Int'l Sec. Mgmt. Grp., Inc. v. Rolland

• Decision Date: 28 December 2018
• Docket Number: No. 3D16-2793,3D16-2793
• Citation: 271 So.3d 33
• Parties: INTERNATIONAL SECURITY MANAGEMENT GROUP, INC., et al., Appellants/Cross-Appellees, v. William ROLLAND, et al., Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

271 So.3d 33

INTERNATIONAL SECURITY MANAGEMENT GROUP, INC., et al., Appellants/Cross-Appellees,
v.
William ROLLAND, et al., Appellees/Cross-Appellants.

No. 3D16-2793

District Court of Appeal of Florida, Third District.

Opinion filed December 28, 2018
Rehearing Denied February 28, 2019

Hicks, Porter, Ebenfeld & Stein, P.A., and Irene M. Porter, Jedidiah Vander Klok, and Christina Flatau, Miami; Mintzer Sarowitz Zeris Ledva & Meyers, LLP, and John J. Goranand Gina E. Romanik, Miami, for appellants/cross-appellees.

Burns, P.A. and Thomas A. Burns (Tampa); The Pollack Law Firm, and David H. Pollack ; Robert W. Stickney, P.A., and Robert W. Stickney (Ft. Lauderdale), for appellees/cross-appellants.

Before ROTHENBERG, C.J., and SUAREZ and LINDSEY, JJ.

LINDSEY, J.

International Security Management Group, Inc. ("ISMG") and Jorge Acuna appeal ("Acuna") from a final judgment entered after a jury verdict in favor of William and Lisa Rolland (the "Rollands"). The Rollands cross-appeal the trial court's partial denial of their motion for leave to amend the complaint to add punitive damages against ISMG.¹ Because there is a reasonable possibility that the jury could

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have been misled by the failure to give ISMG and Acuna's requested jury instruction on qualified privilege, we reverse and remand for a new trial on the intentional tort claims. Further, we reverse the trial court's denial of ISMG and Acuna's directed verdict regarding the negligence claims raised by Mr. Rolland, as such claims were legally invalid or unsupported by the evidence. Finally, we affirm the trial court's partial denial of the Rollands' motion for leave to amend the complaint to add punitive damages against ISMG.

I. BACKGROUND

In July of 2011, William Rolland was a professional videographer visiting Miami for work and was scheduled to film an interview with a company executive for a business located at New World Tower in downtown Miami. The Israeli and German consulates were also tenants of New World Tower. Panther Management Services, LLC ("Panther Management") managed New World Tower while the office building was owned by several related entities ("the NWT Owners"). On the day of the incident, Jorge Acuna was the security guard posted to the lobby of New World Tower and was employed by ISMG.

On July 25, 2011, Mr. Rolland was arrested and later indicted by a federal grand jury for making a false or hoax bomb threat against the New World Tower in downtown Miami. A criminal trial was held in December of 2011 and he was found not guilty.

A year and a half later, the Rollands sued the NWT Owners, ISMG, Panther Management, Acuna, Omar Clavero ("Clavero") and Andres Caamano Osuna ("Osuna"). The operative complaint is the third amended complaint which alleged defamation, malicious prosecution and negligence claims against Acuna, Clavero and Osuna based on their statements that Mr. Rolland made a bomb threat. It also alleged negligence claims against Panther, 100 NWT, and ISMG for negligent hiring/staffing, training, and supervision of employees. The case proceeded to a jury trial.

A. The New World Tower Incident

While talking on a cell phone and carrying a large case and camera tripod, Mr. Rolland entered the lobby of New World Tower on July 25, 2011. Acuna observed Mr. Rolland enter the building while talking on a cell phone and carrying a tripod and large black box.² Acuna testified that once inside the lobby, Mr. Rolland engaged in an unusually loud cell phone conversation and refused to respond to his questions and offers of assistance. Acuna explained that he grew suspicious and radioed Osuna, the assistant building engineer, to come to the lobby based on Mr. Rolland's unresponsiveness, loud phone discussion, and large black box. Osuna then joined Acuna at the security desk and testified that he also grew suspicious based on Mr. Rolland's behavior and the case, with him in the lobby.

After the phone call ended, Mr. Rolland walked toward the security desk and began speaking directly with Osuna. Both Acuna and Osuna testified that when Mr. Rolland approached, he used expletives and asked whether they had a problem with people talking on the phone in the building lobby. Mr. Rolland, however, denied using expletives and testified that his interaction with Osuna was innocuous. While Acuna assisted other individuals,

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Osuna proceeded to explain to Mr. Rolland their concerns regarding his large case. Mr. Rolland informed Osuna that he needed to film in and around the building and was scheduled to return the following day to film the building's owner.³ Osuna explained that before filming in or around the property, Mr. Rolland first needed to obtain security approval from the building. Mr. Rolland testified that he agreed to comply with such a requirement.

At this point, Mr. Rolland left the lobby and began filming the office building from outside on the sidewalk. Clavero, the chief building engineer and Osuna's supervisor, went outside with Acuna to speak with Mr. Rolland, but there was conflicting testimony at trial as to precisely what was said between the men. Mr. Rolland testified that he was in the middle of filming angles of the building when Clavero approached and stated that he could not take pictures. According to Mr. Rolland, he told Clavero that it was a public area and that he was allowed to take pictures, at which point Clavero threatened to call the police. Clavero testified that he approached and repeatedly asked Mr. Rolland what he was doing, but that Mr. Rolland was unresponsive and finally gave an expletive-laden retort that this was America and he could do whatever he wanted. Acuna's testimony was consistent with Clavero's account. However, Mr. Rolland denied using any profanities and stated that Clavero and Acuna never identified themselves to him.

Returning to the lobby, Clavero told Acuna to call Eran Miranda, the director of security for the Israeli Consulate, for his assistance in assessing the situation. Clavero testified that he asked Acuna to call for Miranda's help because Miranda had more experience and training in how to handle such situations. Acuna, Clavero, and Osuna each testified that, shortly after Clavero and Acuna came back inside the lobby, Mr. Rolland stuck his head through a front door and declared that he was returning tomorrow to "blow up the f***ing building." However, Mr. Rolland vehemently denied ever using expletives or making any type of bomb threat. Instead, Mr. Rolland claimed that he was unsure if Clavero actually intended to call the police so he stuck his head back into the lobby to inform someone with New World Tower where he was staying. According to Mr. Rolland, he informed Acuna that he was staying at the Intercontinental Hotel and gave his room number in case the police were actually called.

Miranda subsequently came down to the lobby and was informed of the alleged bomb threat situation by Clavero, while Acuna pointed out Mr. Rolland to Miranda as he walked away down the sidewalk. Miranda then called Officer Wanda Mendez⁴ with the City of Miami Police Department to report the purported bomb threat situation. Officer Mendez notified her dispatcher of the New World Tower incident and to send units, stayed in contact with Miranda, and departed for the scene herself. A short time later, Mr. Rolland was taken into custody.

The South Lobby Camera Recording

At the time of the incident, New World Tower had a south lobby camera and north

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lobby camera. The north lobby camera recorded inside the lobby, and testimony elicited at trial suggested that the south camera lobby would have captured Mr. Rolland filming the outside of the building before re-entering to make the purported bomb threat. The north lobby camera captured most of the interactions Mr. Rolland had inside the lobby on the day of the incident and was relied on by both sides throughout trial. However, the Rollands made no request to preserve either camera recording for the federal criminal case or for the instant civil action. Only the north lobby camera recording was ultimately preserved and downloaded.

During a motion in limine hearing on July 14, 2016, the trial court reiterated that the Rollands' discussion and inquiry regarding the missing south lobby camera recording would be limited to preclude any allegation or inference of evidence spoliation. In responding to concerns from the defendants that the Rollands were attempting to improperly suggest that the south lobby camera recording had been tampered with or deleted, the trial court stated:

THE COURT: All right. Here's what I'm doing. I am not going to permit you to make an allegation that—or an inference—that anybody intentionally destroyed any video footage of the incident, but I will permit you to explain to the jury in detail the conditions upon which this incident occurred, including any cameras that are located on the property and whether or not the camera actually captured the image, to the extent that you know that.

There was conflicting testimony as to who actually downloaded the security camera recording for...