Greene v. Times Publ'g Co.

• Citation: 130 So.3d 724
• Decision Date: 15 January 2014
• Docket Number: No. 3D12–2427.,3D12–2427.
• Parties: Jeff GREENE, Appellant, v. TIMES PUBLISHING CO., etc., et al., Appellees.
• Court: Court of Appeal of Florida (US)

130 So.3d 724

Jeff GREENE, Appellant,

v.TIMES PUBLISHING CO., etc., et al., Appellees.

No. 3D12–2427.

District Court of Appeal of Florida, Third District.

Jan. 15, 2014.

Wood Hernacki & Evans and L. Lin Wood., pro hac vice.; Kenny Nachwalter and Stanley H. Wakshlag, Miami, for appellant.

Rahdert, Steele, Reynolds & Driscoll, and George K. Rahdert, Alison M. Steele and Anne H. Arsenault, Saint Petersburg; Holland & Knight, and Sanford L. Bohrer and Scott D. Ponce, for appellees.

Before SHEPHERD, C.J., and ROTHENBERG and SALTER and, JJ.

SALTER, J.

Jeff Greene appeals a final judgment and order dismissing his complaint against Times Publishing Company, Miami Herald Media Company, and three reporters for libel. Concluding that the complaint states a legally sufficient cause of action against each defendant, we reverse and remand the case to the circuit court for further proceedings.

I. Parties

Greene was a candidate for nomination as the Democratic candidate for election to the United States Senate in 2010. In mid-August 2010, about three weeks before the primary election for the nomination, the St. Petersburg Times, a newspaper and online publisher owned by defendant/appellee Times Publishing Company, and The Miami Herald, a newspaper and online publisher owned by defendant/appellee Miami Herald Media Company, published three articles about Greene. Two of the pieces addressed Greene's alleged role in a 2006 real estate deal in California. The third described various alleged activities involving Mike Tyson and Greene's “mega yacht,” the “Summerwind,” during the period 2005–2007. The stories were published in print and online.

Greene provided pre-publication information and denials of certain information disclosed by the reporters, and he sent timely, written post-publication retraction demands pursuant to section 770.01, Florida Statutes (2010). As to the last article, Greene alleged, among other things, that he had no knowledge of whether Tyson was using illegal drugs in the summer of 2005 or 2007, that he paid for Tyson to go to rehabilitation when he later learned that Tyson was addicted, and that Tyson had publicly acknowledged that, but for Greene's help, Tyson likely would have died from an overdose. But retractions were not forthcoming. Greene then sued Times Publishing, Herald Media, three individual and named reporters, and unnamed “John or Jane Does” that might have participated in the investigation, reporting, or editorial review regarding the three articles, in the circuit court in Miami.

II. The Articles and Alleged False, Defamatory, and Misleading Representations of Fact

The three articles are referred to in the complaint, dismissal order, and here as articles 1, 2, and 3. Articles 1 and 2 dealt with Greene's 2006 real estate transactions at a 300–unit condominium property known as La Mirage in Ridgecrest, California. Article 3 reported Greene's relationship with Mike Tyson and alleged activities in 2005–2007 aboard Greene's “raucous party boat,” the “Summerwind.”

Article 1, “Calif. Deal Put Jeff Greene on Front Line of Mortgage Mess,” linked Greene to “mortgage shenanigans,” “massive fraud,” and “a man now under federal indictment.” The article recounted transactions in which a company owned by Greene sold all 300 Mirage condominiums in a single transaction to James Delbert McConville ¹ in the summer of 2006. AlthoughMcConville had paid Greene's company only $70,000 per unit, McConville apparently used escrowed deeds and straw transactions to sell the individual units at prices in the range of $145,000 to $165,000. McConville's buyers obtained mortgage financing, defaulted on those loans, and left the buyers and lenders with substantial losses. The article reported that “half of McConville's buyers were the same people who had purchased units from Greene.” In fact, Greene has alleged, no buyers except McConville purchased units from Greene's company.

The complaint and its attachments, including the statutory retraction correspondence, detail thirteen “libelous statements” ² in article 1 accusing Greene of selling the units to purchasers other than McConville directly at the inflated prices he never received, and of active participation in McConville's criminal mortgage fraud.

Article 2, “Jeff Greene's Real Estate Dealings Need Explaining,” was published on the editorial page by the Times two days after article 1. The article included numerous references to statements and topics in article 1, as well as new content. Representative statements in article 2 are:

The billionaire participated in a California real estate deal featuring the conversion of old apartments to condos, inflated sales prices to straw buyers and defaults that cost banks and taxpayers millions. The FBI is investigating, and it should talk to Greene.

....

Why are half of McConville's buyers the same people who bought from Greene and who defaulted on all of the loans? ³

....

Federal investigators should keep digging around Greene's involvement in the failed development in the California desert. And Florida voters should not send to the U.S. Senate someone whose first line of defense is too often at odds with the facts.

Greene alleged that these and other specific allegations in article 2 were false and known to be false at the time they were made.

Article 3, published three days after article 2, was headlined “Jeff Greene Brushes off Raucous Party Boat Tales” in the Times and “Jeff Greene's Yacht Holds the Secrets: Sexcapades or Sabbath?” in the Herald.⁴ The complaint and its attachments alleged that article 3 included several specific statements of fact that were false and defamatory: that Tyson, who was the best man at Greene's wedding in 2007, had told Sports Illustrated about a summer “when he spent so much time with Greene” that made that period of his life “sound more like the Love Boat [sic],” in St. Tropez, Ibiza, Monte Carlo, and elsewhere, and about “getting high” with “naked girls.” The Times, Herald, and reporters were warned in writing and before publication that a number of the statements were false.

III. Motive and Allegations of Actual Malice

Greene alleged that the articles were published two weeks before the primary election in order to derail Greene's nomination, with one of the individual defendants describing an early piece on Greene as a “hit job” or “hit piece,” and another having described her bias against Greene to third parties. Greene alleged that he invested over $24,000,000 of his own funds in his campaign for the nomination. He alleged that, prior to the publication of articles 1, 2, and 3, most polls indicated that Greene had a significant lead in the polls over his opponent, Kendrick Meek, and that his lead dropped to a double-digit deficit after publication of the articles. He lost the primary election. He also alleged that the allegedly-libelous statements damaged his reputation as a person and businessman.

As to each article, Greene alleged in the complaint that the allegedly-libelous statements were published without any privilege and with “actual malice, that is, with actual knowledge of falsity or with reckless disregard for truth or falsity.”

IV. Proceedings Below

Greene's fifty-four page complaint referred to and attached eight documents (the articles and the statutory post-publication retraction demands). The defendants' motions to dismiss ⁵ were extensively briefed and then heard by the trial court in August 2011. Thereafter, each side filed additional memoranda addressing the arguments advanced by the other. In April 2012, the trial court granted each defendant's motion to dismiss, but authorized amendment of the complaint with respect to the allegations and libel claim against the corporate defendants relating to article 1. The dismissal rulings addressing articles 2 and 3 were with prejudice as to all defendants, and the motions to dismiss by the three reporters were granted with prejudice as to all three articles.

Greene then waived the limited right to amend granted in the order, the trial court entered a final judgment in favor of all defendants, and this appeal followed.

V. Analysis

Our review is de novo. We assume that all allegations in the complaint are true, and we construe all reasonable inferences from those allegations in favor of Greene. United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103–04 (Fla. 3d DCA 2010). That said, we acknowledge at the outset that the legal sufficiency of a libel complaint by a public figure against news media and reporters is subject to a more rigorous set of tests than a contract claim between private parties. First Amendment case law has, over the years, created such principles as the “substantial truth” doctrine ⁶ and protection for statements of “pure opinion.” ⁷“Actual malice” is also a rigorous standard for pleading purposes, as well as for proof.

The trial court correctly specified the five elements of a legally sufficient cause of action for libel involving a public figure: (1) publication, (2) falsity, (3) the defendant's knowledge of, or reckless disregard for, the falsity (i.e., actual malice), (4) actual damages, and (5) the false statement must be defamatory. Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla.2008). In this case, publication is alleged (and is undisputed). The defendants' knowledge or reckless disregard for alleged falsity is sufficiently pled, and actual damages are sufficiently pled as well. ⁸ The key elements in contention, therefore, are the falsity of certain statements in the articles and whether any such false statements were “defamatory.”

A. Falsity

According to the allegations and attachments, a number of statements in the articles are false. In articles 1 and 2, no individual purchasers bought condominium units from Greene, other than McConville, and Greene did not sell any condominium units for the purchase prices listed in the articles. Nor was Greene “party to...