Global Waste Recycling, Inc. v. Mallette, 98-597-Appeal.

• Decision Date: 14 December 2000
• Docket Number: No. 98-597-Appeal.,98-597-Appeal.
• Citation: 762 A.2d 1208
• Parties: GLOBAL WASTE RECYCLING, INC. v. Henry MALLETTE, Jr., et al.
• Court: Rhode Island Supreme Court

762 A.2d 1208

GLOBAL WASTE RECYCLING, INC. v. Henry MALLETTE, Jr., et al.

No. 98-597-Appeal.

Supreme Court of Rhode Island.

December 14, 2000.

Present WEISBERGER, C.J., LEDERBERG, BOURCIER, and GOLDBERG, JJ.

John B. Webster, Warwick, for Plaintiff.

Mark W. Freel, Providence, for Defendant.

OPINION

BOURCIER, Justice.

In this case Global Waste Recycling, Inc. (Global), the plaintiff below, appeals from the entry of summary judgment in favor of the defendant on its Superior Court civil action in which Global had sought both "economic damages" as well as punitive damages from the defendants, Henry and Marcia Mallette.

On appeal, Global contends that the trial justice erred in granting summary judgment after finding that its civil action was barred by virtue of the provisions of G.L.1956 chapter 33 of title 9, the Strategic Litigation Against Public Participation statute (the anti-SLAPP statute). We reject Global's contention and affirm the grant of summary judgment.

I Case Facts/Travel

Since June 30, 1995, Global has been operating an unlicensed construction and demolition debris recycling facility located in an area that is zoned for residential use on Colvintown Road in theTown of Coventry. Global has been permitted to operate its debris recycling facility there pursuant to a consent judgment and operation plan entered on June 30, 1995, between the state Department of Environmental Management (DEM), Bettez Recycling, Inc., Bettez Construction Company, Inc., (Bettez), and Global. Some background information concerning the property site in question is helpful.

From 1981 until 1989, Tri County Sand and Gravel, Inc., had operated a construction and demolition debris recycling facility on the land. During that time it had permitted large stockpiles of unsold debris and materials to accumulate on the site. In March 1990, Bettez began operating an unlicensed landfill on the property. Following complaints and on-site inspections, the DEM, Division of Air and Hazardous Materials, issued notices of violation. Following DEM hearings on the violation notices, Bettez was ordered by a final DEM agency decision, entered on March 5, 1991, to "cease receiving materials, dispose of the materials on site and pay an administrative remedy to the DEM." Bettez filed an administrative appeal from that DEM final decision in the Kent County Superior Court.

While that administrative appeal was pending, Global became interested in operating a construction and demolition debris recycling facility on the Bettez property site and moved to intervene in Bettez's pending appeal. Once in the case, Global then undertook to negotiate a settlement with DEM. On June 30, 1995, a negotiated settlement was reached. The settlement was evidenced by a consent judgment that included an operating plan in which Global would be permitted to operate a construction and demolition debris recycling facility on the Bettez site. The operating plan that was spelled out in the consent judgment contained several conditions that Global was required to comply with and perform. The operation plan, however, did not constitute a DEM license for the operation; instead, it was in the nature of a conditional permit that required, among other obligations, for Global to immediately process 75 percent of the six then-existing on-site stockpiles of demolition materials leftthere by Bettez. In addition, Global was required to furnish DEM with a closure fund and to comply with all applicable state, federal and local requirements, including any new regulations for licensing and regulation of recycling and solid waste management facilities.

On December 16, 1996, Global was notified by the DEM Office of Waste Management that violations of Global's Waste Recycling Operation Plan were observed following a site inspection by DEM officials on December 12, 1996. One of those alleged violations concerned "substantial quantities of processed construction and demolition material" being left on the site. Those expanding construction and demolition material stockpiles had also been observed by many of the local residents living in the area, including Henry Mallette, Jr. and his wife, Marcia Mallette, whose residence unfortunately adjoins the Global site. As the Global stockpiles expanded, so did the Mallette's concern over the possibility of contamination of their well water, of airborne pollutants from composted materials left on the site, and the fire hazard created by the stockpiled demolition debris. The Mallettes, joined by some forty-two other similarly alarmed Colvintown Road residents, filed a petition with the Coventry Town Council seeking relief from Global's expansion of those conditions at its facility. That petition was presented to the town council in mid July, 1997. The Mallettes, however, were not present at the council meeting. As was feared and anticipated by the Colvintown Road residents, including the Mallettes, on July 30, 1997, a fire did break out on Global's site. Counsel for Global, in attempting to minimize the significance of that incident, has described that fire as being "a small fire * * * that was extinguished in less than one hour." That description is certainly at great odds with that recounted by the Coventry fire chief and the Coventry police, who were at the scene, and who described the fire as breaking out "shortly after 5 p.m." and throwing heavy "dark blackish-blue smoke" over the area and prompting the necessity of "fire trucks from Washington, Western Coventry, Chopmist Hill, Potterville, WestGreenwich, Scituate, Hope Jackson, Mishnock, West Greenwich [sic], Nooseneck Hill, Hianloland and North Smithfield fire departments." The Coventry fire chief informed the local press that firefighters "had to break [the pile of wood] up with bulldozers" and were required to douse the pile with water and "class A foam." The firefighters were unable to control and extinguish the fire until 7:30 p.m.

During the ongoing fire, a news reporter from the local Kent County Daily Times newspaper spoke with and interviewed several of the many local residents at the fire scene. One of those persons interviewed was Henry Mallette, Jr., one of the two defendants in this case. Mallette is reported to have said, "[w]ho knows what they're burning over there. They say its mulch, but I know what it is. It's lead and asbestos and every other thing."¹ Some eight days later, while the newspaper was doing follow-up stories on Global's operation and the ongoing neighborhood concern over Global's operation of its yet unlicensed construction and demolition debris recycling facility, one of its reporters spoke with Marcia Mallette, Henry's wife, and codefendant. She told the reporter that "[o]ld homes are taken in there and piled up, they just sit there. I don't think any recycling is going on."² Her comment, along with that of others, was reported in the Kent County Daily Times on August 9, 1997.

Three days later, on August 12, 1997, Global initiated a civil action for defamation against the Mallettes, claiming that its construction and demolition recycling business and reputation had beendestroyed by the publication of the Mallettes' statements in the Kent County Daily Times. Global sought both "economic damages" as well as punitive damages from the Mallettes. Four months later, on December 8, 1997, a Superior Court hearing justice granted summary judgment in favor of the Mallettes after finding that Global's action constituted an attempt by Global to silence legitimate statements on a matter of public concern. An interlocutory order reflecting that finding was entered on January 12, 1998. Thereafter, on April 23, 1998, following a hearing on the Mallettes' request for counsel fees, an order awarding counsel fees against Global was entered and final judgment in the case entered on that same day. Global's appeal followed on May 5, 1998.

II The Anti-SLAPP Statute

In Hometown Properties, Inc. v. Fleming, 680 A.2d 56 (R.I.1996), this Court had occasion to construe for the first time the provisions of chapter 33 of title 9, as enacted by P.L.1993, ch. 354, being entitled "Limits on Strategic Litigation Against Public Participation" (the anti-SLAPP statute or the act).

In Hometown, we determined the act to be constitutional, and intended to emulate the federal Noerr-Pennington doctrine³ by providing conditional immunity to any person exercising his or her right of petition or free speech under the United States or Rhode Island Constitution concerning matters of public concern. That conditional immunity, we held, would render the petitioner or speaker immune from any civil claims for statements, or petitions, that were not sham by virtue of being objectively orsubjectively baseless. Section 9-33-2(a) of the anti-SLAPP statute defines a sham statement or petition as being one that is:

"(1) Objectively baseless in the sense that no reasonable person exercising the right of speech or petition could realistically expect success in procuring the government action, result, or outcome, and

"(2) Subjectively baseless in the sense that it is actually an attempt to use the governmental process itself for its own direct effects. Use of outcome or result of the governmental process shall not constitute use of the governmental process itself for its own direct effects."

The Mallettes, in their answer to Global's complaint, raised the issue of their conditional immunity provided by § 9-33-2. They subsequently and properly moved for entry of summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure.

The Superior Court motion hearing justice, after considering the Mallettes' motion for summary judgment, and after viewing the case pleadings and affidavits in the light most favorable to Global and against the Mallettes (see LaFratta v. Rhode Island Public Transit Authority, 751 A.2d 1281, 1283 (R.I.2000)

), found that the Mallettes' statements were neither...