Della-Donna v. Nova University, Inc.
| Decision Date | 09 September 1987 |
| Docket Number | 85-2188 and 85-2189,Nos. 85-2185,85-2187,A,DELLA-DONN,85-2186,s. 85-2185 |
| Citation | 512 So.2d 1051,12 Fla. L. Weekly 2187 |
| Parties | 42 Ed. Law Rep. 459, 12 Fla. L. Weekly 2187 Alphonseppellant, v. NOVA UNIVERSITY, INC., a Florida corporation not for profit; Dr. Abraham S. Fischler; Dr. Alexander Schure; Terrence J. Russell, Dr. David G. Salten; James Richard Holmes, Jr.; and Karen Coolman Holmes, Appellees. |
| Court | Florida District Court of Appeals |
Robert M. Sturrup of Sturrup & Della-Donna, P.A., Fort Lauderdale, for appellant.
Robert F. Jordan of Robert F. Jordan, P.A., and Gordon James, III, of Conrad, Scherer & James, Fort Lauderdale, for appellee, Terrence J. Russell.
Angela L. DerOvanesian and Diane H. Tutt of Blackwell, Walker, Fascell & Hoehl Miami, for appellee, Karen Coolman Holmes.
Angela L. DerOvanesian and Diane H. Tutt of Blackwell, Walker, Fascell & Hoehl, Miami, for appellee, James Richard Holmes, Jr.
Davis W. Duke, Jr., and Asela M. Cuervo of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for appellees, Nova University, Inc., Dr. Abraham S. Fischler, Dr. Alexander Schure, and Dr. David G. Salten.
Alphonse Della-Donna (Della-Donna) appeals four final summary judgments for Nova University Inc. (Nova), Dr. Abraham S. Fischler (Fischler), Dr. Alexander Schure (Schure), Terrence J. Russell (Russell), Dr. David Salten (Salten), James Richard Holmes, Jr. (Holmes), and Karen Coolman Amlong (Amlong); and a partial summary judgment for Nova, Fischler, Schure, and Salten. We affirm the summary judgments in all respects, except for one issue that is mooted by the affirmance of the summary final judgment in Appeal No. 85-2187.
Circuit Court Case No. 82-8487, the genesis of these appeals, arose from some of the same facts that resulted in an earlier litigation by Della-Donna against Gore Newspaper Co., Della-Donna v. Gore Newspapers Co., 489 So.2d 72 (Fla. 4th DCA 1986), rev. denied, 494 So.2d 1150 (Fla.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1294, 94 L.Ed. 150 (1987). For purposes of these appeals, we adopt the recitation of facts in Della-Donna v. Gore, as applicable background information in the instant case:
Della-Donna is a lawyer who in 1971 provided some complex estate planning for his client, Leo Goodwin, Sr., which included the establishment of a foundation and a charitable remainder trust (Unitrust). Mr. Goodwin, Sr., died on May 28, 1971, without naming any beneficiaries of the trust.
In 1976, the Goodwin Foundation Trustees, of which Della-Donna was one, exercised their power under the Unitrust and designated trust beneficiaries which included Nova University. Approximately two years later, in 1978, appellant and Nova University became embroiled in a dispute regarding the control of the university. Della-Donna advised the trustees of Nova University that Mr. Goodwin, Sr.'s desire was to help locally controlled institutions and that he had recently discovered that Nova's Board of Trustees was controlled by the New York Institute of Technology which, in turn, was controlled by the Schure family in New York. Della-Donna advised Nova's Trustees that the Goodwin Foundation Trustees were inclined to rescind the gift unless Nova agreed to be operated under "some semblance of local control."
Several subsequent meetings between Della-Donna and representatives of the university occurred in an attempt to resolve the dispute. On April 19, 1978, Della-Donna sent a "confidential" letter to all Nova Trustees informing them of the ongoing negotiations and advising that if local control was not effectuated he would be forced to rescind the gift.
On April 25, 1978, Nova filed a petition in the circuit court to force distribution of the gift. Upon the filing of this lawsuit, Gore learned about the dispute and began reporting it. On May 4, 1978, Della-Donna filed a complaint for declaratory relief on behalf of the estate of Leo Goodwin, Sr., charging that Nova had fraudulently misrepresented a material fact concerning its management and control, and seeking to rescind the gift.
In response to the May 4, 1978 complaint for declaratory relief, Russell, as counsel for Nova University, filed an answer asserting affirmative defenses and a counterclaim alleging, inter alia, that Della-Donna diverted approximately $9,000,000 from the Unitrust to Leo Goodwin, Sr.'s estate and that Della-Donna's law firm as attorneys for the executor of Sr.'s estate had charged the estate $950,000 in excessive fees.
On October 17, 1978, Nova and its trustees, through Russell, filed an amended counterclaim which retained an allegation of diversion by Della-Donna. Holmes, as counsel for Amlong, then a law student at Nova University, filed a class action lawsuit alleging the identical claim of diversion as contained in Nova's original counterclaim. This class action suit was dismissed with prejudice on the grounds that Amlong lacked standing. Ultimately, Nova University's suit based on the amended counterclaim was voluntarily dismissed with prejudice because of settlement by Nova and Della-Donna on behalf of the Goodwin Estate.
The instant appeals evolved from Della-Donna subsequently filing, in his individual capacity, a five-count complaint, an amended complaint, and a second amended complaint against Nova; three of Nova's top administrators, Fischler, Schure, and Salten; Nova's attorney, Russell; a Nova law student, Amlong, and her attorney, Holmes. Della-Donna's second amended complaint contained claims for malicious prosecution and abuse of process against all defendants, a claim for libel against all defendants except Holmes and Amlong, based on two publications known as the "Aide Memoire" and "Salten Memorandum," a claim for conspiracy to defame against all defendants based on the publication of a copy of an earlier lawsuit, Case No. 78-7397, in the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, Florida, and a claim for libel against Nova based on the filing of Nova's original counterclaim in Case No. 78-7397 with knowledge of the "Farrington Decree."
After separate hearings on motions for summary judgment filed by all defendants, the trial court granted the motions and entered summary final judgments in favor of all defendants on all counts. The trial court also entered partial summary judgment for Nova, Fischler, Schure, and Salten finding that Della-Donna was a limited or vortex public figure. However, we agree with the trial court that the vortex public figure ruling was not essential to its ruling on any of the motions for summary judgment.
Della-Donna appeals the four summary final judgments and the partial summary judgment entered by the trial court. Although we only comment on some of the issues raised on appeal, we affirm the trial court in all respects but one ruling that has been rendered moot by this opinion.
As to Appeal No. 85-2189, we affirm the trial court's partial summary judgment finding that Della-Donna was a limited or vortex public figure in a matter of public concern or controversy. See Della Donna v. Gore Newspaper, 489 So.2d 72 (Fla. 4th DCA), rev. denied, 494 So.2d 1150 (Fla.1986). Although the instant case is not the identical case to Della-Donna v. Gore Newspaper, the doctrine of stare decisis as distinguishable from the doctrine of res judicata or law of the case is applicable to the subsequent judicial determination of the same questions of law. McGregor v. Provident Trust Co. of Philadelphia, 119 Fla. 718, 162 So. 323 (1935). Consequently, the results of Della-Donna v. Gore must be followed by this court as stare decisis.
In Della-Donna v. Gore, this court determined that a person's status as a limited public figure for purposes of applying an actual malice standard of proof in a defamation action requires that there be a public controversy and that the person play a sufficiently central role in that controversy. This court not only found that this dispute was a matter of public interest but also that the facts surrounding the case constituted a public controversy. Furthermore, the court stated that Della-Donna had initiated a series of purposeful, considered actions, igniting a public controversy in which he continued to play a prominent role. Thus, this court concluded that Della-Donna was a limited public figure.
Since the same facts that gave rise to the Della-Donna v. Gore dispute are the factual foundation of this lawsuit, stare decisis, in the form of Della-Donna v. Gore, compels our decision affirming the trial's court ruling that Della Donna was a vortex or limited public figure in a matter of public concern or controversy and that as such he was required to show that any allegedly defamatory statements were published with actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).
On Appeal No. 85-2185, Della-Donna appeals a summary final judgment entered in favor of Russell on all counts of the libel action brought by Della-Donna against Russell and the other defendants/appellees in these appeals. On the malicious prosecution claim, Della-Donna must allege and prove the following elements:
1) the commencement or continuation of an original or criminal judicial proceeding;
2) its legal causation by the present defendant against the plaintiff;
3) its bona fide termination in favor of the plaintiff;
4) the absence of probable cause for such prosecution;
5) the presence of malice; and
6) damages conforming to legal standards result to the plaintiff.
Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412, 415 (Fla. 4th DCA 1980), cert. denied, 388 So.2d 1119 (Fla.1980).
As to the count for malicious prosecution, Della-Donna, contending that he can establish all six elements of such a claim, disagrees with Russell's assertion that there was no bona fide termination in his favor of an original civil judicial proceeding. Della-Donna...
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