Zimmerman v. D.C.A. at Welleby, Inc.

• Decision Date: 15 April 1987
• Docket Number: No. 4-86-1233,4-86-1233
• Citation: 12 Fla. L. Weekly 1042,505 So.2d 1371
• Parties: 12 Fla. L. Weekly 1042 Dorothy ZIMMERMAN, Irvin Einiger, Vinnie Grillo and Bob Defroscia, Appellants, v. D.C.A. AT WELLEBY, INC., Appellee.
• Court: Florida District Court of Appeals

Page 1371

505 So.2d 1371

12 Fla. L. Weekly 1042

Dorothy ZIMMERMAN, Irvin Einiger, Vinnie Grillo and Bob Defroscia, Appellants, v. D.C.A. AT WELLEBY, INC., Appellee.

No. 4-86-1233.

District Court of Appeal of Florida,

Fourth District.

April 15, 1987.

Larry Corman, Broward County Chapter ACLU of Florida, Inc., c/o Hodgson, Russ, Andrews, Woods & Goodyear, Fort Lauderdale, and Alan G. Ehrlich, Broward County Chapter ACLU of Florida, Inc., Plantation, for appellants.

Maurice M. Garcia and Kenneth A. Rubin of Abrams, Anton, Robbins, Resnick, Schneider & Mager, P.A., Hollywood, for appellee.

HERSEY, Chief Judge.

D.C.A. at Welleby, Inc. (DCAWI) obtained a temporary injunction prohibiting appellants, occupants of condominium units in "Winding Lake II at Welleby," in Sunrise, Florida, from continuing certain activities. DCAWI alleged that appellants' conduct constituted defamation and intentional interference with prospective advantageous business relationships. The activities complained of included picketing, displaying signs and talking to potential purchasers of condominium units. We are asked to vacate the temporary injunction.

This problem began when occupants of a number of the apartments in Winding Lake, a condominium built by DCAWI, experienced difficulties with cold, dampness, mildew and odors on various interior walls. The initial efforts of DCAWI to remedy the situation proved fruitless. At the time the present controversy arose, additional remedial action was contemplated by DCAWI, of which appellants were apparently aware.

On two consecutive weekends appellants stationed themselves in proximity to a trailer located at the entrance of the condominium project, which trailer was used by DCAWI as a sales office. Appellants proceeded to walk about carrying signs and speaking to passersby. Signs were also placed prominently in a parked automobile and in the window of one apartment. We glean from the testimony that the signs contained such expressions as: "Open House, See Mildew, Feel Dampness, No Extra Charge, DCA # 1 Blunder:" "Fraud, Deceit, and get asthma;" "Construction, mildew and dampness, beware of DCA."

There was also testimony to the effect that appellants placed themselves in the roadway displaying their signs, talking to people in automobiles and stopping pedestrians and talking to them. Apparently as a result of these activities, some prospective purchasers departed the project without visiting the sales office. There was further testimony that no units were sold on the days when appellants were picketing and that damages from loss of sales were incalculable.

Appellants defended their activities by characterizing them as efforts to convince DCAWI to make the necessary repairs on the condominium units. They also maintain that enjoining these activities infringes upon their right to freedom of speech.

In order to obtain injunctive relief prior to a trial on the merits, a party must show that the activity to be prohibited is causing irreparable harm for which any available remedy at law would be inadequate, and that a clear legal right exists. Under some circumstances public interest may also be taken into account. Contemporary Interiors, Inc. v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980).

The harm demonstrated by plaintiff below was loss of potential sales. The remedy at law, an action for damages, would be inadequate because of the difficulty in determining how many sales were lost and what the profit on each such lost sale would have been. Thus damages are said to be speculative and unascertainable. The harm is therefore irreparable and the remedy at law inadequate.

The remaining requirement, the existence of a clear legal right, is met by proof to a reasonable certainty of the cause of action stated in the complaint. Appellants' conduct is alleged to constitute tortious interference with an advantageous business relationship. The elements of the tort of interference are:

(1) the existence of a business relationship under which the plaintiff has legal rights, (2) an intentional and unjustified interference with that relationship by the defendant, and (3) damage to the plaintiff as a result of the breach of the business relationship.

Symon v. J. Rolfe Davis, Inc., 245 So.2d 278, 280 (Fla. 4th DCA), cert. denied, 249 So.2d 36 (Fla.1971). As is further pointed out in Azar v. Lehigh Corp., 364 So.2d 860, 862 (Fla. 2d DCA 1978):

It is not essential, however, that the business relationship be founded upon an enforceable contract. Franklin v. Brown, 159 So.2d 893 (Fla.1st DCA 1964). Thus, in Calvary Church, Inc. v. Siegel, 358 So.2d 1134 (Fla.3d DCA 1978), the court affirmed a judgment against a corporation for interfering with the plaintiff's agreement to purchase property from another even though the agreement was not necessarily enforceable against the seller. Moreover, proof of fraud is not required to sustain a cause of action for this tort. Smith v. Ocean State Bank, 335 So.2d 641 (Fla.1st DCA 1976).

The record in the instant case supports an inference that appellants' picketing with signs and talking to potential customers had a deleterious effect on sales of condominium units. It therefore appears that appellees made a prima facie case in the trial court for the appropriateness of temporary injunctive relief.

As noted earlier, it is appellants' further contention, however, that an injunction under these circumstances interferes with their right of freedom of speech. They argue that this right is of a higher order than appellee's right to seek monetary gain, so that, when these interests are in competition, the right to monetary gain must be considered subservient to the right to communicate.

Both the federal and the Florida constitutions are relied upon by appellants as supporting their position.

The First Amendment to the United States Constitution provides that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.

Article 1, Section 4 of the Florida Declaration of Rights provides:

Every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.

Embellishing upon these constitutional rights, appellants point out that:

Freedom of speech and of the press are among the fundamental personal rights and liberties which are protected by the First Amendment and secured to all persons by the Fourteenth Amendment against invasion or suppression by state action. NAACP v. Clairborne Hardware Co., 458 U.S. 886, 102 S.Ct. 3409, (1982); Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575 (1971); New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276 (1946); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315 (1945); Jamison v. Texas, 318 U.S. 413, 63 S.Ct. 669 (1943); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736 (1940); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146 (1939); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, (1938). There are few things more established in our jurisprudence than that these freedoms are sacred and inviolable. These provisions command that the right to speak and express oneself freely may not be restrained, curtailed, or abridged. Such constitutional commands, being those of a liberty-loving society, must be of the broadest possible scope.

There can be no question of the preeminence that the courts have appropriately given to first amendment rights. Encroachments on the freedom to speak one's mind are seldom tolerated and are narrowly confined. This is particularly true when injunctive relief constituting prior restraint on some form of communication is involved. In such cases the restraint is said to bear a heavy presumption of constitutional invalidity, even though the communication in issue may be false. Truth or falsity of the expression sought to be enjoined is not in issue. Austin, 402 U.S. at 418, 91 S.Ct. at 1577. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N.A.A.C.P. v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405 (1963).

Does it therefore follow that freedom of speech is an absolute right, one that cannot under any circumstances be curtailed or conditioned? Precedent and common sense indicate not. Indeed, the Florida constitutional provision contains its own limitation. One may speak, but not with impunity. The difficulty lies not so much with determining whether a particular communication constitutes an abuse, but whether the abuse is one which justifies injunctive relief. As we have seen, any prior restraint is presumptively flawed. The cases offer no clear path to decision but do provide blazes along the trail.

First, a distinction has been made between pure speech and what is sometimes designated as "commercial speech." Business rivals may, of course, engage in competitive advertising and other activities designed to improve one's economic position at the expense of the other. In such a case the test of whether conduct is abusive (and therefore legally improper) is whether it would be considered "unfair" according to contemporary business standards. In Azar v. Lehigh Corp., 364 So.2d at 862, a temporary injunction prohibiting a real estate salesman from entering upon premises of his former employer to solicit customers to...