Florida Fern Growers Ass'n, Inc. v. Concerned Citizens of Putnam County

• Decision Date: 02 April 1993
• Docket Number: No. 92-1039,92-1039
• Parties: 18 Fla. L. Week. D871 FLORIDA FERN GROWERS ASSOCIATION, INC., et al., Appellants, v. CONCERNED CITIZENS OF PUTNAM COUNTY, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 562

616 So.2d 562

18 Fla. L. Week. D871

FLORIDA FERN GROWERS ASSOCIATION, INC., et al., Appellants, v. CONCERNED CITIZENS OF PUTNAM COUNTY, etc., et al.,

Appellees.

No. 92-1039.

District Court of Appeal of Florida,

Fifth District.

April 2, 1993.

Harlan L. Paul of Zimmerman, Paul & Bauer, DeLand, for appellants.

Kenneth B. Wright, Tallahassee, for appellees.

DAUKSCH, Judge.

This is an appeal from an order dismissing with prejudice appellant Florida Fern Growers Association, Inc.'s complaint for injunctive relief, and for damages for intentional and malicious interference with advantageous business relationships and conspiracy to intentionally and maliciously interfere with advantageous business relationships. Appellees, the Concerned Citizens of Putnam County, Inc. filed various petitions with the St. Johns River Water Management District challenging the issuance of consumptive water use permits to members of appellant in the fern growing industry. It is appellees' position that they have a constitutional free speech right and a constitutional right to petition the government both of which are greater than any asserted right of appellant to be free from tortious conduct.

On January 6, 1992, appellant filed its First Amended Complaint seeking injunctive relief and alleging intentional and malicious interference with advantageous business relations and conspiracy to interfere with advantageous business relations. Appellees moved to dismiss this complaint, arguing that their actions in petitioning the government about the public issue of consumptive use of water were privileged under the United States and Florida Constitutions. They argued that their reasons for choosing to focus their attention on water use by ferngrowers need not be objectively compelling because they were entitled to petition the government no matter what their beliefs. They argued that for the proceedings to subject them to civil liability they must be instituted not to obtain governmental action but to otherwise injure the plaintiff. Appellees argued that because appellant's complaint admitted that appellees' petitions were at least in part motivated by their concern over public policy, the issue of water consumption, that motivation cloaked their actions with a constitutional privilege and therefore appellant's complaint must be dismissed with prejudice.

On March 27, 1992, the trial court issued an order of dismissal with prejudice finding that the complaint failed to state a cause of action, stating that:

To state a claim upon which relief can be granted in a tortious interference case, malice must be the sole basis for the interference. Boehm v. American Bankers Ins. Group, 557 So.2d 91, 95 (Fla. 3d DCA 1990).

The actions that form the basis for Plaintiffs' complaint are that the Defendants filed petitions with the St. Johns River Water Management District, under Florida's Administrative Procedure Act, challenging the issuance of consumptive water use permits to members of the fern-growing industry. Plaintiffs' allegations are not sufficient to vitiate Defendants' privilege to petition the government under the Federal and Florida Constitutions. U.S. Const. Amend. I; Art. I Sect. 5, Florida Constitution; Gray v. Rodriguez, 381 So.2d 1298, 1299 (Fla.App. 3d Dist.1986); and see Protect Our Mountain Environment v. District Court, 677 P.2d 1361 (Colo.1984).

This appeal followed and we reverse.

In reviewing the trial court's granting of a motion to dismiss, this court is limited to accepting the allegations of the complaint as true. Londono v. Turkey Creek Inc., 609 So.2d 14, 19 n. 4 (Fla.1992); Cutler v. Board of Regents, 459 So.2d 413, 414 (Fla. 1st DCA 1984). We find the ferngrowers' complaint sufficiently alleges claims for injunctive relief, tortious interference with advantageous business relations, and conspiracy to tortiously interfere with advantageous business relations.

A party seeking injunctive relief in Florida must demonstrate: 1) irreparable harm; 2) a clear legal right; 3) an inadequate remedy at law; and 4) consideration of the public interest. St. Lucie County v. St. Lucie Village, 603 So.2d 1289, 1292 (Fla. 4th DCA), rev. den., 613 So.2d 12 (Fla.1992). "A complainant alleging irreparable injury must state facts which will enable the court to judge whether the injury will in fact be irreparable." Waters v. School Bd. of Broward County, 401 So.2d 837, 838 (Fla. 4th DCA 1981). Count I of appellant's complaint alleges that appellees are causing irreparable harm to appellant by objecting to "each and every application for consumptive [water] use permits" by the members of appellant to the St. Johns River Water Management District ("the District"). Appellant charges that appellees have "targeted" its members to the exclusion of all other agricultural, industrial and recreational consumptive users, aiming to put appellant out of business. Appellant seeks a permanent injunction enjoining appellees from filing such "sham pleadings" directed to the applications members of the fern growing industry are required to file with the District to obtain consumptive use permits for water consumption. We find Count I of appellant's complaint sufficiently alleges a claim for injunctive relief. ¹

Elements of the tort of intentional interference with an advantageous business relationship are: 1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an intentional and unjustified interference with that relationship by the defendant; and 4) damage to the plaintiff as a result of the breach of the relationship. Nowik v. Mazda Motors of America (East), Inc., 523 So.2d 769, 771 (Fla. 1st DCA 1988); McCurdy v. Collis, 508 So.2d 380, 382-383 (Fla. 1st DCA), rev. den., 518 So.2d 1274 (Fla.1987). Appellant in Count II of the complaint alleged that appellees engaged in their campaign to object to each application for consumptive use with the intent of interfering with appellant's business relationship between members of appellant and their fern buyers. Appellant alleges appellees knew of this relationship, and alleges that appellees' campaign was unjustified because appellees attempted to put the ferngrowers out of business, as opposed to any other water user, whether industrial, agricultural or business; appellant alleges appellees are unable to show that they are or would be substantially affected by the consumptive use of ground or surface water by ferngrowers. In particular appellant alleges members of the industry have been damaged by delays in the permitting process caused by appellees' campaign. We find that Count II of appellant's complaint sufficiently alleges a claim for tortious interference with advantageous business relations.

The essentials of a complaint for civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy. Kent v. Kent, 431 So.2d 279, 281 (Fla. 5th DCA 1983). Such a tort is actionable "where a plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual could not possess." Buckner v. Lower Florida Keys Hosp. Dist., 403 So.2d 1025, 1029 (Fla. 3d DCA 1981), rev. den., 412 So.2d 463 (Fla.1982). Count III of appellant's complaint alleges that appellees conspired between themselves to individually file objections to each consumptive use of water of the ferngrowers with the sole intent of causing such damages to appellant as to put the ferngrowers out of business. Appellant attached to its complaint the petitions appellant alleged appellees conspired to file. As discussed above we find appellant has sufficiently alleged a claim for tortious interference with business relations. An actionable conspiracy requires an actionable underlying tort or wrong. Wright v. Yurko, 446 So.2d 1162, 1165 (Fla. 5th DCA 1984). We further find that Count III of appellant's complaint states a claim for civil conspiracy.

Appellees, the Concerned Citizens, however, urge this court to find the amended complaint legally insufficient and to employ a heightened pleading standard, requiring appellant to allege specific activities of appellees which vitiate privileges associated with the constitutional right to petition the government. In Sierra Club v. Butz, 349 F.Supp. 934 (N.D.Cal.1972), the court stated that:

Liability can be imposed for activities ostensibly consisting of petitioning the government for redress of grievances only if the petitioning is a "sham," and the real purpose is not to obtain governmental action but to otherwise injure the plaintiff.

Id. at 939. The Sierra Club court reasoned that the "sham" test was required because malice is "easy" to allege and the "sham" test would allow the First Amendment "breathing space" required to protect the rights of citizens petitioning the government. Id. at 938-939. Federal and state courts subsequently applying the "sham" test have employed a heightened pleading standard to state a claim for civil liability based upon asserted petitioning activities. See e.g. Oregon Natural Resources Council v. Mohla, 944 F.2d 531, 533 (9th Cir.1991); Protect Our Mountain Env't, Inc. v. Dist. Court, 677 P.2d 1361, 1369 (Colo.1984). However, we are moved to reject the "sham" test based on the Supreme Court of Florida's recent opinion in Londono v. Turkey Creek, supra. There the Supreme Court of Florida explicitly rejected the "sham" test of the Sierra Club court and found that current Florida tort law "already provides protection for the First Amendment right to petition the government," Londono, 609 So.2d at 18. Because no heightened pleading standard is applicable, we find appellant's complaint...