Bennie Sisto, as the Trustee of Goat Island Realty Trust v. America Condominium Association, Inc. Bennie Sisto, as the Trustee of Goat Island Realty Trust v. Capella South Condominium Association, Inc.

• Court: Supreme Court of Rhode Island
• Decided: June 26, 2013
• Docket: 11-30, 31, 32
• Status: Published

Opinion

Supreme Court

Bennie Sisto, as the Trustee of Goat Island : No. 2011-30-Appeal. Realty Trust : (NC 08-119)

v. :

America Condominium Association, Inc., : et al. :

Bennie Sisto, as the Trustee of Goat Island : No. 2011-31-Appeal. Realty Trust : No. 2011-32-Appeal. (NC 08-400) v. :

Capella South Condominium Association, : Inc., et al. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone 222-3258 of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Bennie Sisto, as the Trustee of Goat Island : No. 2011-30-Appeal. Realty Trust : (NC 08-119)

Bennie Sisto, as the Trustee of Goat Island : No. 2011-31-Appeal. Realty Trust : No. 2011-32-Appeal. (NC 08-400) v. :

Capella South Condominium Association, : (Concurrence and Dissent Inc., et al. : begin on Page 22)

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Indeglia, for the Court. In this property dispute, Bennie Sisto (Sisto or plaintiff)

appeals from two judgments of the Superior Court: (1) the granting of summary judgment in

favor of the defendant, America Condominium Association, Inc. (America); and (2) the granting

of summary judgment in favor of the defendants, Capella South Condominium Association, Inc.

(Capella), Harbor Houses Condominium Association, Inc. (Harbor Houses), and Goat Island

South Condominium Association, Inc. (GIS). Additionally, Harbor Houses (a nominal defendant

in the second action) appeals from the Superior Court’s grant of summary judgment in that

action, arguing that judgment should have been granted in Sisto’s favor. All three of these

appeals have been consolidated by this Court. After reviewing the record and considering the

-1- parties’ written submissions and oral arguments, we vacate in part and affirm in part the

judgments of the Superior Court.

I

Facts and Travel

Sisto is the owner of a condominium unit located on Goat Island in Newport, within the

approximately twenty-three-acre waterfront Goat Island South Condominium community. That

community was created in 1988 by a master declaration of condominium; this declaration has

since been amended from time to time, and was adopted in its current form in August 2007.

Goat Island South Condominium is comprised of three sub-condominium residential areas—

Harbor Houses Condominium, America Condominium, and Capella South Condominium. Of

the 154 total units, there are nineteen stand-alone townhouse residence units located in Harbor

Houses Condominium, forty-six residence units in America Condominium, and eighty-nine

residence units in Capella South Condominium. Each of these sub-condominiums is governed

by a separate association and declaration and must also adhere to the provisions of the master

declaration. Likewise, these declarations must comply with Rhode Island’s Condominium Act,

G.L. 1956 chapter 36.1 of title 34 (the Condominium Act or Act). 1

Sisto owns Unit No. 1 in Harbor Houses Condominium, which is a stand-alone

townhouse unit surrounded by a yard. According to §§ 1.16 and 2.3(a) of the Harbor Houses

declaration, the yard surrounding Sisto’s unit is designated as a limited common element—

meaning that it is “reserved for the use by one or more but fewer than all [u]nits, and intended for

the exclusive use of such [u]nits.”

1 According to G.L. 1956 § 34-36.1-1.02(a)(1), the Condominium Act “applies to all condominiums created within [Rhode Island] after July 1, 1982 * * *.” -2- In October 2006, Sisto filed an application with the Coastal Resources Management

Council (CRMC) for approval to demolish his existing unit and rebuild a larger dwelling

thereon. 2 Subsequently, on January 16, 2007, America submitted a letter to the CRMC,

objecting to that application. In this correspondence, America stated that Sisto “does not own

the land on which he wants to expand”; as such, it continued, his proposed expansion would

“deprive * * * the other unit owners [in the Goat Island South Condominium community] of

[their] property.” In that letter, America also stated that Sisto’s planned expansion did not

conform to the CRMC’s setback requirements. Later that year, after Sisto amended his

application, America and Capella wrote another letter to the CRMC, on November 26, 2007,

objecting on the same grounds.

Subsequently, on December 7, 2007, GIS sent a letter to the CRMC, stating that

America’s letter to the CRMC (in which it stated that Sisto did not own the land over which he

wanted to expand) was “deceptive” because Sisto, as “one of the owners-in-common of the land

underlying his proposed expansion,” had the “affirmative right” to expand his unit so long as he

met the requirements set forth in both the master and Harbor Houses declarations. In a letter

dated January 17, 2008, the CRMC then advised Sisto that it “lack[ed] the jurisdiction to resolve

the ownership issue * * *, and [that] resolution [would] be required prior to * * * processing

[Sisto’s] requested application [for expansion].” Two months after its initial letter to the CRMC,

America sent a follow-up letter, on February 7, 2008, acknowledging that its statement

pertaining to Sisto’s land ownership was not “technically correct” because that land was actually

owned in common by all 154 unit owners. Ultimately, questioning Sisto’s ownership of the land

at issue, the CRMC refused to process Sisto’s application.

2 Pursuant to G.L. 1956 § 46-23-1(c), the Coastal Resources Management Council (CRMC) is “the principal mechanism for management of the state’s coastal resources.” -3- On March 4, 2008, Sisto filed a complaint (the America action) against America and the

members of its executive board in the Newport County Superior Court. In that action he sought

a declaratory judgment that he had “sufficient right, title and interest in the [l]and and airspace

[surrounding his unit] * * * to confer standing to file the [a]pplication [for the expansion of his

unit] with the CRMC” (count 1). He also sought relief for slander of title, alleging that

America’s correspondence with the CRMC, in which it stated that Sisto “does not own the land

on which he wants to expand,” was “maliciously published with the intent to deceive the

CRMC” (count 2). Lastly, Sisto claimed that America “breached its contractual duties” to Sisto

under the master declaration by virtue of that correspondence with the CRMC (count 3).

America answered the complaint on April 17, 2008, denying all three counts and

asserting myriad affirmative defenses. 3 Five days later, on April 22, 2008, America moved for

partial summary judgment on counts 2 and 3, pursuant to Rule 56(b) of the Superior Court Rules

of Civil Procedure. In an accompanying memorandum, America argued that its correspondence

with the CRMC was protected speech under Rhode Island’s Limits on Strategic Litigation

Against Public Participation Act, G.L. 1956 chapter 33 of title 9 (the anti-SLAPP statute),

because Sisto’s purported ownership of the land at issue was a matter of “public concern”

directed to a governmental body. 4 Accordingly, America averred that it was entitled to judgment

as a matter of law on counts 2 and 3. Pursuant to § 9-33-2(b), America also moved to stay

discovery on those counts, which motion was granted on June 3, 2008.

On May 22, 2008, Sisto moved for partial summary judgment on count 1, as well as for

sanctions against America under Rule 11 of the Superior Court Rules of Civil Procedure. In

3 We note that America did not file a counterclaim for a declaratory judgment, which is ultimately important to our final disposition. See Part V, infra. 4 We discuss this statute in detail in Part IV-(B), infra. -4- support of that motion, Sisto maintained that both the Harbor Houses declaration and the master

declaration permitted him to make improvements, alterations, and changes to his unit, and

authorized him to expand his unit on adjoining land. As to sanctions, Sisto claimed that a host of

the denials and affirmative defenses outlined in America’s answer to Sisto’s complaint were

made in contravention of Rule 11. Both parties filed objections to the other’s respective motion

for summary judgment, and America also filed a cross-motion for Rule 11 sanctions against

Sisto’s counsel for, in its view, Sisto’s above-referenced meritless motion for sanctions against it.

Approximately two months after moving for summary judgment, on June 23, 2008,

America also moved to dismiss count 1 of Sisto’s complaint based on his failure to join

indispensible parties—the other 153 unit owners in the Goat Island South Condominium

community—pursuant to Rule 12(b)(7) of the Superior Court Rules of Civil Procedure.

Subsequently, on July 23, 2008, Sisto brought an action in Superior Court (the GIS

action) against GIS and the two other sub-condominium associations in the Goat Island South

Condominium community, Capella and Harbor Houses. This complaint named those three

defendants as “parties in interest vis-à-vis the assertions made and positions advanced in [the

America action], including those asserted in the [m]otions.” The complaint essentially parroted

the allegations set forth in count 1 in the America action—that Sisto, as a Harbor Houses

Condominium unit owner, was permitted and authorized to make improvements, alterations, and

changes to his unit and that he had sufficient title and interest to file an application with the

CRMC regarding the expansion of his unit onto adjoining land. That same day, Sisto also moved

for summary judgment in that action.

In GIS’s answer, it neither admitted nor denied the substantive allegations. Additionally,

GIS brought a counterclaim for a declaratory judgment, asking the Superior Court to decide

-5- whether (1) Sisto had standing to pursue his application with the CRMC on his own; or (2)

approval of the other 153 unit owners would be necessary prior to the submission of such

application; or (3) approval under § 2.3 of the master declaration was required; or (4) approval

under both (2) and (3) above would be required; or (5) other statutes, rules, regulations, or

documents would be applicable to the issues raised. On November 7, 2008, GIS filed a cross-

motion for summary judgment. Capella answered Sisto’s complaint, denying the allegations and

asserting affirmative defenses. Harbor Houses also answered Sisto’s complaint; unlike GIS,

Capella, and America, it admitted all of the complaint’s allegations and asked the Superior Court

to enter judgment in Sisto’s favor. Further, Harbor Houses requested the Superior Court to issue

a declaration that “Harbor House[s] Condominium unit expansions are specifically authorized by

the constituent documents of the Harbor House[s] Condominium and [§] 2.3 of the [master

declaration] and do not require the approval of all 154 Goat Island [South] Condominium unit

owners [or] the approval of the executive boards of the other * * * sub[-]associations * * *.”

After a hearing held on January 16, 2009, a justice of the Superior Court denied in part

and granted in part Sisto’s motion for partial summary judgment on count 1 in the America

action. He found that, as a matter of law, Sisto had standing to file his application for the

expansion of his unit with the CRMC; however, he issued a declaratory judgment stating that

unanimous consent among the other 153 unit owners would be necessary before he could carry

out that expansion. 5 The hearing justice also granted America’s motion for partial summary

5 Although no party has raised this issue, we note that, because America never filed a counterclaim for a declaratory judgment in the America action, the hearing justice did not have authority to issue the declaratory judgment in that action, in which he ruled that “consent of all 154 unit owners” would be required before Sisto could go forward with the expansion of his unit. See Nye v. Brousseau, 992 A.2d 1002, 1011 (R.I. 2010) (“[A] party should not be granted relief that it did not request.” (quoting Providence Journal Co. v. Convention Center Authority, 824 A.2d 1246, 1248 (R.I. 2003)). However, a counterclaim for a declaratory judgment was filed in -6- judgment on counts 2 and 3, concluding that the anti-SLAPP statute barred those claims. With

respect to the GIS action, the hearing justice similarly granted in part and denied in part Sisto’s

motion for partial summary judgment, as well as GIS’s cross-motion for summary judgment with

regard to whether unanimous consent of the unit owners was necessary before Sisto could go

forward with his proposed expansion. On August 27, 2009, the hearing justice issued four

separate written decisions, each addressing those respective motions. We summarize those

decisions below.

In his decision denying in part and granting in part Sisto’s motion for partial summary

judgment in the America action, the hearing justice examined the master declaration, the Harbor

Houses declaration and the Condominium Act. In so doing, he relied on § 2.8 of the Harbor

Houses declaration (an amendment added in 1995) which expressly permitted a unit owner to

“construct improvements to increase the size of the [o]wner’s [u]nit and the [b]uilding containing

the [u]nit subject to [certain limitations].” Next, in reviewing the master declaration, the hearing

justice determined that it “require[d] a unit owner to receive approval from the Harbor Houses

Executive Board before making any alterations or changes to the exterior of the building or

increasing the building’s size.” However, the hearing justice reasoned, when any of the

provisions of the Harbor Houses declaration or the master declaration conflict with the

Condominium Act, the Condominium Act takes precedence. Further, relying on § 2.4(e) of the

Harbor Houses declaration (mandating that “[a]ny changes, alterations or construction

undertaken by any [u]nit [o]wner * * * shall be performed only in accordance with all applicable

laws, ordinances and regulations * * *”) and § 2.3(a)(i)(D) of the master declaration (stating that

the GIS action with respect to whether such unanimous consent would be required. Therefore, our ultimate decision reaches the merits of the trial justice’s issuance of a declaratory judgment as to GIS’s counterclaim. -7- improvements, alterations, or changes to a unit “shall be done in accordance with all applicable *

* * [s]tate * * * laws”), he determined that it was incumbent upon Sisto to comply with the

Condominium Act.

The hearing justice determined that, because the yard over which Sisto sought to expand

was designated as a limited common element under both the Harbor Houses declaration and the

Act, that expansion “would disturb the * * * allocation” of the limited common elements by

transforming part of the yard surrounding his unit (a limited common element) into his actual

unit, which “would ultimately decrease each unit owner’s percentage interest in all [l]imited

[c]ommon [e]lements.” Under § 34-36.1-2.17(d), he continued, the Act required unanimous

consent of the other 153 unit owners in that situation. Without such consent, he concluded, Sisto

was not entitled to a declaratory judgment allowing him to expand his unit. Therefore, he denied

in part Sisto’s motion for partial summary judgment. With respect to Sisto’s contention that he

had standing to file an application for expansion with the CRMC, the hearing justice granted

summary judgment in Sisto’s favor. However, he stated that, because the CRMC had not been

joined as a party, he could not mandate a corresponding obligation, on the CRMC’s part, to

further process that application.

Granting America’s motion for summary judgment on counts 2 and 3 in that action, the

hearing justice determined that America’s correspondence with the CRMC was protected by the

anti-SLAPP statute. In so deciding, he concluded that (1) America’s letters to the CRMC

constituted “a governmental procedure”; (2) the statements contained within those letters

“constituted an issue of public concern”—meaning “public discourse regarding an issue of

importance within the community”; and (3) the letters did not constitute a “sham” because they

provided the CRMC with relevant information regarding the ownership of the land in question—

-8- meaning that they were not “objectively baseless.” Furthermore, in accordance with the anti-

SLAPP statute, the hearing justice granted attorneys’ fees to America, as the prevailing party. 6

In the GIS action, the hearing justice ruled on Sisto’s motion for summary judgment as he

had in the America action, echoing the same rationale. Furthermore, in ruling on GIS’s cross-

motion for summary judgment on its claim for a declaratory judgment, the hearing justice

concluded that: (1) under the terms of the Act, Sisto must obtain the unanimous consent of all

unit owners before submitting to the CRMC his application for the proposed expansion of his

unit; (2) approval pursuant to the master declaration and the Harbor Houses declaration was also

required prior to that submission; and (3) other statutes, rules, regulations, and documents were

applicable to and determinative of the issues raised in that action. Further, the hearing justice

denied GIS’s motion for summary judgment as to the declaration regarding Sisto’s standing to

pursue his application with the CRMC. Instead, the hearing justice determined that Sisto simply

had standing to file that application.

Following those decisions, Sisto moved for reconsideration, which was denied. Final

judgment entered with respect to both actions on December 3, 2010. Sisto then timely appealed

both judgments to this Court. Harbor Houses also appealed the entry of judgment in the GIS

action.

II

Issues on Appeal

Sisto contends that the hearing justice erred in concluding that his proposed expansion

required the unanimous consent of the other unit owners. In support of this argument, he

6 Pursuant to G.L. 1956 § 9-33-2(d), “[i]f the court grants the motion asserting the immunity established by this section, * * * the court shall award the prevailing party costs and reasonable attorney’s fees, including those incurred for the motion and any related discovery matters.” -9- maintains that the land surrounding his unit (over which the expansion would take place) is a

limited common element—meaning that none of the other unit owners has any authority to use it.

According to § 2.8 of the Harbor Houses declaration, he continues, improvements that increase

the size of a unit are also identified as limited common elements. He therefore asserts that § 34-

36.1-2.17(d)—mandating unanimous consent of all unit owners before unit boundaries may be

altered—is not triggered because, under the terms of the Harbor Houses declaration, his

proposed expansion would not alter his unit boundaries. Additionally, Sisto ascribes error to the

hearing justice’s conclusion that America’s correspondence with the CRMC was protected

speech under the anti-SLAPP statute.

Harbor Houses parrots the arguments made by Sisto in his brief to this Court. It

maintains that § 2.3 of the master declaration and § 2.8 of the Harbor Houses declaration both

provide that any improvements to a Harbor Houses Condominium unit are identified as limited

common elements appurtenant to that unit. Thus, because the expansion would not change the

unit boundaries, unanimous consent is not required under § 34-36.1-2.17(d). Further, Harbor

Houses asserts, the contemplated expansion would not reallocate the limited common elements;

likewise, unanimous consent is not required under § 34-36.1-2.17(d). In support of this last

argument, Harbor Houses posits that Sisto’s improvement over a limited common element would

not alter the total square footage of land allocated to Harbor Houses Condominium under the

master declaration. Additionally, it points out that ten other Harbor Houses unit owners have

made improvements to their respective units and constructed these improvements over limited

common elements without the unanimous consent of the 154 unit owners.

Countering Sisto’s and Harbor Houses’s contentions on appeal, America and Capella

submitted a joint brief to this Court. They argue that the hearing justice correctly ruled that Sisto

- 10 - must obtain the unanimous consent of the other 153 unit owners before expanding his unit. In

support of this argument, they maintain that § 34-36.1-2.17(d) prohibits changing a

condominium unit’s boundaries without first obtaining such consent. Likening a limited

common element to an easement, they posit that, although Sisto may have exclusive use of the

yard appurtenant to his unit, the scope of this use does not give him unilateral authority to build

on it.

In response to Sisto’s criticism of the hearing justice’s application of the anti-SLAPP

statute, America maintains that its correspondence with the CRMC clearly satisfied the elements

of that statute. Therefore, the hearing justice correctly determined that those letters were entitled

to conditional immunity from Sisto’s claims of breach of contract and slander of title. Lastly,

GIS asserts that the hearing justice correctly concluded that Sisto’s expansion required the

unanimous consent of the other 153 unit owners, pursuant to § 34-36.1-2.17(d), and urges this

Court to affirm the judgment with respect to the GIS action.

III

Standard of Review

We review a hearing justice’s grant of summary judgment de novo. In re Estate of

Manchester, No. 2012-85-A., slip op. at 5 (R.I., filed May 20, 2013) (citing Swain v. Estate of

Tyre, 57 A.3d 283, 288 (R.I. 2012)). This Court “will affirm the granting of ‘a party’s motion

for summary judgment if there exists no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.’” Zanni v. Voccola, 13 A.3d 1068, 1070-71 (R.I. 2011)

(quoting Classic Entertainment & Sports, Inc. v. Pemberton, 988 A.2d 847, 849 (R.I. 2010)).

Additionally, when reviewing the meaning and applicability of a statute, we engage in a

de novo review. Estate of Manchester, slip op. at 5 (citing Swain, 57 A.3d at 288). “We have

- 11 - consistently held that ‘when the language of a statute is clear and unambiguous, [we] must

interpret the statute literally and must give the words of the statute their plain and ordinary

meanings.’” Id. (quoting Waterman v. Caprio, 983 A.2d 841, 844 (R.I. 2009)). Our “ultimate

goal” is to “giv[e] effect to that purpose which our Legislature intended in crafting the statutory

language.” Zambarano v. Retirement Board of the Employees' Retirement System of Rhode

Island, 61 A.3d 432, 436 (R.I. 2013) (quoting McCain v. Town of North Providence, 41 A.3d

239, 243 (R.I. 2012)). In this regard, “the plain statutory language” is “the best indicator” of the

Legislature’s intent. Id. (quoting McCain, 41 A.3d at 243). Furthermore, the Condominium Act

contains official comments, which “are to be used as guidance concerning the legislative intent

in adopting the chapter.” America Condominium Association, Inc. v. IDC, Inc., 844 A.2d 117,

127 (R.I. 2004) (America I). 7

Finally, “[i]n reviewing a [condominium] declaration, we find it appropriate to apply the

laws of contract construction.” Town Houses at Bonnet Shores Condominium Association v.

Langlois, 45 A.3d 577, 583 (R.I. 2012). Thus, we review condominium declarations de novo.

See Haffenreffer v. Haffenreffer, 994 A.2d 1226, 1231 (R.I. 2010).

7 Public Laws 1982, ch. 329, § 3 states: “The secretary of state is hereby authorized and directed to print in the general laws following each section of [the Condominium Act], the corresponding official comments * * * which shall be used as guidance as to the intent of the legislature in adopting this chapter unless the statutory language shall clearly express otherwise in which case the statutory language shall prevail.” - 12 - IV

Discussion

A

Unit Expansion

We cannot disagree with Sisto and Harbor Houses that the plain terms of § 2.3 of the

master declaration and § 2.8 of the Harbor Houses declaration permit Sisto to expand his unit

without obtaining the unanimous consent of the other 153 unit owners in the Goat Island South

community. However, both of those declarations are subject to the Condominium Act, which,

we conclude, requires Sisto to obtain such consent before expanding his unit. In arriving at this

conclusion, we review the master declaration, the Harbor Houses declaration, and the Act.

Section 2.3(a)(i) of the master declaration states, in pertinent part:

“Improvements, alterations or changes may be made to any building * * * of Harbor Houses Condominium to the extent permitted by its [d]eclaration as of June 30, 2007. No alteration, change in the exterior appearance or increase in the size of any building (‘improvements’) shall be made that is not first approved by the Harbor Houses Condominium executive board and that does not comply with [certain enumerated restrictions].”

Among those restrictions is a prohibition against an improvement encroaching (1) onto the yard

designated as a limited common element of an adjoining residence unit; and (2) beyond the

limited common elements of the residence unit that is being improved, altered, or changed.

Additionally, § 2.3(a)(i)(M) of the master declaration states that

“if any such improvements, alterations or increases in the size of any building would extend any portion of the building in which such unit is contained beyond the ‘footprint,’ so called, of the building * * * and change the exterior appearance of any building * * *, then the written final plans approved by the Harbor Houses Condominium executive board * * * shall be submitted to the [Goat Island South Condominium] Executive Board for review and a written advisory opinion * * *.”

- 13 - Thus, there is nothing in the master declaration that requires Sisto to obtain the unanimous

consent of the other 153 unit owners before expanding his unit.

Likewise, the Harbor Houses declaration does not require such unanimous consent.

Pursuant to § 2.4(g) of the Harbor Houses declaration, a unit owner must first obtain the written

consent of the executive board before “mak[ing] or caus[ing] to be made any alterations or

changes to any * * * [l]imited [c]ommon [e]lement (including, without limitation, the exterior of

the [b]uilding in which such * * * [u]nit is located) * * *.” Further, a 1995 amendment to the

Harbor Houses declaration, entitled § 2.8, expressly allows a unit owner to

“construct improvements to increase the size of the [o]wner’s [u]nit and the [b]uilding containing the [u]nit subject to the following: (a) the improvements shall constitute a [l]imited [c]ommon [e]lement for the benefit of such [u]nit; [and] (b) the improvements shall not encroach on the yard designated as a [l]imited [c]ommon [e]lement for the adjoining [u]nit * * *.”

Therefore, it appears that the Harbor Houses declaration permits a unit owner to expand the

footprint of his or her unit onto his or her yard, so long as that expansion does not encroach onto

the yard of the neighboring unit.

However, in addition to the declarations, the Act “applies to all condominiums created *

* * after July 1, 1982 * * *.” Section 34-36.1-1.02(a)(1). As stated above, the Goat Island South

Condominium community was created in 1988—well after the Act took effect. Both of the

above-referenced declarations are therefore subject to the Act. See America I, 844 A.2d at 127.

Moreover, § 2.3(a)(i)(D) of the master declaration provides that “[improvements, alterations, or

changes] * * * shall be done in accordance with all applicable * * * [s]tate * * * laws.”

Additionally, § 2.8(f) of the Harbor Houses declaration states that improvements to increase the

- 14 - size of the unit and the building containing the unit “shall be done in accordance [with] all

applicable * * * [s]tate * * * laws * * *.”

Turning to the relevant portions of the Act, § 34-36.1-2.17(d) states that “no amendment

may * * * change the boundaries of any unit, [or] the allocated interests of a unit, * * * in the

absence of unanimous consent of the unit owners.” (Emphasis added.). Under the Act, a unit is

defined as “a physical portion of the condominium designated for separate ownership or

occupancy, the boundaries of which are described pursuant to [the declaration].” Section 34-

36.1-1.03(28). After carefully reviewing the master declaration, we find that it does not appear

to include a specific definition of a unit, although § 1.18 provides that a Goat Island South

Condominium unit refers to each of the three sub-condominiums—the America, Capella, and

Harbor Houses condominiums. However, § 1.27 of that declaration also states that a “unit

owner” is the “owner of a [r]esidence [u]nit”—meaning the owner of a unit contained within one

of the three sub-condominiums. According to § 1.31 of the Harbor Houses declaration, a unit is

“a physical portion of the [c]ondominium designated for separate ownership * * *.” Section 2.3

of that declaration further provides that “[t]he boundaries of each of the [u]nits * * * are the

floors, ceilings, walls, doors and windows * * *.”

In what appears to be a legal fiction, both § 2.3(a)(i)(P) of the master declaration and §

2.8(a) of the Harbor Houses declaration provide that improvements which increase the size of a

unit are designated as limited common elements. Therefore, if a unit owner expands his or her

unit onto the adjacent yard, that expanded portion becomes a limited common element. Clearly,

the declarations ascribe a meaning to a limited common element contrary to that of the Act.

Under the Act, a limited common element is “a portion of the common elements allocated by the

declaration * * * for the exclusive use of one or more but fewer than all of the units.” Section

- 15 - 34-36.1-1.03(19). “[C]ommon element[s]” are defined as “all portions of a condominium other

than the units.” Section 34-36.1-1.03(4) (emphasis added). By definition, then, a unit is not a

limited common element. Thus, by labeling such expansion as a limited common element, both

declarations attempt to avoid the Act’s requirement of unanimous consent before expanding a

unit beyond its original boundaries.

We readily acknowledge that, where expressly provided for in the Act, condominium

declarations may vary from the Act’s provisions. See Section 34-36.1-1.04. In that regard, some

of the defined terms used in the Act may be defined differently in a declaration. Section 34-

36.1-1.03. However, we emphasize that, “[r]egardless of how terms are used in [the]

[declarations], * * * terms have an unvarying meaning in the Act, and any restricted practice

which depends on the definition of a term is not affected by a changed term in the

[declarations].” Commissioners’ Comment 1 to § 34-36.1-1.03. Thus, while the terms of a

declaration may differ from the Act in certain situations, as we explain below, we deem this not

to be one of them.

As noted above, the declarations give a meaning to a limited common element that

directly contravenes a restricted practice in the Act, to which they are subject. Accordingly, §

34-36.1-2.17(d)—declaring that a unit owner must obtain unanimous consent of all other unit

owners before changing the boundaries of his or her unit—cannot be undercut by the

declarations’ attempt to differentiate any expansion to a unit from the unit itself by characterizing

the expanded portion of a unit as a limited common element, rather than as a new part of the unit.

The Act explicitly states that a unit is distinct from a limited common element. Thus, we hold

that, because Sisto’s proposed expansion would “change the boundaries of [his] unit,” he must

obtain the unanimous consent of all other unit owners before going forward with that expansion.

- 16 - See § 34-36.1-2.17(d). 8 Since the Act defines a unit owner as a “person who owns a unit,”

which includes an owner of a sub-condominium unit, the unanimous consent must be from the

other 153 unit owners. 9 See § 34-36.1-1.03(29) and America I, 844 A.2d at 130.

B

The Anti-SLAPP Issue

“The anti-SLAPP statute was enacted to prevent vexatious lawsuits against citizens who

exercise their First Amendment rights of free speech and legitimate petitioning by granting those

activities conditional immunity from punitive civil claims.” Alves v. Hometown Newspapers,

Inc., 857 A.2d 743, 752 (R.I. 2004). To that effect, § 9-33-1 states, in pertinent part:

“The legislature finds and declares that full participation by persons and organizations and robust discussion of issues of public concern before * * * administrative bodies * * * are essential to the democratic process, that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances; that such litigation is disfavored and should

8 Although the hearing justice did not explicitly rely on § 34-36.1-2.17(d)’s requirement that a unit owner obtain unanimous consent prior to changing the unit’s boundaries, it is well settled that we may affirm his decision on these alternate grounds. See Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010) (citing State v. Lynch, 770 A.2d 840, 847 (R.I. 2001)). Because we hold that Sisto must obtain unanimous consent before changing his unit’s boundaries, we do not address whether this change affects the allocated interests of any of the units under § 34-36.1-2.17(d). 9 This mandate may seem draconian; however, when “[a] statute is within the power of the [L]egislature to enact, it is the duty of the court to sustain it, irrespective of its own opinion of the wisdom, reasonableness, or necessity for the statute.” In re Rule Amendments to Rules 5.4(a) & 7.2(c) of the Rules of Professional Conduct, 815 A.2d 47, 49 (R.I. 2002) (quoting Creditors' Service Corp. v. Cummings, 57 R.I. 291, 299, 190 A. 2, 8 (1937)). Moreover, as we have often noted, the Act is a consumer-protection statute. America Condominium Association, Inc. v. IDC, Inc., 870 A.2d 434, 437 (R.I. 2005) (“‘[A]s a whole[, the Act] contains a strong consumer protection flavor,’ because of ‘a perceived need for additional consumer protection.’” (quoting America I, 844 A.2d at 128)). Ownership of the common elements (which, by definition, includes all of the limited common elements) is held in common by the 154 unit owners. As such, we do not deem it unreasonable that the 154 unit owners must consent to unit boundary changes over land which they own in common—namely, limited common elements.

- 17 - be resolved quickly with minimum cost to citizens who have participated in matters of public concern.”

However, this Court is mindful that there is a balance that must take place with respect to the

applicability of the anti-SLAPP statute. As we previously recognized in Palazzo v. Alves, 944

A.2d 144 (R.I. 2008), the anti-SLAPP statute

“pit[s] two sets of fundamental constitutional rights against each other: (1) defendants’ rights of free speech and petition and (2) plaintiffs’ rights of access to the judicial system and rights to non- falsely maligned reputations. Solutions to [this] problem must not compromise any of these rights. Plaintiffs must be able to bring suits with reasonable merit and defendants must be protected from entirely frivolous intimidation * * * in public affairs.” Id. at 150 n. 11 (quoting John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L. Rev. 395, 397-98 (1993)).

Thus, the anti-SLAPP statute should “be limited in scope,” and “[g]reat caution should be the

watchword in this area.” Id. at 150, 150 n.10. With that in mind, we turn to the merits of

America’s anti-SLAPP affirmative defense.

According to § 9-33-2(a), “[a] party’s exercise of his or her right of petition or of free

speech [before or submitted to a legislative, executive, or judicial body, or any other

governmental proceeding] * * * in connection with a matter of public concern shall be

conditionally immune from civil claims, counterclaims, or cross-claims.” However, that speech

will not enjoy protection if it “constitutes a sham,” meaning that it is “not genuinely aimed at

procuring favorable government action, result, or outcome, regardless of ultimate motive or

purpose.” Id.

The anti-SLAPP statute can therefore be broken down into three elements. We examine

their application to these facts. First, America’s correspondence with the CRMC constitutes an

“exercise of [its] right * * * of free speech” because it was in the form of a “written * * *

- 18 - statement * * * made in connection with an issue under consideration or review by a legislative *

* * body”—in this case, the CRMC. See § 9-33-2(e). Second, that correspondence dealt with a

“matter of public concern” because Sisto’s proposed unit expansion would impact the other unit

owners in the Goat Island South community. Third, in order for the correspondence to fall

within the embrace of the protections afforded by the anti-SLAPP statute, the correspondence

must not have constituted a sham.

In determining this last element, we examine whether the statements made to the CRMC

were “genuinely aimed at procuring favorable government action, result, or outcome, regardless

of ultimate motive or purpose.” Section 9-33-2(a). Further, we must examine whether the

statements were “(1) [o]bjectively baseless in the sense that no reasonable person exercising the

right of speech * * * could realistically expect success in procuring the government action,

result, or outcome, and (2) [s]ubjectively baseless in the sense that it is actually an attempt to use

the governmental process itself for its own direct effects.” Section 9-33-2(a). With respect to

whether the statements are subjectively baseless, we consider “whether the litigants ‘utilized the

process itself rather than the intended outcome in order to hinder and delay [a] plaintiff.’”

Karousos v. Pardee, 992 A.2d 263, 271 (R.I. 2010) (quoting Pound Hill Corp. v. Perl, 668 A.2d

1260, 1264 (R.I. 1996)).

We cannot disagree with the hearing justice’s conclusion that America’s correspondence

with the CRMC was aimed at procuring a favorable government outcome—that is, an outcome

that aligned with the rights of the unit owners in the Goat Island South community. Sisto asserts

that, “[h]ad [America] accurately advised [the] CRMC that [he] [did] not exclusively own the

land” over which he sought to expand, he would not have brought a slander of title claim against

America, thereby avoiding any anti-SLAPP issue. We agree that the language of the letter could

- 19 - have been more forthright; however, we cannot say that America’s failure to accurately state that

Sisto did not “exclusively” own the land rendered the statement objectively baseless. That

statement was a reasonable attempt on the part of America to alert the CRMC that Sisto did not

have sufficient ownership of the land over which he sought to expand his unit. We cannot say

that America’s correspondence was an unreasonable attempt to achieve favorable government

Lastly, we conclude that America’s correspondence with the CRMC was not subjectively

baseless. There is no suggestion that America sent the letter to simply hinder or delay Sisto’s

expansion, without the ultimate intended outcome of achieving favorable government action—

that is, preventing him from actually expanding his unit. See Karousos, 992 A.2d at 271. In

sum, we hold that America’s correspondence with the CRMC enjoys the protections afforded by

the anti-SLAPP statute.

In disagreeing with our application of the anti-SLAPP statute, the dissent posits that “the

[anti-SLAPP] statute may suffer from constitutional infirmities because the definition of

petitioning activity * * * is overly broad and not confined to issues of public concern.” Although

the dissent raises an interesting issue for discussion, neither party has challenged the

constitutionality of the anti-SLAPP statute. In light of our well-settled precedent cautioning

against our sua sponte review of a statute’s constitutionality, we deem it imprudent to engage in

such a review in this case. See State v. DeRobbio, 62 A.3d 1113, 1119 (R.I. 2013) (“[A] trial

justice does not have the authority to sua sponte attack the constitutionality of a statute; it must

be raised by a party entitled to make such challenge.” (quoting Devane v. Devane, 581 A.2d 264,

265 (R.I. 1990)). Moreover, this Court has previously declared that the anti-SLAPP statute is

constitutional. See Hometown Properties, Inc. v. Fleming, 680 A.2d 56, 60 (R.I. 1996)

- 20 - (resolving that the anti-SLAPP statute passed constitutional muster with respect to challenges

asserting equal protection, the right to a trial by jury, due process, and denial of access to state

courts, among other things).

Additionally, in citing to our “learned colleagues in Massachusetts” for their decision in

Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935 (Mass. 1998), the dissent seemingly

overlooks the fact that, in that case the court was explicitly called upon to answer whether

Massachusetts’s anti-SLAPP statute was constitutional. Id. at 937, 939. As stated above, this

Court has been asked no such question in this case.

V

Conclusion

For the reasons set forth in this opinion, we vacate in part and affirm in part the

judgments of the Superior Court. Because America did not file a counterclaim for a declaratory

judgment, we vacate the declaratory judgment issued in the America action with respect to

whether unanimous consent is required before Sisto may go forward with the expansion of his

unit. See note 5, supra. However, we affirm the judgment of the Superior Court in that action

with respect to Sisto’s standing to file the application for expansion with the CRMC, as well as

with respect to the anti-SLAPP issue. Additionally, we affirm the judgment of the Superior

Court in the GIS action declaring that the unanimous consent of the 154 unit owners must be

obtained before Sisto may carry out his unit expansion. The papers may be remanded to the

Superior Court.

- 21 - Justice Goldberg, concurring in part and dissenting in part. I concur in that portion

of the majority decision that holds that the plaintiff is required to obtain the unanimous consent

of all unit owners before he may expand his unit in the manner in which he proposed―that is,

onto the limited common elements of the condominium. However, because we part company on

the application of the anti-SLAPP statute to the facts in this case, I respectfully dissent. It is my

opinion that the challenged communications in this case—one written by the president of

America Condominium and the other by an attorney engaged on behalf of his clients—amounted

to actionable slander of title such that there was a factual basis for the claim. Accordingly, the

immunity provisions of the anti-SLAPP statute are not available, and the award of attorney’s fees

should be vacated.

The parties before the Court are three condominium associations and the various unit

owners of condominiums that make up the Goat Island South (GIS) condominium community.

They are in privity. This is a dispute over a provision in the declaration for one of three sub-

condominiums within the master GIS condominium. The majority opinion has acknowledged

that, by its plain terms, § 2.3 of the Harbor Houses declarations permitted the expansion that

Sisto proposed without the unanimous consent of the other unit owners. According to the record

before us, other owners of Harbor Houses units already had expanded their townhouses in a like

manner. Until today, the Harbor Houses declaration permitted a unit owner to expand his or her

unit onto the limited common elements without first obtaining the consent of the unit owners.

The parties in this case were engaged in a legitimate dispute concerning whether Sisto could

expand onto the limited common elements of his unit. That dispute was resolved, as it should

have been, by the courts, and not by the Coastal Resources Management Council (CRMC). The

communications to the CRMC declaring that Sisto did not own the land on which he sought to

- 22 - build flatly were untrue, and it was alleged that they were intended to stop the CRMC from

reviewing Sisto’s application. They apparently succeeded without disclosure of § 2.3 of the

Harbor Houses declaration. Thus, there exists a factual basis for the claim of slander of title, and

defendants should not be accorded immunity simply because the misrepresentations were made

to a public agency in connection with its permitting responsibilities. Because I do not agree with

the majority’s conclusion that this was protected activity for which the declarants enjoy

immunity, I would vacate the award of attorney’s fees against plaintiff.

The provisions of the anti-SLAPP statute come into play only after a lawsuit has been

filed in our courts. The act is designed to cut short “lawsuits brought primarily to chill the valid

exercise of the constitutional rights of freedom of speech and petition for the redress of

grievances[.]” G.L. 1956 § 9-33-1 (emphasis added). This salutary goal is accomplished by

affording one party to that lawsuit conditional immunity from civil claims that are “directed at

petition or free speech,” unless the petition or free speech “constitutes a sham” as that term is

defined in the statute. Section 9-33-2(a) (emphasis added). In my opinion, there must be a

threshold determination that there is no factual basis for the claim and that the claim was

“brought primarily to chill the valid exercise” of the right of free speech or petition. Section 9-

33-1.

However laudable its goals, the anti-SLAPP statute also denies the adverse party his or

her right of access to our courts and deprives that party of a judicial remedy that is guaranteed by

our Constitution. It is this Court’s duty to guard against the wrongful denial of access to our

courts. Those who are injured turn to the courts for justice; they should not lightly be turned

away. All doubts regarding the legitimacy of a claim in the anti-SLAPP context should be

resolved in favor of allowing the case to proceed in the ordinary course. Where, as here, it is

- 23 - undisputed that there is a factual basis for the lawsuit, dismissal and a mandatory award of

attorney’s fees is inappropriate. The anti-SLAPP statute includes a provision mandating the

award of attorney’s fees—granted in this case—and even provides for the more draconian

specter of the mandatory award of compensatory damages, with the possibility of punitive

damages, in certain cases. See § 9-33-2(d). (This, of course, would require a jury trial, with the

prospect of further protracted litigation.) Thus, because the anti-SLAPP statute is strong

medicine—but necessary at times—I am of the opinion that only claims with no substantial

basis, which fairly can be classified as primarily relating to “petitioning activity,” should be

immune. Intentional torts, committed by persons with vested business interests in the outcome,

particularly when they have standing to have the dispute adjudicated in an appropriate forum,

should not qualify.

One of the letters that led to plaintiff’s claim of slander of title was written by an

attorney, on behalf of his clients, during the course of the attorney-client relationship. The other

letter was signed by Natalie D. Volpe (Volpe), as president of the Executive Board of America

Condominium. In her two-page letter, Volpe declares that “[t]he applicant does not own the land

on which he wants to expand.” By letter dated September 11, 2007, Volpe, on behalf of America

Condominium, withdrew America’s substantive objection to plaintiff’s application. The letter

said nothing about Sisto’s title to his property.

The second communication, a letter authored by attorney R. Daniel Prentiss (Prentiss), on

November 26, 2007, “on behalf of America Condominium Association and Capella

Condominium Association[,]” included a substantive objection to the application, citing various

- 24 - CRMC regulations—which clearly constitutes protected petitioning activity. 10 However,

attorney Prentiss also wrote that, “[m]y clients further object to the application because the

applicant is not the owner of the property on which the proposed activities will take place.” This

statement was incorrect. By letter dated February 7, 2008, Prentiss corrected the inaccuracies set

forth in his earlier letter.

Thus, the statements contained in each letter were not accurate. At best, they were the

result of sloppy draftsmanship; at worst, they amounted to slander of title designed to stop the

CRMC. What is clear to me is that there was a good-faith basis for plaintiff’s counsel to include

a count for slander of title in the complaint in this case. This is what we expect of lawyers, who

must comply with Rule 11 of the Superior Court Rules of Civil Procedure. Rule 11 provides in

relevant part:

“The signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law * * * and * * * is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, any appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.” (Emphasis added.)

Although plaintiff may not have prevailed on his claim for slander of title, that is not for

the court to decide at summary judgment. It is my belief that, because there was a good-faith

basis for the claim, no trial justice would impose Rule 11 sanctions in the context of this case, the

10 Curiously, the Prentiss letter of November 26, 2007, appears to renew the substantive objection to plaintiff’s application that had been withdrawn by America Condominium on September 11, 2007. - 25 - anti-SLAPP escape clause notwithstanding. These sound principles governing the practice of

law in this honorable profession should not be sacrificed on the altar of “petitioning activity.”

In his complaint, Sisto alleged that the statements were false—they were, as

acknowledged by at least one author—and were “maliciously published with the intent to

deceive the CRMC and to stop [Sisto’s] [a]pplication from going forward.” Sisto also alleged

that the defendants “made those false statements[] with full knowledge that they were indeed

inaccurate because [d]efendants were well aware that under the GIS Master Declaration and

Condominium Act[, Sisto] has an undivided common ownership right and interest in the [l]and at

the [s]ite.” Finally, the complaint alleged that, “[a]s a result of [d]efendant[’]s malicious

conduct, the CRMC has halted the [a]pplication process causing [Sisto] to suffer damages,

including without limitation legal fees and expenses.” These allegations set forth a claim for

slander of title. In conducting its de novo review in this case, the majority acknowledges that the

communication was false—“the language of the letter could have been more forthright”—but the

majority then resolves this issue by concluding that defendants merely failed to state “that Sisto

did not ‘exclusively’ own the land” and, therefore, the statement was not objectively baseless. In

my opinion, the majority inappropriately resolves an issue of fact at summary judgment.

Because there is a factual basis for the claim, my de novo review leads to the conclusion that

summary dismissal and the mandatory award of attorney’s fees was wrong.

Not all speech and petitioning activity is protected by the Constitution. Just as one may

not cry, “Fire!” in a crowded theater, a party who defames another or slanders his or her title to

property may have to answer in our courts for his or her alleged tortious conduct. Intentional and

allegedly malicious misstatements are not protected speech. Clearly, a complaint filed seeking

recompense for the intentional tort of slander of title—where there is a factual basis for the

- 26 - allegation—does not meet the legislative definition of a “lawsuit[] brought primarily to chill the

valid exercise of the constitutional rights of freedom of speech and petition for the redress of

grievances * * *.” Section 9-33-1 (emphasis added). It is my belief that whether a person has

engaged in protected petitioning activity, such that the anti-SLAPP statute affords conditional

immunity, should be the first order of business in these cases. This determination, in my

opinion, requires more than a simple application of a statutory formula. The complaint should be

examined in light of the intended purpose of the statute and the mischief to be remedied: to

prevent the chill of one’s First Amendment freedoms by the filing of a lawsuit “brought

primarily to chill the valid exercise” of a person’s constitutional rights. Section 9-33-1

(emphasis added). Furthermore, because the full application of the anti-SLAPP statute results in

a final judgment, great care should be taken to guard against the denial of access to our courts.

Critically, § 9-33-2(a) provides immunity for any claim or counterclaim, “except if the

petition or free speech constitutes a sham.” “The petition or free speech constitutes a sham only

if it is not genuinely aimed at procuring favorable government action, result, or outcome,

regardless of ultimate motive or purpose.” Id. (emphases added). In order to constitute a sham,

the petition or free speech must be objectively baseless, such “that no reasonable person * * *

could realistically expect success,” and subjectively baseless, “in the sense that it is actually an

attempt to use the governmental process itself for its own direct effects.” Section 9-33-2(a)(1)

and (2). This is an insurmountable burden with respect to the myriad cases that come before our

public agencies. As we recognized in Karousos v. Pardee, 992 A.2d 263, 269 (R.I. 2010), this

Court “never ha[s] held that a defendant’s actions were objectively baseless.” One can only

wonder about a communication to a public agency that no reasonable person could expect to be

successful.

- 27 - Importantly, the sham exception, the only available defense under the statute, is silent on

the issue that is of concern to me: What about those communications for which there is a factual

basis to support a claim of tortious conduct? Petitioning activity that amounts to slander,

defamation, or slander of title—or, in the case of judicial filings, misstatements or contumacious

behavior by an attorney and officer of the Court—should not be immune. See Clarke v. Morsilli,

723 A.2d 785, 786 (R.I. 1998) (mem.) (“[C]ontemptuous tactics and arguments [of counsel] can

be as easily made on paper as in open court.”). Significantly, in Clarke, this Court, in the context

of a petition to reargue a case alleging ethics violations against a public official, awarded

attorney’s fees to opposing counsel, based on remarks of counsel contained in the pleading that

we deemed “contemptuous and demeaning to this Court.” Id. at 785-86. Although the

underlying petition to reargue was filed in a matter of great public interest and would otherwise

constitute “petitioning activity,” this Court nevertheless imposed sanctions, declaring, “[i]f ever

there was a case in which a remedy should be fashioned, this is such a controversy.” Id. (quoting

Cheetham v. Cheetham, 121 R.I. 337, 342, 397 A.2d 1331, 1334 (1979)).

In my opinion, an initial determination that the challenged lawsuit is of the type that the

anti-SLAPP statute is intended to prevent—one directed at petition or free speech and lacking a

good-faith factual basis—is an important step in addressing a motion to dismiss based on the

anti-SLAPP statute. This is so because of the broad sweep of the definition of “petitioning

activity” as set forth in § 9-33-2(e), which provides:

“As used in this section, ‘a party’s exercise of its right of petition or of free speech’ shall mean any written or oral statement made before or submitted to a legislative, executive, or judicial body, or any other governmental proceeding; any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding; or any written or oral statement made in connection with an issue of public concern.” (Emphases added.)

- 28 - In the absence of a threshold determination that the challenged lawsuit was “directed at

petition or free speech” and does not have a good-faith factual basis other than, or in addition to,

the petitioning activity, the statute may suffer from constitutional infirmities because the

definition of petitioning activity set forth in § 9-33-2(e) is overly broad and not confined to

issues of public concern. By its terms, § 9-33-2(e) embraces any written or oral communication

to virtually any public body, including filings in this Court.

In my opinion, the Legislature did not intend to immunize its citizens from otherwise

wrongful comment. For example, suppose the defendant-declarant in a defamation suit had

petitioned a state agency to discharge a public employee whose contract was up for renewal and

falsely stated that the person had committed a criminal offense, suffered from a “loathsome

disease,” conducted himself or herself in a manner that was “incompatible with his [or her]

business, trade, profession, or office,” or was guilty of “serious sexual misconduct.” Marcil v.

Kells, 936 A.2d 208, 212 (R.I. 2007) (quoting Restatement (Second) Torts § 570 at 186 (1977)).

These statements, of course, amount to slander per se and are actionable without the necessity of

proving special harm. Id. However, under the broad language of § 9-33-2(e), the declarant is

immune from liability if the statement was communicated to virtually any public agency,

whether or not it was made in connection with a matter of public concern.

Certainly, members of the public should not be victimized by meritless, revengeful

SLAPP suits brought in retaliation for, or designed to chill, valid petitioning activity.

Nonetheless, because the anti-SLAPP statute has a countervailing chilling effect on one who may

be the innocent victim of slander and professional harm, there must be a threshold showing that

the challenged lawsuit primarily relates to petitioning activity and the claim has no basis in fact.

- 29 - In Duracraft Corp. v. Holmes Products Corp., 691 N.E.2d 935, 943 (Mass. 1998), the

Massachusetts Supreme Judicial Court first addressed the Commonwealth’s anti-SLAPP statute

and placed a limiting construction on the reach of the enactment. The underlying lawsuit in

Duracraft alleged a breach of a nondisclosure and noncompete provision of an employment

contract, except for the “lawful demand of any governmental agency.” Id. at 937. When the

employee testified at a deposition in favor of his current employer in a case alleging trademark

infringement against his former employer, the former employer filed suit, alleging breach of the

nondisclosure agreement. Id. at 938. The defendant moved to dismiss, alleging violations of the

anti-SLAPP statute, id., which, in relevant part, is similar to this state’s provision, including the

definition of petitioning activity set forth in § 9-33-2(e). The Court held that the anti-SLAPP

statute was not intended to authorize the dismissal of an otherwise valid claim. Id. at 943.

In construing the statute, our learned colleagues in Massachusetts observed that “[t]he

typical mischief that the legislation intended to remedy was lawsuits directed at individual

citizens of modest means for speaking publicly against development projects.” Duracraft, 691

N.E.2d at 940. The Court declared that “SLAPP suits have been characterized as ‘generally

meritless suits brought by large private interests to deter common citizens from exercising their

political or legal rights or to punish them for doing so.’” Id. (quoting Wilcox v. Superior Court,

33 Cal. Rptr. 2d 446, 450 (1994), overruled on other grounds by Equilon Enterprises v.

Consumer Cause, Inc., 52 P.3d 685, 694 n.5 (2002)). The Court explained that “[t]he objective

of SLAPP suits is not to win them, but to use litigation to intimidate opponents’ exercise of

rights of petitioning and speech.” Id. Notably, the Court in Duracraft referred to an advisory

opinion issued by the Supreme Court of New Hampshire, Opinion of the Justices, 641 A.2d 1012

- 30 - (N.H. 1994), in which the New Hampshire Supreme Court acknowledged the difficulties in

distinguishing SLAPP cases from ordinary lawsuits. 11 See Duracraft, 691 N.E.2d at 940.

The Court in Duracraft expressed its doubts “that the Legislature intended to create an

absolute privilege” for a broad group of potential claims, or that the statute was intended to reach

claims between business competitors or in cases where dismissal is sought “not to limit ‘strategic

litigation,’ but as an additional litigation tactic.” Duracraft, 691 N.E.2d at 940-41. Because the

Legislature was silent with respect to the statute’s “breadth and reach, and ignored its potential

uses in litigation far different from the typical SLAPP suit[,]” the Court adopted a narrowing

construction. Id. at 941. The Court noted that the focus of the existing statutory test was strictly

focused on the complained-of speech without regard to the merits of the plaintiff’s claim. Id. at

942. “The Massachusetts statute makes no provision for a plaintiff to show that its own claims

are not frivolous.” Id. Our statute suffers from the same malady. What about the plaintiff who

truly has been injured during the course of a matter of public concern? Where does he or she go

to obtain redress?

Because the statute in Massachusetts focused solely on the petitioning activity with no

regard for the merits of the underlying claim, the Court declared that it potentially impinged on

the other party’s right of petition, thus altering the substantive law in a sweeping way. Duracraft,

691 N.E.2d at 942-43. The Court adopted a limiting construction that excludes motions to

dismiss “brought against meritorious claims with a substantial basis other than or in addition to

the petitioning activities * * *.” Id. at 943 (emphasis added). The person seeking the protections

of the anti-SLAPP statute must make “a threshold showing through the pleadings and affidavits

11 In Opinion of the Justices, 641 A.2d 1012, 1015 (N.H. 1994), the New Hampshire high court advised the New Hampshire State Senate that legislation that would require a trial justice to adjudicate a factual dispute on the basis of the pleadings and affidavits of the parties would deprive a party of that state’s constitutional guarantee of a jury trial. - 31 - that the claims against it are ‘based on’ the petitioning activities alone and have no substantial

basis other than or in addition to the petitioning activities.” Id. (emphasis added). Such a

showing, the Court concluded, “should serve to distinguish meritless from meritorious claims, as

was intended by the Legislature.” Id.

In conclusion, it is my opinion that, before a party is declared immune from suit under the

anti-SLAPP statute, a threshold showing must be made that the claim brought against the party is

not meritorious and that the suit solely is based on the plaintiff’s petitioning activities and not in

addition to those activities. Because I am of the belief that the claim of slander of title was

meritorious and was brought in good faith, based on misrepresentations by the parties or their

counsel, separate and apart from the defendants’ petitioning activity, I would vacate the award of

attorney’s fees. Consequently, I dissent.

- 32 - RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: Bennie Sisto, as the Trustee of Goat Island Realty Trust v. America Condominium Association Inc., et al.

Bennie Sisto, as the Trustee of Goat Island Realty Trust v. Capella South Condominium Association, Inc., et al.

CASE NO: No. 2011-30-Appeal. (NC 08-119)

No. 2011-31-Appeal. No. 2011-32-Appeal. (NC 08-400)

COURT: Supreme Court

DATE OPINION FILED: June 26, 2013

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL: Newport County Superior Court

JUDGE FROM LOWER COURT:

Associate Justice Edward C. Clifton

ATTORNEYS ON APPEAL:

For Plaintiff: Robert D. Wieck, Esq.

For Defendants: Edmund A. Allcock, Esq. Timothy J. Groves, Esq. Justin T. Shay, Esq.