NOTICE: FB SUN ARTICLE ON SIENNA PLANTATION DEVELOPMENT SLAPP SUIT AGAINST HOMEOWNER!
Developers Sienna/Johnson sue resident for posting defamatory comments on website
By:SESHADRI KUMAR, Editor
Sienna/Johnson Development Corporation, developers of Sienna Plantation, have filed a lawsuit against Chris Calvin, a Sienna Plantation resident, who used to run a weblog called SiennaTalk.com where Calvin allegedly made several defamatory and libelous statements against the developers, under various assumed names.
The lawsuit filed in the 240th District Court of Fort Bend County asks for the maximum allowable damages and an injunction against Calvin from making any critical statements against Sienna, using false names on the Internet.
Sienna/Johnson had earlier obtained a deposition from Calvin, regarding the website and Sienna/Johnson claim that Calvin had admitted under oath that he had used more than 30 aliases and posted anti-Sienna statements.
Calvin says the lawsuit stems from actions taken by him and another Sienna homeowner Matthew Feinberg who ran the, now defunct, neighborhood website SiennaTalk.com, and follows his participation in a petition drive which garnered over 1,100 neighborhood signatures against extensive apartment development in their quiet single-family housing community of Sienna Plantation.
The original case was filed on Aug. 3, not more than a week after local media reported on a city council session where-by residents of nearby Sienna Plantation and several other area neighborhoods participated during the formal presentation of the petition drive against a second grouping of up to 1,800 additional apartment units to this area, Calvin says.
"This is a pattern of continued use of the legal system, through what is known as SLAPP (Strategic Lawsuit Against Public Participation), to silence me and chill those that would speak out publicly against certain types of land use in our community," Calvin says.
John Keville, attorney for Sienna/Johnson Development Corp., says the main thrust of the lawsuit is that Calvin uses at least 30 different aliases and posts disparaging comments about the developer and spreads things that are dishonest and lies. He makes it appear as if lot of people are complaining, but it is just one person who makes those varied comments, Keville says.
"After the deposition where Calvin admitted to using 30 or more aliases, we tried to settle with him. We asked him to agree not to post comments critical of Sienna Plantation using false aliases. He could say truthful and critical comments with his own name. But, Calvin rejected the settlement," and hence, the lawsuit, Keville says.
©Houston Community Newspapers Online 2005
posted by responsible_dvlpmnt at Saturday, December 24, 2005
16 Comments:
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Comments from FBNow.com from an OP/ED piece by SJD:
Sienna/Johnson: Case Is About Restoring Communication Between Real People, Not Internet Imposters
On December 13, 2005, Sienna Johnson Development filed a lawsuit against Mr. Chris Calvin. Sienna/Johnson is asserting claims for defamation, business disparagement, slander and tortuous interference stemming primarily from Mr. Calvin’s deceptive use of the Internet to damage the Sienna Plantation™ community and Sienna/Johnson Development Company.
Sienna/Johnson does not take this action lightly. Before the suit was filed, Sienna/Johnson sought the deposition of Mr. Calvin to hear his side of the story. At the deposition, it was discovered that he makes up “facts,” posts them on websites using one identity, responds to the “fact” using another fake identity, and then discusses the “fact” among several other fake identities. This gives the impression that many people share his viewpoints. Sienna/Johnson found that often it is only one person having a conversation: Mr. Calvin talking to himself through aliases. People who research the Sienna Plantation™ community on the Internet should not be misled this way. It is a cowardly maneuver to dodge responsibility for making false and disparaging statements.
After the deposition, Mr. Calvin was offered a very simple solution — (1) acknowledge that in his deposition and while under oath, he admitted to the making of false statements using fabricated identities, and (2) don’t make any more posts about Sienna/Johnson or its employees unless he uses his real name. Mr. Calvin refused. Worse, he sought to require Sienna/Johnson to negotiate with him about issues concerning the Sienna Plantation™ community. Sienna/Johnson will not negotiate with anyone who has admitted to as much unlawful fabrication as Mr. Calvin has.
Now, Mr. Calvin needs to be held accountable for the defamation, the disparagement, the untruths and the innuendo that have been his stock-in-trade.
This case is about restoring truthful communication between real people, not Internet imposters. Mr. Calvin has tried to twist this into an issue about his “no apartment” petition. Nothing could be further from the truth. For Mr. Calvin, the whole apartment issue seems to be a “cause” even though he has admitted to knowing that apartments could be built in Sienna Plantation™ before he bought his home in the community.
Sienna/Johnson recognizes that real people — not a series of fabricated Internet people — can have differing views related to apartments and other issues and welcomes open discussion. When any resident has come to Sienna/Johnson and asked questions, Sienna/Johnson has tried to respond quickly and honestly to address the issue as best as possible. But the idea of Mr. Calvin fabricating a mob of support for his own personal agenda is harmful not just to Sienna/Johnson, but to the Sienna Plantation™ community as a whole.
Many people use the Internet to research information before they buy in a community. Based on Mr. Calvin’s ongoing charade, it is possible that some people may have decided against purchasing a home in Sienna Plantation™. Ultimately, if left unchecked, such massive misinformation could affect the property values of all Sienna Plantation™ residents.
Finally, Sienna/Johnson will not respond to Mr. Calvin’s daily barrage of aliased messages spinning the issue as one of free speech and trying to promote fear in other Internet users. Sienna/Johnson has never sought the identities of other website users, and thus far, every court has agreed with us on our course of conduct. We believe the law supports this case and we are prepared to present all evidence necessary to substantiate these claims in court — and not in the media or on websites.
Sienna/Johnson Development
Missouri City
1 Matthew Feinberg - Dec 17, 08:42 pm
What Sienna/Johnson is not telling you is that there are “real” people that do not agree with the plans/actions of SJD or the Missouri City government. Dozens of people attended multiple City Council meetings to voice their displeasure about the apartments. More than 200 “real” people actually used my website and dozens of them spoke out against the apartments, many of them anonymously (which is their right to do so). Many more wrote letters to the editors of the Fort Bend Sun and Fort Bend Star opposing the apartments and the actions of the developers. Many more wrote me emails in support of my fight to keep the right to assemble and anonymous free speech.
What Sienna/Johnson also fails to tell you is that there was another individual that had a dozen or more aliases that also posted on the site, however, they have failed to go after that person even after I told them about it during depositions.
What Sienna/Johnson also fails to tell you is that Sienna has amended their covenant to include rules that specifically limits assembly and free speech in or near Sienna.
What Sienna/Johnson also fails to tell you is that they have actively and are still trying to find the identities of “ALL” anonymous users of my site(s).
What Sienna/Johnson also fails to tell you is that Sienna had the apartment plans on file for many years but did not have a road sign in place where the apartments were going to be. The sign until this summer actually said something about commercial development. Sienna never had the apartments in any of their literature or website. Sienna’s representatives even when asked told people that no apartments were being built.
There are many other things that are not being told.
No wonder so many people are either afraid to speak out or use anonymous identities. They don’t want to get sued!
People also have the right not to be afraid to speak out. Many states are passing laws to stop these type of cases. What Goff and Keville is doing is using a tactic call SLAPP (Strategic lawsuit against public participation). Anti-SLAPP laws have failed to be passed here in Texas. That will change soon.
If this were actually about getting back to communication Sienna would actually communicate. Instead they continually surprise residents with clandestine committees holding secret meetings and secret meetings where decisions where made to increase annual dues. They use loop holes in the civil code to bring residents in to court and sue them when they disagree. If Sienna lost money or deals it is due to their own poor public relations skills and shameful actions against their own residents.
This suit against a resident of their very own community is not only shameful, it is evil, and does nothing restore anything. It only further chills free speech in the area. If Goff is serious about restoring communications he would hire a PR firm and not an attorney!
2 Chris Calvin, Ph.D. - Dec 18, 03:21 pm
I won’t continue to respond to Goff and Mr. Keville, SJD/JDC lawyers, information spin. He had and does continue to play the verbiage game and knows full well this is about a “strike suit” (or better known as a SLAPP suit). We will expose the real deceptions as this moves through the courts and the possible appeals. We can not afford this case and we did not instigate it. It was brought and planned out by Mr. Keville’s clients who have been using the legal system to silence opposition to aspects of the SJD/JDC development plan which has been kept from us their customers for some time.
The websites they are continuing to focus on are an extension of the public debate (thus protected speech). All conversations in the comment threads are opinions responding to a factual event or claim and not news items, but the initial posts were based on the best information available and often not coming from our developer or their hired management team until after the fact. Often they would attempt to correct us after releasing what info we had. One excellent example was the proposed SP firestation #2 delay in April ‘05. A local HOA board member contacted us and informed us that discussions were going on about the possibility of pushing back the building of that station (based on the developer’s agreement). These meetings were going on behind the scenes with the city and the developer (many of you remember this). This info was released through the website and after its release a letter from the city manager came announcing that he was solely responsible for this discussion (this was posted on Siennanet.com). Of course our developer, who knew this was going on did not post this information to us over the Siennanet.com website before we found out about it. We all pay for this access through our dues and should receive this info prior to hearing about it through other outside sources.
This is just one excellent example. Lawyer Keville also claims that I wanted them to negotiate with me on the second grouping of apartments, voting representation on the SPRAI board and/or the other settlement requests. The truth is they sent only one offer and we only responded once and they told us that if we didn’t accept the first draft then they would sue us (as they have done). If you all want I can post all the drafts and information here or through some other media source. I have all the copies.
The goal of the petition drive and establishing alternative communications into Sienna Plantation was deliberate because all current communications is centrally controlled by SJD/JDC, our developers. The information that was and is being released on http://missouricitychatter.blogspot.com is as accurate as possible at the time of release (we usually check via 2-3 sources first). The comments are the opinions and reflections based on those releases. We encouraged anonymous logins to protect those visiting, reading and posting and continue to encourage this.
Stay informed and keep in touch!-Dr. Calvin
More related articles and comments from FBNow.com:
Sienna Developers Sue Activist For Defamation
by Bob Dunn, Dec 15, 10:24 am
The developers of the Sienna Plantation community have filed a defamation lawsuit against community activist Chris Calvin and an associated organization, the Committee for Responsible Development.
The suit, filed Tuesday, also seeks a permanent injunction to prevent Calvin and his organization “from making any statements under any pseudonyms” regarding the developers or their affiliates.
The injunction also would prevent Calvin and his group “from making any false or disparaging comments on any websites, including” FortBendNow.
The suit, filed on behalf of Sienna/Johnson Development, LP and Johnson Development Corp. Senior Vice President Douglas Goff, accuses Calvin and his organization of defamation, business disparagement, public nuisance and “tortuous interference with prospective contract.”
In addition to the injunction, the plaintiffs seek damages, court costs and attorneys’ fees.
“Who has the right to do that?” Calvin asked of the injunction when contacted about the suit on Thursday. “Really, it’s all about the petition drive.”
He referred to an effort by his group to go door-to-door in Sienna Plantation (where Calvin resides), gathering signatures from residents against the building of apartments in the development.
Calvin and a number of other residents have been critical about development issues at Sienna Plantation, and that criticism has spilled into the public eye at Missouri City Council meetings.
It also spilled onto the pages of Internet web forums administered by area resident Matthew Feinberg, who was not named in the suit filed Tuesday.
In August, Sienna/Johnson filed a court petition seeking to depose Feinberg and Calvin in anticipation of a defamation and business disparagement lawsuit.
Feinberg, represented by Houston attorney Laura Hermer, also attracted the attention of the American Civil Liberties Union of Texas, once it became aware that Sienna/Johnson wanted the depositions in part so that it could obtain the real identities of users of Feinberg’s forums who chose to post comments anonymously.
But Hermer and ACLU attorneys were unable to prevent the developers from taking the depositions they sought.
At least partially as a result of information obtained in those depositions, Calvin and his group now face the lawsuit.
Feinberg lost an appeal seeking relief including having the depositions sealed. However, Hermer said Thursday she and Feinberg’s other attorneys are considering filing an appeal with the Texas Supreme Court.
As for the injunctions being sought in the suit against Calvin, whom she does not represent, Hermer said “that would appear on the face of it to be highly problematic.” She noted that certain types of speech can be prevented via injunction under certain conditions, however, “the question is whether the proposed injunction goes too far.”
Sienna/Johnson attorney John Keville said his clients “tried to resolve this without filing a suit. We just asked him to stop using these aliases” and asked Calvin to admit that he had done so in the past, “and he wouldn’t agree to that. I think it was more than fair.”
Keville said he waited for Calvin and his attorney to respond, but when a return call didn’t come, his clients decided to file the suit.
In that suit, Sienna/Johnson and Goff allege that Calvin “misused the Internet to fabricate statements, creating false aliases to disguise the origin … and give an artificial impression of group support for his fabrications, and that these actions rise to the level of defamation, disparagement, and public nuisance.”
As an example of how Calvin allegedly “defamed and disparaged” Sienna/Johnson, the suit says he used “impersonation” to make it appear that someone named Bill Crane stated about the developers “If it costs them anything it will be passed on to the residents All they want is your money.”
In describing what it termed Calvin’s “campaign against apartments in Missouri City,” the suit states the before buying a home in Sienna Plantation, Calvin lived in apartments for almost 20 years.
Then, after moving into the development, Calvin “actively sought to prevent any apartments being built in the Sienna Plantation community, to the detriment of Sienna/Johnson, the community, and the future residents of such apartments.”
Sienna/Johnson said in the suit that Calvin sometimes created “strings of messages” that gave the appearance of several individuals conversing online, but that were really postings mostly written by Calvin. Statements made within such message strings were “made with malice,” the suit states.
That statement indicates Sienna/Johnson’s awareness that it likely is considered a public figure in the eyes of the law. Generally, in order to win a judgment for defamation, a public figure would have to prove that a defendant published a statement knowing that it was false and doing so with malice.
In claiming business disparagement, the suit states that “Individually, and when taken as a whole, defendants’ publications created a substantially false or defamatory impression regarding Sienna/Johnson, its trustworthiness and that of its employees and, and the character of its business.”
In its public nuisance claim, Sienna/Johnson states in the suit that Calvin and his organization “created an unreasonable interference with the general public’s right to use the Internet to research the Sienna Plantation community.”
Regarding the tortuous interference claim, the suit states that there’s a “reasonable probability that Sienna/Johnson would have entered into business relationships with third persons but for the defendants’ actions.” None of those individuals are identified.
While the suit lists FortBendNow among four web sites on which it specifically seeks to prevent Calvin from posting comments, it makes no explanation of that inclusion.
Keville said the injunction would apply to publication anywhere, and wouldn’t apply only to web sites. “If he’s going to talk about” Sienna Plantation or its developers, “he has to put his name on it,” Keville said of the injunction. Calvin would be prevented under its terms from publishing statements anywhere that are “false or disparaging.”
On Oct. 28 FortBendNow published an opinion piece by Goff, in which he sought to “summarize the facts” about the ongoing controversy between Sienna Plantation developers and Calvin, “and to present the truth about what has, and has not, happened.”
Following publication, both Calvin and Feinberg posted comments in reply to Goff’s article. So did an anonymous author under the pseudonym “Resp. Dvlpmnt.”
David Broiles, a cooperative attorney with the Texas ACLU who assisted in Feinberg’s case, noted in October that gathering anonymously to talk on a web site forum “is a way of assembling” and a form of free speech protected under the Constitution.
Calvin said on Thursday that he “encouraged people not to post their names” when discussing issues about the Sienna Plantation development on Feinberg’s web forums “for fear of retribution.” He maintained that developers could use terms in the community’s homeowners association against people whose opinions were not favored, “or down the road they could sue you, like they have now.”
1 Chris Calvin - Dec 15, 01:39 pm
I guess I’m violating what lawyer Keville is seeking from the court for his clients by posting this, but I believe this is protected free speech and we do have the right to disagree publically (anonymously or not) with public figures. They don’t have to like what we are saying. I’m, however, not responsible for any unintended consequences regarding their corporate interests or profits as a result of this public debate and poor public relations management.
We purchased property from them 2 years ago and were mislead on a number of development issues and this pattern of communication continues to this day with-in our community. A good example is recently our self-appointed non-resident developer-only HOA board (Goff, Smith and Mahoney—JDC developers) voted to raise our monthly dues by 6% to $795.00 per year, by far one of the highest fees in this area. We, the homeowners and membership, were not informed prior to this via our e-mail, newsletter or the official community website at Siennanet.com or asked to vote on it even though we pay for these services to the tune of about 4 million a year (9-10,000 residents). It was sent to us with the annual bill in the mail without a detailed budget justifying this move.
Issues like the second Sienna firestation proposed delay and the second sale in 6 months of South Sienna along with other countless dislosure issues, including the current airport expansion proposals are edited out of our HOA newsletter, website and mass e-mail list by our self-appointed non-resident developer-only HOA board which we pay these dues for. These issues and more will be exposed as this SLAPP suit (Strategic Lawsuit Against Public Participation) moves through the courts.
The group of homeowners here that supported CRD’s work in getting this information out would like to encourage the public to contact district 17 state senator Kyle Janek’s office to encourage them to sponsor tort reform legislation that includes anti-SLAPP laws that would have ended this case long before it drained away half of our life savings in pre-trial at the hands of Johnson development co.
Kyle Janek’s contact info:
713-272-8929
Kyle.Janek@senate.state.tx.us
Stay informed and keep in touch!-Dr. Calvin
Co-chair
Committee for Responsible Development
responsible_dvlpmnt@yahoo.com
http://missouricitychatter.blogspot.com
Sienna Plantation Group
Missouri City, TX
2 Matthew Feinberg - Dec 15, 02:26 pm
Shame on Doug Goff and SJD/JDC!!!
They are specifically asking the court to restrict the free speech of an individual. It is clear as can be. They are asking the court to VIOLATE Calvins first amendment right to anonymous free speech.
This sends a STRONG signal to the public!
“Don’t speak out against the land developer if you don’t want to be sued!”
3 Tara Jurica - Dec 16, 09:13 am
As a long time resident of Missouri City, and a lifelong resident of the State of Texas, I find it rediculous that Chris Calvin’s comments about apartments are not protected under our first Ammendment rights. I am not aware of anything he has ever said to be defamous, deceitful, or inflammatory. Sienna Johnson is well aware of the fact that there are thousands of people who want NOTHING to do with apartments in Sienna. I PERSONALLY collected severl hundred petition signatures, both in writing, and via the internet, to prove that I/we are NOT the only ones not wanting apartments. While Mr Calvin, has been behind alot of the emails, and letters, he is not the ONLY person campaigning against them. I live in a neighborhood that has been in existance for close to 30 years, and we now have many things that Sienna Plantation has given us, including some that we didn’t want, ask for or need, like a waste water treatment plant, and the removal and desecration of hundreds and, in fact probably a few thousand acres of wetlands, and hardwoods. Many residents of these older communities have spoken out against apartments, because Sienna Johnson plans to place the majority of them adjacent to these older neighborhoods, instead of placing them in Sienna proper, and letting THEIR future residents decide if they want to live next to a 2000 or so unit complex. I feel that the developer was not honest or forthright in their development plans, and has changed their plans so many times over the past 5 to 10 years that it is nearly impossible and quite tiresome to try to keep up with what the next latest and greatest thing they are building is going to be. For instance, at one time, we were going to have a golf course and retirement community adjacent to our neighborhood, at least that is what the plan said in 1997( I have the original plan that was given to us at a meeting to help to “control our fears” about future plans for the property adjacent to us.) In fact these plans show nothing more noxious than “mixed use retail” or “commercial development” adjacent to the longstanding neighborhoods of Oyster Creek Farms, Oakwick, etc, etc. Now, I realize that we all must live somewhere, and that apartments are an option that a developer may so choose to include in their plans, but I honestly think that these have been “snuck through the back door” while we were all “out playing in the front yard”.
Sienna Johson’s stand on these apartments is that they will be “luxury”. Well, I am sure that all apartment complexes were billed as “luxury living” during their early years, but EVENTUALLY, LONG AFTER Sienna Johsnon has moved onto frying other fish, it will look like virtually all other apartment complexes look 25 or so years down the road, and that my friends is NOT PRETTY!
I think that Sienna Johnson should concentrate on fixing other issues that they have, like the HORRENDOUS traffic congestion in the mornings getting in and out of the community, instead of wasting all of this time and effort to squash a man’s expression of his first Amendment rights. All they have managed to do in the end, is bring negative exposure to themselves, by filing suit against ONE OF THEIR OWN residents! Surely that isn’t good for business? I would not feel comfortable in buying a house, if I were fearful that I might be sued by the developer if I wasn’t happy, and chose to speak out about my trash pickup, or if my toilet broke. THere are many other things this developer needs to worry about currently. It is REDICULOUS that it takes me 20+ minutes to drive 4 miles to drop my daughter off at school! It is also rediculous that there is STILL only one way in and out of the development, and that Sienna Plantation and Sienna POINT still do NOT connect, and the kids who live in Sienna Point have to endure a 30 or 45 minute bus ride in the mornings, when if they would JUST FINISH ROADS, they could be to school in 15!
Honestly, none this would have EVER happened, and Mr. Calvin wouldn’t be the recipient of this childish and wasteful (of his OWN and Sienna Johson’s money) SLAPP lawsuit if Sienna Johson had been honest, open, and forthcoming with their plans for apartment complexes, which they have obviously planned on all along, from the very beginning.
4 vfore - Dec 17, 09:50 am
I was a resident of Missouri City for some 10 years, as a child growing up in the city, and as an adult homeowner, before I purchased another home outside the city limits.
I personally think that the Missouri City ordinance that doesnt allow for the development of apartment buildings needs to be revisited.
I think the residents of Sienna feel that if apartments are built within the community, that they will be an eyesore, but more than that, undesirables will start calling Sienna home. I think thats really the issue. Its not really about apartments, its a class level in my opinion.
Not that there arent any undesirable home owners there already, but I feel that if you have an upscale property, where rent payments and the property are in line with communtiy standards,, the same people who are homeowners will be renters if they have to downsize and even more residents will call Missouri City home.
Why cant Sienna develop their property to be more than just a bunch of homes, a golf course and a waterpark? I know much has been said about this issue, but I personally feel that it is more of a class and social issue. Just my opinion.
Why Missouri City doesnt take the Pearland and Sugarland approach is beyond me?
Missouri City is getting squeezed in, literally, by those two suburban heavyweights.
Have you noticed that Shadow Creek Ranch is going to be a mixed devolpment with homes, upscale apartments, buisnesses, a hospital, a University of Texas sattelite branch, parks, churches and an outdoor mall on 288 and the Beltway similiar to those on N. Post Oak or Highland Village, due to be finished in 2007? thats the approach Sienna should have taken from the beginning in ‘97 when it was being developed
Sugarland has taken their new city hall development and made it into an upscale type town square with a similiar mix as stated above. Why hasnt Missouri City done the same thing? Why does FM 2234 look like a street in SW Houston, instead of a major throughfare in the suburbs?
I know that doesnt have anything to do with the issue as a whole, but its part of the big picture. Missouri City is starting to be looked upon badly because they want to be a big suburban city, but still have a small town mentality. The two mix together like oil and water..
5 thelittleguy - Dec 18, 02:28 pm
vfore,
One of your comments needs to be corrected. I live in MoCity and there are apartments here and no ordinance to stop them and several city council members that work hard to support them. I find your class comment very offensive and obviously a plant to attempt to divide people in this community on such development. I also think it is interesting that you posted anonymously considering the side you are taking in this. Do you support people’s right to disagree publically on issues? Do you also know of the taxing disparity between homes and apartments or the impact over-development of them has on our school systems?
Anti-SLAPP efforts else-where. Several cases on anonymous critical postings:
California Anti-SLAPP Project
CyberSLAPPs
Company Lawsuits Against Anonymous Internet Posters
Introduction
Characteristics of Message Board SLAPPs
Defending Yourself
Published Opinions
Other CyberSLAPP Resources
Welcome to our webpage on SLAPPs directed against anonymous Internet posters. A SLAPP is a Strategic Lawsuit Against Public Participation. For general information about the California Anti-SLAPP Project (CASP) and SLAPPs, click here.
Introduction
Many companies are now suing individuals who post anonymous messages at Internet financial "message boards" or "chat rooms." While some of these lawsuits may have merit, others are merely retaliatory SLAPPs -- attempts by the companies to silence their anonymous critics on the boards and intimidate other Internet users to keep their criticisms to themselves.
Characteristics of Message Board SLAPPs
If a company is suing you for your online speech, you may have been SLAPPed. Generally, a SLAPP is a lawsuit based on the defendant's acts of free speech or petitioning the government. (For general information about SLAPPs click here.)
A message board SLAPP shares characteristics typical of SLAPPs:
* Defendants' Speech. The SLAPP is based on the defendants' free speech activity -- online speech, in this case. The statement posted on the message board is generally the sole basis for the lawsuit.
* No Legal Merit. As a lawsuit, the SLAPP has no legal merit. It masquerades as an ordinary civil lawsuit, frequently based on claims such as defamation, breach of contract, and/or trade secret violations.
* Chilling Effect. The SLAPP has a "chilling effect." Rather than spend money on legal fees to fight the SLAPP, the defendants may find it easier to remain silent. The free give-and-take of discussion on the boards is also affected. Because users may fear being sued if they criticize the company, they may tone down their criticism or say nothing at all.
A message board SLAPP also has some characteristics that are not common to other SLAPPs:
* "Doe" Defendants. The lawsuit usually names the defendants as "John Does" or "Jane Does." Sometimes the complaint names the defendants by their screen names. While many other lawsuits include Does among the defendants, message boards SLAPPs generally name only Doe defendants.
* Destroying Anonymity. One of the first steps the plaintiff takes is the attempt to discover the identity of the Internet posters. Sometimes, that is the only step the plaintiff takes. The SLAPP complaint is often vague, and may not even quote the defendants' online statements, or even identify these statements by date or by post number.
Typically, the plaintiff attempts to subpoena records from the Internet service provider. Yahoo! has an enlightened policy regarding the privacy of its registered users: Yahoo! e-mails a notice to a user informing him or her that someone is seeking, through the courts, to discover the user's identity, and that Yahoo! will not act for 15 days, during which time the user may take legal action to try preserve his or her anonymity. Other service providers may not have such policies.
* "Insiders," "Employees," or "Former Employees." Many of these lawsuits allege that the anonymous posters are employees or former employees who are violating confidentiality or trade secret agreements, or insiders divulging confidential information. Thus, along with the typical defamation claim, the company may sue for breach of contract, breach of fiduciary duty, or trade secret misappropriation.
There may be no reason for the company to believe that the anonymous online speaker is an employee or insider, because the defendant based his or her statements on publicly available information or is merely stating an opinion. Or the company may be using the lawsuit to discover whether any posters are employees, so it can retaliate against them.
* Allegations About Stock Prices. Some of these lawsuits also allege that the anonymous posters are attempting to manipulate the company's stock prices. But in a message board SLAPP, the anonymous poster/defendant may simply be an investor or potential investor who is merely stating his or her opinion about the company or its management.
Defending Yourself
If you are being sued for your online statements, you should consider the following.
Anti-SLAPP Laws
Find out whether there is an anti-SLAPP law that applies to your case. If the lawsuit was filed in California it would be covered by California's anti-SLAPP law. There have been two published opinions arising from message board SLAPPs under California's law: Global Telemedia and ComputerXpress. Many other states also have anti-SLAPP laws.
In California, once an anti-SLAPP motion (the "special motion to strike") is filed, all discovery is "stayed" or blocked. Thus, the plaintiff's attempts to discover information about your identity must wait until after the court determines whether or not the company's lawsuit has a "probability of success."
If you have been or might be SLAPPed, you should look at CASP's Survival Guide, which provides suggestions on how to prepare for and defend yourself against a SLAPP.
Your Right to Speak Anonymously
The Internet is a great forum for the anonymous speaker. Anonymity contributes to the free-wheeling exchange of opinions and information on the boards. Companies that file SLAPPs are using the courts to intimidate Internet users into silence, thus transforming these free exchanges into one-sided discussions devoid of criticism.
Your ability to speak anonymously online may be protected by the constitutional right of free speech, whether under the federal First Amendment or a state constitution. First Amendment protection is not absolute. But the United States Supreme Court has recognized that a speaker's decision to remain anonymous is "an aspect of the freedom of speech protected by the First Amendment" (McIntyre v. Ohio Elections Comm'n. (1995) 514 U.S. 334, 342) and that online speech has as much First Amendment protection as offline speech. (Reno v. ACLU (1997) 521 U.S. 844, 868.)
In California, the right to speak anonymously springs from both the First Amendment and the right of privacy in the California constitution. (See, e.g., Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541, which held that the plaintiff may not use discovery procedures to obtain identities of anonymous individuals who paid for newspaper ads criticizing the plaintiff.)
Immunity for Reposting
The courts have generally held that you are immune from civil liability for reposting on the Internet material written by someone else. In the case of Batzel v. Smith (November 2002) the federal Ninth Circuit Court of Appeal (in California) held that, under the Communications Decency Act, an Internet reposter is immune from liability if a reasonable person would believe that the reposted material was given to him for republication on the Internet. However, in the case of Barrett v. Rosenthal (January 2004) a California Court of Appeal held that reposters do not enjoy immunity. The California Supreme Court has granted the defendant's petition for review (S122953, April 14, 2004) in that case, so the issue is now pending before that Court (see Petition for Review).
Published Opinions
In the following three California cases complaints for defamation arising from Internet postings were successfully defended by invoking the state's anti-SLAPP statute.
Ampex v. Cargle (California Court of Appeal, First District, 2005)
Global Telemedia International Inc. v. Doe 1 aka BUSTEDAGAIN40 (U.S. District Court, Central District of California, 2001)
ComputerXpress v. Jackson (California Court of Appeal, Fourth District, 2001)
See also the case of Doe v. Cahill (PDF file) in which the Supreme Court of Delaware on Oct. 5, 2005 reversed a lower court decision requiring an Internet service provider to disclose the identity of an anonymous blogger who targeted a local elected official. (News report: Court Rules in Favor of Anonymous Blogger)
Other CyberSLAPP Resources
Electronic Frontier Foundation
ChillingEffects.org
Anonymous Internet Foundation
CyberSLAPP.org
Home Page
[Updated Oct. 15, 2005]
A lawyer's opinion from editorial in FB Star:
Matthew Feinberg’s counsel responds to article
Dear Ms. Sandlin:
I am one of the cooperating counsel with the American Civil Liberties Union of Texas, representing Matthew Feinberg in In re Sienna/Johnson Development. The suit is perhaps better known as the one Sienna Johnson brought against Mr. Feinberg and Chris Calvin to find out the identities of the anonymous users of www.mocitytalk.com http://www.mocitytalk.com and www.siennatalk.com http://www.siennatalk.com. Sienna/Johnson allegedly sought those identities in anticipation of bringing a suit against one or more of the users for alleged defamation and/or business disparagement.
It is unfortunate that Ms. Fulenwider did not seek to interview either me or Mr. Feinberg’s other counsel before submitting her article.
Although I do not represent Mr. Calvin, we could have provided her with the following information: First, the law of the United States is crystal clear that the users of an Internet discussion board, including Mr. Feinberg’s website, have a right under the First Amendment to make anonymous posts, as long as they do not break the law in doing so. Regardless of what Mr. Calvin or any other website user writes - whether brilliant, boring, or ridiculous - he has the right to do so anonymously, as long as he doesn’t violate the law.
Sienna/Johnson’s lawyer, John Keville, said in Ms. Fulenwider’s article that he wants Mr. Calvin to stop making anonymous posts. In order to make that happen, however, Mr. Keville would either need to get Mr. Calvin voluntarily to agree to the prohibition, or Mr. Keville would need to convince the U.S. Supreme Court to change the well-settled law of the United States concerning anonymous speech. As things currently stand, if Sienna/Johnson doesn’t like people making anonymous criticisms of what it does, that’s Sienna/Johnson’s problem, and not anyone else’s.
As a second issue, it appears that neither Mr. Calvin nor Mr. Feinberg wrote the one and only post that Sienna/Johnson alluded to in its petition as allegedly constituting defamation or business disparagement.
Additionally, neither knows with any certainty who in fact wrote it. Sienna/Johnson evidently deposed the wrong individuals, if it in fact was interested only in finding out the identity of that one poster. However, Sienna/Johnson was not interested in finding out just that one poster’s identity. It was interested in finding out the identities of many different users of the site.
Some readers may wonder why an average person might resort to anonymity to make criticisms of powerful and wealthy people or businesses.
Mr. Calvin says that he’s spent over $20,000 in attorney’s fees involving this case. If Mr. Feinberg didn’t have pro bono help, his fees would have far exceeded this amount, to date. It should therefore be evident what a law-abiding individual such as Mr. Feinberg should fear from large businesses and powerful individuals if he dares to exercise his Constitutional right as an American on American soil simply to sponsor discussion that sometimes becomes critical of a powerful entity in a public forum and make himself identifiable in doing so.
Although we tried to stop Mr. Feinberg’s deposition from taking place, we were unsuccessful. No court of appeal has yet considered the matter based on the First Amendment issues involved. The case is presently before the 14th Court of Appeals in Houston.
Sincerely, Laura Hermer, J.D., L.L.M.
University of Houston Law Center
That sure was nice of SJD to file for damages so close to Christmas against this family (sarcasm intended).
Reaction to apartments from FBStar.com:
Sienna homeowners felt they were lied to
Dear Editor:
After reading your article about us "tree huggers" I really felt the need to respond. My husband and I lived in apartments most of our lives while saving up for our dream home. We dealt with the drugs, crime, noise, overcrowding, vandalism, and lack of space, because we knew that one day we would be able to have that wonderful "dream come true" home. When we finally had the money, we researched a lot. We finally chose Missouri City because they had Sienna Plantation and also had a Mayor that had a reputation of not allowing apartments to be built. We had lived that life and worked hard to get away from it. Look at Missouri City and tell me how many apartment complexes you see.
Before we built our home in Sienna, we asked specifically if apartments would be built anywhere near us and the answer was a swift and confident NO. We were told that there would be an assisted living center built, but that was the only facility of that type going in. So we built. Now we are having the very thing we moved here to get away from shoved in our faces. I am not against commercial development, in fact I am thrilled to have some businesses coming out this way. However, I am against being misled and down right lied to. I am against the fact that the people making these decisions for those of us living in Sienna do not even live out here nor do they have our best interests at heart. They are dealing with their bottom line, which would have been fine had they been up front with it. To have so many people build homes and start lives based on a lie is wrong, no matter how much money you can make doing it.
Apartments out here are not in our best interest. Unlike single family homes, apartment dwellers, via the apartment owners, pay 4 to 5 times less in property taxes thus creating stress and over crowding on school systems, roadways and other community services. This is not the case with commercial/retail and single family homes. Those apartments will also bring more crime our way. I am paying a fortune in taxes to live out here and opposing apartment communities being built in Sienna Plantation does not make me a "tree hugger," it makes me a concerned resident. I understand that your paper is probably controlled by some of the very people forcing these apartments on us, and this letter will never be seen. But I want you to know that you should check those facts before writing your articles, and maybe even (gasp) interview the people on the other side of the issue. I also want the elected officials that are voting for this apartment development to realize that we have good memories, and will not forget which way they voted come election time.
Sincerely,
Sunni Sargent
Some more background on this SLAPP suit (form FBNow.com):
Spat Over Apartments Could Impact Free Speech On The Web
by Bob Dunn, Oct 24, 06:29 pm
It seemed an unlikely hinge upon which Texans’ constitutional right to anonymous free speech might swing:
How many apartment units should the developers of Sienna Plantation be allowed to build, and where should they be located?
A disagreement over the answers to that question began boiling over in public a few months ago. Missouri City Council meetings regularly featured speakers railing over the building of apartments in Missouri City and nearby communities.
Mayor Allen Owen took heat after a deal was reached to relocate a planned group of apartments, to the dissatisfaction of a group of area residents.
In July, for instance, Sienna resident Chris Calvin spoke at a council meeting and said he’d obtained Mayor Owen’s list of campaign contributions, and that more than half of them came from developers. Among the largest contributors, Calvin said, was Larry Johnson, President of Johnson Development Corp. and Sienna Plantation’s developer.
Owen took issue, telling the Fort Bend Star after the meeting that “my vote has never been for sale, nor have I catered to anybody who made contributions to me.”
Thorn in the side
A self-described thorn in the side of Sienna Plantation’s developers, Calvin heads what he says has become a consumer watchdog group – the Committee for Responsible Development – which he said once had 37 members but whose numbers have since dwindled.
Calvin said his motivation came in part from disenfranchisement. Sienna Plantation is outside Missouri City limits, so residents have no vote in city affairs. And, he said, the only voting members of the Sienna Plantation property owners association are appointed by the developer.
“We are not trying to hurt home sales,” he said. “We just want representation in what’s going on.”
Calvin didn’t limit his discourse to council meetings. He and other area residents discussed the apartments and various Sienna Plantation issues on Internet web site forums. One of those, run by Sienna resident Matthew Feinberg, operated on the domain siennatalk.com.
Officials at Sienna/Johnson Development, L.P., which holds a trademark for “Sienna” and “Sienna Plantation,” took notice.
To Calvin, it marked an attempt by Sienna/Johnson “to shut us up.”
In a July 19 missive to the Missouri City Council, Johnson Development Corp. Senior Vice President Douglas Goff said that assertion was incorrect. “Sienna/Johnson did not ask Mr. Feinberg to shut down his discussion forum, but only to stop using the Sienna and Sienna Plantation marks,” he said.
Substantial misunderstanding
Goff sent his message to the council in response to an anonymous email, also sent to members of council and to Larry Johnson of Johnson Development. The email, signed CRD, “reflects a substantial misunderstanding of the facts and makes several erroneous statements,” Goff said.
The email in question contended that Johnson Development Co. was trying to shut down missouricitytalk.com, the new web home of Feinberg’s forums, opened after Sienna/Johnson informed him of the trademark issue involving siennatalk.com.
“They are now trying to force the site administrator into turning the domain names over to them,” the email states. “This obviously is not allowing free speech or open communications between residents here in Sienna.”
But it was another anonymous communication, posted under the pseudonym NextDoor on missouricitytalk.com, also on July 19, that really drew Sienna/Johnson’s attention.
“You do not have the rights to Sienna Plantation – it is the name of a place. You would be shutting down all the other small businesses that use that name not just this site,” the post said. “So what, we changed the name now get off and leave us alone. So Matt doesn’t want to hand over the domain names – pay him for them at the price he wants just like you did the mayor and council that you are addressing in your post.”
Anticipation of a lawsuit
That post became part of the court records in a case Sienna/Johnson filed 15 days later in Fort Bend County District Court, in which it sought to depose Chris Calvin and Matthew Feinberg in anticipation of a defamation and business disparagement lawsuit “in which the Petitioner may be a party.”
In its petition to take depositions from Calvin and Feinberg, Sienna/Johnson said it and its employees “have been the subjects of false and disparaging statements, including malicious accusations of criminal conduct,” made anonymously on Feinberg’s web sites.
As its sole example of such disparagement, the petition seems to refer to the July 19 post by NextDoor: “For example, recently under the name “nextdoorneighbor” a message was posted that indicated Petitioner has made “pay-offs” to the mayor of Missouri City and Missouri City council members. Petitioner is informed that deponent Chris Calvin makes posting under the screen name “nextdoorneighbor.”
The petition also said Sienna/Johnson believed Calvin repeatedly posted on Feinberg’s web sites using multiple pseudonyms “to create the impression that large numbers of residents of Sienna Plantation and Missouri City oppose further development by Petitioner, and thereby affect Petitioner’s economic interest.”
Identification of users
Among other things, the petition asked that Feinberg produce “all documents concerning the identities and IP addresses for the registered users” of Feinberg’s web sites, including “CRD,” “responsible_dvlpmnt,” “BuddyJ,” “Mike,” “JaneL,” “starbuck,” “Jim_Calhoun,” “Bill_Crane,” “twinstuff2,” “nextdoor,” “nextdoorneighbor,” “sundaysiennasurfer,” “sss,” and “donny12.”
Eventually, the notion of a Texas court helping a private business learn the identities of anonymous web forum members attracted significant legal attention, including the American Civil Liberties Union Foundation of Texas.
Feinberg’s attorneys sought to have Sienna/Johnson’s petition quashed, but their motion was denied by Fort Bend County District Court Associate Judge Pedro Ruiz.
Ruiz did, however, grant a protective order stating, among other things, that identities of users of siennatalk.com and misouricitytalk.com be considered confidential and would be disclosed only to attorneys in the case “as well as secretaries, paralegals, law clerks and support staff of those attorneys” and also the parties in the case and their partners and employees.
Ruiz’s ruling set off a flurry of activity by Feinberg’s attorneys in an attempt to head off the depositions, including a Notice of Appeal and Request For Hearing and Emergency Request for Stay of Orders, brought to court Oct. 17 just before the depositions were scheduled to take place.
Right to anonymous speech
“This matter raises an important issue of first impression to Texas jurisprudence,” Feinberg attorney Laura Hermer said in the 35-page notice. “To what extent does Texas protect its citizens’ First Amendment right to anonymous speech on the Internet…?”
As if in answer to that question, Ruiz denied Feinberg’s attorneys an extension of time to file the notice of appeal. And in an early-morning teleconference, Ruiz denied a stay of the depositions.
They took place as scheduled, and their full transcripts have not been made part of the public record, in keeping with the court’s protective order.
However, anyone who posted comments critical of Sienna Plantation on Feinberg’s web sites with the expectation of doing so anonymously has had his or her expectations dashed.
Douglas Goff and Chad Johnson of Johnson Development Corp. were present at the depositions, said Sienna/Johnson attorney John Keville, of Howrey LLP.
Among other things, the depositions clarified the issue of whether there really were a large number of people writing anonymous posts on Feinberg’s web sites about Sienna Plantation, Keville said.
“I think it’s fair to say that a lot of the identities were Mr. Calvin,” he added.
Calvin said the legal action by Sienna/Johnson is consistent with what have become known as SLAPPs – strategic lawsuits against public participation.
Keville insists otherwise.
“That’s absolutely not true,” Keville said. “Feinberg was never forced to shut down the web site. This was never about suppressing free speech.”
What to do next
However, he added, “when you cross the line into defamation, that’s another thing.”
As for the court case, Keville said he and his client are discussing what, if anything, to do next.
“We always said we never intended to file suit against Matthew Feinberg, and that still holds true,” Keville said. He would not extend that statement to Calvin.
“I know I’m the target,” Calvin said. “I think they’re trying to divert our political campaign. We’re trying to get a candidate to run against the mayor.”
Whether it was Sienna/Johnson’s intention or not, Feinberg’s MissouriCityTalk site still is up, but the discussion forums have long been shut down.
David Broiles, meanwhile, a cooperative attorney with the Texas ACLU who assisted in Feinberg’s case, said he and Feinberg’s other lawyers also are discussing what to do next. One possibility would be to seek an order that the depositions be sealed.
Gathering anonymously to talk on a web site forum “is a way of assembling” and a form of free speech protected under the Constitution, Broiles said. And if a court is being asked to compel people to divulge identities of anonymous writers who have been accused of no wrong-doing, “we want to stop it.”
In Feinberg’s case, however, Broiles acknowledges that didn’t happen.
“It’s certainly a loss to this point,” he said. “We have certainly not prevailed.”
1 Gerry Hookstra - Oct 25, 04:42 pm I post this for anyone whom ever posted on the web sites being investigated by Sienna/Johnson Development (Missourcitytalk.com or Siennatalk.com). Unfortunately, this ‘witch-hunt’ type pursuit of depositions and hearings, has cost Sienna Resident, Chris Calvin over $20,000. To date it appears that no libelous statements have been established, nor has any wrong-doing been established. At least not from what I’ve read or heard in the news.
This seems to be such a senseless punishment to be handed out. Not to mention what a waste of time and money it is, and for no apparent reason. It frightens me how quickly and easily anyone’s savings could be drained, and their life so severley changed just in the course of defending themselves from someone’s unfounded, unproven allegations. It could happen to any of us.
I also find it frustrating that not once has there been any mention of the identity, or of the motives, or of the credibility, of the woman who wrote ‘the affidavit’ to Sienna/Jonhson that started this ball rolling!
2 Chris D. Calvin, Ph.D. - Oct 25, 05:34 pm I would like to pass on a comment or two to Mr. Keville, the JDC attorney on this case. He appears, IMHO, to have violated the protective order on the deposition by releasing bits from it in this interview. I wonder what Ruiz would say to all this or anyone else. Although I think the article is balanced I think it ignores the majority of the 270 other registered users of the old SiennaTalk.com site and the many, many visitors to that site along with the thousands of people in Missouri City who oppose more apartments (of which I have amny e-mails from). I would have to agree that at this point free speech, rights to privacy and the right to petition our government for redress of grivances have taken a hit in this court in Fort Bend county. It will not stop the effort to find a mayoral candidate John/JDC! Missouri City needs an election it hasn’t had one in years.
As for the 1100+ petitioners and 9 to 10,000 residents in this community that have been virtually ignored to this point, I say keep your faith that homeowners do have some rights and the press is your best friend in these situations.Take care-Chris
3 John Armstrong - Oct 25, 08:28 pm It was my understanding that there were several meetings scheduled with JDC to level set expectations on the development in Sienna Plantation area, all of which were cancelled for one reason or another.
I believe that if there was real concern on the part of the developer and employees to handle any questions or concerns on the part of those who disagree with the development of the apartments that would have happened already and not through annoucements at town meetings or short e-mails.
I’ve watched numerous e-mails travel ‘back and forth’ between neighbor and JDC employees on this subject. I’ve yet to see anyone ‘accuse’ anyone of a wrong doing or an unethical action, it’s always the replies to the e-mails were someone has read between the lines and interpreted the e-mail in such away to warrant a barrage of hate.
Everyone is far from innocent on this subject of ‘misinterpretation’ and ‘miscommunication’, everyone in my opinion equals all parties… neighbor and JDC employees.
Political agenda, monies contributed, he said – she said, is just fixation on the wrong issue(s) at hand. The real issue is trust. Trust your neighbor, trust the mayor, trust the developer to do the right thing.
There is a small group, which was referred to as ‘tree huggers’, this group doesn’t trust the developer or mayor to make the ‘best’ decision for the develop of the dreaded apartment complexes in Sienna Plantation!
There is another group of neighbors that don’t trust the ‘tree huggers’ because they have been portrayed as trouble makers out to hurt economic welfare of Sienna Plantation. Did the ‘tree huggers’ paint this picture? No. Did the neighbors who don’t trust the ‘tree huggers’ paint this picture? No. Hmmm…
Sure, neighbors will disagree on different things but, neighbors are neighbors and you have to live next to them… almost like family. Good thing Christmas comes once a year, right? We need to remember to treat our neighbors with the respect worthy of that which we wish to be shown to us.
That hasn’t happened and it’s a shame.
I believe it’s time for JDC to step up and pull everyone together work this out. Communicate, level set and get people involved in their efforts of development.
You get more with honey…
4 Right To Be - Oct 26, 11:29 am Thank you Bob for being the very first news publisher to print the real facts.
The Texas ACLU would not have taken notice and become involved unless there are serious constitutational implications. I hope Matthew and the ACLU fights this all the way to the Texas Supreme Court.
SJD claims they did not ask for missouricitytalk.com to be shutdown. The fact is that their leagal actions has caused a huge chilling effect. Matthew was forced to shutdown the site to protect the anunomous users of the site. This is not over yet. If SDJ sues either Matthew or Chris they will supena the database and emails from them putting everyone that ever posted on that site at risk from either being included in the law suit or being dragged into depositions.
This fear has also caused people in Sienna to stop talking about community issues. I personally am afraid of being taken to court by simply speaking my mind in public or to anyone that might “tell on me”.
Sienna has even gone as far to update their Covenant to include the following. Notice they say ” rights-of-ways within or adjacent to the Properties”. This means they want to restrict free speech in or out of Sienna. Here is Proof that SDJ wants to limit free speech. Check section 2, they specifically don’t want owners to “assemble for the purpose of spreading propaganda”. “PROPAGANDA: Material disseminated by the advocates or opponents of a doctrine or cause” They don’t wany anything expressed that opposes their views. If you take this latterly you are not even allowed to have web site that opposes them. It would be easy for Sienna to enforce this rule on anyone that runs a web site or opposes their views.
SIENNA PLANTATION RESIDENTIAL ASSOCIATION, INC. RULES AND REGULATIONS REGARDING DISSEMINATION OF
INFORMATION IN AREAS OF COMMON RESPONSIBILITY Adopted:
The following Rules and Regulations Regarding Dissemination of Information in Areas of Common Responsibility (the “Rules”) are promulgated by the Board of Directors of the Sienna Plantation Residential Association, Inc. (the “Association”),pursuant to the authority found in the Declaration of Covenants, Conditions and Restrictions for Sienna Plantation Residential Association, Inc., recorded under Clerk’s File Number 9734406 in the Official Public Records of Real Property of Fort Bend County, Texas (the “Declaration”) and the Articles of Incorporation of the Association, filed with the Texas Secretary of State on the 9th of June, 1997. Unless otherwise specified herein or if the context clearly indicates otherwise, the words used in these Rules shall have the same meaning as set forth in the Declaration.
An Area of Common Responsibility is owned, maintained and/or controlled by the Association. Area of Common Responsibility, as defined in the Declaration, means the “Common Area, together with those areas, if any, which by contract or agreement become the responsibility of the Association. Road rights-of-ways within or adjacent to the Properties may be part of the Area of Common Responsibility.”
Common Area, as defined in the Declaration, means “any and all real and personal property and easements and other interests therein, together with the facilities and improvements located thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners and Occupants.”
The Association hereby adopts the following Rules: 1. No Owner and/or such Owner’s guests, invitees or agents may disseminate, post, or otherwise display or distribute any written information (including, but not limited to banners, handbills, newsletters, flyers, leaflets and the like) of any nature, content or kind, in or on an Area of Common Responsibility.
2. No Owner and/or such Owner’s guests, invitees, or agents may engage in any of the following activities in any Area of Common Responsibility: (a) picketing, (b)otherwise spreading propaganda, (c) using sound and/or voice amplifying devices(including, but not limited to microphones, amplifiers, or other similar devices), and/or (d) causing or encouraging persons to assemble for the purpose of spreading propaganda; provided, however, any such activities listed in this Section 2 shall be permitted so long as such activities are commenced in furtherance of a Community Sanctioned Event, as defined below.
3. A Community Sanctioned Event shall mean an event or activity approved by the Board of Directors and/or General Manager of the Association, which event or activity is (i) a fundraising, charity, pledge, drive or similar event sponsored and/or organized by the Association, the Declarant, other organization approved by the Association, or an organization defined under Section 501©(3) or 501©(4) of the Internal Revenue Code, or their successor statutes, or (ii) sponsored and/or organized by the Association for the benefit and/or enjoyment of the Owners and/or the community.
4. The determination of whether an Owner or such Owner’s guests, invitees, or agents are in violation of these Rules shall be made by the Board of Directors of the Association and/or the General Manager of the Association, in their sole and absolute discretion.
5. If an Owner or such Owner’s guests, invitees, or agents engage in activity prohibited by these Rules, the Association, pursuant to and to the extent of the authority granted in the Declaration may, take one or more of the following actions:
(a) suspend the enjoyment rights of such Owner with respect to the Common Areas for any period not to exceed sixty (60) days subject to notice that may be required by applicable law;
(b) consider a person who enters upon and is present in an Area of Common Responsibility for a purpose in violation of these Rules a trespasser; (c) impose fines, upon notice and opportunity to cure as may be required by Texas law; and/or (d) remove and/or dispose from the Areas of Common Common Responsibility any items that are placed and/or posted in the Areas of Common Responsibility in violation of these Rules; in doing so the Association or its agents shall not be subject to any liability for trespass, other tort or damages in connection with or arising from such removal and/or disposal nor in any way shall the Association or its agent be liable for any accounting or other claim for such action.
6. “Owner” shall not include the Association, the Declarant, or any of their respective agents, successors, designees, replacements or assigns.
5 Taney Hall - Oct 26, 12:22 pm I moved to this area thinking it would be a fairly quiet community. Is it so wrong to want something unlike the rest of Houston? I look at the apartments as I drive in and dread what is coming and now with the further actions of our local officials it makes me wonder how long before it will be time to move again?
I don't remember ever rejecting their offer. They basically sent one draft and we sent a response which they rejected as "unacceptable" and then threatened to sue us if we didn't go along with their first draft.--I guess that's what happens when you have deep pockets and can dictate what you want to people.--We're forting up and prepping for the siege. Wish us luck all and keep us in your Christmas prayers! We continue to pray for DG, LJ, JK -- you know the visiting team guys. . .
One question for John is
"and spreads things that are dishonest and lies."--Isn't this lawyer Keville statement defamation and libel?
Florida SLAPP case:
Florida Fern Growers Assoc. v. Concerned Citizens of Putnam Co.
Cite as: 616 So. 2d 562
FLORIDA FERN GROWERS ASSOCIATION, INC., et al., Appellants,
v.
CONCERNED CITIZENS OF PUTNAM COUNTY, etc., et al., Appellees.
COURT OF APPEAL OF FLORIDA, FIFTH DISTRICT
Case No. 92-1039
Appeal from the Circuit Court for Putnam County, Stephen L. Boyles, Judge.
Filed April 2, 1993
COUNSEL:
Harlan L. Paul of Zimmerman, Paul & Bauer, DeLand, for Appellants.
Kenneth B. Wright, Tallahassee, for Appellees.
OPINION: DAUKSCH, J.
This is an appeal from an order dismissing with prejudice appellant Florida Fern Growers Association, Inc.'s complaint for injunctive relief, and for damages for intentional and malicious interference with advantageous business relationships and conspiracy to intentionally and maliciously interfere with advantageous business relationships. Appellees, the Concerned Citizens of Putnam County, Inc. filed various petitions with the St. Johns River Water Management District challenging the issuance of consumptive water use permits to members of appellant in the fern growing industry. It is appellees' position that they have a constitutional free speech right and a constitutional right to petition the government both of which are greater than any asserted right of appellant to be free from tortious conduct.
On January 6, 1992, appellant filed its First Amended Complaint seeking injunctive relief and alleging intentional and malicious interference with advantageous business relations and conspiracy to interfere with advantageous business relations. Appellees moved to dismiss this complaint, arguing that their actions in petitioning the government about the public issue of consumptive use of water were privileged under the United States and Florida Constitutions. They argued that their reasons for choosing to focus their attention on water use by ferngrowers need not be objectively compelling because they were entitled to petition the government no matter what their beliefs. They argued that for the proceedings to subject them to civil liability they must be instituted not to obtain governmental action but to otherwise injure the plaintiff. Appellees argued that because appellant's complaint admitted that appellees' petitions were at least in part motivated by their concern over public policy, the issue of water consumption, that motivation cloaked their actions with a constitutional privilege and therefore appellant's complaint must be dismissed with prejudice.
On March 27, 1992, the trial court issued an order of dismissal with prejudice finding that the complaint failed to state a cause of action, stating that:
To state a claim upon which relief can be granted in a tortious interference case, malice must be the sole basis for the interference. Boehm v. American Bankers Ins. Group, 557 So. 2d 91, 95 (Fla. 3d DCA 1990).
The actions that form the basis for Plaintiffs' complaint are that the Defendants filed petitions with the St. Johns River Water Management District, under Florida's Administrative Procedure Act, challenging the issuance of consumptive water use permits to members of the fern-growing industry. Plaintiffs' allegations are not sufficient to vitiate Defendants' privilege to petition the government under the Federal and Florida Constitutions. U.S. Const. Amend. I; Art. I Sect. 5, Florida Constitution; Gray v. Rodriguez, 481 So. 2d 1298, 1299, 11 Fla. Law W. 289 (Fla. App. 3d Dist. 1986); and see Protect Our Mountain Environment v. District Court, 677 P.2d 1361 (Colo. 1984).
This appeal followed and we reverse.
In reviewing the trial court's granting of a motion to dismiss, this court is limited to accepting the allegations of the complaint as true. Londono v. Turkey Creek Inc., 609 So. 2d 14, 19 n. 4 (Fla. 1992); Cutler v. Board of Regents, 459 So. 2d 413, 414 (Fla. 1st DCA 1984). We find the ferngrowers complaint sufficiently alleges claims for injunctive relief, tortious interference with advantageous business relations, and conspiracy to tortiously interfere with advantageous business relations.
A party seeking injunctive relief in Florida must demonstrate: 1) irreparable harm; 2) a clear legal right; 3) an inadequate remedy at law; and 4) consideration of the public interest. St. Lucie County v. St. Lucie Village, 603 So. 2d 1289, 1292 (Fla. 4th DCA), rev. den., 613 So. 2d 12, 1992 Fla. LEXIS 2361 (Fla. 1992). "A complainant alleging irreparable injury must state facts which will enable the court to judge whether the injury will in fact be irreparable." Waters v. School Bd. of Broward County, 401 So. 2d 837, 838 (Fla. 4th DCA 1981). Count I of appellant's complaint alleges that appellees are causing irreparable harm to appellant by objecting to "each and every application for consumptive [water] use permits" by the members of appellant to the St. Johns River Water Management District ("the District"). Appellant charges that appellees have "targeted" its members to the exclusion of all other agricultural, industrial and recreational consumptive users, aiming to put appellant out of business. Appellant seeks a permanent injunction enjoining appellees from filing such "sham pleadings" directed to the applications members of the fern growing industry are required to file with the District to obtain consumptive use permits for water consumption. We find Count I of appellant's complaint sufficiently alleges a claim for injunctive relief. [FN 1]
[FN 1] In the event the trial court determines that injunctive relief may lie in this case, the trial court should fashion such injunctive relief as to not prohibit as a prior restraint any activities which fall within the ambit of the first amendment. See Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371 (Fla. 4th DCA 1987).
Elements of the tort of intentional interference with an advantageous business relationship are: 1) the existence of a business relationship, not necessarily evidenced by an enforceable contract; 2) knowledge of the relationship on the part of the defendant; 3) an intentional and unjustified interference with that relationship by the defendant; and 4) damage to the plaintiff as a result of the breach of the relationship. Nowik v. Mazda Motors of America (East), Inc., 523 So. 2d 769, 771 (Fla. 1st DCA 1988); McCurdy v. Collis, 508 So. 2d 380, 382-383 (Fla. 1st DCA), rev. den., 518 So. 2d 1274 (Fla. 1987). Appellant in Count II of the complaint alleged that appellees engaged in their campaign to object to each application for consumptive use with the intent of interfering with appellant's business relationship between members of appellant and their fern buyers. Appellant alleges appellees knew of this relationship, and alleges that appellees' campaign was unjustified because appellees attempted to put the ferngrowers out of business, as opposed to any other water user, whether industrial, agricultural or business; appellant alleges appellees are unable to show that they are or would be substantially affected by the consumptive use of ground or surface water by ferngrowers. In particular appellant alleges members of the industry have been damaged by delays in the permitting process caused by appellees' campaign. We find that Count II of appellant's complaint sufficiently alleges a claim for tortious interference with advantageous business relations.
The essentials of a complaint for civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy. Kent v. Kent, 431 So. 2d 279, 281 (Fla. 5th DCA 1983). Such a tort is actionable "where a plaintiff can show some peculiar power of coercion possessed by the conspirators by virtue of their combination, which power an individual could not possess." Buckner v. Lower Florida Keys Hosp. Dist., 403 So. 2d 1025, 1029 (Fla. 3d DCA 1981), rev. den., 412 So. 2d 463 (Fla. 1982). Count III of appellant's complaint alleges that appellees conspired between themselves to individually file objections to each consumptive use of water of the ferngrowers with the sole intent of causing such damages to appellant as to put the ferngrowers out of business. Appellant attached to its complaint the petitions appellant alleged appellees conspired to file. As discussed above we find appellant has sufficiently alleged a claim for tortious interference with business relations. An actionable conspiracy requires an actionable underlying tort or wrong. Wright v. Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA 1984). We further find that Count III of appellant's complaint states a claim for civil conspiracy.
Appellees, the Concerned Citizens, however, urge this court to find the amended complaint legally insufficient and to employ a heightened pleading standard, requiring appellant to allege specific activities of appellees which vitiate privileges associated with the constitutional right to petition the government. In Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972), the court stated that:
Liability can be imposed for activities ostensibly consisting of petitioning the government for redress of grievances only if the petitioning is a "sham," and the real purpose is not to obtain governmental action but to otherwise injure the plaintiff.
Id. at 939. The Sierra Club court reasoned that the "sham" test was required because malice is "easy" to allege and the "sham" test would allow the First Amendment "breathing space" required to protect the rights of citizens petitioning the government. Id. at 938-939. Federal and state courts subsequently applying the "sham" test have employed a heightened pleading standard to state a claim for civil liability based upon asserted petitioning activities. See e.g. Oregon Natural Resources Council v. Mohla, 944 F.2d 531, 533 (9th Cir. 1991); Protect Our Mountain Env't, Inc. v. Dist. Court, 677 P.2d 1361, 1369 (Colo. 1984). However, we are moved to reject the "sham" test based on the Supreme Court of Florida's recent opinion in Londono v. Turkey Creek, supra. There the Supreme Court of Florida explicitly rejected the "sham" test of the Sierra Club court and found that current Florida tort law "already provides protection for the First Amendment right to petition the government," Londono, 609 So. 2d at 18. Because no heightened pleading standard is applicable, we find appellant's complaint sufficiently alleges claims for injunctive relief, tortious interference with advantageous business relations, and conspiracy to tortiously interfere with advantageous business relations.
After independence the First Amendment to the Constitution guaranteed that "Congress shall make no law . . . abridging the freedom of speech, or the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Constitution Amendment I. In Thomas v. Collins, 323 U.S. 516, 89 L. Ed. 430, 65 S. Ct. 315 (1945), the United States Supreme Court noted:
It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights . . . and therefore are united in the First Article's assurance.
323 U.S. at 530. Article I, section 4 of the Florida Constitution, on freedom of speech and press, states that "every person may speak, write and publish his sentiments on all subjects but shall be responsible for the abuse of that right . . . " Section 5, on the right to assemble, states that "the people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances."
Appellees, the Concerned Citizens, assert that the constitutional right to petition provides absolute protection from infringement in the form of civil liability. Some courts have indeed asserted an absolute protection for the exercise of the right to petition, but they have done so based not on First Amendment precedent, but rather based on an antitrust doctrine, the so-called Noerr-Pennington Doctrine. In Eastern R.R. Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S. 127, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961), ("Noerr") trucking operators and their trade association brought suit against a number of railroads under sections one and two of the Sherman Act. 15 U.S.C. ss. 1-2 (1982). The trucking operators claimed that a railroad sponsored publicity campaign to create public support for anti-trucking laws was an illegal attempt to monopolize the freight industry. The railroads filed a counterclaim arguing that the truckers sought to establish a monopoly through similar political activities. Noerr, 365 U.S. at 129. The supreme court dismissed the claims and held that the Sherman Act did not reach political activity and therefore a plaintiff harmed by petitioning activity may not recover under the Sherman Act. The court also held that neither the anticompetitive purpose of the railroads in initiating the advertising campaign nor their deception in conducting the campaign were relevant to antitrust analysis. Noerr, 365 U.S. at 138-141. The court acknowledged that a holding the Sherman Act applied to political activity "would raise important constitutional questions. The right of petition is one of the freedoms protected by the Bill of Rights and we cannot, of course, lightly impute to Congress an intent to invade these freedoms." Noerr, 365 U.S. at 138. But the court avoided ruling on the railroads' insistence that their activities were protected by the First Amendment:
The answer to the truckers' complaint also interposed a number of other defenses, including the contention that the activities complained of were constitutionally protected under the First Amendment . . . Because of the view we take of the proper construction of the Sherman Act, we find it unnecessary to consider any of these other defenses.
Noerr, 365 U.S. at 132, n. 6.
In United Mine Workers v. Pennington, 381 U.S. 657, 14 L. Ed. 2d 626, 85 S. Ct. 1585 (1965) ("Pennington"), the court reaffirmed Noerr. In Pennington a union and a number of large coal companies allegedly engaged in a scheme to drive smaller firms out of business by persuading the Secretary of Labor to establish a high minimum wage for employees of companies selling coal to the Tennessee Valley Authority (TVA), and by convincing the TVA to curtail spot marketing purchases. 381 U.S. at 660-661. The court held that the political lobbying complained of could not violate the Sherman Act.
The last of the trilogy of Noerr-Pennington antitrust cases was California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 30 L. Ed. 2d 642, 92 S. Ct. 609 (1972), in which one group of highway carriers sued another group alleging that the defendants attempted to monopolize the industry in violation of the Clayton Act, 15 U.S.C. 15 (1982), by repeatedly challenging the plaintiffs' license applications before courts and regulatory agencies. The court held that the plaintiffs, who had alleged abuse of process, had stated a claim for antitrust liability, and the case was remanded for trial. The court held that, as mentioned in dicta in Noerr, 365 U.S. at 144, supposed petitioning may be nothing more than a "sham," and "[a] pattern of baseless, repetitive claims may emerge which leads the fact finder to conclude that the administrative and judicial processes have been abused . . . . Actions of that kind cannot acquire immunity by seeking refuge under the umbrella of 'political expression.'" California Motor, 404 U.S. at 513. One commentator notes that while many have interpreted California Motor to say that the constitution requires an absolute immunity from civil liability for any petitioning activity unless that activity is a "sham," the case "actually demands no more than scrutiny of whether a valid governmental interest, such as regulation of anti-competitive activity, may infringe First Amendment activity." Zauzmer, "The Misapplication of the Noerr-Pennington Doctrine in Nonantitrust Right to Petition Cases," 36 Stanford Law Review 1243, 1253 (1984). Zauzmer notes that even a sham petition includes some protected behavior, litigation, contacts with officials and so forth, but in order to enforce the antitrust laws, prevent the misuse of governmental process, or other legitimate goals, it may be necessary for the government to infringe the protected activity as well, and whether such infringement is permitted by the constitution ought to depend on an examination of the competing interests of the government and the individual. Id. at 1253. The original Noerr-Pennington line of cases, then, hardly supports the notion argued by appellees that there exists an absolute privilege for petitioning activities.
However, among the courts applying the Noerr-Pennington doctrine outside the area of antitrust law to find an absolute immunity for the exercise of the right to petition is the above-mentioned federal district court opinion in Sierra Club v. Butz, supra. Appellees note the court there held that petitioning was immune from tort liability for interference with an advantageous business relationship. The action arose as a counterclaim by a logging company to the Sierra Club's suit seeking a logging ban in an area being considered for a wilderness designation. The court decided that the environmental suit was not a sham, but a legitimate attempt to influence government action protected by the right to petition, and therefore could not be subject to any tort liability. Sierra Club, 349 F. Supp. at 939. The court held that only absolute immunity adequately protected the right to petition, since any possibility of tort liability might deter those who wanted to petition. Sierra Club, 349 F. Supp. at 938.
In another case brought to the attention of this court by appellees, Webb v. Fury, 167 W.Va. 434, 282 S.E.2d 28 (W.Va. 1981), the West Virginia Supreme Court extended Noerr-Pennington immunity into the field of libel law. The court dismissed a libel action by a coal mining company against environmental groups that allegedly libeled the company in a newsletter, as well as in communications to the Environmental Protection Agency and to the Office of Surface Mining. The court held:
Although the Noerr-Pennington Doctrine arose in the context of antitrust litigation, and most Noerr-Pennington applications involve antitrust suits, it is apparent that the foundation of the doctrine, and of the sham exception rest upon solid First Amendment grounds rather than upon a limited construction of the Sherman Act.
* * *
Clearly the Noerr-Pennington Doctrine is a principle of constitutional law which bars litigation arising from injuries received as a consequence of First Amendment petitioning activity, regardless of the underlying cause of action asserted by the plaintiffs.
282 S.E.2d at 36-37. The court based its decision on the right to petition in the State of West Virginia Constitution as well as the First Amendment. Webb, 282 S.E.2d at 33.
In another case relied upon by appellees and the trial court below, Protect Our Mountain Env't, Inc. v. District Court, 677 P.2d 1361, 1369 (Colo. 1984), the Supreme Court of Colorado dismissed a complaint for damages based on the torts of abuse of process and civil conspiracy filed against the Protect Our Mountain Environment, Inc. group by a developer who had obtained rezoning decisions from a board of county commissioners. The court required the heightened pleading standard mentioned by the Sierra Club v. Butz court.
We must reject these precedents because the Supreme Court of Florida in its Londono decision has decided that right to petition decisions should adopt analogous speech and association precedents. In Londono, Turkey Creek, Inc. ("Turkey Creek") was a Florida corporation whose primary business was the development and sale of residential land in a planned unit development (PUD) known as Turkey Creek. The homeowners, including Xavier Londono, M.D. were residents of the development. In March 1982 the homeowners filed suit against Turkey Creek seeking a declaratory judgment and damages in connection with Turkey Creek's operation of the PUP. Turkey Creek filed its answer and eventually obtained a final judgment and costs in its favor.
Turkey Creek subsequently sued the homeowners for tortious interference with contractual rights, tortious interference with an advantageous business relationship and conspiracy to interfere with Turkey Creek's contractual rights and business relationships. The suit was based on allegations that from early 1982 through May 1984, the homeowners publicly distributed false information that the land within the PUP was in "distress" and that the title was unmarketable and impaired. Among other things, the homeowners allegedly publicly distributed this false information to local zoning officials, who denied or delayed Turkey Creek's petitions for rezoning based on the homeowners' statements to the zoning officials. Turkey Creek also alleged that because of the homeowners' intentional distribution of malicious and false information, it had lost a contract which cost it four million dollars in expected profits. The trial court dismissed Turkey Creek's claims for tortious interference and for civil conspiracy because the complaint failed to state a cause of action but the district court reversed. Turkey Creek, Inc. v. Londono, 567 So. 2d 943 (Fla. 1st DCA 1990). In affirming the district court's reversal, the supreme court rejected the argument that the homeowners comments to the county's zoning officials were absolutely privileged under the First Amendment.
The homeowners' organization and the State in Londono contended that because malice was easy to allege, the "sham" test would "allow the First Amendment breathing room to protect the rights of citizens petitioning the government." But the Supreme Court of Florida disagreed:
We decline to adopt the "sham" test because we find that the current law in Florida already provides protection for the First Amendment right to petition the government. In Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984), this court addressed the issue of whether a parent who makes statements concerning a teacher's qualifications at a school board meeting could be held liable for defamation. The Court first determined that the teacher was a private person and not a public official; thus the law required the plaintiff to show express malice as opposed to actual malice. The Court then stated the rule of law that:
"One who publishes defamatory matter concerning another is not liable for the publication if (a) the matter is published upon an occasion that makes it conditionally privileged and (b) the privilege is not abused."
Nodar, 462 So. 2d at 809 (quoting Restatement (Second) of Torts s. 593 (1976)). Thus, in Nodar the Court found that the parent's remarks were privileged as a matter of law on the ground of "statements of a citizen to a political authority." Id. at 810. The court then examined the record to determine if the parent's remarks abused the speaker's conditional privilege. After examining the parent's remarks, the Court concluded that the parent had not abused his privilege of speaking to the school board and thus the evidence was insufficient to show express malice. Id. at 811. We find that the test used in Nodar adequately protects the Homeowners' First Amendment rights and adequately guards against the danger of intimidation suits. Thus, we decline to adopt the "sham" test as set out by the federal court.
Londono, 609 So. 2d at 18.
While appellees criticize appellant for equating "the limited immunity from suit accorded under the First Amendment" with the qualified privilege of Florida's common law, the supreme court's recent opinion in Londono does exactly this, relying upon its prior opinion in Nodar v. Galbreath, supra. The Nodar court found several legal grounds for holding that a father's remarks about his child's teacher to the school board "were made upon a privileged occasion." Nodar, 462 So. 2d at 809. The court first found that the statements were privileged based on mutuality of interest and speaker. "A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral and social obligation." Nodar, 462 So. 2d at 809. Another ground for holding that the father's remarks about his child's teacher were conditionally privileged was that "under the common law of Florida, a communication to an employer regarding his employee's performance is conditionally privileged, and the mode, manner or purpose of the communication would go to the question of abuse or forfeiture of the privilege." Id. Next, the court noted that another recognized legal ground for holding that the father's statements were privileged was that "they were statements of a citizen to a political authority regarding matters of public concern, i.e., the school curriculum and the performance of a public employee" and "yet another arguable ground" was "the privilege of every person to express to other persons his fair comment and criticism on any public, governmental, political, social, or cultural matters." Nodar, 462 So. 2d at 810, n. 5. The supreme court in Nodar noted that all these grounds of qualified privilege "have existed in the law of Florida for many generations and have served to provide broad protection" in the First Amendment area. Id. at 810.
Appellant thus seems correct in asserting that even where a qualified privilege exists, i.e. "statements of a citizen to a political authority regarding matters of public concern," that privilege carries with it the "obligation to employ means that are not improper," Turkey Creek, Inc. v. Londono, 567 So. 2d at 948; McCurdy v. Collis, 508 So. 2d at 384 and "the mode, manner or purpose of the communication would go to the question of abuse or forfeiture of the privilege." Nodar, 462 So. 2d at 809. Thus, even if appellees' remarks to and activities before the District were conditionally privileged, factual questions remain whether the mode, manner, or purpose of their communication amounted to abuse or forfeiture of the privilege.
The trial court's order states that "malice must be the sole basis for the interference" in a case of tortious interference with advantageous business relations, citing to Boehm v. American Bankers Ins. Group, Inc., 557 So. 2d 91, 95 (Fla. 3d DCA), rev. den., 564 So. 2d 1085 (Fla. 1990). While this is a correct statement of Florida law, appellees erroneously seem to rely on the case to argue that the trial court correctly dismissed the amended complaint. The Boehm decision itself makes clear that the question of malice is one of fact. Only "where the circumstances surrounding a defamatory communication are undisputed, or are so clear under the evidence as to be unquestionable, then the question of whether the occasion upon which they were spoken was privileged is a question of law to be decided by the court." Nodar v. Galbreath, 462 So. 2d at 810. The circumstances of appellees' activities before the District cannot be characterized as undisputed, given the allegations in appellant's complaint. When dealing with issues of qualified privilege, the question of whether a, privilege exists or has been exceeded in some manner creates a mixed question of law and fact which normally should be determined by the trier of fact. Healy v. Suntrust Service Corp., 569 So. 2d 458, 460 (Fla. 5th DCA 1990); Glynn v. City of Kissimmee, 383 So. 2d 774, 776 (Fla. 5th DCA 1980).
We are aware of the Concerned Citizens of Putnam County's argument that the present lawsuit reflects a standard tactic in environmental litigation. See Pring G. W., "SLAPPs: Strategy Lawsuits Against Public Participation," 7 Pace Environ. Law Review 3 (1989); Note, "Counterclaim and Countersuit Harassment of Private Environmental Plaintiffs: The Problem, Its Implications and Proposed Solutions," 74 Mich. L. Rev. 106, 110-111 (1975). The term "SLAPP" was coined by two University of Denver professors, George W. Pring and Penelope Canan. A SLAPP suit has been described as "one filed by developers, unhappy with public protest over a proposed development, filed against leading critics in order to silence criticism of the proposed development." Westfield Partners, Ltd. v. Hogan, 740 F. Supp. 523, 525 (N.D. Ill. 1990). In Monia v. Parnas Corp., 227 Cal. App. 3d 1349, 278 Cal.Rptr. 426, 435 (Cal. Ct. App. 1991), Dr. Canan defined:
SLAPP suits as civil actions for damages brought against individual citizens or citizens' groups for advocating issues of public importance by contacting a public official or the electorate. SLAPP suits are characterized by an effort to punish political opponents for past behavior, an attempt to preclude their future political effectiveness, the desire to warn others that political opposition will be punished, the use of the judicial system as a part of an economic strategy, or some combination of the above attributes. Groups targeted by SLAPP suits often lose members, funds, and political potency.
Appellees argue that the very pendency of such lawsuits as the instant one would have a chilling effect on First Amendment activity. However, extending absolute immunity to such activities would seem to extend to these activities a broader protection than the Constitution itself guarantees. Florida's Constitution provides that persons "shall be responsible for the abuse" of their free speech rights. Article I, s. 4, Florida Constitution. Further, our Constitution provides that the courts shall be "open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Article I, s. 21, Florida Constitution. To extend absolute immunity to appellees for their activity in the instant case would be to deny appellant its access to the courts. This we will not do.
Because we find that the trial court erred in dismissing appellant's amended complaint with prejudice, we reverse and remand for further proceedings.
REVERSED and REMANDED.
HARRIS and DIAMANTIS, JJ., concur.
Here's one for you JK:
The Hundred-Dollar Bill.
Santa Claus, the tooth fairy, and honest lawyer, and an old drunk were walking along when they simultaneously spotted a hundred-dollar bill laying in the street. Who gets it?
The old drunk, of course, the other three are mythological creatures.
The basic tenets of CRD reposted from initial thread for this website--
The basic goals of CRD are simple:
-To encourage residents and citizens of Missouri City neighborhoods to get actively involved in their local politics.
-To engage developers and city officials on value added growth and sustainable development over the long-term.
-Allow for more open/honest discussions on controversial issues that often don't get discussed in the community with regard to the above goals.
We look forward to hearing from you and keeping the dialogue going!
*********
Committee for Responsible Development
responsible_dvlpmnt@yahoo.com
Missouri City, TX-Group
Did you all catch that Fort Bend Star article on the attempted car-jacking in Sienna Plantation?
Another Annexation of Missouri City into Sienna Plantation MUD 8 (Not posted for residents of Sienna Plantation on our resident funded developer controlled website, newsletter or other internal media sources). It would be nice to know about these things before they go before city council for approval without resident/citizen participation.
To: Mayor and City Council Agenda Item:
8(c) Sienna Plantation Municipal Utility District No. 8
Prepared by: Millie Holifield, Utilities Coordinator Submitted by:
Lee Dorger, Director of Public Works
SYNOPSIS Sienna Plantation MUD No. 8 requests City's consent to annex 29.0967 acres of land located adjacent to the north side of Highway 6 and the south side of Fort Bend County's Kitty Hollow Park. The northern boundary of the existing Sienna MUD 8 is located just south of the subject site, on the south side of Highway 6, and along Sienna Parkway. Both the proposed MUD annexation area and existing Sienna MUD 8 are located entirely within the City limits.
BACKGROUND The developable portion of the subject land (approximately 17 acres) is zoned for commercial uses (PD Planned Development No. 53, 0-04-58). A portion of the remainder (6.7 acres) is zoned SD Suburban District and serves as the access road into Kitty Hollow Park. The remaining portion (4.7 acres), from our understanding, is to be condemned by TxDOT for Highway 6 widening, but is appraisal district records show that it is still owned by Sienna developers.
FISCAL ANALYSIS The proposed annexation would allow provision of in-district water and wastewater services to the commercially zoned portion of the proposed annexation area. The proposed annexation into an in-City MUD, Sienna MUD 8, is in accordance with the Sienna Plantation Joint Development Agreement. STAFF'S
RECOMMENDATION
Approve Frank Simpson
City Manager
For more on this download the .pdf file from http://www.ci.mocity.tx.us/council/cminutes/minagndtocfp.htm item 8c.
Q&A from Siennanet.com:
2006 Assessments Q&A
SPRAI provides answers to 2006 Assessment questions.
Full Article:
2006 ASSESSMENTS Q&A FOR SPRAI MEMBERSHIP
Q: Was there prior communication about the assessment increase?
A: There was discussion at both the October 24th and November 30th Board meetings. SPRAI members are always welcome to attend the Board meetings and the first 30 minutes of each meeting are available for Member Input Time. Notice of the Board meeting dates are posted on the LED board, in the newsletter, on the bulletin board at Club Sienna and in the Sienna E-news. Board minutes are posted on Siennanet once the board has approved them.
Q: You said that there has not been an increase in assessments since 1997. Wasn’t the original assessment lower?
A: Yes, that is correct, after rechecking our records; we have found that the original assessment was $550. This was increased in 2000 to $700 and was increased in 2001 to $750. We have increased our recreational amenities significantly in that period of time including the opening of Club Sienna Water Park and Brushy Lake Recreation Center.
Q: Is the Association required to give notice of an assessment increase?
A: The Declaration of covenants, conditions and restrictions states that the board shall in good faith attempt to cause the budget and assessments to be levied against each owner for the following year to be delivered to each member at least thirty (30) days prior to the end of the current year. Assessments were mailed in early December and are not considered late until after January 31. The assessment was posted on Siennanet and the newsletter.
Q: I did not receive my assessment until December 12th.
A: While we strive to have the assessments delivered by December 1st, technical difficulties did not allow us to meet this deadline.
Q: Should we expect an assessment increase every year?
A: SPRAI is forming a volunteer Finance Advisory Committee to assist the staff and Board in developing a long term financial plan which will help the board in setting future assessment levels.
Q: I do not understand the Property Owners Association (POA) and why a portion of my assessment goes to pay the POA dues.
A: We will be sharing some financial information relating to the POA at the January 12th meeting. The POA’s primary expenses are to maintain Sienna Parkway for landscaping, irrigation, lighting, and the lakes adjacent to the Parkway, a share of sheriff’s patrol and mosquito control. Sienna Point and SPRAI are members of SPPOA as are commercial property owners. SPRAI is made up of only residential property owners. At the Board meeting we will provide additional information relating to the SPPOA expenses.
Q: Is any of the assessment increase due to costs that should have been directly borne by the developer?
A: No. The developer pays their own costs directly for administrative, legal and marketing. In addition, the developer is deficit funding SPRAI in the amount of $500,000 for 2006.
Q: I have some questions about the budget which are not answered by the insert that came with my bill. How can I get more detail about the budget?
A: A meeting is scheduled for January 12, 2006 at Club Sienna at 7:00 p.m. to present the budget and answer questions about the budget and assessment, we hope you will attend.
_____________
CRD comments/questions on this.
--How will the finance committee be selected?
--Why haven't we been able to find any of this in the news letters (we have copies of all of them).
--Why was it reported that there has been only one increase and now you are saying there has been many since the SPRAI inception?
--How many homes are currently in Sienna that are owner occupied?
--How come the SPRAI board meeting agenda items are not included on Siennanet and the newsletter?
--Is this how paying members of the SPRAI will continue to be treated by the board/developers?
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