JOHN D. FRYE, Plaintiff-Appellee,
KAREN M. SCOTT, Defendant-Appellant, and JOHN DOES 1-10, JANE DOES 1-10, DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10, DOE NON-PROFIT ENTITIES 1-10, and DOE GOVERNMENTAL ENTITIES 1-10, Defendants
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 12-1-0073-01)
Mark F. Gallagher for Defendant-Appellant.
Scot Stuart Brower for Plaintiff-Appellee.
By: Foley, Presiding J. and Fujise, J., with Reifurth, J. concurring separately
Defendant-Appellant Karen M. Scott (Scott) appeals from the "Order Denying Defendant Karen M. Scott's Motion To Dismiss Complaint Filed January 10, 2 012 Pursuant To HRS 634F-2, Filed April 13, 2 012" entered in the Circuit Court of the First Circuit (circuit court) on October 15, 2012. On January .10, -2012, Plaintiff-Appellee John D. Frye (Frye) filed his Complaint, alleging claims against Scott for defamation and intentional/negligent infliction of emotional distress, and requesting punitive damages.
Scott contends the circuit court erred by failing to dismiss Frye's complaint because it (1) was a strategic lawsuit against public participation (SLAPP) under Hawaii Revised Statutes (HRS) Chapter 634F; and (2) failed to state a claim upon which relief could be granted under Hawai'i Rules of Civil Procedure (HRCP) Rule 12(b)(6).
Frye's complaint alleged, "on or about June 22, 2011 and at other times in June and July 2011, and thereafter SCOTT made false and defamatory statements regarding FRYE, to Michael Caylor, and other Honolulu Police Department employees. Pearl Harbor, Hickam, and other United States employees, and others, including the allegation that FRYE sexually assaulted and/or raped and/or kidnapped Scott and or committed crimes against SCOTT."
"SLAPP" means a strategic lawsuit against public participation and refers to a lawsuit that 'lacks substantial justification or is interposed for delay or harassment and that is solely based on the party's public participation before a governmental body.
HRS § 634F-1 (Supp. 2012) (emphasis added).
Circuit courts treat a motion pursuant to HRS § 634F-2 (Supp. 2012) "as a motion for judgment on the pleadings." Perry v. Perez-Wendt, 129 Hawai'i 95, 98, 294 P.3d 1081, 1084 (App. 2013). "Appellate courts typically review a trial court's ruling on a motion for judgment on the pleadings under the right/wrong or de novo standard of review." Id. Pursuant to HRS § 634F-2(1) and (5), courts are limited to reviewing allegations contained in the pleadings and prohibit consideration of matters outside of the pleadings. Perry, 129 Hawai'i at 99, 294 P.3d at 1085.
HRS § S34F-2 changes the typical burden of proof for a motion for a judgment on the pleadings. To prevail in a motion for judgment on the pleadings under HRCP Rule 12 (c), a movant must clearly establish that no material issue of fact remains and that he or she is entitled to judgment as a matter of law. Perry, 129 Hawai'i at 100, 294 P.3d. at 1086. By contrast, "under the anti-SLAPP statute, when a motion to dispose of the claim(s) is filed, the burden of proof and persuasion rests with the responding party, i.e. the non-moving party." Id. (citing HRS § 634F-2(4)(B)).
"The court shall grant the motion and dismiss the judicial claim, unless the responding party has demonstrated that more likely than not, the respondent's allegations do not constitute a SLAPP lawsuit ...