4D10-1503 Petitioner, Vs. ELWOOD GARY BAKER, Responden

SUPREME COURT OF FLORIDA

CASE NO: SC11-1461

NITV, LLC, L.T. CASE NO: 4D10-1503 Petitioner, vs.

ELWOOD GARY BAKER,

Respondent,

______/

PETITONER’S BRIEF ON JURISDICTION

Arnstein & Lehr LLP Attorneys for Petitioner 515 North Flagler Drive, Suite 600 West Palm Beach, Florida 33401 Telephone: (561) 833-9800 Facsimile: (561) 655-5551 E-Mail: [email protected]

TABLE OF CONTENTS Error! No table of contents entries found.TABLE OF

CONTENTS……………………………………………………….…i

TABLE OF AUTHORITIES………………………………………………………ii

STATEMENT OF THE FACTS…………………………………………………...1

SUMMARY OF THE ARGUMENT…………………………………………..…..2

ARGUMENT…………………………………………….……………………..…..2

CONCLUSION…………………………………………….……………………....6

TABLE OF AUTHORITIES

Error! No table of authorities entries found.

ii STATEMENT OF THE FACTS

In this action for defamation, the Fourth District Court of Appeal below correctly determined that Respondent Elwood Gary Baker’s damages award for loss of money earned in both the past and future was not supported by competent substantial evidence and must be vacated. Appx. at 4-6. The court below also correctly determined that the absence of such evidence was fatal since without it

Baker could not establish a substantial basis of fact upon which the jury could infer

Baker suffered economic injury citing this Court’s decision in De Groot v.

Sheffield, 95 So. 2d 912, 916 (Fla. 1957).

However, the Fourth District erred when it upheld the jury’s award for

$250,000.00 for damages to Baker’s reputation in the absence of any determination of malice or evidence to support the amount of the jury’s award. Appx. at 5-7.

Inasmuch as the award of this substantial sum suffers from a constitutional infirmity, jurisdiction of this court exists to determine the propriety of the jury’s award and the decision below sustaining it.

Petitioner respectfully refers this Honorable Court to the recitation of facts set forth in the decision of the Fourth District Court of Appeal below set forth in the Appendix at pages 1-4.

SUMMARY OF THE ARGUMENT

The decision of the Fourth District Court of Appeals upholding the jury’s award of $250,000 in compensatory damages for injury to Baker’s reputation, unconstitutionally sanctioned a gratuitous award in the absence of a finding of actual malice by the jury and a showing of actual injury, and thus conflicts with the decisions of the United States Supreme Court in Time, Inc. v. Firestone, 424 U.S.

448 (1976) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The First

Amendment to the United States Constitution requires such evidence. In its absence, appeal jurisdiction of this Court exists under Florida Rules of Appellate

Procedure Rule 9.030(a)(2)(A)(ii).

ARGUMENT

THE DECISION OF THE FOURTH DISTRICT COURT OF APPEAL CONFLICTS WITH THE DECISIONS OF THE UNITED STATES SUPREME COURT CONSTRUING THE FIRST AMENDMENT THAT REQUIRE COMPENSATORY DAMAGE AWARDS BE SUPPORTED BY PROOF OF MALICE AND ACTUAL HARM

In Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), the Supreme Court held that while the existence of injury may be presumed in cases of defamation per se,

First Amendment interests require that private plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth be restricted to damages for actual injury.

The Supreme Court observed in Gertz:

The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury.

We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of- pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate

instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.

Id. at 349-50 (emphasis added). Two years later, in Time, Inc. v. Firestone, 424

U.S. 448 (1976), the Supreme Court, reviewing a decision of the Fourth District

Court of Appeal on grant of certiorari, reaffirmed that in a defamation case, the amount of the jury’s award must be supported by the evidence.

Contrary to the requirements, the court below unconstitutionally determined that $250,000.00 in damages for injury to Baker’s reputation could simply be

“presumed” citing Bobenhausen v. Cassat Ave. Mobile Homes, Inc., 344 So. 2d

279, 281 (Fla. 1st DCA 1977). However, Bobenhausen does not support this proposition. The issue in Bobenhausen was whether proof of monetary loss was necessary to recover punitive damages, not general damages. Id. at 281.

Bobenhausen did not address whether proof of damage to reputation is required to entitle a plaintiff such as Baker to a recovery of this magnitude.1

In Bobenhausen, the plaintiff established that the defendant’s statements were both false and actionable per se. As a result, plaintiff was not required to show any damages to obtain a nominal damages recovery. The Bobenhausen court then went on to confront the punitive damages award, and in so doing it explicitly

1 The other cases cited to below, Wolfson v. Kirk, 273 So. 2d 774 (4th DCA 1973), and Hood v. Connors, 419 So. 2d 742 (Fla. 5th DCA 1982), were both appeals from grants of motions to dismiss, and therefore did not address the ultimate issue presented in the instant case, whether a jury award of damages for injury to reputation can be upheld in the absence of any evidence that a plaintiff’s reputation actually suffered as a proximate cause of the defamation.

“receded” from any language in its prior holdings “suggesting that in per se defamation action, actual damages must be shown as condition precedent to recovery of punitive damages.” Id. While the court pointed out that general damages are presumed where slander per se is proven, nowhere did it address the appropriate amount of those damages. Rather, the Bobenhausen court focused its entire analysis on the punitive damages award, addressing the question “whether the aggravated damages awarded in the verdict were excessive.” Id. (emphasis added).

It is axiomatic that “[o]ne who is liable for a defamatory communication is liable for the proved, actual harm caused to the reputation of the person defamed.”

Restatement Second of Torts § 621 (emphasis added). Florida follows the

Restatement of Torts concerning defamation claims. See Jews For Jesus, Inc. v.

Rapp, 997 So.2d 1098 (Fla. 2008) (adopting Restatement elements of defamation cause of action). See also Coton v. Televised Visual X-Ography, Inc., 740 F.

Supp.2d 1299 (M.D. Fla. 2010)(federal district court applying Florida law in defamation suit followed Restatement (Second) of Torts § 621 in determining reasonableness of compensatory damages). The court below went astray when it failed to follow the law that requires evidence of malice and actual injury proximately caused to Baker exist to support the jury’s award. See Cape

Pubications v. Reakes, 840 So. 2d 277, 279 (Fla. 5th DCA 2003)(evidence

sufficient to support the jury’s award of $100,000 for loss of reputation where proximate causation and actual injury was shown).

Since no actual harm to Baker’s reputation was proved, nor malice determined, the jury’s award cannot be sustained in light of the Supreme Court’s decisions in Gertz and Time. Without a determination of malice towards Baker or a factual basis to support damages to his reputation, the jury’s verdict for loss to reputation in the amount of $250,000.00 cannot be constitutionally defended. The award of $250,000.00 to Baker is gratuitous and unconstitutionally infringes upon

NITV’s rights under the First Amendment.

CONCLUSION

For the reasons set forth herein, jurisdiction to review the decision of the

District Court of Appeals below exists and should be accepted by this Court.

Respectfully submitted,

/s/ Joel B. Rothman Joel B. Rothman Fla. Bar No. 98220

CERTIFICATE OF FONT SIZE

WE HEREBY CERTIFY that the font requirements of Rule 9.210(a) Florida

Rules of Appellate Procedure have been complied with in this Petitioner’s

Jurisdictional Brief on this 2nd day of September, 2011.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail on this 2nd day of September, 2011 to: Scott W. Zappolo,

Esq., Watterson & Zappolo, P.A., 4100 RCA Boulevard, Suite 100, Palm Beach

Gardens, Florida 33410-4247.

Arnstein & Lehr LLP Attorneys for Appellant NITV, LLC 515 North Flagler Drive, Suite 600 West Palm Beach, Florida 33401 Telephone: (561) 833-9800 Facsimile: (561) 655-5551 E-Mail: [email protected]

/s/ Joel B. Rothman Joel B. Rothman Fla. Bar No. 98220