Staff report

Attorneys for Fred Weber Inc. recently asked the Missouri Supreme Court to consider an Oakville couple’s lawsuit against the company after the state appellate court denied Weber’s request to reconsider its decision.

The Eastern District of the Missouri Court of Appeals early last month denied Weber’s Feb. 8 motion for rehearing and application for transfer of Tom and Barbara Diehl’s case to the Missouri Supreme Court.

However, Weber’s attorneys on March 22 applied for a transfer directly with the high court.

In a Jan. 26 opinion, appellate judges reversed and remanded a trial court’s decision to grant summary judgment in favor of Weber on Tom Diehl’s claims of malicious prosecution and abuse of process, and on Barbara Diehl’s claim of prima facie tort.

The Diehls filed a four-count lawsuit against Weber in July 2005 after the same appellate court dismissed the company’s $5 million lawsuit against Tom Diehl that March, and after the state Supreme Court refused to hear the company’s case three months later.

Weber sued Diehl in February 2004 for his alleged involvement with fliers that labeled the company “trash terrorists.”

Diehl and hundreds of Oakville residents had opposed Weber’s efforts to construct a trash-transfer station on Baumgartner Road near the company’s south quarry.

The appellate court eventually ruled that the phrase “trash terrorists” was not defamatory, and after Weber’s litigation was dismissed in 2005, the Diehls sued back.

The Oakville couple alleged malicious prosecution, intentional infliction of emotional distress, abuse of process and prima facie tort.

But the St. Louis City Circuit Court eventually granted summary judgment against Tom Diehl for his malicious prosecution and abuse of process claims, as well as Barbara Diehl’s prima facie tort claim.

The court also dismissed the claim of intentional infliction of emotional distress.

In their Jan. 26 opinion, however, Appellate Judges Glenn Norton, Mary Hoff and Lawrence Mooney stated, in part, “(W)e find that Weber presented no evidence establishing that, at the time the defamation lawsuit was filed, anyone reasonably believed Weber was a terrorist based on the contents of the flier or that Weber’s reputation was damaged as a result. Instead, the record before us implies that the defamation lawsuit might have been an attempt to compel Mr. Diehl to stop exercising his First Amendment right to publicly oppose the proposed trash-transfer station, a collateral purpose.

“Consequently, there are disputed issues of material fact regarding whether Weber filed its defamation lawsuit to protect its reputation from harm or rather to quash distribution of the flier and opposition to the trash-transfer station, by seeking actual damages in excess of $100,000 and punitive damages of $5 million.”

The panel also reversed the trial court’s summary judgment on Barbara Diehl’s prima facie tort claim because it was “dependent on the viability of Mr. Diehl’s malicious prosecution and abuse of process claims.”

In their appeal, the Diehls also sought reversal of the trial court’s dismissal of their intentional infliction of emotional distress claim, its order that their attorney return a memorandum that Weber attorneys “inadvertently produced” during discovery and its striking of the couple’s amended petition to assert claims against the attorneys who represented Weber during its defamation suit.

The appellate judges denied those points.