Diehl v. Fred Weber, Inc.

• Decision Date: 25 May 2010
• Docket Number: No. ED 92843.,ED 92843.
• Citation: 309 SW 3d 309
• Parties: Thomas DIEHL and Barbara Diehl, Plaintiffs/Appellants, v. FRED WEBER, INC., Defendant/Respondent.
• Court: Missouri Court of Appeals

309 SW 3d 309

Thomas DIEHL and Barbara Diehl, Plaintiffs/Appellants, v. FRED WEBER, INC., Defendant/Respondent.

No. ED 92843.

Missouri Court of Appeals, Eastern District, Division Three.

January 26, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 8, 2010.

Application for Transfer Denied May 25, 2010.

Michael D. Quinlan, St. Louis, MO, for Appellant.

Lawrence F. Hartstein, Hartstein Law Firm, P.C., Clayton, MO, Winthrop B. Reed, III, Lewis, Rice & Fingersh, L.C., St. Louis, MO, for Respondent.

Before GLENN A. NORTON, P.J., and MARY K. HOFF, J., and LAWRENCE E. MOONEY, J.

PER CURIAM.

OPINION

Thomas Diehl (Mr. Diehl) and Barbara Diehl (Wife) (collectively referred to as the Diehls) appeal from the trial court's grant of summary judgment in favor of Fred Weber, Inc., (Weber) on the Diehls' petition alleging malicious prosecution, abuse of process, intentional infliction of emotional distress, and prima facie tort. We reverse and remand in part and affirm in part.

Factual and Procedural History

This appeal arises from a lawsuit originally filed by Weber alleging that Mr. Diehl had defamed Weber. The relevant facts are as follows:

Weber owned a sanitary landfill and a parcel of property where a proposed trash transfer station was to be built and operated. Both the landfill and the property were located in St. Louis County. Weber filed an application with the St. Louis County Department of Health to construct and operate the trash transfer station. The Department of Health held a public hearing, as required by law, regarding the proposed trash transfer station. It was alleged that Mr. Diehl distributed a flyer to people that attended the public hearing. The flyer stated, in pertinent part, "STOP FRED WEBER, INC., ... THE TRASH TERRORISTS." The flyer instructed persons to contact the director of St. Louis County's Department of Health, the county executive, the director of St. Louis County's Department of Planning, or a group called Subdivision Fee Collectors, Inc., which was organizing the public opposition to the trash transfer station. Neither Mr. Diehl's nor Wife's name appeared on the flyer.

The following day, Weber's chairman of the board and chief executive officer, Thomas P. Dunne, Senior, (Dunne, Sr.,) found one of the flyers on his desk. Dunne, Sr., had not been present at the public hearing. Dunne, Sr., believed that the flyer "was probably the lowest blow and most outrageous thing ... leveled at the company" in the 42 years he had been with Weber. Dunne, Sr., was angry because he believed the flyer's language harmed Weber's reputation. A day or two later, Dunne contacted Weber's attorneys because he was "looking for any kind of legal remedies that could, one, stop the flyer from being circulated; two, stop being called a terrorist; and, three, to find out at that time who was the person who originated it." Dunne, Sr., gave Weber's attorneys "marching orders" and told them to obtain "whatever legal remedies possible, to stop the dissemination of the flyer... and the use of the word terrorist and to find out who put this together, period." As far as Dunne, Sr., was concerned, the attorneys did not need to secure his approval before taking any particular action with regard to the legal remedies they decided to pursue because "whatever it took to accomplish those legal remedies, that was their ... call."

Twelve days after the public hearing, Weber filed suit against Subdivision Fee Collectors, Inc., and certain unknown and unidentified John Does, alleging the flyer was defamatory. Approximately two months later, Weber filed its first amended petition (First Amended Petition), adding Mr. Diehl as a defendant. Weber's First Amended Petition included four counts alleging disparagement, business defamation, libel and slander, and civil conspiracy. The First Amended Petition specifically alleged, in part:

17. After the horrendous, horrifying and frightening sneak terrorist attacks against the United States on September 11, 2001, the term "terrorist" carries with it a strong connotation of acts of injuring and killing innocent people by fanatics who hate the United States.

18. In pertinent part, the offending flyer interfered with Weber's landfill business by directing the customers of the trash hauler/collectors with whom Weber does business with (sic) or has contracts and agreements to use trash haulers/collectors that have contracts and agreements with competitors of Weber.

. . .

24. The false, libelous and slanderous statements of Defendants and the false innuendo surrounding them naturally and proximately led persons to whom the false, libelous and slanderous statements were published to believe that Weber has killed and injured people or that the proposed South Transfer Station would kill and injure people and that Weber was unethical, immoral and disreputable in its business dealings.

. . .

28. The publication, dissemination and distribution and utterance of the false, libelous and slanderous statements by Defendants impugned and damaged the reputation of Weber in that many businesses accustomed to dealing with Weber either ceased dealing with, threatened to cease dealing with or diminished their business dealings with Weber whereby Weber has been deprived of its trade and the reasonable profits which it would have enjoyed but for the publication, dissemination, distribution and utterance of the false, libelous and slanderous statements.

Weber further alleged that, due to the actions of Subdivision Fee Collectors, Inc., and Mr. Diehl, it had sustained actual damages in excess of $100,000 and was entitled to punitive damages of $5 million. Weber also sought a permanent injunction enjoining and prohibiting Subdivision Fee Collectors, Inc., and Mr. Diehl or anyone acting on their behalf from further publishing, disseminating, or distributing the flyer.

Mr. Diehl filed a motion to dismiss the First Amended Petition for failure to state a claim, which the trial court denied. Mr. Diehl then sought relief through a writ of prohibition, which this Court granted in State ex rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo.App. E.D.2005) (Diehl I). There, we found that Weber had failed to state a claim for defamation because the language used in the flyer, particularly the words "TRASH TERRORISTS," was not defamatory but was "imaginative expression or rhetorical hyperbole." Diehl I, 162 S.W.3d at 156. We reasoned that, taken in context and considering the circumstances, i.e., the flyer was distributed at a public hearing regarding a controversial issue, a reader of the flyer would not actually believe Weber was a terrorist but would recognize the language as voicing the "writer's staunch opposition to the proposed trash transfer station." Id. at 156. Consequently, we also found that Weber had failed to state a claim for civil conspiracy because there existed no underlying act or tort upon which such a claim could be based. Id. at 156-57. In granting the writ of prohibition, this Court considered the "chilling impact that might be suffered in public discourse" if Weber's "meritless action" was allowed to proceed. Id. at 157.

Following this Court's mandate in Diehl I, the Diehls filed their five-count petition in the instant case, alleging intentional infliction of emotional distress, malicious prosecution, abuse of process, prima facie tort, and negligent infliction of emotional distress. The Diehls further alleged that Weber had filed its previous suit in order to intimidate them and other citizens from voicing their opposition to the proposed trash transfer station.

Later, the Diehls voluntarily dismissed without prejudice their claims for negligent infliction of emotional distress. Mr. Diehl also dismissed without prejudice his claim for prima facie tort. Wife, who was not a named defendant in Weber's lawsuit, dismissed without prejudice her claims for malicious prosecution and abuse of process. Weber filed a motion to dismiss the Diehls' claims for intentional infliction of emotional distress, which the trial court granted on the ground that such claims could not stand as separate causes of action along with the Diehls' other tort claims. Weber then filed motions for summary judgment as to Mr. Diehl's claims for malicious prosecution and abuse of process and as to Wife's claim for prima facie tort. In separate orders, trial court judges granted Weber's motions for summary judgment.

In the order granting summary judgment in favor of Weber on Mr. Diehl's malicious prosecution and abuse of process claims, Judge Dowd found that Dunne, Sr.'s, role in instigating the previous lawsuit against Mr. Diehl was limited to making the final decision to proceed and that Dunne, Sr., was not specifically aware of Mr. Diehl's identity. Judge Dowd further found that the details of the defamation lawsuit, and the manner in which it was prosecuted, were left to Weber's attorneys and that the record did not indicate the defamation lawsuit had been filed without a factual basis or in bad faith. Judge Dowd concluded that Weber's decision to instigate and maintain the defamation lawsuit against Mr. Diehl was reasonable because Weber and its attorneys believed "the remarks in the flyer were defamatory in the first instance." Judge Dowd also concluded that the "fact that the words were later determined not to be legally defamatory did not change the original purpose of the defamation suit," which Weber claimed was to stop the harm allegedly being done to its reputation as a result of the flyer's characterization of the company as a "terrorist."

Mr. Diehl thereafter filed a motion to vacate the summary judgment on his malicious prosecution and abuse of process claims, along with a submission of additional material facts in opposition to Weber's motion for summary judgment. After hearing arguments, Judge Dowd denied the motion to vacate.

Several months later, Judge Dierker, subsequently entered the...