Hoch v. Rissman, Weisberg, Barrett
| Decision Date | 17 September 1999 |
| Docket Number | No. 98-462, 98-1393.,98-462, 98-1393. |
| Parties | Rand HOCH, Appellant, v. RISSMAN, WEISBERG, BARRETT, etc., et al., Appellees. |
| Court | Florida District Court of Appeals |
Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., and Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for Appellants.
Daniel J. Gerber and Donna C. Valin of Rumberger, Kirk & Caldwell, P.A., Orlando, for Appellees DeCiccio and Associates, P.A., and Daniel DeCiccio.
Benjamin H. Hill, III, Dennis P. Waggoner, W. Hampton Keen, and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appellees Rissman, Weisberg, et al.
ON APPELLANT'S MOTION FOR CLARIFICATION
ON APPELLEES' MOTION FOR REHEARING AND/OR CLARIFICATION OR ALTERNATIVELY FOR CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE
ON APPELLEES' MOTION FOR CLARIFICATION OF ORDER GRANTING APPELLANT'S MOTION FOR APPELLATE ATTORNEY'S FEES
We deny appellees' motion for rehearing or for certification of a question of great public importance. However, we grant the motions for clarification to address concerns raised by the parties. We withdraw the original opinion and substitute the following in its place.
Hoch appeals from a final judgment and a final judgment for costs in favor of Rissman, Weisberg, Barrett, Hurt, Donahue and McLain, P.A. and individual members of the Rissman law firm,1 and from a final summary judgment and final judgment for costs in favor of Daniel DeCiccio and his law firm, DeCiccio & Associates, P.A. Hoch argues that there were genuine issues of material fact in his defamation action against the defendants and that the trial court should not have dismissed his claim for conspiracy to defame. We agree as to the Rissman law firm and its members and accordingly reverse that final judgment and final judgment for costs.2 However, we conclude that DeCiccio and his law firm were entitled to summary judgment and affirm that judgment and cost judgment.
In the early 1990's, the Rissman law firm presented a series of seminars entitled "Sleeping with the Enemy." These seminars provided "inside" information about the tendencies and proclivities of lawyers, judges and other individuals in the area of worker compensation claims. This information was designed to help claims adjusters process their files—to decide whether claims should be settled or controverted, and whether certain lawyers should be pushed for trial or approached for an early settlement. At the time, Hoch was a compensation claims judge.
In May 1994, the Rissman firm presented one of these seminars for the Riscorp Corporation, a company which does worker's compensation insurance defense. About 50 to 60 people attended. Judith Boling, a Riscorp claims adjustor, took notes at the seminar. Boling's notes reflect the following regarding Judge Hoch:
Boling's recollection of the context was that "if you wanted to influence Judge Hoch, you should send men in tight shorts before him." She also recalled a comment to the effect that the litigators should be blond.
Steven Rissman, Theodore Goldstein and a few other members of the Rissman firm presented the seminar. Goldstein spoke about Judge Hoch but denied making any offending statement about him. Boling did not recall the name of the speaker who made the comments about Judge Hoch and did not know whether it was Goldstein.
An eight-page memorandum purportedly based on this seminar later surfaced. The memorandum contains the following reference to Hoch:
The next discussion dealt with Judge Rand Hoch in Daytona. It was stated that you should "always send a young man in front of Judge Hoch, as he prefers boys in shorts." Said that Judge Hoch has lots of his own rules. He is challenging the new law, especially the IME rules. He keeps his own list of doctors. Will award mileage. He is a stickler for pre-trial. He is bad on attorney fees, awarding upwards of $350 per hour. He is a stickler for mediation, as it's required on each case, and everyone must appear live. Said he likes... and chiropractors, and he dislikes lying claimants.
In addition to the comment about Judge Hoch, the memo contains characterizations and observations about the other compensation claims judges and attorneys who practice in this field. Some of these comments include: "conservative," "liberal," "under investigation for illegal activities," "doesn't work often," "doesn't read depositions," "not oriented to complex issues," "very friendly with certain attorneys," "doesn't like Haitians and people who don't pay their taxes," "doesn't believe in psychiatrists or psychologists," "reasonably well prepared, takes tons of Hispanic cases," "always wants Spanish psychiatrists and orthopedists and will use unauthorized doctors," "good credibility with judges," "steady but not rocket scientist," "has a big ego," "sells her claimants out," "king of DeLand," "don't know much about their files," "Old Sleepy," "not a good attorney," "Sleazy and Dopey," "should run a criminal background on all their clients," "honest but they won't spend money," "bright but very lazy," [has a] "drinking problem, ... always talk to [him] before noon."
Hoch believed that DeCiccio prepared this memorandum from a tape recording anonymously sent to him and then faxed it to attorney Michael Bross intending that it would be circulated throughout the worker's compensation community. The memorandum was in fact circulated to numerous parties, including judges and attorneys. Hoch was later denied reappointment to his position as compensation claims judge.
Hoch then filed suit against the Rissman law firm and its members for slander, libel and conspiracy to defame and against DeCiccio and his law firm for libel. Hoch has acknowledged his homosexuality but alleged that the defamatory statement suggested that he was a pedophile or that he could be improperly influenced in his judicial duties by his sexual orientation. In addition to general damages, Hoch claimed that he was denied reappointment to his judicial position. Hoch believed that the statement was made after the Rissman firm suffered significant defeats in proceedings before him.
The trial court dismissed the conspiracy and libel counts against the Rissman defendants. The court later entered summary judgments on the remaining counts (slander and libel) in favor of all defendants. For the reasons discussed below, we affirm in part and reverse in part.
The court below found that the Rissman defendants had tendered competent evidence that they had not made the defamatory statement and that Hoch had failed to present competent counter evidence sufficient to reveal a sufficient issue. We conclude that there is sufficient evidence in the record, coupled with the reasonable inferences from this evidence, which presents a question of fact as to whether any of the Rissman defendants made the defamatory statement.
As this court has often noted, the party moving for summary judgment has the burden to prove conclusively the nonexistence of any issue of material fact. We must view the evidence in a light most favorable to the appellant and must draw all competing inferences in favor of the appellant. If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined. Maher v. Best Western Inn, 717 So.2d 97 (Fla. 5th DCA 1998); Besco USA Int'l Corp. v. Home Savings of America FSB, 675 So.2d 687 (Fla. 5th DCA 1996); Venezia v. Egan, 671 So.2d 175 (Fla. 5th DCA 1996).
In addition to Judith Boling, another Riscorp employee (Barbara Goltry) attended a Rissman seminar, although it was not the Riscorp seminar in May 1994. Goltry recalled a comment said in jest about Judge Hoch that "if you want to prevail either in Daytona or before Rand Hoch, you should send a boy in short pants." Goltry did not remember the name of the attorney with the Rissman firm who made that statement.
Although neither Boling nor Goltry could identify who actually made the comment about Hoch, a reasonable inference from their testimony was that it was a member of the Rissman law firm. The Rissman firm was the only party responsible for the seminars and the stated purpose of the seminars was to critique worker's compensation judges and attorneys who practice in the field. Rissman admitted making unflattering comments about others and that the other comments about Hoch had been made. Rissman also conceded that it was possible that there had been a joking reference to Hoch's sexual preferences.
The only explanation advanced by Rissman for the existence of the comments about Hoch (and others) was that some unknown person or persons were trying to harm his firm. To have accomplished this task, these unknown persons would have had to attend one of the seminars or find the rather detailed notes of someone who did attend, add various unflattering comments about judges and attorneys to the already unflattering statements made by the speakers, type the eight-page memorandum and circulate it in the legal community. These unknown persons would also have had to conspire with Boling and Goltry, as both women recalled comments about Hoch at the seminars. Although certainly not impossible, this explanation seems implausible to us. The fact finder should determine whether any of the Rissman defendants made the defamatory statement.
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