Ruling on Diehl -vs- Weber on Trash Station Law Suit

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 "[w]hatever 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:

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Conclusion

Because there remain disputed issues of material fact, the trial court erred in granting summary judgment in favor of Weber on the Diehls' claims of malicious prosecution and abuse of process and Wife's claim for prima facie tort. We therefore reverse the trial court's judgment and remand the case for further proceedings with regard to those claims. We affirm the trial court's rulings concerning the Diehls' claims regarding intentional infliction of emotional distress, the return of privileged documents, the discovery of attorney work product, and the striking of the Diehls' amended petition.

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