In the Supreme Court of Florida Case No

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IN THE SUPREME COURT OF FLORIDA CASE NO. 03-1023 Florida Bar No. 184170 HORIZON ASSOCIATES JOINT ) VENTURE, through its joint venturers ) HORIZON-ANF, INC. and WWL ) HOLDINGS, INC., ) ) Petitioner, ) v. ) ) LRX, INC., d/b/a "LEASE ) DOCTORS," and ALAN MARCUS, ) ) Respondent. ) ______)

ON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL

BRIEF ON JURISDICTION OF PETITIONER HORIZON ASSOCIATES JOINT VENTURE, through its joint venturers HORIZON-ANF, INC., and WWL HOLDINGS, INC. (With Appendix)

Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Sr., Esquire 1777 South Andrews Avenue, Suite 302 Fort Lauderdale, FL 33316 (954) 525-5985 - Broward (954) 525-5885 - Dade and BILLING, COCHRAN, HEATH, LYLES & MAURO, P.A. W. Tucker Craig, Esquire Fort Lauderdale, FL TABLE OF CONTENTS Page

Table of Citations iii

Point on Appeal iv

Statement of the Facts and Case 1-3

Summary of Argument 3-5

Argument

THE DECISION IN THE PRESENT CASE EXPRESSLY AND DIRECTLY CONFLICTS WITH LINAFELT v. BEVERLY ENTERPRISES-FLORIDA, INC., AND CAPE PUBLICATIONS, INC. v. REAKES, WHICH HOLD THAT TRUTH IS A DEFENSE IN A DEFAMATION CASE WITHOUT REGARD TO MOTIVES; AND WITH BROWN v. ESTATE OF A.P. STUCKEY, AND RAY INTERNATIONAL TRANSIT, INC., WHICH HOLD THAT THE TEST FOR OVERTURNING THE GRANTING OF A NEW TRIAL, IS IF "NO REASONABLE PERSON" COULD HAVE REACHED THAT CONCLUSION. 5-10

Conclusion 10-11

Certificate of Service 12-13

Certification of Type 13

Appendix A1-6

-ii- -iii- TABLE OF CITATIONS Page

Brown v. Estate of A.P. Stuckey, 749 So. 2d 490 (Fla. 1999) 4, 5, 9, 10

Cape Publications, Inc. v. Reakes, 840 So. 2d 277 (Fla. 5th DCA 2003) 3, 5, 7, 8

The Florida Bar v. Marcus, 616 So. 2d 975 (Fla. 1993) 1

Linafelt v. Beverly Enterprises-Florida, Inc., 745 So. 2d 386 3, 5, 6, 7, 8 (Fla. 1st DCA 1999)

Lipsig v. Ramlawi, 760 So. 2d 170 (Fla. 3d DCA 2000) 2

Ray v. International Transit, Inc., 788 So. 2d 343 (Fla. 1st DCA 2001) 4, 5, 10

-iv- POINT ON APPEAL

-v- STATEMENT OF THE CASE AND FACTS

Plaintiff/Respondent Alan Marcus was a practicing attorney who had embezzled at least $39,000 from his clients. He was indicted on nine felony counts in Federal court, and pled guilty to one felony count. The Florida Bar sought disbarment of Marcus, and he was suspended from the practice of law for three years through this Court’s published decision in The Florida Bar v. Marcus, 616

So. 2d 975 (Fla. 1993). Opinion, at 1.

Marcus formed a lease auditing company, Plaintiff/Respondent LRX, Inc., d/b/a “Lease Doctors”, which was retained by seven office building tenants of

Defendant/Petitioner Horizon Associates Joint Venture. Marcus and LRX accused

Horizon of overcharging its tenants. Horizon denied those accusations in a letter delivered to the seven tenants, and in doing so disclosed to those seven tenants that

Marcus had pled guilty to misappropriating at least $39,000 and been suspended from the practice of law, providing each of them with a copy of this Court’s published decision reflecting this information. Opinion, at 1.

Eventually, Marcus and LRX filed suit against Horizon for libel, slander and tortious interference, resulting in a judgment for $2,925,000.00 in compensatory damages, and $3,437,500.00 in punitive damages, for a total judgment of

-2- $6,362,500.00. Opinion, at 2.

On post-trial motions, the trial court granted a judgment notwithstanding the verdict on the libel count, and a new trial on the remaining counts, holding with respect to the latter, in part, that the jury verdict was against the manifest weight of the evidence, and excessive. Opinion, at 2.

The Fourth District reversed the trial court’s judgment notwithstanding the libel verdict. The district court held, inter alia, that even though the challenged statements regarding Marcus’ past history were true because Marcus had pled guilty to Federal felony charges and had been suspended from the practice of law, the truth of those statements was not a defense to the libel claim because the jury could have found the truthful statements were disclosed with improper motives, citing Lipsig v. Ramlawi, 760 So. 2d 170 (Fla. 3d DCA 2000). Opinion, at 4. The district court stated the jury could have found these truthful statements about

Marcus’ past created an implication that Marcus was a "loathsome, dishonest character, who cannot be trusted by clients", and that Horizon’s motive “was to destroy the tenants’ trust in Marcus, to Horizon’s financial advantage”, emphasizing that in disclosing the truth about Marcus in the letter Horizon had not affirmatively emphasized “favorable facts” about Marcus which appeared in the published judicial opinion Horizon had delivered to the tenants together with the

-3- allegedly defamatory letter. Opinion, at 4.

The Fourth District also refused to affirm the trial judge’s new trial order, instead remanding it back for further consideration in light of its disposition of the judgment notwithstanding the libel verdict, without any reference to whether or not a reasonable person could have reached the same conclusion as the trial judge in granting a new trial. Opinion, at 5.

SUMMARY OF ARGUMENT

The instant decision expressly and directly conflicts with the decisions in

Linafelt v. Beverly Enterprises-Florida, Inc., 745 So. 2d 386 (Fla. 1st DCA 1999) and Cape Publications, Inc. v. Reakes, 840 So. 2d 277 (Fla. 5th DCA 2003), which hold that disclosure of the truth cannot subject a defendant to liability for defamation, even if a jury could find the defendant had a financial self-interest or other improper motive in making that disclosure. In aligning itself with the Third

District’s decision in Lipsig v. Ramlawi, 760 So. 2d 170 (Fla. 3rd DCA 2000), the

Fourth District created express and direct conflict with these decisions from the

First and Fifth District Courts of Appeal, and chilled the disclosure of truthful information by speakers who would be concerned that any “financial” advantage the speaker received by making that disclosure, or omission of what is later found

-4- by a jury to be a favorable fact about the subject of that truthful disclosure, could render the speaker liable for a multi-million dollar libel damage award.

The truthful disclosure of a prior felony conviction or suspension from the practice of law cannot be rendered libelous by a failure to also affirmatively communicate all steps that person took to rehabilitate himself, or by the omission of any other similar “favorable facts”. Certainly, the public has an interest in the receipt of such truthful information about persons with whom they are engaged in business, or other relationships, especially a felony conviction, and the foregoing conflict among the district courts of appeal has created an ambiguity and confusion in the law of this state which this Court should resolve.

The instant decision further conflicts with Brown v. Estate of A.P. Stuckey,

749 So. 2d 490 (Fla. 1999) and Ray v. International Transit, Inc., 788 So. 2d 343

(Fla. 1st DCA 2001), which hold that a trial court has broad discretion over granting a new trial, and must be affirmed unless "no reasonable person" could have ruled as the trial judge did in granting a new trial. The Fourth District did not even address this governing standard in instructing the trial judge to reconsider his granting of a new trial, even though the new trial order was in part predicated on findings that the jury verdict was "against the manifest weight of the evidence," and that the "Verdict was excessive," in awarding compensatory damages of

-5- $2,925,000, and punitive damages of $3,437.500, for a total of $6,362,500.

ARGUMENT

Truth as a Defense to Defamation

The Fourth District held that truth is not a defense to a defamation claim where a jury could find there were improper motives in making the truthful disclosure. Under the Fourth District’s decision, one may be liable for defamation predicated upon the truthful disclosure of the plaintiff’s criminal history, where a jury could find the defendant intended to cast doubt upon the reader’s trust of the plaintiff through that truthful disclosure, and thereby gain a “financial advantage”; or find that the defendant had omitted any “favorable facts” about the plaintiff or his rehabilitation efforts. This decision expressly and directly conflicts with decisions of the First and Fifth district courts of appeal.

-6- In Linafelt v. Beverly Enterprises-Florida, Inc., the First District affirmed a judgment in accordance with motion for directed verdict on a defamation claim even though “a reasonable jury could have concluded that the statements were deliberately misleading or rendered with a malicious purpose”, because: “the statement was true. Accordingly, appellant’s claim for defamation must fail”. 745

So. 2d at 389. In Linafelt, the plaintiff was an employee of the defendant and was fired for falsifying time sheets, which indicated the hours he worked.

Subsequently, a prospective employer contacted the former employer, which gave a negative recommendation, with statements about his termination which the jury found "were deliberately misleading or rendered with a malicious purpose, because they implied so much more than an excusable violation." Id.

The First District held that the sole issue was whether the statements were true, and since technically they were true, the truth was an absolute defense which defeated the defamation claim notwithstanding the evidence of improper motives:

Viewing the evidence in a light most favorable to appellant, we conclude that the evidence demonstrates that appellees did not make a false statement about appellant. He did, in fact, submit a false time sheet that did not correctly reflect the actual hours that he was on the premises. The effect of the statement could certainly be considered defamatory, and a reasonable jury could have concluded that the statements were deliberately misleading or rendered with a malicious purpose because

-7- they implied so much more than an excusable violation. However, the statement was true. Accordingly, appellant's claim for defamation must fail, and we affirm the final judgment on this issue, as well as the denial of the motion for new trial on punitive damages for this issue.

Id. at 389-90. The First District’s decision in Linafelt expressly and directly conflicts with the instant decision of the Fourth District, which reversed a judgment entered in accordance with motion for directed verdict based on admittedly true statements about the plaintiff’s past, because “there remains a genuine issue about

Horizon’s motives”. Opinion, at 4.

The instant decision is also in express and direct conflict with the Fifth

District’s recent decision in Cape Publications v. Reakes, 840 So. 2d at 279, holding there can be no liability for defamation predicated upon true statements:

A plethora of cases exist which proclaim that a required element of defamation is a false statement made about another. See, e.g., Linafelt v. Beverly Enterprises-Florida, Inc., 745 So.2d 385, 388 (Fla. 1st DCA 1999), Smith v. Cuban Am. Nat'l Found., 731 So.2d 702, 705 (Fla. 3d DCA 1999), rev. denied, 753 So.2d 563 (Fla. 2000). Stated differently, if the statements are true, the required element of a false statement is not present. See Linafelt, 745 So.2d at 389 ("However, the statement was true. Accordingly, appellant's claim for defamation must fail.")...

* * *

-8- The unauthorized entry constituted the crime of trespass of a structure and the statements made by Meers and Currie appear to be true statements. Meers accurately stated that Reakes and McAleenan had committed "criminal acts." Currie stated that journalists were being celebrated for admittedly breaking the law, Although Reakes did not expressly admit that she broke the law, she admitted that she had entered a structure without permission, making Currie's statement substantially true. See Smith, 731 So.2d at 706 ("Under the substantial truth doctrine, a statement does not have to be perfectly accurate if the 'gist' or the 'sting' of the statement is true.")

Accordingly, if the statements made by Meers and Currie were substantially true, the defamation verdicts are reversible.

Id. at 279-280. Relying on Linafelt, the Fifth District in Reakes recognized there were conflicting decisions (such as the Third District’s decision in Lipsig) which

“create confusion…when the decisions state that truth is not a complete defense to defamation unless it is accompanied by good motives”. Id., at 279 n.2.

Therefore, there is conflict between the instant decision and the decisions in

Linafelt and Reakes, which have created “confusion” as to whether there can be liability for defamation predicated on true disclosures where a jury could find financial self-interest of the speaker or something other than “good motives” prompted that truthful disclosure. Moreover, the confusion and conflict generated by the instant decision is exacerbated by the Fourth District’s requirement that to

-9- avoid liability for the disclosure of truthful information about a plaintiff’s criminal history background or suspension from the practice of law, one must show “good motives” by affirmatively presenting at the same time any and all “favorable facts” which could refute any “negative impression” which might be created by the truthful information provided.

Indeed, the confusion created by the Fourth District’s decision itself tends to chill speech by inhibiting the dissemination of truthful criminal history information, out of fear that a jury could later find the speaker could have gained some “financial advantage” from the disclosure, or omitted some “favorable fact” about the plaintiff, and thus find the speaker lacked the requisite “good motives” needed to defeat a defamation claim predicated on that truthful disclosure. The public interest is disserved by inhibiting access to truthful information about the background of persons with whom they are doing business. Accordingly, it is imperative for this

Court to resolve the “confusion” created by the foregoing decisions of the Third and Fourth districts, which otherwise will chill the dissemination of such truthful information to members of the public who seek it.

Standard in Reviewing Order Granting New Trial

Additionally, the Fourth District’s decision expressly and directly conflicts with the decisions in Brown v. Estate of Stuckey, 749 So. 2d 490 (Fla. 1999), and

-10- Ray v. International Transit, Inc., 788 So. 2d 343 (Fla. 1st DCA 2001), which hold that the trial judge has wide discretion over granting a new trial based on a finding that the verdict was against the manifest weight of the evidence, or excessive, and such new trial orders must be affirmed absent a finding that "no reasonable person" could have granted a new trial.

Here, the trial judge was confronted with a jury awarding compensatory damages of $2,925,000.00 and punitive damages of $3,437,500.00, for a total judgment of $6,362,500.00, and in ordering a new trial expressly found the verdict was against the manifest weight of the evidence and excessive. However, in refusing to affirm that new trial order, the Fourth District disregarded the "no reasonable person" test, and instead remanded with instructions for the trial judge to

"reconsider" his new trial order without applying the “no reasonable person” test required by both Brown v. Estate of Stuckey and Ray v. International Transit, Inc., thereby creating express and direct conflict with those decisions.

CONCLUSION

For the foregoing reasons, this Court should accept jurisdiction to resolve the foregoing express and direct conflicts of decisions.

-11- Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Sr., Esquire 1777 South Andrews Avenue Suite 302 Fort Lauderdale, FL 33316 (954) 525-5985 - Broward (954) 525-5885 - Dade

and

BILLING, COCHRAN, HEATH, LYLES & MAURO, P.A. W. Tucker Craig, Esquire Fort Lauderdale, FL

By: Richard A. Sherman, Sr.

-12- CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 3rd day of July , 2003 to:

Joseph A. Glick, Esquire 9703 South Dixie Highway Second Floor Miami, FL 33156

Roy D. Wasson, Esquire ROY D. WASSON, Attorney at Law Suite 450, Gables One Tower 1320 South Dixie Highway Miami, FL 33146

Joel S. Perwin, Esquire PODHURST, ORSECK, JOSEFSBERG, EATON, MEADOW, OLIN & PERWIN, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130

Arthur J. England, Jr., Esquire GREENBERG TRAURIG, P.A. 1221 Brickell Avenue Miami, FL 33131

Jerold I. Budney, Esquire GREENBERG, TRAURIG, P.A. 401 East Las Olas Boulevard Fort Lauderdale, FL 33301

-13- W. Tucker Craig, Esquire BILLING, COCHRAN, HEATH LYLES & MAURO, P.A. 888 S.E. Third Avenue Fort Lauderdale, FL 33316-1519

CERTIFICATE OF TYPE

It is hereby certified that the size and type used in this Brief is 14 point

Courier, a font that is proportionately spaced.

Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Sr., Esquire 1777 South Andrews Avenue Suite 302 Fort Lauderdale, FL 33316 (954) 525-5985 - Broward (954) 525-5885 - Dade

and

BILLING, COCHRAN, HEATH, LYLES & MAURO, P.A. W. Tucker Craig, Esquire Fort Lauderdale, FL

By: Richard A. Sherman, Sr.

/mn

-14- Index to Petitioner’s Appendix

Page

Opinion from Fourth District Court of Appeal, dated February 5, 2003 A1-5