

agreement that addressed issues

in

the

ways to

preceding months,

that had arisen

outlining

the

future

handling of MCTC business.

The

agreement did

not

resolve matters,

parties' relationship grew even

however, and

more acrimonious.

the

Disagreements

arose over which vendors should be paid what amounts and how much

money was available

in the company's account at

Bank

The

in New

between April

York.

and June

ensuing events, most

of 1992

but whose

Israel Discount

of which occurred

sequence is

in some

cases disputed, included:

--Simon began holding Maine Coast Trading's receivables

in

Wiscasset,

provision

contrary

that he

to

send those

the

letter

agreement's

funds "directly

to IDB

with no delay";

--Jonathan

Navon

issued

check in

$36,000 as accumulated salary

check
for

to Mariculture,

approval

for these

letter agreement.

of

other company,

He did not seek Simon's

expenditures, as
No

amount

to himself, and a $9,000

Gershon Navon's

office rent and expenses.

the

required by

the

previous payments for such items

ever had been made;

-3-

--Simon opened
Bank

a checking

in Maine,

$68,000, and

deposited

account at

Camden National

accumulated receivables

immediately wired the entire

of

sum to ACI,

the company in which he had an interest.

few weeks, other
deposited

Over the next

receivables collected

in this

by Simon

account and

checks were

Bank

Maine

were

issued to

various vendors;

--Israel

Discount

froze

Coast Trading's

account at Simon's request;

--At a telephonic meeting of MCTC's board of directors,

convened by an attorney
voted to remove Simon
to replace

him.

in Portland, Maine, the Navons

as president and elected Gershon

Simon initially participated

in the

telephone call, but complained about lack of notice and

hung up before the vote;

--Several litigations were initiated: ACI filed a civil

action against
Maine;
by

Maine Coast

Trading in state

an involuntary petition

Simon as

Maine Coast
Navons)

sued

freezing

its

for bankruptcy, signed

ACI's representative,
Trading; Maine Coast
Israel Discount
account,

defendant, increasing the

and

court in

was filed

against

Trading (through the

Bank

in

later added

New York
Simon

for
as

damages request from $87,000

(the amount of funds in the account) to $30 million.

Simon filed this lawsuit in October 1992, alleging breach of

contract,

defamation,

emotional

distress,

malicious

prosecution.

judgment for

as a

district

as a matter of law

the

claim for

abuse of

with

court

infliction of

contract

granted

and

summary

interference claim, and

on the claims for negligent

of distress.

court recharacterized

Navons liable on each

contract,

interference

The

intentional infliction

evidence,

claim

tortious

intentional

defendants on the tortious

granted judgment

and

negligent and

the

process.

At

the close

of all

malicious prosecution

The jury

found both

of the three remaining claims -- breach of

defamation and abuse of process -- and awarded a total

-4-

of $2.3

million in compensatory damages and

punitive damages of

$1 million against Gershon and $36,000 against Jonathan.

In acting on defendants' post-judgment motions, the district

court

found the

excessive

$2.3 million

in compensatory

damages "clearly

and against the weight of the evidence," and ordered a

new trial if Simon failed to accept a remittitur of $1.2 million.

He

agreed to

followed.

each

the

They

of the

remittitur, and

this

appeal by

claim entitlement to judgment or a

substantive claims, as

well as

the

Navons

new trial on

on damages.

They

further argue that they are entitled to a new trial on all issues

based

on a

series

of circumstances

that

infected the

jury's

verdict with undue passion or prejudice.

We

address

each of

these

issues in

turn,

after briefly

considering the relevant standards of review.

II. Standard of Review

__________________

The district

for judgment

court rejected

post-trial motion

as a matter of law because they failed to make that

request at the close

to

the Navons'

of all evidence, thus forfeiting

such a determination.

the right

See Keisling v. Ser-Jobs for Progress,

___ ________
______________________

Inc., 19 F.3d 755, 758-59 (1st Cir. 1994); Della Grotta

____
____________

v. Rhode
_____

Island, 781 F.2d 343, 349 (1st Cir. 1986); Fed. R. Civ. P. 50(b).
______

Once

be

abandoned, a claim for judgment as

revived

resulting

on

in a

appeal except

manifest

Missouri Pac. R.R. Co.,

________________________

upon

miscarriage

684 F.2d

a matter of law may not

showing

of

537,

of plain

justice.

540 (8th

error

Shell
_____

Cir.

v.

1982);

-5-

Martinez Moll v. Levitt & Sons of Puerto Rico, Inc.,

______________
____________________________________

583 F.2d

565, 570 (1st Cir. 1978).

The court

did reach

the merits of

defendants' alternative

request for a new trial, which may be granted notwithstanding the

failure

to make a

matter of

law.

pre-deliberations request

for judgment

See Wells Real Estate v. Greater Lowell Bd. of

___ __________________
______________________

Realtors, 850 F.2d 803, 810 (1st Cir. 1988); Fed. R.

________

9A

C.A. Wright

2539,

at 362

as a

& A.

(1995).

Civ. P. 59;

Miller, Federal Practice and Procedure

________________________________

The

court

denied a

new

trial on

the

substantive claims, but, as noted earlier, granted a new trial on

damages contingent

on the remittitur.

the court's refusal to

review, however,

Defendants now challenge

further disturb the jury's verdict.

is extremely circumscribed; we

Our

may reverse the

court's decision only

for an

abuse of discretion.

Sanchez
_______

Puerto Rico Oil Co., 37 F.3d 712, 717 (1st Cir. 1994).
___________________

v.

With this

limitation in mind, we turn to appellant's claims of error.

III. Malicious Prosecution and Abuse of Process

__________________________________________

In

his

complaint, Simon

alleged

cause of

action

for

malicious prosecution based on the lawsuit filed by the Navons in

New York

in the name of Maine Coast Trading.

That action, first

brought against Israel Discount Bank to obtain release of $87,000

frozen in the company's

account, later was amended to

include a

claim against Simon seeking $30 million in damages and injunctive

relief.

court

and

Twice

during the

trial, the parties

displayed confusion about

and the

district

the malicious prosecution claim

its elements, and considered whether the claim would be more

-6-

aptly

characterized as one for a related tort, abuse of process.

Ultimately, over the defendants' objection, the court amended the

pleadings

to

substitute

prosecution count, and the

abuse

of process

for

the

jury returned a verdict for

malicious

Simon on

that claim.1

The Navons

argue that the district court's handling of this

issue

was erroneous

amendment

of

unfairly

in two

the pleadings

prejudicial because

assumption

that Simon

element of

malicious

litigation

had terminated

that Simon failed

would

respects.

First, they

after

close

the

their

be

as a matter

was

the

necessary

that the

challenged

Second,

they claim

his favor.2

of law to

based on

to prove

prosecution, namely,

in

of evidence

strategy was

unable

claim that

prove the elements

of

abuse of process.

We address only this

latter claim.

we must determine whether,

Preliminarily, however,

unlike other grounds asserted

in the

____________________

We

note

nomenclature between
process

that

some

claims

in criminal and civil

recognized,

"malicious

jurisdictions

distinguish

alleging malicious
cases.

prosecution"

Where

instigation

in

of

the distinction is

refers

to

criminal

proceedings

and "malicious

use of

proceedings" applies to civil cases.

process" or

See W. Page Keeton, et al.,

___

Prosser and Keeton on The Law of Torts

_________________________________________
1984);

"wrongful civil

120, at

892 (5th ed.

Note, "The Nature and Limitations of the Remedy Available

to the Victim of a Misuse of the Legal Process: The Tort of Abuse

of Process,"
there are

2 Val. U.L.

differences

Rev. 129, 130

between the

Restatement (2d) of Torts

_________________________

two

(1967).

To

causes of

the extent
action,

see
___

653, 674 (1977), they are irrelevant

to our discussion here.

2
Coast
the

It appears that that

Trading's bankruptcy.

action was stayed

because of Maine

So far as we can ascertain, neither

original complaint nor the amended complaint naming Simon is

a part of the record in this case.

-7-

post-trial motion for judgment as a matter of law, the issue

was

preserved

The

parties'

by timely

final

request

discussion

at the

with

close

the

of evidence.

court

on

the

malicious

prosecution claim occurred during a chambers conference after the

close

of

all the

evidence.

difference between claims for

The

conference, focusing

on the

malicious prosecution and abuse of

process, occupied seven pages of transcript.

The court concluded

the conference with the following statements:

I think

it's a very,

very thin argument,

frankly, on

abuse of process . . . . But I'm going to let this case

go to the jury because I'm
again if
jury

I can help it.

does with it subject

not going to try this

And then we'll
to a motion

case

see what the

for a judgment

N.O.V. after we see how they answer the interrogatories

on the case.

And you can take your objection.

Tr. at 835.

Counsel then promptly stated, "I object."

In its post-judgment opinion, the district court stated that

defense

counsel could

colloquy preserved

the

argument

by

discussion had

for judgment

not

reasonably have

the issue

for post-verdict review

defendants'

served as the

as a matter of

that

treating that

abuse

of process

believed that

new

chambers

functional equivalent of

a motion

dialogue as

nonetheless

The court

a de
__

that

but noted

the

law.

counsel

this

observed, however,

facto motion
_____

would be

relating to

unavailing because

the

evidence legally was sufficient to go to the jury.

Even

in the

requirement

process issue

of a

light of

our own

timely formal

stringent adherence

motion, we

was adequately preserved.

think the

to the

abuse of

The lengthy discussion

on

this

point,

taken

together

with

the

judge's

expressed

-8-

assumption that he

motion

for

statement to

would revisit the question in

judgment

notwithstanding

the attorney that

the

the event of a

verdict,

he could "take

and

his

[an] objection,"

could not but have led counsel to believe that what had been done

thus far

was

enough to

preserve

the issue

for

post-judgment

review.

Indeed,

the colloquy

in

chambers

was

the type

of

exchange that one would expect to follow a motion for judgment as

a matter of law on the abuse of process

claim.

Cf. Bayamon Thom

___ ____________

McAn, Inc. v. Miranda, 409 F.2d 968, 971-72 (1st Cir. 1969).3
__________
_______

In

these

sufficiency

circumstances,

of the

consideration.4

abuse

we

conclude

of process

We thus turn to

that

the

claim warrants

legal

appellate

the substantive inquiry, which

____________________

Bayamon Thom McAn

___________________

Keisling
________

and several

subsequent

v. Ser-Jobs for Progress, Inc., 19 F.3d

____________________________

see
___

755, 759 (1st

Cir.

1994); Della Grotta v.

____________

(1st

Cir. 1986); Beaumont v. Morgan, 427 F.2d 667, 670 (1st Cir.
________
______

1970), recognize
motion

Rhode Island, 781

____________

cases,

a limited exception

for judgment

as a matter

close of plaintiff's case -- must

the evidence.

F.2d 343, 349-50

to the requirement

of law

-- though

that a

made at the

be renewed at the close of all

The exception is permitted "in a

case combining .

. judicial assurance concerning

time

of

motion and

. .

brief and

following the motion. . . ."

The instant case
the

preservation of rights at the

inconsequential evidence

Bayamon Thom McAn, 409 F.2d at 972.

_________________

seems to us an even more

formal procedures for preserving

modest departure from

a claim for

judgment as a

matter of law.

4 Our decision in Martinez Moll

_____________
Rico, Inc., 583
__________
consider

568-70 (1st Cir.

appellant's sufficiency

with this
directed

F.2d 565,

result.
verdict

evidence,
evidence.

but

In that
on

to

Because the issue

at

the

question the
had never been

to

not inconsistent

case, the appellant had

the jury's verdict, we concluded

for

1978), refusing

argument, is

other grounds

had failed

v. Levitt & Sons of Puerto

________________________

close

moved for a
of all

sufficiency

the

of the

raised until after

that there was "no basis .

. .

treating the present case as one where there was substantial

compliance with the

that "the
[defendant]

court did

Rule."

Id. at 570.
___

nothing that could

We noted, in addition,
reasonably have

caused

to believe that all had been done that was necessary

-9-

is

governed by a de novo standard

__ ____

of review.

Gibson v. City of
______
_______

Cranston, 37 F.3d 731, 735 (1st Cir. 1994).

________

It

is

not

surprising

uncertain about how

New York litigation.

prosecution

that

the

court

to characterize Simon's

and parties

were

claim based on

the

The torts of abuse of process and malicious

frequently

are

confused

because

of

their

close

relationship, see, e.g., Lambert v. Breton, 127 Me. 510, 514, 144
___ ____ _______
______

A.

864 (1929); Board of Education of Farmingdale Union Free Sch.

_________________________________________________

Dist.
_____

400,

v. Farmingdale Classroom Teachers Ass'n, 38

______________________________________

343 N.E.2d

278, 280-81, 380

Note, "Abuse of Process,"

("Abuse");

Rev. 388

639-40 (1975);

13 Clev.-Mar. L. Rev. 163,

163 (1964)

Note, "Torts -- Abuse of Process Defined," 28 Ark. L.

(1974)

described

Note,

N.Y.S.2d 635,

N.Y.2d 397,

("Defined"),

as "one of

the most

and abuse

of

obscure torts

process

in the

has

been

law," see
___

"The Nature and Limitations of the Remedy Available to the

Victim of a

Misuse of the

Legal Process: The

Tort of Abuse

of

Process," 2 Val. U.L. Rev. 129, 129 (1967) ("Tort of Abuse").

To establish a claim for malicious prosecution, a party must

show

that

the

challenged

litigation

was

and that it

initiated

without

probable cause and

with malice,

terminated in

the

plaintiff's favor.

See, e.g., Nadeau v. State, 395 A.2d 107, 116

___ ____ ______
_____

(Me. 1978).

motive,

and

The two basic elements of abuse of process are a bad

the

use

collateral objective.

of

legal

process

for

an

improper,

See, e.g., id. at 117.

___ ____ ___

____________________

to preserve

the

issue for

review."

respects, this case is distinguishable.

-10-

Id.
___

In both

of

those

The

matter

difference

of

timing

appropriate cause

lawsuit

not

between the

and

of

two

scope:

action

often is

malicious

for

explained

prosecution

challenging the

as a

is

whole

the

of

-- i.e., asserting that the suit has no basis and should

have been

allegedly

brought

improper use

-- while

abuse

of individual

suit has been filed properly.

of process

covers

legal procedures

the

after a
_____

See Packard v. Central Maine Power

___ _______
___________________

Co., 477 A.2d 264, 267 (Me. 1984); Nadeau, 395 A.2d at 117; Wade,
___
______

J.,

"On Frivolous

Procedural

Litigation:

Sanctions,"

14

Hofstra

Typical abuse of process cases

as discovery, see
___

24,

A Study

of

L. Rev.

433,

450

and

(1986).

involve misuse of such procedures

Twyford v. Twyford, 63 Cal.

_______
_______

134 Cal. Rptr. 145,

Tort Liability

App. 3d 916, 923-

148-49 (1976); subpoenas,

see Board of
___ ________

Education of Farmingdale Union Free Sch. Dist., 38 N.Y.2d at 403______________________________________________

04,

343 N.E.2d at 283,

380 N.Y.S.2d at

642-43; and attachment,

see Saliem v. Glovsky and Fogg, 132 Me. 402, 404 172 A. 4 (1934).
___ ______
________________

The

courts

abuse tort often is

typically

timing, if

an

given a wider

will recognize

a plaintiff can show an

immediate purpose other than

and

such

berth, however, and

claim, regardless

of

improper use of process "for

that for which

intended," Restatement (2d) of Torts

__________________________

682,

it was designed

at 475 (1977).

See W.
___

Page Keeton, et

al., Prosser and Keeton on The Law of

___________________________________

Torts
_____

121, at 898 (5th

ed. 1984) (cases requiring an act after

process

has

issued

"probably

stand

only

for

the

narrower

proposition

that there must be an overt act and that bad purpose

-11-

alone is

malicious

explicitly

insufficient").

prosecution

This

and abuse

results in

of

an overlap

process:

threatened to file a baseless

between

a defendant

who

lawsuit solely for the

purpose of forcing the plaintiff's action in an unrelated matter,

and

then

did commence

suit, could

be

held liable

for either

tort.5

In such a case, the otherwise normal

a lawsuit

procedure of filing

is transformed into an act of abuse by the coincidence

of the threat.6

Recognizing these

into

two approaches

puts the

confusion below

perspective, but we need not dwell on their relative merits

and applicability here because not even the broader view provides

Simon with a basis

for recovery.

the Navons' amendment of

as a

defendant.

Even

the New York litigation to

if

Maine

diversity case, would recognize

____________________

Simon's claim is premised

law, which

on

include him

applies

to

an abuse of process claim

this

based

5
merged

Interestingly, the
the two torts

Georgia

into a new

courts and

legislature have

abusive litigation

Yost v. Torok, 256 Ga. 92, 95-96, 344 S.E.2d 414,

____
_____
Block
_____

v. Brown,
_____

199

Ga. App.

127,

130, 404

tort.

See
___

417-18 (1986);
S.E.2d

288, 291

(1991).

When abuse of process

initiation of the lawsuit,

typically
legal

is based on

the requirement of an "act"

would be satisfied

process

in

conduct subsequent to

an improper

by showing

use of

the individual

manner.

See,
___

e.g., Board of
____ _________

Education of Farmingdale Union Free Sch. Dist.

_________________________________________________
Classroom Teachers Ass'n,
_________________________
N.Y.S.2d 635 (1975)

of abuse

38 N.Y.2d

(subpoenas issued

v. Farmingdale
___________

397, 343

N.E.2d 278,

380

for 87

teachers for

the

same day, paralyzing normal operations of the schools); Saliem v.

______
Glovsky and Fogg,
__________________

132 Me.

402,

attachment).

-12-

172

A.

4 (1934)

(excessive

on the instigation of

proves

the

two

ulterior motive

a lawsuit,7 Simon

requisite

and an act
___

elements of

of abuse.

can prevail only if

the

cause

he

of

action:

See Nadeau, 395

___ ______

A.2d at

116; Saliem, 132 Me. at 405.

______

Filing

therefore

of

a lawsuit

may not

abusive act,

on

even if

is a

its own

"regular"

fulfill

the decision

wrongful motive, purpose or

see also, e.g., Vahlsing

___ ____ ____ ________

intent.

use of

process, and

the requirement

to sue was

of

influenced by

Saliem, 132 Me.

______

v. Commercial Union Ins. Co.,

_________________________

an

at 405-06;

928 F.2d

486, 490 (1st Cir. 1991) (applying Texas law); Baubles & Beads v.
_______________

Louis Vuitton, S.A., 766 S.W.2d

____________________

Grell
_____

v.

although

Poulson, 389
_______

N.W.2d 661,

wrongful motive in the

claim

may be inferred

true.

Saliem, 132 Me. at

______

Co.,
___

556 F. Supp. 381,

Ct. App. 1989);

(Iowa 1986).

context of an

And,

abuse of process

the reverse is not

405; Sage Int'l, Ltd. v. Cadillac Gage

________________
_____________

389 (E.D. Mich.

may not be

York lawsuit

solely to achieve

evidence

motive alone.

independent of motive to

663-64

from an improper act,

It therefore

of

377, 379 (Tex.

1982) (citing Prosser).

_______

presumed that the Navons

filed the New

a collateral objective

Simon needed

to

produce evidence

prove that an improper act

the Navons' pursuit of the litigation.

based on

occurred in

____________________

7 For purposes of the timing distinction drawn by the courts

and

commentators, we

think

it evident

that

amendment of

the

complaint against Israel Discount Bank to include a claim against

Simon must be viewed as the initiation of process, rather than as

a

subsequent act.

complaint,

and

Process against Simon originated with the new

that is

logically

where

the

analysis of

any

litigation-related tort claim by him must begin as well.

-13-

Simon

has failed

to offer

such evidence.

As

an initial

matter,

it is not seriously disputed that the allegations in the

complaint,

which sought to state a cause of action for malicious

prosecution,

are

inadequate to

claim.

The complaint alleges

lawsuit

maliciously "and

lacking."

make

only that the

probable

Lack of probable cause

prosecution claim,

but is

out an

cause for

abuse

defendants filed a

said lawsuit

is an element

not a prerequisite

of process

was

of a malicious

for recovery

for

abuse of process.

In his brief, Simon

pointing

to

trial

relationship with

Navons

supports the abuse of process

evidence

the Navons

routinely used

of

deteriorating

business

and testimony indicating

that the

litigation in

the

claim by

business disputes.

Simon

highlights the amendment of the bank suit and the request for $30

million in damages and injunctive relief.

"activities

took

place in

New

He further claims that

York causing

the

Plaintiff to

expend $60,000 in his own funds to defend himself from a baseless

lawsuit."

Although Simon suggests that the demand for high damages and

the imposition of defense costs

per se irregular in
___ __

high

were "abusive," there is nothing

a plaintiff's filing a complaint

that seeks

-- even unrealistic -- damages,8 or in causing a litigation

opponent to spend money in defense.

Indeed, at one point

during

____________________

8
strikes
would

To the
us as a
not like

recognized

contrary, a

multi-million-dollar

fairly routine feature of

to contemplate

inflated

modern lawsuits.

the litigious

ad damnum

requests

requirement of abuse of process.

-14-

damage request

as

scene if
meeting the

We

the law

"act"

colloquy with

bringing of

the court,

Simon's counsel acknowledged

a $30 million lawsuit

is not in itself

that the

an abuse of

process, and argued that what was significant was the evidence of

motive.

But, as we have seen, a

with "regular"

satisfy

showing of bad motive in connection

process is not enough.

See supra at
___ _____

12-13.

To

his burden, Simon needed to show a specific link between

the New York lawsuit with an impermissible, collateral purpose of

the

Navons.

This requirement

example, with evidence

could have

been satisfied,

of a threat made explicitly to Simon or a

disclosure confided to a

third party that the Navons

file suit solely to hurt Simon's credit rating.

556 F.

Supp. at

committed

388-90 ("Plaintiff

a specific act

ulterior objective. .

for

planned to

See Sage Int'l,

___ ___________

must allege that

defendant

which was directed

at the collateral,

. . In sum, there must

be some basis [for

finding]. . . that the improper act was the means

to further the

improper purpose.")9

We think it fairly

evidence

because

it

evident that Simon did not

does not

originally brought -- malicious

exist,

and

that

present such

the claim

he

prosecution -- was better suited

to the facts.

His problem, as the district court recognized, was

that a claim

for malicious prosecution would remain premature as

____________________

Although

not cited

in

Simon's

concerning the Navons' motion for judgment

the

end

of

plaintiff's case,

Simon's

brief, during

colloquy

as a matter of law at
counsel

referred to

statement by Gershon Navon to his client that "I'm going to crush

you."

This was simply evidence of motive; Simon provided no link

between the statement and the New York litigation.

-15-

matter of law until the New

claim

into one

for abuse

like trying to fit the

York lawsuit ended.

process, however,

Revising the

involved something

proverbial square peg into a round

hole.

The facts and the law simply were incompatible.10

In the

lack

of

malicious prosecution context,

probable

cause

and

favorable

the requirements

termination

of

of

the

litigation ensure that a defendant is not found liable simply for

having

a bad motive; these

lawsuit was

abuse

process

based

of

baseless.

elements support a

Similarly, proof of

process setting

provides

finding that the

a specific act in an

concrete

assurance that

actually has been abused, and that liability will not be

on the badly motivated use of procedures that perhaps were

burdensome

but

not

improper

--

basis

that would

indeed

dramatically

lower

litigation.

the threshold

of

viable

abuse of

See Westmac, Inc. v. Smith, 797 F.2d

___ ______________
_____

Cir. 1986)

(Merritt, J., dissenting) (proof

process

313, 321 (6th

of specific conduct

"limits the dangers of inquiry into . . . subjective purpose").

Significantly, the need to prove an act also distinguishes a

claim

for abuse

of

process

in

initiating litigation

from

premature claim for malicious prosecution; if the factfinder were

permitted to infer

abuse, a

plaintiff able to

show bad

motive

____________________

10 The only case cited by Simon in support of his contention

that amending
excessive

the suit, seeking injunctive

legal

fees constitute

Baubles & Beads v.

_______________
App.

1989).

position.

That

of

process is

Louis Vuitton, S.A., 766 S.W.2d 377 (Tex. Ct.

___________________
case

could not

an ex parte

and appeals courts found

process.

of abuse

be

more

unhelpful to

Not only was the claim there based on

filing procedure -trial

acts

relief, and imposing

a typical post-

seizure order -that there had

his

but both

the

been no abuse of

-16-

often

would

challenged

be able

litigation

to offer

was

brought

connected to the bad feelings.

sought to do.

convincing argument

for

an

that the

improper

purpose

This is, in essence, what

Such an approach, however, renders

Simon

the malicious

prosecution tort irrelevant.

This

is not

to

say that

plaintiff can

litigate

with

impunity,

so

long

as

he

does

concerning collateral matters.

Civil

Procedure

attorneys who file

authorizes

so

without

explicit

Rule 11 of the Federal

judges

to

sanction

pleadings, motions or

threats

Rules of

parties

other papers "for

or

any

improper purpose, such as to harass or to cause unnecessary delay

or needless increase in the cost of litigation,"

left to

the considered judgment of

11(b), (c).

Federal courts

parties and attorneys for

Chiapetta
_________

v.

recovery,

however,

have

Fed.

inherent power

is

to

v. Nasco, Inc., 501 U.S.

___________

courts in Maine likewise have

LeBlond,
_______

R. Civ. P.

sanction

abuse of the litigation process,

in diversity cases, Chambers

________

(1991), and trial

the court.

a determination

544 A.2d

limited

759,

to

760

those

(Me.

even

32, 44-55

such authority,

1988).

instances

in

Tort

which

plaintiffs are able to prove the elements of the abuse of process

cause of action.

Because Simon presented no evidence of "an act in the use of

process

other

prosecution

than

such as

would

of the charge," Saliem,

______

be

132 Me. at

verdict on that count must be reversed.

IV. Defamation
__________

-17-

proper

in the

regular

405, the jury's

Simon alleged that the Navons defamed him by telling several

creditors

of MCTC

that

he was

responsible

for the

lingering debts, and by causing an attorney to

July

company's

write a letter in

1992 to Camden National Bank stating that the account Simon

had opened there was

and dispose of a

unauthorized and was being used

"to divert

substantial amount of payments received

by him

in collecting MCTC's receivables."11

The

Navons argue

element

of the

support

the

privileged and

that the

letter,

defamation count,12

claim

because

because the

its

cannot as

contents

Navons as

which was

were

the primary

a matter

both

individuals could

of law

true and

not be

deemed responsible for the content of a letter written by someone

else.

We reach only the first of these contentions.

____________________

11 The full text of the letter, which was signed by Attorney

Andrew

A. Cadot

and addressed

to the

bank's president,

is as

follows:

We are attorneys for Maine Coast Trading Co., Inc.

("MCTC").

We understand that an account

the name of

MCTC by Frank Simon II.

not authorized

by MCTC,

used

Simon

by

Mr.

substantial

amount

to
of

was opened in

This account was

but, we understand,
divert

and

payments

has been

dispose

received by

of
him

a
in

collecting MCTC's receivables.

Please
not to

accept this

letter as

MCTC's instruction

permit any further transactions

without our

prior

approval on

behalf

in the account
of MCTC.

In

addition, we request that you provide us with copies of

the documents used to open this account and all records
of transactions in the account.

12 Indeed, it was the sole basis for a finding of defamation

against

Jonathan Navon, as all of the other statements were made

by Gershon.

-18-

As explained

earlier, our

review

should be

limited to

determination whether the district court abused its discretion in

rejecting

court,

defendants' motion

however,

did not

for

address

a new

trial.

the defamation

opinion, although the point was raised in

The

issue

district

in its

defendants' motion; we

therefore

have

no

Consequently, we

abused

basis upon

which

to

evaluate

have considered not whether

its ruling.

the district court

its discretion in denying the Navons' motion, but whether

new trial

is

necessary because

clearly against the

manifest

weight of

miscarriage

of

the

jury's verdict

the evidence as

justice.

See
___

was

to constitute

Quinones-Pacheco
________________

so

v.

American Airlines, 979 F.2d 1, 3-4 (1st Cir. 1992); Wagenmann v.

__________________
_________

Adams, 829 F.2d 196, 200-201 (1st Cir. 1987).

_____

The Navons assert that the letter was not defamatory because

it

that

was not false.

MCTC's

Navons.

no

They emphasize that

bylaws

reserved

Simon conceded at trial

check-writing

authority

to

the

Moreover, they point out, Simon acknowledged that he had

authorization from

MCTC's

board of

directors

to open

the

Camden

National Bank

undisputed facts

account.

prove the

The

Navons claim

accuracy of Cadot's

that

these

statements that

the "account was not authorized by MCTC," and that Simon had been

"divert[ing] and dispos[ing]" of MCTC funds.

In

authority

response

under the

to

the

evidence

bylaws, Simon

belief that he had the authority to

that his

lawyer advised him to

regarding

offered only

corporate

his subjective

do what he did and the

take such steps.

-19-

his

fact

We think this

falls well

below what

is

necessary to

negate the

defendants'

showing based on the company's bylaws, which presumably represent

the parties' agreement on the scope of, and limitations on, their

powers.

Neither

justified,

belief,

nor

Simon's belief

his

lawyer's

that the actions

unexplained

he took

concurrence

were

in that

can support a finding that his conduct was authorized by

MCTC.

The letter may have been misleading in revealing so little

about

the nature of

Simon's unauthorized conduct,

but, on this

record, it could not be deemed false.

We therefore conclude

establishing that

not actionable.

that the Navons

met their burden

the challenged statements were

of

true, and thus

See, e.g., Haworth v. Feigon, 623 A.2d 150,

158

___

n.6 (Me.

1993) (truth

action); Picard
______

(same).

take

____

v.

_______

is an

______

affirmative defense in

Brennan, 307
_______

A.2d

833, 834-35

defamation

(Me.

1973)

Even if Simon had some general authority as president to

actions that

he

felt were

company -- a possibility

appeal contains

in the

best

interest of

we cannot consider since the

neither the

bylaws nor

the

record on

other evidence

of such

authority -- it still would be

true that MCTC had not authorized

____

the

a minority

account.

Navons

Simon remained

constituted a

majority of

shareholder, and

the board

of directors.

the

In

addition, if the account and check-writing were unauthorized, the

letter also was accurate in reporting that

and

dispos[ed]"

of

MCTC

receivables,

Simon had "divert[ed]

the

word

"diversion"

typically being

associated with

the unauthorized use

____________

of funds,

see Black's Law Dictionary (6th ed. 1990), at 477.

___ ______________________

-20-

The jury's

verdict did not specify the

defamation liability

was premised,

statements on which

and our conclusion

that the

Cadot letter could not support the claim on this record therefore

requires

new

trial on

defamation.13

In

addition to

the

letter,

Simon

statements

made

industry.14

provide

alleged

to

have not urged

Gershon

his colleagues

Although

a flimsy

that

in

our

premise for

as a basis

defamed

or

view

him

customers

these

in

several

the fish

statements,

defamation liability,

for appeal that they

too,

the Navons

are inadequate.

In any event, we leave the specific contours of the

the discretion of the district

in

new trial to

court after consultation with the

parties.

V. Breach of Contract and Damages

______________________________

The

Navons also argue that they are entitled to judgment or

a new trial on the breach of contract claim

because the evidence

presented was insufficient to

district court rejected the

support a finding for Simon.

motion for new trial on

The

this issue,

____________________

13

The

Cadot letter,

of course,

may

be admissible

at a

retrial should Simon develop a different record.

14

In closing

arguments, counsel

for both

Navons emphasized in particular an April 14,

by Gershon

to the vice president

Simon

the delay

for

in MCTC's

the

1992 letter written

of ACI, in
payments

Simon and

which Navon blamed

to ACI.

Navon also

accused Simon in the letter of various actions that "rob[bed] MCT

from its ability to conduct
defamation

cited

by

business."

Simon's

counsel

The two other bases

in

argument

for

involved

statements by Gershon to MCTC creditors laying blame on Simon for

MCTC's delinquent accounts.

-21-

concluding that the jury instructions properly and completely set

out

the relevant law and that the jurors presumably followed the

instructions in

reaching their verdict.

Having read

the trial

transcript in its entirety, we find no abuse of discretion in the

court's denial of a new trial on this issue.

Simon presented ample evidence that the Navons agreed toward

the end

of March 1992 to

promptly --

a promise that a

the written agreement

despite

pay certain crucial

Simon's urgent

creditors of MCTC

jury could find to

of March 24th -- but then

pleas and

be implicit in

failed to do so

the availability

of adequate

funds.

Although the defendants

events -- laying

the blame

cancelling the IDB

presented a different version of

for the delinquencies

line of

credit -- the

on Simon

for

judgment between

the

conflicting accounts was for the jury to make.

jury

was entitled to believe

In addition, the

Simon's testimony that

he did not

retain MCTC's receivables and open the account at Camden National

Bank

until after the Navons breached an express provision of the

_____

March

24th agreement

without his

stage

resolve

court

permission.

is extremely

reached the

by paying

As

we have

in the first instance,

contract claim.

total of

$45,000

noted, our review

at this

deferential; whether

same conclusion were

erred in

themselves a

allowing

or not

the factual

we cannot say

the jury's

verdict

we would

question ours

have

to

that the district

to stand

on

the

Nor may we on this record

second-guess the district court's

handling of the damages issue.

Simon presented evidence, through

-22-

an economist and multiple witnesses involved in the Maine seafood

industry,

that MCTC's

failure to

financial impact

on him.15

as

certain

legal

error

pay its

Although the

premises

upon

debts had

a lasting

Navons now

challenge

which

the

economist,

McCausland, relied, they neither

it was

Simon

presented nor argued

objected to this testimony when

at the close

had failed as a matter of

of the

evidence that

law to prove breach of contract

damages.16

The

district court

nevertheless

agreed that

McCausland's

testimony was flawed, that the jury's verdict accepting his

was against the weight of

the evidence, and that a new

damages

unless Simon

should

remittitur.

We

be

held

think the court's

accepted

view

trial on

substantial

response was appropriate

and

complete; it recognized both that Simon produced evidence of harm

____________________

15

Simon testified

that salmon

whom he

did substantial business,

because

they are

still

owed money

farmers in

won't sell
by

MCTC.

Eastport, with

him fish
One

anymore

fisherman,

Prenier, stated that he was leery of doing business with Simon in

the aftermath of

the MCTC problems, and

in the industry has

not been repaired.

that Simon's reputation

Colon McLernon, owner of

Maine Pride Salmon, testified that "our company has moved product
to other companies and has stayed away from Mr. Simon."

16

One

of

McCausland's

the

Navons'

specific

complaints

centers

on

reduction of Simon's 1992 and 1993 income by losses

incurred at Rain Forest, the company he partially owned that took

over

some

of

MCTC's business.

The

answered in the negative when asked the

cannot lay

the blame for any

the feet of the

as

note that

Simon

following question: "You

of the problems of

Navons, isn't that right,

that question and answer

income,

Navons

Rain Forest at

for 1992?"

are worth with respect to

Whatever

Simon's 1993
____

we note that the jury could have understood the response

a misstatement

concerning the

in

light of

other less

inability to do business

following MCTC's demise.

-23-

ambiguous testimony

with downeast fishermen

and that

the jury's

claims regarding

verdict improperly adopted

the extent of that

harm.

his exaggerated

We find

no abuse of

discretion.

VI.

The Navons

certain court

Undue Passion, Bias, Prejudice

______________________________

point

to eleven

rulings and comments

they contend created an

them and led

claim

that

certainly

events at

trial --

by opposing counsel

atmosphere of bias and

the jury to award grossly excessive

one

the

or

more of

these

cumulative effect

including

of

events

all

-- that

prejudice toward

damages.

independently,

of them,

They

and

constituted

reversible error requiring a new trial.

We

not

raised at the appropriate

find

We

have considered each of their points, many of which were

time before the

trial court, but

that none warrants a total rejection of the jury's verdict.

do

not say

that the

Navons'

argument is

entirely without

force; we hold only that we are satisfied that the district court

was

within its discretion to reject the claims it considered and

that, particularly

in light

of

the need

for

a new

trial

on

defamation, no manifest injustice occurred that would cause us to

disturb any more of the jury's determinations.

VII. Conclusion
__________

We summarize our holdings as follows:

(1) Simon

has failed, as a matter of law, to prove an abuse

of

process, and the judgment of the

district court in his favor

is reversed.

-24-

(2) The jury's finding that the Cadot letter was

was against the weight

of the evidence in

proof that the statements

defamatory

light of the

it contained were true.

Navons'

The judgment

for

Simon on defamation therefore must be vacated, and the claim

remanded for a new trial.

(3) The compensatory and punitive damages awards on the tort

claims, totaling $1.3 million, are vacated.

(4)

The jury's judgment of liability on the contract claim,

and its award of $836,000 in damages, are affirmed.

Affirmed in part, reversed in part, vacated in part, and

____________________________________________________________

remanded for proceedings consistent with this opinion.

__________________________________________________________

party shall bear its own costs.

_______________________________

Each
____

-25-