Demartini v. Town of Gulf Stream

• Decision Date: 21 November 2019
• Docket Number: No. 17-14177,17-14177
• Parties: Denise DEMARTINI, Plaintiff-Appellant, v. TOWN OF GULF STREAM, Wantman Group, Inc., Robert A. Sweetapple, Defendants-Appellees, Richman Greer, P.A., Gerald F. Richman, Defendants.
• Court: U.S. Court of Appeals — Eleventh Circuit

942 F.3d 1277

Denise DEMARTINI, Plaintiff-Appellant,

v.TOWN OF GULF STREAM, Wantman Group, Inc., Robert A. Sweetapple, Defendants-Appellees,Richman Greer, P.A., Gerald F. Richman, Defendants.

No. 17-14177

United States Court of Appeals, Eleventh Circuit.

November 21, 2019

Daniel DeSouza, DeSouza Law, PA, FORT LAUDERDALE, FL, Richard J. Ovelmen, Carlton Fields, PA, MIAMI, FL, for Plaintiff - Appellant.

Hudson Carter Gill, Jeffrey L. Hochman, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, FORT LAUDERDALE, FL, for Defendant - Appellee Town of Gulf Stream.

James J. McGuire, Mark R. Caramanica, Thomas & LoCicero, PL, TAMPA, FL, Robert F. Tacher, Peterson & Martin, PA, FORT LAUDERDALE, FL, for Defendant - Appellee Wantman Group, Inc.

Joshua A. Goldstein, Kali Lauren M. Sinclair, Cole Scott & Kissane, PA, WEST PALM BEACH, FL, for Defendant - Appellee Robert A. Sweetapple.

Before ROSENBAUM, HULL and JULIE CARNES, Circuit Judges.

HULL, Circuit Judge:

Plaintiff Denise DeMartini appeals the district court’s grant of summary judgment (1) to the defendant Town of Gulf Steam, Florida on her First Amendment retaliation claim brought under 42 U.S.C. § 1983 and (2) to the defendant Wantman Group, Inc., a government contractor, on her malicious prosecution claim brought under Florida law.

To place this appeal in context, we begin with what happened in a prior lawsuit and appeal involving the same parties here. See Town of Gulf Stream v. O’Boyle, 654 F. App'x 439 (11th Cir. 2016) (unpublished).

I. PRIOR LAWSUIT AND APPEAL

The Town of Gulf Stream ("the Town") is a "tiny town of under 1,000 residents and just 17 full time employees" in Palm Beach County, Florida. Id. at 441. In their prior lawsuit, the Town and its contractor, the Wantman Group Inc. ("Wantman") sued Denise DeMartini (the plaintiff here), Martin O’Boyle, and others under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1962(c), 1964(c), for a fraud and extortion scheme. Id. at 440–42.

O’Boyle resides in the Town. From 1984 until 1995, and then again from 2003 to 2015, DeMartini worked for O’Boyle’s real estate company, CRO Realty, Inc. O’Boyle was DeMartini’s direct supervisor and described her as his "left hand" woman.

At the direction of O’Boyle, Citizens Awareness Foundation, Inc. ("CAFI") was created as a not-for-profit corporation, whose stated purpose included testing and enforcing municipalities’ compliance with Florida public records law. O’Boyle was the sole funder of CAFI and he used it as a tool to file thousands of public records requests to the Town under Florida’s public records law. Plaintiff DeMartini worked as CAFI’s Treasurer and later Director. O’Boyle’s CRO Realty paid DeMartini for her work on behalf of CAFI.

In the prior lawsuit, the Town alleged that plaintiff DeMartini, O’Boyle, and others "pummeled the town with nearly 2,000 public records requests, many of them frivolous, with no intention of actually reviewing the results." Id. The Town also alleged that, if the Town failed to timely respond then the O’Boyle Law Firm would sue the Town, allegedly "engag[ing] in a pattern of frivolous litigation activity." Id. at 441, 444. The O’Boyle Law Firm was formed by O’Boyle’s son, funded by O’Boyle, and was in the same building as O’Boyle’s real estate company. Here is how O’Boyle and DeMartini orchestrated their scheme through CAFI.¹

A. First Step: Public Records Requests

As its first step, CAFI would issue public records requests "on a grand scale" to the Town, pursuant to Florida’s Public Records Act, Fla. Stat. § 119.07. Id. at 444. Specifically, § 119.07 provides that a custodian of a public record, such as the Town, (1) shall permit the record to be inspected and copied, at any reasonable time, under reasonable conditions, (2) must acknowledge requests to inspect or copy records promptly, and (3) must respond to such requests in good faith. Fla. Stat. § 119.07(1)(a), (c).

As relevant here, CAFI sent the Town "nearly 2,000 public records requests." Gulf Stream, 654 F. App'x at 441–42. These public records requests were deliberately vague and ambiguous in order to induce a violation of § 119.07. See id. Our prior decision listed examples of CAFI’s requests as production of:

(1) "All email addresses created or received by the Town of Gulf Stream";

(2) "All phone numbers in the [T]own’s records"; and

(3) "Any and all records containing a social security number."

Id.

One of CAFI’s requests went to Wantman, a contractor of the Town. Id. at 442. Florida’s public records law applies also to private entities, such as Wantman, that contract with government agencies. See Fla. Stat. § 119.0701. CAFI sent Wantman a public records request by e-mail, which directed that a response be sent to this e-mail address: Vendor.Contract.Publishing@gmail.com. Citizens Awareness Found., Inc. v. Wantman Grp., Inc., 195 So. 3d 396, 397–98 (Fla. Dist. Ct. App. 2016). CAFI’s request was sent to the e-mail address of Robin Petzold, the consultant on the government contract, with the additional language "DidTheyReadIt.com" attached at the end of her e-mail address, rendering the e-mail address unrecognized by Wantman’s computer network. Id. at 397–98, 401.² The subject line of the e-mail stated that it was a public records request, and it indicated that it was sent from "An Onoma." Id. at 398. The e-mail’s suspicious appearance led Petzold to believe that it was illegitimate and spam, and she did not respond to it. Id. at 401.

B. Second Step: State Lawsuits Filed

The second step of CAFI’s strategy involved the O’Boyle Law Firm’s filing many lawsuits. If the Town or Wantman did not respond promptly or adequately to the public records requests, CAFI, through the O’Boyle Law Firm, would threaten litigation, or actually file a lawsuit, against the Town or another entity. CAFI, through the O’Boyle Law Firm, would demand unreasonable settlements, which included excessive amounts of attorney’s fees and costs. Gulf Stream, 654 F. App'x at 441. The demands were based on threats that CAFI would initiate expensive and burdensome litigation or make pending litigation more expensive and burdensome. Id. The end game of the scheme was not to have the Town’s public records actually released, but to obtain attorney’s fees for the O’Boyle Law Firm. Id.

In that regard, Florida’s Public Records Act, Fla. Stat. § 119.12, contains an attorney’s fees provision that potentially applied when CAFI filed its lawsuits against the Town to enforce the production of public records. Section 119.12 provides that the state court shall award the reasonable costs of enforcement, including reasonable attorney’s fees, against the custodian if the state court determines that: (a) the custodian unlawfully refused to permit a public record to be inspected or copied; and (b) the complainant provided written notice identifying the public record request to the custodian at least five business days before filing the civil action. Fla. Stat. § 119.12(1)(a), (b). "Unlawful refusal under [§] 119.12 includes not only affirmative refusal to produce records, but also unjustified delay in producing them." Yasir v. Forman, 149 So. 3d 107, 108 (Fla. Dist. Ct. App. 2014) (quotation omitted).³ In short, if the Town or Wantman did not promptly respond in five days, CAFI would file a lawsuit and demand attorney’s fees. And it was the policy and practice of the O’Boyle Law Firm to demand settlement of cases with a provision for attorney’s fees in excess of the fees actually incurred by the O’Boyle Law Firm for the cases.

As an example of the abusive litigation, in May 2014, when Wantman failed to respond to CAFI’s e-mail request for records within the required time frame, CAFI filed suit after waiting merely 18 days and demanded several thousand dollars to settle the claim.⁴ Citizens Awareness, 195 So. 3d at 401. After the suit was filed, Wantman voluntarily provided the requested records. Id. at 398. Nevertheless, CAFI persisted with the lawsuit. Id. at 397. The Florida state court concluded that Wantman’s delay in providing the records was not so unjustifiable that it amounted to an unlawful refusal to provide the records to justify an award of attorney’s fees. Id. at 397, 401. Affirming the trial court’s ruling, the Florida appellate court noted that Wantman believed the request was "illegitimate" and stated that "[t]he public records law should not be applied in a way that encourages the manufacture of public records requests designed to obtain no response, for the purpose of generating attorney’s fees." Id. at 401.

C. Joel Chandler’s Role in CAFI

In January 2014, O’Boyle recruited Joel Chandler to be CAFI’s Executive Director. While acting as CAFI’s Executive Director, Chandler became convinced that CAFI was being used for improper purposes and that the organization was engaged in potentially fraudulent and illegal activities. As a result, Chandler resigned from CAFI in June 2014, approximately five months after he accepted the position.

Within a few days after resigning from CAFI, Chandler contacted Robert Sweetapple, who was the Town’s special counsel handling the public records requests. Chandler told counsel Sweetapple that he believed CAFI, O’Boyle, and the O’Boyle Law Firm were victimizing the Town with their public records activities, and that those activities involved criminal, fraudulent, and unethical conduct. Chandler also disclosed this information to the Town’s attorney, Joanne O’Connor, as well as to the media.

In July 2014, Chandler met with Sweetapple, the Town’s special counsel, and provided Sweetapple with documents and a sworn statement detailing CAFI’s fraudulent conduct. Chandler also gave Sweetapple a sworn video statement concerning his involvement with CAFI, O’Boyle, and the O’Boyle Law Firm. Chandler advised Sweetapple about CAFI’s two-step "windfall scheme" of (1) issuing deliberately vague and ambiguous public records requests to the Town and other entities and (2) then demanding...