WPB Residents for Integrity in Gov't, Inc. v. Materio

• Decision Date: 30 October 2019
• Docket Number: Nos. 4D19-967,4D19-997,s. 4D19-967
• Citation: 284 So.3d 555 (Mem)
• Parties: WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., Cornerstone Solutions Florida, LLC, and Pradeep Asnani a/k/a Rick Asnani, Petitioners, v. Sharon "Shanon" MATERIO, Respondent.
• Court: Florida District Court of Appeals

284 So.3d 555 (Mem)

WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., Cornerstone Solutions Florida, LLC, and Pradeep Asnani a/k/a Rick Asnani, Petitioners,

v.Sharon "Shanon" MATERIO, Respondent.

Nos. 4D19-967

4D19-997

District Court of Appeal of Florida, Fourth District.

[October 30, 2019]

Leonard Feuer of Leonard Feuer, P.A., West Palm Beach, for petitioner, WPB Residents For Integrity In Government, Inc.

William N. Shepherd, Seth J. Welner and Jeff Schacknow of Holland & Knight LLP, West Palm Beach, for petitioners, Cornerstone Solutions Florida, LLC, and Pradeep Asnani a/k/a Rick Asnani.

Joseph W. Janssen, III, John M. Siracusa and Mark G. Keegan of Janssen, Siracusa & Keegan PLLC, West Palm Beach, for respondent.

Frank A. Shepherd of GrayRobinson, P.A., Miami, for Amicus Curiae, Americans for Prosperity and the Public Participation Project, and First Amendment Foundation.

Per Curiam.

After losing an election for city commission, a former candidate filed a lawsuit against political opponents for defamation and conspiracy to defame.

Before the election, these opponents sent a direct mail piece to targeted voters in West Palm Beach claiming that the candidate knew how to "work the system" because she claimed homestead exemptions in both Palm Beach and St. Lucie Counties and received a federally-funded grant intended for low income homeowners in St. Lucie County.

The opponents, who are the petitioners in this court, moved for summary judgment and to dismiss the suit on the merits, arguing that their political speech was protected under Florida's Anti-SLAPP statute, section 768.295, Florida Statutes (2018).¹ The circuit court denied their motions, ruling that the mailer was not protected speech under the statute.

Petitioners have sought review by a petition for writ of certiorari.

We dismiss the petition because petitioners have failed to demonstrate one of the jurisdictional prerequisites for certiorari jurisdiction—irreparable harm. Based on binding Florida Supreme Court precedent, we certify conflict with Gundel v. AV Homes, Inc. , 264 So. 3d 304 (Fla. 2d DCA 2019).

Given the current state of the law, the appropriate remedy would be for the Supreme Court to amend Florida Rule of Appellate Procedure 9.130 to allow for nonfinal appeals of orders denying summary judgment or dismissal of a claim brought under section 768.295. The express legislative intent of subsection 768.295(4) is to secure a speedy decision at "the earliest possible time" on a summary judgment or motion to dismiss.

Facts

Sharon "Shanon" Materio was the incumbent candidate running for West Palm Beach City Commission in March of 2018. Her opponent hired Pradeep "Rick" Asnani, president of Cornerstone Solutions Florida, LLC. Asnani worked with WPB Residents for Integrity in Government, Inc., an electioneering communications organization (the "ECO"), to create a two-sided postcard (the "mailer").

The mailer was a "paid electioneering communication," defined by statute as a:

communication that is publicly distributed by a television station, radio station, cable television system, satellite system, newspaper, magazine, direct mail, or telephone and that:

1. Refers to or depicts a clearly identified candidate for office without expressly advocating the election or defeat of a candidate but that is susceptible of no reasonable interpretation other than an appeal to vote for or against a specific candidate;

2. Is made within 30 days before a primary or special primary election or 60 days before any other election for the office sought by the candidate; and

3. Is targeted to the relevant electorate in the geographic area the candidate would represent if elected.

§ 106.011(8)(a), Fla. Stat. (2018).

The mailer implied that Materio had illegally claimed a second homestead exemption on a home in Port St. Lucie, and that she received a federally-funded grant intended for low income residents of Port St. Lucie. The mailer is reproduced below:

The mailer was sent to voters within 30 days before the election, and Materio thereafter lost her bid for reelection.

Materio sued Cornerstone, Asnani, and the ECO alleging four causes of action:

Count I – Defamation per se against the ECO;

Count II – Defamation per se against Cornerstone;

Count III – Defamation against Asnani; and

Count IV – Conspiracy to Defame against all Defendants.

The defendants moved to dismiss the complaint and for summary judgment, arguing that the statements made in the mailer were true, that there was no actual malice, and that Materio's causes of action were prohibited by Florida's Anti-SLAPP statute, which protects the exercise of the right of "free speech in connection with public issues." § 768.295(1), Fla. Stat.

After a hearing, the circuit court denied the defendants' motions. The court ruled that the Anti-SLAPP statute was "in derogation of the common law and an impediment to the constitutional guarantee of access to the courts." Because the statute was in derogation of the common law, the court determined that it "must be strictly and narrowly construed." The court then noted that the Anti-SLAPP statute "contains a list of communication types or mechanisms for which it does provide protection," and that electioneering communications were "not any one of the types of communications set forth in the statute." Applying the doctrine expressio unius est exclusio alterius , the court concluded that the legislature intentionally omitted "electioneering communications" from the statute's list of protected communications.

Certiorari Jurisdiction

It is well settled that

[a] non-final order for which no appeal is provided by rule 9.130 may be reviewable by petition for a writ of certiorari, but only in very limited circumstances. The petitioning party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on postjudgment appeal.

Bd. of Trustees of Internal Improvement Tr. Fund v. Am. Educ. Enterprises, LLC , 99 So. 3d 450, 454 (Fla. 2012) (internal quotation marks and citation omitted). "The last two elements, often referred to as ‘irreparable harm,’ are jurisdictional." Nucci v. Target Corp. , 162 So. 3d 146, 151 (Fla. 4th DCA 2015).

When we receive a petition for common law certiorari to review a nonfinal order, we will initially study it only to determine if petitioner has made a prima facie showing of the element of irreparable harm. At this stage we will make no determination as to whether the order departs from the essential requirements of law. If petitioner has failed to make a prima facie showing of irreparable harm, we lack jurisdiction and will enter an order dismissing the petition.

Bared & Co., Inc. v. McGuire , 670 So. 2d 153, 157 (Fla. 4th DCA 1996).

The general rule is that the continuation of litigation "does not constitute irreparable harm" for purposes of seeking certiorari review. Rodriguez v. Miami-Dade Cty. , 117 So. 3d 400, 405 (Fla. 2013).

The second district has concluded that certiorari jurisdiction may lie when a trial court denies a SLAPP target's motion to dismiss or for summary judgment. Gundel , 264 So. 3d at 309-311. To understand the Gundel holding, a brief discussion of Florida's Anti-SLAPP statute is necessary.

A SLAPP is a "lawsuit, cause of action, claim, cross-claim, or counterclaim" filed against a person or entity that is "without merit" and filed "primarily because" the person or entity engaged in the exercise of a right protected by the First Amendment to the U.S. Constitution. § 768.295(3), Fla. Stat. The Anti-SLAPP statute prohibits such actions and provides a procedural mechanism for SLAPPs to be "expeditiously disposed of by the courts." § 768.295(1), Fla. Stat. The expressed public policy is that people and governmental entities "not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise ... constitutional rights of free speech in connection with public issues." Id. (emphasis added).

Florida's Anti-SLAPP statute was enacted in 2000 and the Legislature declared the public policy of Florida in the preamble:

[SLAPPs] are typically dismissed as unconstitutional, but often not before the defendants are put to great expense, harassment, and interruption of their duties, and

...

[SLAPPs] are an abuse of the judicial process and are used to censor, intimidate, or punish citizens, businesses, and organizations for involving themselves in public affairs, and ...

the threat of financial liability, litigation costs, destruction of one's business, loss of one's home, and other personal losses from groundless lawsuits seriously affects government, commerce, and individual rights by significantly diminishing public participation in government, in public discourse, and in voluntary public service ....

Ch. 00-174, 2000 Fla. Laws 1. The second district in Gundel recognized that

the legislature has made it a matter of Florida public policy to recognize and dismiss SLAPP suits expeditiously because the very filing and continuation of SLAPP suits has the chilling effect on constitutional rights that the Anti-SLAPP statute was enacted to prevent ....

264 So. 3d at 310 ; see generally Varian Med. Sys., Inc. v. Delfino , 35 Cal. 4th 180, 193, 25 Cal.Rptr.3d 298, 106 P.3d 958 (2005) (stating that "[t]he point of [an] anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.") (citation omitted).

In Gundel , homeowners sued the developers of their community alleging violation of the Florida Homeowners' Association Act and the Deceptive and Unfair Trade Practices Act. The developers counterclaimed based on the homeowners' conduct in "actively and vocally contesting" the developers' plans. 264 So. 3d at 307. The homeowners moved to dismiss the counterclaims and for summary judgment, citing the Anti-SLAPP statute. Id. at 308. The trial court denied...