*1 George et al. KAROUSOS et al.
Jonathan PARDEE 2008-174-Appeal, 2008-188-Appeal.
Nos. Rhode Island.
Supreme Court of 23, 2010.
April *2 Palumbo, Middletown,
Joseph Esq., R. for Plaintiff. Providence, Petros, Esq.,
Gerald J. Defendant. SUTTELL, C.J.,
Present: GOLDBERG, FLAHERTY, and ROBINSON, JJ.
OPINION FLAHERTY, for the Court. Justice judgment arising A Superior Court filing abuse-of-process of an claim by the provided the affirmative defense litigation against (strategic anti-SLAPP statute, G.L. 1956 public participation) chapter precipitated ap- 33 of title has plaintiffs from the de- peals both granted fendants. in favor of Jonathan remaining and the defendants1 Pardee)2 (defendants they holding liability on an were immune from civil abuse-of-process brought against action against Only defen- entered them. four defendants. complaint listed twelve 1. The Pardee, Decof, Schochet, Gorham, dants, Pardee, Alfred Only Leonard and Car- Jonathan III, Jay Sidney Carpionato, S. Gorham cross-appellants pionato, appellees and are complaint. The seven Schochet answered before this Court. Walsh, defendants, remaining Alexander G. DeFruscio, Sr., Angelone, Richard C. Frank and the three other 2. We refer to Pardee Marinelli, C. McColough, Frank Turner Ian singular. cross-appellants in the appellees and Scott, Hyman, F. never answered and James only. clarity and convenience We do so for default ever complaint, but no actions were sub- the property, them because their Karousos leased and, therefore, option jectively purchase, with an with the expec- immunity by the anti-SLAPP he the building cloaked tation that could use as a *3 statute, In with the statute. accordance school. culinary Karousos based his ex- what awarded Pardee pectation on a 1989 from Newport letter attorneys’ it deemed to be reasonable fees Zoning Guy Enforcement Officer Weston costs. and Anna Karousos George (Weston) owners, to then Fairlawn’s Karousos) en- (collectively appeal from the Rosalyn George Rosner. In that cor- of try summary judgment and the award respondence, Weston indicated that of costs fees to Pardee.3 use of Fairlawn as a school had not been cross-appeals the amount of the abandoned, even it though had not been attorneys’ fees awarded to his counsel. such In used as since 1972. Weston’s carefully have reviewed the record and opinion, because the use was school never arguments considered the raised abandoned, the property use of the as a so, doing After we affirm the parties. remained a legal school nonconforming judgment of the Superior Court. use. Fairlawn, as As soon leased Karou-
I making sos began improve- substantial Facts and Travel the property, ments to and at one point Newport Bellevue approached Regina University Avenue traverses Salve about city. section that It ad- genteel possible of is the affiliation with the school. In of the so-called began dress “mansions” Karousos also to advertise his as summer homes for who to open served those intention an International Institute country’s during Culinary However, were this financial elite for Arts Fairlawn. gilded age. Newport Bellevue Avenue has be- of to City objected the use of school, city’s showpieces, come one of the and is a as a culinary Fairlawn and it initi- major dis- zoning tourist attraction. The central ated a action against enforcement building, in this about pute September case is how a Karousos. Weston Fairlawn, letter, known as at 518 Ave- Bellevue sent Karousos a in which he de- nue, 1960s, 1950s, may be In the necessary used. tailed the actions that were be- 1970s, prepa- City Newport Fairlawn used as a fore the would approve of time, ratory and, part schоol, school of that as culinary the use Fairlawn as a College. Vernon Court Junior Salve including affiliating Regina.4 with Fairlawn’s school use ceased and the build- complied, After Karousos Weston further Karousos, ing exclusively was used as a with corresponded residence. informing City The New- the City Newport ordinance him that now ap- permits building port proved the use the use of culinary Fairlawn as a school; purposes, residential but its use considers enforcement action was dis- missed, purposes for educational to be well. Subsequently, noncon- as forming. option purchase exercised his to Fairlawn. rousos, Regina 3. Anna died while this action was Salve offer certain curriculum, pending. pertinent in thе courses attendance, Regina Salve issue certificates of affiliating Regina, In addition Salve facility public not offer and that could Regina Weston said that Karousos and Salve dining. comply requests, including must with several Regina Salve Ka- license Fairlawn from alleged that defen- complaint, Karousos Jonathan Pardee In December the March 1996 letter of Bellevue dants used at the corner purchased a lot Avenue, “appeal” the 1989 pretext as a adjacent to Weston Marine Avenue and detailing opinion Roger and 1994 letters Weston’s early King, Fairlawn. Fairlawn, as a that the use Fairlawn school informed Par- former owner of defendants, com- operate permissiblе. that Karousos intended dee any had waived plaint alleged, long since culinary there. In March school as a Pardee, object to the use of Fairlawn attorney Alexander through his school, “con- Walsh, their to the board about whether of Weston inquired *4 gross a a misuse of administra- culinary as a school was stitutes Fairlawn’s use process” “wrongful city’s zoning tion for appellate under the permissible use four defen- purpose.” Pardee and other correspondence In dated ordinance. 1996, complaint; they as- 19, that answered the Weston wrote such dants March defense that their he his serted an affirmative use was reiterated permitted, seeking of the 1996 letter and attached a аctions review opinion from his letter (Walsh 1996, acting Pardee from Walsh was copy it. On March Weston behalf) immu- Zoning on entitled them to Newport to the Board Pardee’s appealed (the upon § board), nity liability, civil based 9-38- asking that it determine that culinary the anti-SLAPP statute. the use of Fairlawn as school not under the ordi- permissible was Pardee, spring along In the nance. codefendants, for four moved same anti- summary judgment, arguing that the multiple hearings The board held be- immunity January ap- 1997. After SLAPP statute’s tween June 1996 plied seeking time- them because their review ruling appeal first that Pardee’s was objectively was not decided that the school use Weston’s letter ly, board justice that The motion denied had beеn abandoned and Karousos’s baseless. motion, ruling ap- a culinary of Fairlawn as school was an that because Pardee’s use untimely by Superior illegal nonconforming ap- peal use.5 was deemed Karousos Court, question fact about Superior decision to the remained pealed the board’s was appeal objectively reversed whether Pardee’s Superior Court. A Court board, ruling petitioned that the board had erred baseless. Pardee this Court certiorari, it we denied. appeal when determined that Pardee’s writ of which timely. hearing justice was concluded certiorari, parties After we denied the only appealable action was Wes- and the lan discоvery conducted case letter, the time to ton’s 1989 guished years. for six more Jonathan Par- long passed. that letter had appeal from deposed, dee and Alexander Walsh and, deposi on part On while the hear- at least based in their December testimony, Pardee filed a renewed mo ings ongoing, before the board were still in March abuse-of-process filed an com- tion for Karousos against again argued appeal Par- 2003.6 He his plaint in the immunity his entitled him to under dee and eleven other defendants. In board against property claim Leonard sold the Karousos’s 5. March Regina Uni- at 518 Bellevue Avenue to Salve Decof was dismissed. versity. currently property This houses Pell Center for International Relations Policy. Public board; his ac the anti-SLAPP statute because to the and the motion ruled subjec objectively neither nor attempt tions were that Pardee’s objectively to be motion, tively baseless. Pardee’s (1) primary arguments ap were that his Nonetheless, the motion peal objectively because baseless granted summary-judgment Pardee’s mo (2) he before the was successful board tion because she concluded appeal appeal was not subjectively baseless. She pressed appeal because he in an effort that the ap reasoned stated basis prevent culinary Fairlawn’s use as a peal, namely, to halt the use of Fаirlawn as school, with ulterior no motive. Karousos school, a culinary was the motive be opposed Pardee’s motion for Finally, hind Pardee’s actions.
judgment. argued that Pardee’s justice further if found that even objectively to the board was base immunity was not entitled to under the untimely, gross less it was because and the statute, abuse-of-process anti-SLAPP untimeliness demonstrated *5 claim would unsuccessful because Ka that to use Pardee tried the administrative rousos had failed to any offer ulterior mo appeal process wrongful for purpose tives for Pardee pursuing zoning ap the unjust delays an effort to cause Karou- to peal, and thus he satisfy could not the sos. elements the claim.7 time, justice different hearing This parties the appeared yet before granted summary judgment to Pardee. another justice to deter- decision, a written the de- justice motion mine whether Pardee was entitled to costs objec- termined that Pardee’s attorneys’ and reasonable as provided fees because, tively opinion, in her for in the anti-SLAPP statute. The mo- right appeal any Pardee had no to the justice determined that award of justice letters from Weston. motion costs attorneys’ and fees is mandatory ruled that enforcement de- officers prevails to a respect defendant who authority provide advisory rive their to successfully trial or motion in 45-24-54, by asserting G.L. information from 1956 But, immunity under the but that statute. she also only “guid- such information is for ruled that the justice ance or clarification.” The reasonableness the attor- motion neys’ reasoned that because is not fees and the costs were within such letter equitable binding, it not court’s discretion. The aggrieve anyone, does justice appealed. therefore it cannot be Conse- ruled that Pardee was entitled quently, to she determined that there was no those costs and fees related motions, enforceable to letter Weston’s to their not for successful but proof abuse-of-process requires 7. An claim culinary use of Fairlawn as a If school. Par- "(1) that proceedings the defendant instituted dee appeal, property was successful in his (2) process against plaintiff or culinary could have been used to house proceedings the defendant used these for an Therefore, justice school. the motion held wrongful purpose pro ulterior appealed prevent that Pardee to the board to ceedings designed accomplish.” were not to impermissible what he believed to be an use Lima, (R.I. v. 590 Fiorenzano of the land. The ruled that no Alves, 2009) (quoting v. Palazzo reasonably ulterior be drawn motive can from Here, (R.I.2008)). the motion the record and that was unable Karousos ap found that Pardee’s stated reason for meet burden on the second element of the peal was to bоard seek review Wes abuse-of-process claim. letter, turn, prevent ton's and in conclude nonmoving party, if we summary-judgment motion unsuccessful exists, genuine no of material fact a writ of certiorari 1997 or moving judg- then the is entitled timely appealed to this Court. law, ment matter of we affirm the as a summary judgment and grant of judgment. Id. attorneys’ fees. Subse- of costs and award timely cross-appeal filed a quently, attorneys’ fees and costs. on the amount Exception
The “Sham”
II
was enacted to
“The anti-SLAPP statute
prevent
against
vexatious lawsuits
citizens
Appeal
Issues on
who exercise their First Amendment
argu-
raises two
appeal, Karousos
On
peti
rights
speech
legitimate
free
First,
that whether
argues
he
de-
ments.
activities
tioning
granting those
condi
subjectively base-
actions were
fendants’
punitive
tional
civil
immunity
claims.”
a matter
a fact-finder and that
less is
Alves v. Hometown
Newspapers,
by determining
erred
(R.I.2004)
(citing
A.2d
Hometown
Second,
of law.
issue as matter
Properties,
Fleming,
Inc.
award
seeks to have the
of attor-
(R.I.1996)).
Rhode Island’s anti-
if the
neys’ fees vacated
Court reverses
derived from
SLAPP statute
several Unit
justice’s ruling
that defendants’
Supreme
ed States
Court cases: Eastern
actions were
*6
Railroad Presidents
v. Noerr
Conference
cross-appeal,
remain-
Inc.,
127, 81
Freight,
Motor
365
S.Ct.
U.S.
they are
entitled
ing
argue
defendants
(1961)
523,
(Noerr),
5
464
L.Ed.2d
costs
fees and
v.
United Mine Workers America
Pen
incurred,
relating
including those
tо this
657,
1585,
nington, 381 U.S.
85 S.Ct.
14
well
in the
appeal, as
as those incurred
(1965),
626
L.Ed.2d
Real
Professional
summary judgment motion
unsuccessful
Investors, Inc.
Estate
v.
Pic
Columbia
certiorari,
petition
a writ of
be-
Industries,
Inc.,
49,
tures
508 U.S.
113
were,
cause these unsuccessful motions
(1993).
1920, 123
S.Ct.
L.Ed.2d 611
nonetheless, reasonable.
Noerr,
129,
523,
A
violation. The Noerr
held
Court
Summary Judgment and the
antitrust
actions did not constitute an
vio
Anti-SLAPP Statute
lation,
“[tjhere may
but it also
noted
publicity
be situations in which a
cam
1
paign, ostensibly
influenc
directed toward
Review
Standard of
action,
ing governmental
a mere sham
is
actually nothing
This
of a
сover what
more than
Court reviews
is
directly attempt
de novo.
to interfere
1288,
competitor
Louangxay,
relationships
of a
Berardis
business
* * *."
(R.I.2009).
144,
the same
Id. at
81
523. Four
apply
1291
stan
S.Ct.
later,
years
we view the
381 U.S. at
justice:
Pennington,
dard as
interpreted
in the
favorable to the
Court
light
evidence
most
S.Ct.
to “shield
rately
Noerr
viola-
[]
[antitrust
whether
objec-
tively
a concerted effort to
public
subjectively
tions]
influence
or
baseless.
regardless
purpose.”
officials
of intent or
Investors,
Real Estate
Professional
Objectively Baseless
Inc.,
60, 61,
at
U.S.
113 S.Ct.
33—2(a)(1)
Section
objec
defines
9—
“two-part
Court established a
definition”
tively baseless meaning
as
that “no reason
constituting
actions
what
the Noerr
persоn
able
exercising
of speech
referred to
as
“mere sham.”
could realistically expect suc
Noerr,
at
U.S.
523.
S.Ct.
cess in procuring
government action,
“First,
the lawsuit
objectively
must be
* *
result, or outcome
It
is worth
baseless in the sense that no reasonable
noting that
this Court has had several
litigant
realistically expect
could
success
definition,
occasions to address this
and we
on the merits.”
Real Estate
Professional
never have
that a
held
defendant’s actions
Inc.,
Investors,
U.S.
113 S.Ct.
objectively
In Cove Road
Second,
inquire
court must
Development v. Western Cranston Indus
whether the
lawsuit is
an at-
Associates,
trial Park
tempt to
directly
interfere
with an adver-
(R.I.1996), we held that an appeal by land
sary’s business through the use of the
park
owners and industrial
members of a
governmental process rather
than an ef-
zoning amendment that was beneficial to a
fort to use the outcome of the governmen-
residential real estate developer that could
tal process
legitimate
for its
ends.
Id. at
negatively
have
impacted the industrial
60-61,
lenged sham, conduct is deemed a and is reasonably expected have a successful out not entitled to immunity. Id. at come.” In Properties, Hometown S.Ct. 1920. *7 58-59, 64, at 680 A.2d we held that letters and Department statements made to the By (P.L. аmending 9-33-2 in 1995 Environmental Management and other 1),§ ch. the Rhode Island Gen state agencies and federal opposed to a Assembly eral essentially adopted the two- proposed landfill were not objectively part definition of sham participation out because, baseless in part, they were lined in Real Estate Inves Professional grounded in reports scientific tors, studies. but broadened application its to con beyond texts the field of antitrust. See In Global Waste Recycling, Inc. v. Mal Properties, Hometown at lette, 1208, 1210-13 (R.I.2000), 762 A.2d we 9-33-2(a) 60-62. Section provides that affirmed the of conditional immunity petition or speech “[t]he free constitutes a under the anti-SLAPP statute neigh to only sham if it is genuinely аimed at bors who made statements to a newspaper procuring government action, favorable re that were critical of handling of flam sult, outcome, regardless of ultimate mable materials at a recycling plant waste purpose.” motive or specifies statute after a fire broke out at the plant, because petition that a speech or free constitutes a the statements were on personal based only sham if it objectively is both and knowledge publicly available informa baseless, subjectively tion, and, therefore, as both of those were not objectively terms are defined in the statute. Alves, Section recently baseless. Most 33—2(a)(1)(2). We will sepa- consider this Court determined that letters 9— board, appeal can to the newspaper aggrieved party that ad- the editor of a
to
at-
ruled that Pardee’s
motion
public
an
concern that was
dressed
tempt
legal
lacked
basis and
appeal
local
to
currently
consideration
under
objectively
baseless.
thus
objectively
were not
baseless
government
attempt
a reasonable
to
because
were
Court,
argues that
Before this
Pardee
to
address
government
if
right
appeal
even
there was no clear
to
concerns.
defendant’s
under the
ordi-
Weston’s letters
nance,
objectively
was not
base-
appeal
his
Indeed,
once,
Corp.
in Pound Hill
оnly
board,
less
as well as the
because
(R.I.1996)
Perl,
who heard
motion
the 1997
(Pound Hill),
determined
has
Court
summary judgment,
that Par-
agreed
there
issues of fact that
genuine
were
appeal
to
right
dee had the
from Weston’s
required
denial
words,
letter.
In other
he asks how his
Superior
remand
Court for trial
appeal
categorized
objectively
can be
as
peti-
on the issue of whether a defendant’s
granted
if
it
baseless
the board
tioning activities constituted
sham.
overruled the Board
Hill,
protested
Pound
a landowner
a town
untimely.
appeal
because she said the
parcel
vote
council’s
to rezone
of land
appeal,
Karousos embraces the 2008
though
clearly
even
the counсil vote
met
rationale
ac-
justice’s
that Pardee’s
requirement
the ordinances
a three-
objectively
tions
because
majority
land.
fifths
to rezone
Id. at 1262.
statutory
appeal
no
had
Additionally,
the landowner
that case
from
any Weston’s letters.
an
Superior
filed
action in the
enjoin the
fur-
taking
town council
agree
jus-
with the motion
Because we
ther action after the time for
filing
tice’s
ruling
appeal
that Pardee’s
had
also
fur-
appeal
expired,
sought
zoning board of review did not meet the
ther
administrative
lacked sub-
sham
prong
exception
second
s,
and an
stantive merit
to the
baseless,
it was
need
we
untimely.
Court that was
Id. at
not,
and do not reach
issue of whether
a grant
vacated
of sum-
objectively
his efforts were
mary judgment
ground
on the
that genu-
b
ine
issues
fact remained about whether
actions “were objectively
Subjectively
landowner’s
Baseless
*8
process
baseless
utilized
itself
9-33-2(a)(2)
Section
defines a
rather than
intended
outcome
order
that which
activity
baseless
as
and delay plaintiff.”
to hinder
Id. at
actually
attempt
govern
“is
an
to
use
1264-65.
process
mental
itself
its own direct
Here,
However,
determined
effects.”
of outcome or
“[u]se
were objectively
governmental process
Pardee’s actions
result of the
shall
governmental
she ruled that Pardee
not constitute use
because
had no
for its own
effects.”
appeal
procеss
to
Weston’s letters.
itself
direct
Hill,
She reasoned that the letters were
Id.
668 A.2d at
this
purely
Pound
nonbinding,
informational
of “sham”
because Court addressed
elements
statutorily
litigation
such letters
to
predated
restricted
in a decision that
§
“guidance
only.
be for
or
enactment of
9-33-2’s definition of sub
clarification”
The
Hill
Reasoning
ag-
jectively
that Pardee had
been
Pound
decision,
suggested
inquire
that courts
into
grieved by
only
a
and that
an
must
Inc.,
(R.I.1996)).
process
litigants
“utilized the
674 A.2d
whether
“Therefore,
than the
outcome
we will affirm
grant
itself rather
intended
plaintiff.”
delay
to hinder and
summary judgment ‘against
order
who
Hill,
A “party opposing ing further burdens and may delаys rest on to the simply opening of allegations culinary or her Karousos’s school. and denials in his *9 pleadings, competent allegations but Karousos’s mere were prove by must insuffi- evidence the existence mate cient to rebut the disputed statements under oath Pardee, Capone, by rial issue fact.” Brito v. 819 offered and therefore Karousos (R.I.2003) (citing A.2d Accent failed to his showing meet burden of the House, Design, Store Inc. v. Marathon a disputed existence of material Although appellee cross-appellant 8. Walsh with re- or appeal. was a defendant in this claim, spect abuse-of-process to the he is not Alves, 747, 757, In Indemnity Co. v. at the
fact. See Casco Gon (R.I.2004) (“the salves, considered affidavits and concerning the fees exhibits costs and in- the motion party opposing in re- by preparing curred the defendant’s proving the burden judgment, carries sponse complaint slander for one evidence the existence of dis competent count, counts, libel two false- fact two material issue of and cannot puted counts, and the light adjusted in total the allegations plead on or denials rest award to what she reasonable. deemed legal opinions”). or ings or on conclusions justice granted result, defen- petitioning activity As a Pardee’s dant, immunity who benefited from conditional im- not a sham and warrants munity, defending all his fees statute. under the anti-SLAPP Conse de- slander count but half his fees for quently, Pardee was entitled fending false-light the libel and in claims. favor because his his at Id. 757. to the board In attorneys’ his 2007 motion for fees costs, Pardee’s submitted affi- counsel B attorneys’ davits detailing and exhibits Attorneys’ Fees and Costs fees incurred. The 2007 motion agreed with Pardee that costs and reason- 9-33-2(d) provides Section attorneys’ mandatory able fees were under grants motion asserting the court “[i]f the anti-SLAPP statute but awarded an section, immunity established fees upon amount for those based what she * * * prevailing the court award the shall equitable. reviewing deemed to be After fees, party attorney’s costs and reasonable request, deter- including those incurred for the motion mined that Pardeе fees only should receive any discovery matters.” related for the successful assertion of anti-SLAPP Alves, A.2d at we said that when immunity, awarding and she denied “prevail[s] under anti-SLAPP attorneys’ costs and fees that were related * * * an award of costs rea statute to his unsuccessful 1997 motion for sum- attorneys’ mandatory.” sonable fees [is] mary judgment and the for a writ of certiorari that was denied. provide, The statute does not how ever, mandatory what ar- specif ruling, costs are attorneys’ gues ic measure of reasonable fees. motion justice “committed legal would We said Alves that we not disturb error” when she limited his award of justice’s of attorneys’ attorneys’ award fees and only costs suc- Alves, fees and cоsts. emphasizes A.2d cessful motions. Pardee This deference lower court justice’s to the statute’s limitation on the amount determination what of attorneys’ constitutes reason award fees is whether reasonable; able fees is consistent with orn were the liti- fees whether Schroff, Taylor- gant ease law. See Inc. v. in every was successful tactical move Peterson, (R.I.1999) is not a Par- particular, consideration. (“the amount argues summary judg- awarded counsel fees is dee that the within the trial ment subsequent petition sound discretion motion and for a judge light of the of each writ of circumstances certiorari reasonable efforts *10 case”) (citing Royal v. ITT with the comply purpose Annunziata statute’s in Co., (R.I.1984)). Electric at the granting immunity conditional onset litigation, particular even if or Court for a those efforts determination what those (acknowl- § fruit. 9-33-1 bear See fees and costs be. did should sup- the rise of aimed at edging lawsuits legitimate of constitu-
pressing exercises IV declaring that rights and resolutions tional Conclusion quick- such lawsuits be resolved “should ly with minimum cost to citizens who have judgment the Superior is Court concern”). public participated matters affirmed. The record this case is re- summary Pardee contends that the 1997 manded to Superior Court for further motion for a judgment petition writ of proceedings not inconsistent with this certiorari both were reasonable because opinion. justice thought the 1997 motion had “considerable merit” “she encour- ROBINSON, J., concurring in part and petition” for a writ of certiorari. aged dissenting in part. that Additionally, argues he is also I readily concur in the Court’s holding to attorneys’ entitled to fees and costs for the effect that the defendants should not appeal. this attorneys’ awarded fees in connection record considering After and the with either their unsuccessful first motion decision, justice’s we hold that the for summary judgment or their unsuccess- did not abuse her discretion certiorari; view, ful in my finding reasonable attor- anti-SLAPP statute should not be con- neys’ fees should not include the in- fees payment strued as authorizing of attor- in his curred unsuccessful neys’ fees for such unsuccessful quests. judgment peti- motion and his unsuccessful However, I respectfully part company for a writ of to this tion certiorari Court. from the majority respect to its The motion correct when sus- she taining the Court’s Superior later concluded anti-SLAPP statute’s attorneys’ provision fees in favor and costs of defendants mandatory, but that amount of the fees under the anti-SLAPP statute and its con- costs to her subject determina- sequent attorneys’ I award of fees. As of what was reasonable. See 9-33- Superior understand Rule 56 Court 2(d); Alves, 757; Schroff, 857 A.2d at Rules of and the copious Civil Procedure Here, A.2d at 721. body of relative jurisprudence to the sum- appropriately considered the affidavits and mechanism, mary I judgment do not be- exhibits submittеd Pardee’s counsel in hearing justice lieve that the should have determining the reasonableness of the granted summary judgment on the basis of attorneys’ award of fees costs. We her ruling that defendants’ actions were no fault in reasoning find her or her con- firmly “not I baseless.” am clusion, affirm judgment. her convinced is not an appropriate resolving mechanism for Finally, Pardee this asks Court for at- controversies that turn on an torneys’ fees assessment and costs in connection with of the appeal. subjective intent of a agree anti- —and certainly subjective statute him to the issue of SLAPP entitles reasonable baseless- ness vel judg- fees for the defense of the non involves determination of subjectivе case to the Superi- ment. We remand this intent.9 Furthermore, (i.eRule prescinding proce- from the dural *11 274 manner.”) ordinary by solved trial in the the determination of view that my
It is Co., Peabody Coal 342 subjec- (quoting Rogers v. actions were whether defendants’ Cir.1965)); non) 749, (6th (vel see general should have been F.2d 751 tively baseless Sys my Broadcasting Poller v. ly mill of a fact-finder. Columbia grist for the 473, 486, tem, Inc., 464, simply 82 7 a determination is 368 S.Ct. judgment, such U.S. (1962) (“We summary disposition. It believe that sum susceptible not L.Ed.2d 458 that, noteworthy supplemental in mary procedures sparingly is be used should in defendants’ opposition memorandum complex litigation in where mo antitrust summary judg- roles, 2003 motion leading proof successful play tive and intent ment, explicitly argued that alleged of the con largely is in the hands alone the de- untimeliness of gross “[t]he witnesses thicken the spirators, and hostile efforts to concerted burden 30, fendants’ McKay, v. 555 F.2d 37 plot.”); Schmidt his culi- delay opening (2d Cromartie, Mr. Cir.1977); Hunt v. see also * * * nary creates triable issue school 1545, 541, 552, 119 S.Ct. 143 526 U.S. of the propriety defendants’ regarding the (1999) (holding that whether L.Ed.2d 731 added.) my opin- (Emphasis actions.” was gerrymandering prod at issue ion, question it much a of fact as to very is impermissible racial uct motivation in- subjective it was defendants’ whether “it was disputed and that error fact legitimately tention this case for the District Court to resolve whether, alternatively, peti- board disputed fact of motivation the sum See a “mere sham.” G.L. 1956 mary judgment stage”); Anderson v. Lib § 9-33-2. 242, 255, 106 erty Lоbby, 477 U.S. (1986) (“Credi 2505, 202 S.Ct. 91 L.Ed.2d submit, (including, issues I
Numerous determinations, bility weighing subjective baselessness vel evidence, drawing of non) legitimate and the nature, are, very inherently by their are jury inferences from the facts func incapable being by summary decided * * *.”); v. See, Ethier, tions Santana Rainbow Clean e.g., v. judgment. Gliottone ers, Inc., 653, (R.I.2005) (“[IJssues (R.I.2009); A.2d 658 969 1028 Sundlun, 699 A.2d negligence ordinarily susceptible are not of Pontbriand v. (R.I.1997).10 summary adjudication, but should be re- Alves, Procedure) issue, of access to the courts. See v. Rules Civil I wish to Palazzo (R.I.2008). provision in & 11 indicate that I am troubled 944 A.2d 150 & nn. 10 requires statute that anti-SLAPP 10. addition, on this Court has numerous attorneys' party awarding fees to whose emphasized the drastic occasions nature of "objec- have have been found to been actions See, summary judgment e.g., mechanism. tively (provided ac- baseless” that those Giuliano, subjec- have Estate v. 949 A.2d tions also found not to been Giuliano are baseless). (R.I.2008) tively ("Summary judgment G.L. See 9-33-2. is a usually grant attorneys' remedy, fees Our law does not drastic and a motion for engaged "objectively cautiously.”) that has dealt with should be However, activity. omitted.); I (Internal realize that we DePasq baseless” quotation marks mandate, statutory Pizza, Inc., are with a faced here v. uale Venus "[tjhe remedy for a I also realize harsh law is (“This (R.I.1999) consistently Court has ac interpretation, but in amendment or knowledged that is a 403, 409, repeal." Duggan, 15 R.I. State applied remedy harsh that must cautious (1886). A. ly.”); Metropolitan Property Sjogren v. and Ca Co., (R.I. sualty undoubtedly Insurance serve a Anti-SLAPP statutes 1997) ("Summary judgment is an extreme purpose, important it useful but is remedy applied cautiously.”). that should be improperly thwart constitutional
275 judgment It is self-evident to me the determi when of the disposi- resolution presence subjective nation of the of base- tive a of requires issue determination state scrutiny requires non mind.”); lessness vel Reynolds, T. Brett Comment: long the human heart and mind.11 It has Appellate Review Act Lanham Viola- pro been judgment held that Ques- tions: Is Likelihood of Confusion ordinarily inappro cedural mechanism- is Fact?, Law or 38 Southwestern priate resolving for such issues of intent (1984) 743, L.J. 772 (“Summary judgment Casualty mind. & and state of See Aetna usually is inappropriate disputes resolve Farr, 379, v. Surety 381 Co. сoncerning conflicting state mind and (R.I.1991) (“If dispute about is intent perceived interpretations events be- record, apparent in the then a genuine normally cause state of mind is infer- issue of material fact has been discovered facts.”). ence drawn may and it not be decided reasons, the foregoing my For it is opin- Equal see summary judgment.”); also ion that was not an Employment v. Opportunity Commission appropriate procedural (2d mechanism for Co., F.2d Home Insurance Cir.1982) (“In evaluating subjective light baselessness obligation of the court’s component of the anti-SLAPP statute. to draw all reasonable I against inferences have moving party, summary is would remanded the ease to the Su- rarely pеrior Court for appropriate moving par fact-finding regard where ty’s issue.”); state of mind a material subjective is to the issue of the defendants’ MacDonald, Maiorana v. 596 F.2d intent. Cir.1979) (“We (1st
1076-77 are well aware * * * that like one in cases this which
state of mind is at issue lend usually do summary judgment.”);
themselves to Cro Co.,
ley v. Navigation Matson 434 F.2d (5th Cir.1970) (“The court should granting
cautious in Moreover, repeatedly empha subjec- Court has can of a One conceive case where “purpose summary judg sized that entirely tive baselessness is clear—for exam- procedure finding, ment is issue ple unambiguous where there is an admission determination.” National Industrial Bank by party to that is effect. But this no such Peloso, R.I. case. (1979); Giuliano, see also Estate of 391; Co., Realty A.2d at v. Atlantic Saltzman (R.I.1981).