Army Aviation Heritage Foundat. and Museum v. Buis

Decision Date28 March 2007
Docket NumberNo. 3:03cv554-RS-MD.,3:03cv554-RS-MD.
Citation504 F.Supp.2d 1254
PartiesARMY AVIATION HERITAGE FOUNDATION AND MUSEUM, INC., A Georgia non-profit corporation, Plaintiff, v. Roger BUIS, Pauline Buis, d/b/a Otto Airshows, Inc., and d/b/a Otto the Clown, Defendants.
CourtU.S. District Court — Northern District of Florida

Debra A. Wilson, John A. Christy, Schreeder Wheeler & Flint LLP, Atlanta, GA, Robert Anthony Emmanuel, Emmanuel Sheppard & Condon, Pensacola, FL, Plaintiff.

Roger Buis, Baker, FL, Pro se.

Pauline Buis, Baker, FL, Pro se.

ORDER

SMOAK, District Judge.

Before me are (1) Plaintiffs requests for damages following a bench trial on that issue; (2) Plaintiffs Motion for Attorney's Fees and Nontaxable Expenses (Doc. 258); and (3) Plaintiffs Motion to Strike Financial Statements of Defendants (Doc. 287).

I. Background

Plaintiff Army Aviation Heritage. Foundation and Museum, Inc. ("AAHF") brought this diversity action against Defendants Roger and Pauline Buis and their business, Otto Airshows, Inc. cl/b/a Otto the Clown, alleging that Defendants had made defamatory statements about AAHF and had violated the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") (Fla. Stat. §§ 501.201 et. seq.). District Judge Vinson granted AAHF's motion for. partial summary judgment, holding Defendants liable on both the defamation and FDUTPA claims (Doc. 191).1 Judge Vinson's order recites the factual background in this case. See Doc. 191:2-6.

A bench trial was held before me, the sole issue for my consideration involving the amount of damages to which AAHF is entitled. Following the bench trial, the parties filed post-trial briefs (Does. 278, 279 & 280). Defendants also filed a financial statement of assets and liabilities (Doc. 281).

AAHF claims entitlement to general damages of at least $100,000; special damages in the amount of $80,000; punitive damages of at least $80,000; and attorney's fees and nontaxable expenses (Doc. 278:2, 10; Doc. 258.). AAHF. also moves to strike the financial statements of Defendants (Doc. 287.)

II. Analysis
A. General and Special Damages

Any person having suffered injury from defamation is entitled to recover damages. Florida law recognizes two categories of compensatory damages for defamation: general and special. Bobenhausen v. Cassat Ave. Mobile Homes, Inc., 344 So.2d 279, 281 (Fla. 1st DCA 1977).

General damages are those which the law presumes must naturally, proximately and necessarily result from publication of the libel or slander. They are allowable whenever the immediate result is to impair the plaintiffs reputation, although no actual pecuniary loss is demonstrated. 20 Fla.Jur. Libel and Slander sections 6, 88.

Id. Special damages, on the other hand, "do not result by implication of law," and "it is necessary for a plaintiff to show his special damages proximately resulted from the defamation." Bobenhausen, 344 So.2d at 281 (citation omitted).

Compensatory damages are not limited to out-of-pocket loss. Gertz v. Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). The injured party may recover damages resulting from impaired reputation and standing in the community, humiliation, mental anguish, and suffering. Id.

"Words which are actionable in themselves, or per se, necessarily import general damages and need not be pleaded or proved but are conclusively presumed to result." Bobenhausen, 344 So.2d at 281. A false and unprivileged publication which injures a corporation, prejudices its ability to conduct its trade or business, deters third persons from dealing with it, assails its management, or impugns its method of doing business is actionable per se. See, e.g., McIver v. Tallahassee Democrat, Inc., 489 So.2d, 793, 794 (Fla. 1st DCA 1986) (citation omitted); Diplomat Electric, Inc. v. Westinghouse Electric Supply Co., 378 F.2d 377, 383 (5th Cir.1967).

Judge Vinson's order granting partial summary judgment in Plaintiff's favor identified the following publications by Defendants as actionable per se2:

1. Letter dated November 17, 2003, mailed to Federal Aviation Administration ("FAA") and circulated to various individuals within the air show community containing:

a. False statement about AAHF's maintenance program, or lack thereof;

b. Suggestion that AAHF was using unapproved military surplus parts;

c. Charge that AAHF had removed several members for questioning its maintenance practices.

2. Letter dated November 7, 2003, to FAA, which stated that AAHF was illegally operating or flying aircraft.

3. Pauline Buis's email to Aircraft Owners and Pilots Association ("AOPA"), which alleged that "much of the information in the [AAHF's] exemption request is not entirely true and or is misrepresented facts."

4. "Oral statements made to several individuals concerning a wide-ranging number of allegations" including the Buis's "statements to John Cudahy and Martha Farmer that AAHF aircraft were being maintained incorrectly, that the pilots were possibly not trained, and that AAHF was using non-yellow-tagged parts."

(Doc. 191:8-11.)

The law provides little guidance in determining the amount of compensatory damages to which a defamed party is entitled. "There is no exact standard for fixing the compensation to be awarded on account of such elements of damage. Any award should be fair and just in the light of the evidence." Firestone v. Time, Inc., 305 So.2d 172, 177 (Fla.1974), vacated and remanded on other grounds, Time, Inc. v. Firestone, 424 U.S. 448, 460-461, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976) (approving the quoted language above from the trial court's jury instructions); see also Fla. Std. Jury Instr. (Civ.) 4.4a. The law also requires that "the verdict and judgment bear a reasonable relation to the philosophy and general trend of prior decisions." Johnson v. United States, 780 F.2d 902, 907 (11th Cir.1986). Further, "[o]f course, ... 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." Gertz, 418 U.S. at 349, 94 S.Ct. 2997, 41 L.Ed.2d 789.

Here, Plaintiff's requests for general damages in the amount of at least $100,000 and special damages in the amount of $80,000 are ambitious. AAHF has failed to demonstrate any injury to its reputation, decreased standing in the community, impairment in its ability to conduct its trade or business, loss in membership, or that the defamatory statements deterred anyone from conducting business with it. To the extent that such impairments are presumed by law, I find that the evidence produced at trial sufficiently rebuts those presumptions.

The President of AAHF, Michael Brady, testified at trial that AAHF's reputation for safety is of paramount importance in securing business in the air show industry and in maintaining its relationship with the FAA. However, Brady conceded that during the Brady — Buis battle, AAHF suffered no lost business nor was any adverse action ultimately taken by the FAA against AAHF. In fact, the evidence showed that Brady successfully labored to protect AAHF's reputation after publication of the defamatory statements and that the close-knit air show community was aware of the Brady — Buis battle, understood that Plaintiff and Defendants were business competitors, and perceived the defamatory statements with skepticism. In particular, John Cudahy, President of the International Council of Air Shows ("ICAS"), a trade organization in the air show industry, stated that although he was initially "concerned" about the false statements and inquired about them, he did not believe them. Further, Brady conceded at trial that membership in -his organization has not declined nor has he had difficulty acquiring parts for his aircraft from the government.

At trial, Brady admitted that if the FAA had cause to believe that AAHF was conducting its operations in an unsafe manner, it would "pull your license, ground your craft immediately." Notably, the FAA investigated AAHF and took no adverse action against it. Instead, after efforts by AAHF to demonstrate its entitlement to an exemption, the FAA renewed the exemption without lapse.

Martha Farmer, an investigator for the FAA assigned to AAHF, stated that she was aware of the "issues" between AAHF and Defendants and receives calls "all the time from disgruntled people." After an unannounced visit to AAHF's facilities, Farmer's investigations uncovered no safety violations or wrongdoing by AAHF.

AAHF is an ongoing, successful business enterprise, and Brady has not alleged loss of goodwill or profits. The evidence wholly fails to substantiate any reputational damage to AAHF. Even if AAHF's standing in the community has been compromised, I find that such damage has not resulted from any statements or actions by Defendants; rather, such injury is largely the consequence of AAHF's decision to bring this lengthy litigation against a defunct business competitor, thereby permitting the statements complained of to traverse the confines of the close-knit air show community and permeate the general public by means of the public records of this Court.

In contrast, it is Defendants who have suffered most from this dispute, although they bear responsibility for that suffering. When the FAA granted its exemption to AAHF, it also awarded AAHF an unfair competitive advantage over Defendants' private business. Defendants' business, once a potential competitor of AAHF, is no longer in business. Although Defendants campaigned vigorously to overturn the exemption, they did not fight fairly and instead overreached. Had Defendants simply confined their communications to attacking the purpose of the exemption and its applicability. to AAHF, even if such opinions were untenable, this Court's determination of Defendants' liability may well have been different. Instead, Defendants'...

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