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In the Supreme Court of Florida Case No 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 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. -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 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. 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.
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