COUNSEL:

For Appellant: Michael D. Quinlan.

For Respondent: Jeffrey B. Hunt and Albert A. Michenfelder, Jr.

Fred Weber, Inc., brought an action alleging defamation and civil conspiracy. Thomas Diehl, the relator herein and the defendant in the underlying action, filed a motion to dismiss that the trial court denied. Diehl then filed a petition for a writ of prohibition in this Court.

PRELIMINARY WRIT OF PROHIBITION IS MADE ABSOLUTE.

Writ Division Two holds: The petition fails to state a claim upon which relief can be granted, and a writ of prohibition is the proper remedy in this case.

Lawrence E. Mooney, Presiding Judge

In December of 2003, Thomas Diehl found himself embroiled in a dispute with a company, Fred Weber, Inc. Diehl went to a public hearing held at a local high school to oppose an application for a trash transfer station. The company owned a sanitary landfill and also the property where a proposed trash transfer station was to be built and operated. Further, the company was the "managing member" of F.W. Disposal South, LLC, which had filed an application with the county health department to construct and operate the trash transfer station. The county health department, as required by law, held a public hearing regarding the proposed trash transfer station.

Before, during, and after the hearing, Diehl distributed a handbill to many members of the public. Because this flyer is at the heart of this dispute, we reprint it in its entirety. [FN 1]

[FN 1] A scanned copy of the flyer appears in the appendix of this opinion.

2. If you currently use Midwest Waste, Excel, or Trash Taxi for your trash service, please consider a firm which does not use Fred Weber's landfill -- Throw N Go, Bob's Disposal, Kraemer Hauling, or Diamond (aka IESI).

3. Contribute to Our Fight. Make your check payable to:

Subdivision Fee Collectors, Inc.
12570 Hibler Woods
St. Louis, MO 63141

(In the memo field write "Stop Fred Weber Fund")

DON'T TRASH SOUTH COUNTY

The company filed suit twelve days after the public hearing claiming that the flyer was defamatory. In February of 2004, the company filed an amended petition, which added Diehl as a defendant and is the pleading at issue in this appeal. [FN 2] This pleading contains four counts. The first two counts plead actions in defamation and the third count pleads a civil conspiracy to defame. Each of these three counts requests actual damages in excess of $25,000.00, punitive damages of $5,000,000.00, and an award for costs, expenses, and attorneys' fees. The final count requests an injunction that Diehl and others be enjoined from distributing the flyer and ordered to deliver any remaining flyers to the court for destruction.

[FN 2] In the original petition, the company named Subdivision Fee Collectors, Inc. and certain unknown and unidentified John Does as defendants. The company dismissed without prejudice Subdivision Fee Collectors, Inc. and the John Doe defendants on March 4, 2004 and May 24, 2004, respectively.

Review of a motion to dismiss for failure to state a claim is solely a test of the adequacy of a plaintiff's petition. Nazeri v. Missouri Valley College , 860 S.W.2d 303, 306 (Mo. banc 1993). It is assumed that all of the plaintiff's averments are true and the plaintiff is liberally granted all reasonable inferences therefrom. Id.

In Nazeri , the Missouri Supreme Court set forth certain standards when deciding if a statement is defamatory. Id. at 311. First, in determining whether a statement of fact is defamatory, the words must be stripped of any pleaded innuendo and construed in their most innocent sense. Id. The alleged defamatory words must also be considered in context, and the words are given their plain and ordinarily understood meaning. Id . The alleged defamatory words "'are to be taken in the sense which is most obvious and natural and according to [the] ideas they are calculated to convey to those to whom they are addressed.'" Id . Although these standards are not "absolutely consistent," "they should be read together." Id . Whether the language at issue is defamatory is a question of law. Sterling v. Rust Communications , 113 S.W.3d 279, 281 (Mo. App. E.D. 2003).

The Court in Nazeri also analyzed constitutionally protected expressions of opinion. Id . at 314. "The First Amendment's guarantee of freedom of speech makes expressions of opinion absolutely privileged." Id . However, the United States Supreme Court has rejected the notion that there is a wholesale defamation exemption for anything that might be labeled opinion, noting that expressions of opinion may often imply an assertion of objective fact. Id. (citing Milkovich v. Lorain Journal Co. , 497 U.S. 1, 18, 110 S.Ct. 2695, 2705, 111 L.Ed.2d 1 (1990)). The test for an ostensible opinion is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. Id . "The issue of falsity relates to the defamatory facts implied by a statement--in other words, whether the underlying statement about the plaintiff is demonstrably false." (Emphasis in original). Furthermore, "neither 'imaginative expression' nor 'rhetorical hyperbole' is actionable as defamation." Id . In addition, a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff's conduct and used pejorative statements or vituperative language to express this disapproval. Henry v. Halliburton , 690 S.W.2d 775, 788-89 (Mo. banc 1985). "Courts should also examine the statements themselves to determine whether they are too imprecise." Id. at 789.

We note initially the imprecise nature of the phrase "trash terrorists," which the company posits as defamatory. Exactly what constitutes a "trash terrorist" is unclear. Indeed, given the imprecise nature of the phrase, it is uncertain how the truth or falsity of being a "trash terrorist" could be determined. [FN 3] The imprecise nature of the phrase "trash terrorists" notwithstanding, the phrase is not defamatory as a matter of law under the applicable standards. The company focuses on the word "terrorist." But the term "terrorist" cannot be considered in isolation. As previously stated, the allegedly defamatory words must be taken in context. The flyer was distributed before, during, and after a public hearing regarding the proposed trash transfer station. The flyer asks people to write to certain county government officials, to consider changing trash services, and to make a contribution. Certainly, if the flyer was factually claiming that the company kills and injures people, it would not urge the reader to merely write to the head of the St. Louis County Department of Planning. It is clear that the flyer is recommending action to oppose the proposed trash transfer station. Further, the flyer concludes by stating "DON'T TRASH SOUTH COUNTY." The flyer is conveying the message that approval of the trash transfer station would have a negative impact on South County. Taken in context, the use of the phrase "trash terrorists" reflects the writer's staunch opposition to the proposed trash transfer station.

[FN 3] The company's amended petition states that the flyer "was and is wholly false in that [the company] is not a terrorist, [the company] is not fanatical, [the company] has not killed or injured people at any time and [the company] does not hate the United States."

We now consider whether issuing an extraordinary writ is a proper remedy in this case. We need not address amici's contention that the company's action is a SLAPP suit to determine whether an extraordinary writ should issue. [FN 6] Prohibition is a discretionary writ. State ex rel. Linthicum v. Calvin , 57 S.W.3d 855, 856 (Mo. banc 2001). Prohibition may be appropriate to prevent unnecessary, inconvenient, and expensive litigation. Id . at 857; State ex rel. Springfield Underground, Inc. v. Sweeney , 102 S.W.3d 7, 8-9 (Mo. banc 2003); State ex rel. Police Retirement System of St. Louis v. Mummert , 875 S.W.2d 553, 555 (Mo. banc 1994); State ex rel. Griffin v. Belt , 941 S.W.2d 570, 572 (Mo. App. W.D. 1997); State ex rel. City of Marston v. Mann , 921 S.W.2d 100, 101 (Mo. App. W.D. 1996); State ex rel. Anheuser-Busch Inc. v. Mummert , 887 S.W.2d 736, 737 (Mo. App. E.D. 1994). In exercising our discretion to issue a writ, however, we may consider the chilling impact that might be suffered in public discourse if the underlying meritless action were allowed to proceed.

[FN 6] SLAPP is an acronym for strategic lawsuits against public participation, and lawsuits that are brought primarily in retaliation for activity in opposition to a plaintiff's business interests have been referred to as SLAPP suits. David J. Abell, Exercise of Constitutional Privileges: Deterring Abuse of the First Amendment--"Strategic Lawsuits Against Political Participation" , 47 SMU L. Rev. 95 (1993).

[FN 7] Section 537.528 became effective in August 2004, and provides in part:

1. Any action seeking money damages against a person for conduct or speech undertaken or made in connection with a public hearing or public meeting, in a quasi-judicial proceeding before a tribunal or decision-making body of the state or any political subdivision of the state is subject to a special motion to dismiss, motion for judgment on the pleadings, or motion for summary judgment that shall be considered by the court on a priority or expedited basis to ensure the early consideration of the issues raised by the motion and to prevent the unnecessary expense of litigation. Upon the filing of any special motion described in this subsection, all discovery shall be suspended pending a decision on the motion by the court and the exhaustion of all appeals regarding the special motion.

2. If the rights afforded by the section are raised as an affirmative defense and if a court grants a motion to dismiss, a motion for judgment on the pleadings or a motion for summary judgment filed within ninety days of the filing of the moving party's answer, the court shall award reasonable attorney fees and costs incurred by the moving party in defending the action. If the court finds that a special motion to dismiss or motion for summary judgment is frivolous or solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney fees to the party prevailing on the motion.

3. Any party shall have the right to an expedited appeal from a trial court order on the special motions described in subsection 2 of this section or from a trial court's failure to rule on the motion on an expedited basis.

Ahrens and Shaw, JJ., concur.