Alves v. Hometown Newspapers, Inc.

• Decision Date: 04 August 2004
• Docket Number: No. 2003-181-Appeal.,2003-181-Appeal.
• Citation: 857 A.2d 743
• Parties: Stephen ALVES v. HOMETOWN NEWSPAPERS, INC., d/b/a The Kent County Daily Times et al.
• Court: Rhode Island Supreme Court

857 A.2d 743

Stephen ALVES v. HOMETOWN NEWSPAPERS, INC., d/b/a The Kent County Daily Times et al.

No. 2003-181-Appeal.

Supreme Court of Rhode Island.

August 4, 2004.

Christopher E. Friel, Esq., Providence, for Plaintiff.

Jeffrey S. Brenner, Esq., Providence, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, and SUTTELL, JJ.

OPINION

PER CURIAM.

Are litigants in Rhode Island SLAPP-happy? This is the second case in as many months that calls upon us to determine whether summary judgment was granted properly in favor of the defendants when the defendants asserted an affirmative defense under General Laws 1956, chapter 33 of title 9, the Limits on Strategic Litigation Against Public Participation Act (the anti-SLAPP statute). The plaintiff, Stephen Alves (Alves or plaintiff), appeals from a Superior Court grant of summary judgment in favor of the defendant, Alan G. Palazzo (Palazzo or defendant), on his anti-SLAPP defense, including an award of attorneys' fees and costs. This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After considering the arguments of counsel and examining the record and the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we summarily affirm the judgment entered in the Superior Court.

Facts and Procedural History

The facts are largely undisputed. At the time this action was filed, Alves represented the 19th Senatorial District in the Rhode Island General Assembly, and he also served on the Town of West Warwick's school building committee (building committee). Palazzo is a resident of West Warwick. The complaint in this case arose out of remarks made at public meetings and a series of letters to the editor published by Hometown Newspapers, Inc., d/b/a The Kent County Daily Times (Daily Times), and penned by the duo of Alan G. Palazzo and William Palazzo,¹ concerning the West Warwick Town Council's (town council) and School Committee's (school committee) handling of a proposed school building project (the project). This appeal involves only those claims that concern Alan G. Palazzo.

Alves filed a nine-count complaint, five counts of which were directed at acts that defendant conducted. Count 1 alleged that Palazzo libeled plaintiff in a "Letter to the Editor" of the Daily Times on October 1, 2001. Count 3 alleged that Palazzo again libeled plaintiff in a "Letter to the Editor" of the Daily Times on October 9, 2001. Count 5 alleged that Palazzo slandered plaintiff at a school committee meeting on September 26, 2001. Count 6 alleged that Palazzo maliciously placed plaintiff in a false light before the public by preparing the letter of October 1, 2001. Count 8 repeated a false-light allegation for the letter of October 9, 2001. The plaintiff appended copies of the published letters to the complaint.

Palazzo filed a motion to dismiss the complaint pursuant to Rule 12(b)(6)² of the Superior Court Rules of Civil Procedure, and seeking an order for costs and attorneys' fees pursuant to § 9-33-2(d). In a memorandum of law accompanying the motion, Palazzo argued that plaintiff's complaint constituted a "SLAPP suit," seeking to punish Palazzo for writing letters to the editor discussing public matters and criticizing plaintiff. Palazzo maintained that his letters merely were commentary "that is typical of opinions regarding public events that aired in any public forum such as a town council meeting or a newspaper." Palazzo also alleged that the complaint did not comply with Rule 8(a) of the Superior Court Rules of Civil Procedure because it did not identify the specific statements published by Palazzo that allegedly were false.

In his memorandum opposing the motion to dismiss, Alves argued that Palazzo and the other defendants were adequately apprised of the charges against them. Alves further asserted that Palazzo's activities were not protected under the anti-SLAPP statute because it was not enacted "to cloak false accusations of criminal activity in legislatively-created immunity." In addition to asserting that Palazzo's letters to the editor constituted actionable defamation, Alves asserted that after the school committee meeting on September 26, 2001, Palazzo's alleged remark accused Alves of "rigging the bids," a crime constituting slander per se. Appended to his memorandum was an affidavit of Jeanne-Marie DiMasi (DiMasi), chairwoman of the school committee, which attested to her overhearing Palazzo accusing Alves of "rigging" the bid for a new school. Alves also attached Palazzo's letters to the editor.

The motion was heard first on January 28, 2002. At that time, the hearing justice ruled that the motion should be considered as a motion for summary judgment instead of a motion to dismiss pursuant to our decision in Hometown Properties, Inc. v. Fleming, 680 A.2d 56, 63 (R.I.1996) (motion for summary judgment is "appropriate motion" in anti-SLAPP case to allow hearing justice to consider information extrinsic to the pleadings). The hearing justice continued the motion for a subsequent hearing to give the parties a reasonable opportunity to reply to the motion as a motion for summary judgment. While this motion was pending, plaintiff filed an amended complaint on March 6, 2002, in which he identified Palazzo's specific statements that allegedly libeled and slandered him and cast him in a false light.

Palazzo's letters were a self-styled "series of informational updates relative to our Town Council and SBC's handling of the `Natick' School project."³ Palazzo's letter of October 1, 2001, was a strongly worded warning to West Warwick taxpayers to look disfavorably on the potential increased cost of the project from $10.5 million to $12 million. Palazzo printed questions he put to the town council and excerpted some of the answers. The questions covered topics such as the council's plans in case developing the site went over budget and whether the taxpayers would be responsible for additional money if the project site had to be moved. In the letter, Palazzo also questioned the wisdom of spending $1.5 million for a school site. In the context of urging the taxpayers to become concerned about this issue, he wrote, "it is your hard earned tax dollars that are being spent in this manner. Yes, we need a new school but perhaps you might ask Mr. Rousselle, Sen. Alves, Ms. DiMasi et al., why the fiasco?" With respect to this letter, plaintiff based his amended complaint on the following statements:

"I've also heard from a member of the Council that Sen. Alves seems to be exerting a lot of pressure to keep this project moving along.

"* * *

"I challenge anyone involved with this project today, especially Mr. Rousselle, Sen. Alves and Ms. DiMasi to deny the facts as I have presented them."

Palazzo's letter of October 9, 2001, to the editor continued to criticize the cost of the project. He took issue with a proposed new site for the school and questioned whether the town "really looked into the site from a Geo-technical perspective." Palazzo alleged that the town was paying $425,000 more for a construction manager than was originally noted at a school committee meeting in November 2000. He also said that additional costs would be associated with using Eric Ahlborg as the construction manager on the project. He further noted that the council president, Mr. Rouselle, was the guest of honor at a recent fundraiser that Alves hosted. With respect to the letter of October 9, 2001,⁴ plaintiff based his amended complaint on the following statements:

"At several SBC and Town Council Meetings, I've noticed what I'd call a `close' relationship between Sen. Alves and Mr. Eric Ahlborg. If you have attended some of these same meetings, you may have also taken note of this. Has anyone on our Council also taken note and asked some hard questions? Given the progress of this project to date and the possible additional costs to the taxpayers, isn't it prudent to at least ask?

"Think about it — could it be possible that the taxpayers of this town are being used to bankroll and advance the personal and financial agendas of a `chosen few'?

"I challenge anyone involved with this project to date, especially Mr. Rouselle, Sen. Alves and Ms. DiMasi, to deny the facts as I have presented them."

In both his original and amended complaints, Alves alleged that Palazzo slandered him on or about September 26, 2001, "while speaking at the Town of West Warwick School Building Committee Meeting." Alves did not specify the particular slanderous statements in either complaint, but instead incorporated the newspaper statements included in the previous counts by reference. In response, Palazzo denied that he spoke at the meeting on September 26, 2001, and submitted minutes from that meeting to support that. Alves did not directly hear Palazzo say anything defamatory at that meeting, but submitted an affidavit from DiMasi. She averred that "after" the committee meeting, she heard Palazzo say that Alves had "rigged" the bids on the project. However, Palazzo attested that DiMasi could not have heard him say anything after the meeting because he left the meeting just when it ended because of family obligations.

Counsel for the parties argued their respective positions on March 8, 2002, and on March 14, 2002, the hearing justice filed a decision granting Palazzo's motion for summary judgment on counts 1, 3, 6, and 8 of the amended complaint. She ruled in her decision that the anti-SLAPP statute barred plaintiff's claims. In so doing, she wrote, "With respect to A. Palazzo's letters to the editor of the Daily Times, it is clear that the activity was of a type envisioned by the Legislature in enacting * * * § 9-33-1 et seq." She observed that it was Alves's burden to prove that both of Palazzo's letters were objectively and subjectively baseless. In...