Palazzo v. Alves

Decision Date03 April 2008
Docket NumberNo. 2006-172-Appeal.,2006-172-Appeal.
Citation944 A.2d 144
PartiesAlan G. PALAZZO et al. v. Stephen D. ALVES.
CourtRhode Island Supreme Court



Justice ROBINSON for the Court.

The plaintiffs, Alan G. Palazzo and William B. Palazzo, appeal to this Court from a Superior Court judgment dismissing their amended complaint, in which they sought damages pursuant to G.L. 1956 chapter 33 of title 91 and in which they also included common law claims for malicious prosecution and abuse of process.

On appeal, plaintiffs contend: (1) that the hearing justice erred in determining that they were precluded from bringing a separate SLAPP action for punitive and compensatory damages after having successfully litigated under the aegis of that statute in an earlier case and (2) that the hearing justice erred in determining that their allegations of malicious prosecution and abuse of process were precluded.

For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

Facts and Travel

The material facts in this case are undisputed. On November 16, 2001, the present defendant (Stephen D. Alves)2 filed a civil suit against the present plaintiffs (Alan G. and William B. Palazzo). In that suit, Senator Alves alleged that statements made by the Palazzos at public meetings and written by them in a series of letters to the editor that were published in The Kent County Daily Times3 were slanderous and libelous and placed him in a false light in violation of his statutory right to privacy. The Palazzos responded by filing a motion to dismiss pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure,4 arguing that Senator Alves' complaint constituted a SLAPP suit that fell within the reach of the anti-SLAPP statute.5 In their motion to dismiss, the Palazzos also sought an award of costs and attorneys' fees pursuant to § 9-33-2(d) of the anti-SLAPP statute.

At a hearing on January 28, 2002, a justice of the Superior Court determined that the motion to dismiss should be treated as a motion for summary judgment, and she continued the hearing on the motion to a later date. A hearing was held on March 8, 2002; thereafter, on March 14, the hearing justice granted summary judgment in favor of Alan Palazzo, finding that his statements were protected by the anti-SLAPP statute. In so ruling, she reasoned that, because the statements related to an issue of public concern and were not baseless, they were entitled to conditional immunity under the anti-SLAPP statute. The hearing justice also awarded costs and reasonable attorneys' fees to Alan Palazzo.

The hearing justice denied the motion with respect to William Palazzo, however, on the ground that it was less clear to the court that his statements "were of a type envisioned by the Legislature in enacting the anti-SLAPP statute." Nevertheless, the claims against William Palazzo were eventually settled and dismissed with prejudice.

Thereafter, Senator Alves appealed the decision with respect to Alan Palazzo to this Court. On August 4, 2004, we affirmed the hearing justice's grant of summary judgment. Alves v. Hometown Newspapers, Inc., 857 A.2d 743 (R.I.2004).6 Subsequently, on September 27, 2004, Senator Alves and Alan Palazzo executed a stipulation in which they agreed that the judgment would be satisfied by Senator Alves paying the sum of $33,000, which would be deemed to include costs and interest.

Several months later, on March 31, 2005, the Palazzos commenced the instant action against Senator Alves, seeking compensatory damages, punitive damages (in the amount of $2 million), costs, interest, and reasonable attorneys' fees.7 In their complaint, the Palazzos allege that the original suit filed by Senator Alves was brought to abridge their constitutional rights; they allege that the suit was "frivolous and was brought with an intent to harass the [p]laintiffs and otherwise inhibit their exercise of their right to petition and free speech." The Palazzos subsequently amended their complaint to include counts for malicious prosecution and abuse of process.

On June 20, 2005, Senator Alves filed a motion to dismiss plaintiffs' amended complaint pursuant to Rule 12(b)(6). In his memorandum in support of that motion, he argued that the action was barred by res judicata and collateral estoppel. He further contended that the Palazzos should have raised the claims set forth in their new civil action as compulsory counterclaims in the original action.

A hearing was held in the Superior Court on August 9, 2005, at the conclusion of which the hearing justice granted Senator Alves' motion to dismiss. In so deciding, the hearing justice ruled that the anti-SLAPP statute "does not provide * * * for a private cause of action subsequent to a determination that a claim, counterclaim or cross claim violated the statute." She also ruled that Alan Palazzo's claims in the case before her were precluded due to the fact that he had been the beneficiary of a judgment in his favor in the initial action and had thereafter agreed that said judgment could be satisfied by Senator Alves paying him the sum of $33,000.

With respect to William Palazzo, the hearing justice found that, rather than continuing to litigate in the initial action, he had opted to settle. The hearing justice further concluded that "the proper method would have been to raise the anti-SLAPP [s]tatute and prosecute the claim, rather than, as [William Palazzo] did, settle the suit, * * * accept an award and then file a subsequent lawsuit."

Finally, the hearing justice noted that the Palazzos had not "specifically request[ed] punitive and compensatory damages in the original action," and on that basis she ruled that their subsequent claim for same in the present action was precluded. The Palazzos filed the instant appeal on September 7, 2005.8

On appeal, the Palazzos argue that they were not precluded from bringing a separate cause of action for compensatory and punitive damages based upon the anti-SLAPP statute. They contend that the anti-SLAPP statute provides for a two-step process. In the first step of what they consider to be the process, a defendant named in a civil action which he or she considers to constitute a SLAPP suit should claim conditional immunity pursuant to the anti-SLAPP statute; if that defendant's claim of conditional immunity under the anti-SLAPP statute is upheld, the court will dismiss the plaintiff's complaint and will award the defendant attorneys' fees and costs. In the second step of the process that plaintiffs envision, after the dismissal of the initial suit, a SLAPP defendant may then choose to file a separate SLAPP-back suit, invoking the anti-SLAPP statute and/or common law causes of action and seeking compensatory and punitive damages on the ground that the plaintiff's allegations in the initial action were frivolous and were brought with the intent to harass or to otherwise inhibit the right to petition and/or the right of free speech. In addition, the Palazzos contend that the issues of compensatory and punitive damages pursuant to the anti-SLAPP statute were not before the hearing justice who dismissed the original civil action and thus are not barred by res judicata.

With respect to their malicious prosecution and abuse of process claims, the Palazzos contend on appeal that, because those claims were not pleaded in the original civil action, they are similarly not barred by res judicata.

Standard of Review

In reviewing a hearing justice's decision with respect to a Rule 12(b)(6) motion to dismiss, this Court examines the allegations contained in the plaintiff's complaint, assumes them to be true, and views them in the light most favorable to the plaintiff. Ellis v. Rhode Island Public Transit Authority, 586 A.2d 1055, 1057 (R.I.1991); see also Builders Specialty Co. v. Goulet, 639 A.2d 59, 60 (R.I.1994); Rhode Island Affiliate, ACLU, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I.1989). "[T]he sole function of a motion to dismiss is to test the sufficiency of the complaint," and thus this Court need not look further than the complaint in conducting our review. See Bernasconi, 557 A.2d at 1232. The grant of a Rule 12(b)(6) motion to dismiss is appropriate "when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim." Ellis, 586 A.2d at 1057; see also Builders, 639 A.2d at 60.


The General Assembly enacted the anti-SLAPP statute in order to "prevent vexatious lawsuits against citizens who exercise their First Amendment rights of free speech and legitimate petitioning" under the United States and Rhode Island Constitutions "by granting those activities conditional immunity from punitive civil claims." Alves, 857 A.2d at 752.9 Section 9-33-2 provides that, when that conditional immunity attaches, it renders "the petitioner or speaker immune from any civil claims for statements, or petitions, that were not sham by virtue of being objectively or subjectively baseless." Global Waste Recycling, Inc. v. Mallette, 762 A.2d 1208, 1211 (R.I.2000).

By the nature of their subject matter, anti-SLAPP statutes require meticulous drafting. On the one hand, it is desirable to seek to shield citizens from improper intimidation when exercising their constitutional right to be heard with respect to issues of public concern. On the other hand, it is important that such statutes be limited in scope lest the constitutional right of access to the courts (whether by private figures, public figures, or public officials) be improperly thwarted.10 There is a genuine double-edged challenge to those who legislate in this area.11

I Compensatory and Punitive Damages

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