**Update: JOHNSON DEVELOPMENT SLAPP SUIT WITH SIENNA PLANTATION HOMEOWNERS WHO FOUGHT APARTMENTS HEADS INTO MONTH NUMBER 9 AS COST RISE IN THE CASE!!!
In February Jeff Singer, Sugar Land legal counsel for homeowners in Sienna Plantation who fought 2700 apartment units (7-11 complexes) being injected into this quiet neighborhood by Johnson Development Corporation (JDC) of Houston (developer for Sienna Plantation and Riverstone communities here in Missouri City and major campaign backer of Mayor Allen Owen), filed lawsuits against the mega-developer for fraud, trade deception, negligence, harassment, etc. for unspecified exemplary damages. Initial discovery by JDC, in the case they initiated, was filed in early August of ’05 following a number of attempts by Sienna residents opposed to the apartment development to meet with the president, Larry Johnson, to discuss the possible elimination or reduction of such units planned for the subdivision here.
On February 20th 2006 residents from a number of Sienna area neighborhoods attended a city council session to resubmit their request to the city that in ’05 allowed JDC to move forward on these plans, as covered on local cable channel 16. Ethics complaints were filed regarding the mayor for not recusing himself during the voting on these complexes in ’05 and for his advocacy for the JDC project, after it was discovered that the president of the company was his number 2 contributor over the previous 5 year period (see campaign contributions lists on file with the city). These complaints remain uninvestigated as of this deadline. The week following the local media coverage on this controversy, JDC/SJD filed their SLAPP case (what’s known as Strategic Lawsuits Against Public Participation – known as corporate censorship by legal experts and outlawed in nearly 25 states) in an attempt to silence criticism from homeowners in their development. Matthew Feinberg, designer-operator of the now defunct SiennaTalk.com & MissouriCityTalk.com neighborhood websites, appealed the early court protective decisions by appointed Associate Judge Pedro Ruiz and later elected Judge Thomas Culver of the Fort Bend County 240th District Court eventually to the Texas Supreme Court, which turned the appeal back to the lower courts. JDC’s Houston lawyer, John Keville, failed in his attempts to sanction the constitutional attorneys involved in the appeals for Mr. Feinberg, the Sienna homeowner and resident attempting to protect those that participated on his websites.
The latest court filings contain SJD/JDC’s response to the fraud, trade deception and harassment accusations made by Sienna homeowners in February for not being kept informed of these plans when purchasing in Sienna Plantation, as documented at city council sessions in February ’05 and in local media here. The next potential phases, according to targets in this SLAPP-suit by JDC, may involve requested sanctions, depositions of involved city officials, JDC company employees, company documents and possibly other Sienna residents in the ongoing investigation by the homeowner’s legal counsel.
For background on this case see http://www.fortbendnow.com/news/719/activist-slaps-back-in-countersuit-against-sienna-plantation-developer or http://www.fortbendnow.com/news/645/texas-supremes-side-with-siennajohnson-deny-bid-to-seal-deposition or http://www.fortbendstar.com/Archives/2006_1q/011806/n_Appeal%20filed%20with%20Texas%20Supreme%20Court%20to%20keep%20Sienna%20bloggers%20anonymous.htm and stay tuned to MissouriCityChatter.blogspot.com for breaking news on the Missouri City mayors race as challenger businessman, independent and longtime resident Greyling Poats seeks developer-backed, special interest incumbent Allen Owens seat on council.
For local news or to discuss local and county issues visit Matthew Feinberg’s latest discussion site at http://www.fortbendtalk.com or get the county news online at http://www.fortbendnow.com.
Stay informed and keep in touch!
*******
Committee for Responsible Development
Responsible_dvlpmnt@yahoo.com
http://missouricitychatter.blogspot.com
Missouri City, TX
posted by responsible_dvlpmnt at Sunday, April 02, 2006
16 Comments:
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see related news from FBNow.com:
Developer Pushes Ahead With Rosenberg Apartment Plans Despite Opposition
by Bob Dunn, Apr 1, 09:18 pm
A San Antonio developer has decided to move ahead with plans for a controversial low-income apartment complex in Rosenberg, although he says the odds are slim it will ever be completed.
Greg Thorse said in a recent interview he’ll proceed with a state application for tax credits for Providence Estates apartments, a 168-unit project planned for the southeast corner of Louise Street and Airport Drive.
The project drew strong opposition at a March 21 Rosenberg City Council meeting, with citizens and council members uniting against it at least in part because it’s aimed at people with limited incomes. The council voted 4-1 to adopt a resolution against Thorse’s plans.
After the meeting, Thorse said he would take a few days to decide whether to proceed in the face of such fierce opposition. Late last week, he said he decided the project was so far along, he may as well apply for the tax credits.
“To be honest, the chances are not really that good,” Thorse said, adding that he thinks he has only a 20% chance of winning the credits. And without them, “it’s a deal-breaker.”
Thorse said his chances were hurt when state Rep. Dora Olivo sent a “negative” letter to the agency with whom he’s making application.
In addition, Thorse said, he’s learned recently that engineering costs for the project site may come out so high that it won’t be feasible to build the apartments.
Last month, he said demographic information he’d obtained indicated Rosenberg was a prime city in which to build income-assisted apartments, because the occupation rate for existing units in Rosenberg is an unusually high 98.6%.
Rosenberg attorney Don Schwartz spoke out against the project at last month’s council meeting, saying residents believe it will drive down property values.
“We need to deter people from coming in and building apartments that might become a slum or ghetto. Why should Rosenberg be the gathering point for all of this?” Schwartz said, as a crowd at the meeting erupted into applause.
“I feel you’re condemning people before you even know them,” Councilor Antonio Martinez, who voted against the resolution, told Schwartz, “just because they might not be able to afford what you can afford.”
From FBStar:
http://www.fortbendstar.com/032906/n_Rosenberg%20Council-citizens%20oppose%20planned%20apartments.htm
This comment has been removed by a blog administrator.
More background on this case from the FB Sun:
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.
Hello JK and the gang!
Recent Florida SLAPP-suit:
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.
Comments on this case from the FBNow site:
1 - - Feb 14, 04:46 am
Background on this strike case:
Johnson Development SLAPP (Strategic Lawsuit Against Public Participation) case against own residents begins.—
http://www.fortbendnow.com/news/317/fight-over-apartments-could-restrict-free-speech-on-the-web·
Allen Owens Involvement in this case?—http://www.fortbendnow.com/opinion/351/an-open-letter-to-the-missouri-city-mayor
Johnson Development SLAPP suit against own residents adds homeowners committee and asks for maximum damages allowable by law.
http://www.fortbendnow.com/news/487/sienna-plantation-developers-sue-community-activist-for-defamation
Sienna-Johnson Development Co. supports road diversion which will aid airport expansion/flights over Sienna Plantation.
http://www.fortbendnow.com/opinion/544/raising-a-red-flag-over-arcola
Feinberg appeals case to protect homeowners from exposure by Johnson Development. SLAPP suit continues.
http://www.fortbendnow.com/news/548/missouri-city-case-over-anonymous-web-postings-appealed-to-texas-supreme-court
TX. Supreme Ct. refuses to act on the petition upholding lower courts decision providing inadequate protections for SiennaTalk.com participants (homeowners in Sienna). Court also refuses to hear Johnson Development lawyers arguments on attempts to injunct/sanction resident’s attorneys, homeowners or the claim of frivolous appeal (not a victory for Keville and JDC).
http://www.fortbendnow.com/news/645/texas-supremes-side-with-siennajohnson-deny-bid-to-seal-deposition
-For more on this and the fight against Arcola airport expansion/road diversion courtesy of Bob Hebert, FAA, Jaime Griffith, Johnson Dev. Co (Sienna/Johnson) and Mayor Gipson visit http://missouricitychatter.blogspot.com .
2 Carlos Krystof - Feb 15, 04:12 pm
I moved to Sienna at the end of 2002. I was told straight up that apartments were going in. Beyond that I was told any future plans were subject to change. Case in point, I am very disappointed about the removal of the golf course from Sienna South. Will this bring my property value down? Will apartments? It is very unlikely. As it stands Sienna property is about 20-30% higher than neighboring communities. That is becuase Sienna is second only to the Woodlands in size, and they have a master plan that includes everything from apartments, to schools, 3000 acres of parks, sports fields, playgrounds, retail, commercial, a hospital, a community college, a library, recreation facilities, pools, horse stables, and lush landscaping of 100s of acres of common areas. By the way, property in the Woodlands is 20 – 30% higher than Sienna. Anyone who feels decieved by their builders or Sienna has the option of the selling their property and may even come out a head. As a Sienna resident for many years I do not appreciate the publicity and stink raised over the apartments or making it appear that the whole community was against it. They will be high quality apartments that will serve a basic need of the community. Thank you.
3 Right To Be - Feb 15, 05:42 pm
Go getem Chris!!!
4 expandingairport - Feb 16, 05:48 am
And I suppose they also told you about the expanding airport and increased jet traffic that will come as a result of your developers support of the road diversion and airport expansion?
Of course (sarcasm intended) increased density, increased jet traffic over Sienna and surrounding communities is welcomed?
Most people by homes as part of their portfolio for retirement and expect consistent return. They also purchase because of the school system. Apartments do not add value to school taxing districts—they over-crowd them as has been historically documented. Whether or not all Sienna residents supported the petition drive which garnered over 1100+ signatures is irrelevant. The reason home values currently are high is because Sienna is a new neighborhood. Travel up a few exits and see this same mix in action and assess those property values (2-3% increase in a market that has seen 8% or more). Take a look at Quail Valley just a few miles from you all. Home values are flat and they are trying to sell off parts of their golf course.
Planning..planning..planning! We don’t see any apartments here in Riverstone, another masterplan or Lake Olympia.
Check your facts first before making such claims. I believe a recent article by Mr. Wiley of the Greater Fort Bend Econ. Dev. Council stated it well when he expressed his deep concern over the excessive development of apartments in this county. The 2700 allowed into the Missouri City community (specifically the Sienna apts) almost matches the growth of all the apts. over the past 5 years of the entire county.
As far as changing plans goes maybe they shouldn’t call them masterplanned communities anymore if it is going to be a rotating map.
My-2-cents
5 William but you can call me "Bill" - Feb 16, 06:26 am
When you look at this suit from a privacy issue, it gets kind of scary. Tell me Bob, if someone took your deposition looking for the ID of your people posting, what would they learn?
This is how my republican majority in the courts is starting to scare me. Big business always appears to be right and the individual is always wrong. What does is it matter who posted what on his site. All they are trying to do is scare people from making negative comments about their development. “Better not say something bad or we will take you to court”
I have voted republican for the past 20 years, but the party is starting to scare me. They have Killed the US Constitution and the
Amendments for political purposes. This is the real problem and the Dems, they are not much better. Had we had a judge with more courage and appelate court justices who were not bought and paid for by the developers this article would not even be here. Whether Mr. Calvin is right or wrong on the development I don’t care. This is turned into a much larger issue with the lawsuit they filed. Boy, talking about lawsuit abuse, by the very people who are fighting for tort reform. Their moto should be “you can no longer sue me, but I can take everything you have just because I am big business” That is sure the message this case sends to me. Just another case of the republican controlled courts stepping on the little guy. What else is new. Corruption in another form. My thought for this election is vote them all out and give some new a chance. Also, when they start spouting god and the republican party platform look out. Experience has shown this only means that they cannot think for themselves and will do anything to get elected. Oh and lets not forget the Democrats who can only say me me me me.
6 Tara Jurica - Feb 16, 08:26 am
I completely and totally object to Mr. Keville’s (attorney for Sienna/Johson) statment that Chris Calvin made it appear a large number of people supported his critical views of Sienna/Johson, when it really wasn’t the case. I am not quite sure where John Keville has been, but there are LITERALLY thousands of people who feel the same way Mr. Calvin does, the only difference is that they are, probably in fear of retaliation, not willing to to speak up in the way Mr. Calvin has.
For Mr. Keville to make comments such as that, he apparently hasn’t been to a city council meeting, where these topics were discussed, or maybe he just wasn’t paying attention.
7 Chris Calvin, Ph.D. - Feb 16, 08:37 am
Bill,
I would have to agree with you. There was a time I thought the republicans were the last defenders of the const. I no longer feel or think that way. Perhaps it was a mistake to believe such. The process was co-opted long ago, but what scares the special interests the most is if the general population decides to “wake up” and take back local control. With low local voter turn-outs and few real selections, disinterest increases. How does one lone candidate run against the well financed non-local machine candidates?
I will be voting a mixed ticket this year and not for the machine folks. The goals they espouse and their actions are out of sink. When they start really looking out for voters, homeowners, families, taxpayers then maybe, but not as long as the strings are being pulled by someone else.
Get out and vote this year. Find out who is supporting your candidate (via the campaign contributions), check on their voting record and if it doesn’t match your belief system then vote the alternative—but vote!
8 John Armstrong - Feb 16, 01:47 pm
Carlos… I guess we are at opposite sides on this one. But, since I’ve been dealing with people of the same view point, that we were not told and we do not think apartments will add value to the community (especially the school systems in the area) I am glad you spoke up. I really wished that I had your apparent spokes person as you did… because I wasn’t told a thing about the apartments. Now, as to the ‘stink’ well, that is portional to the size of the ‘road apple’. Trust me this ‘stink’ as you put has been blown out of proportion not by the doings of Mr. Calvin. I have never seen so much blantant attempts at misdirection over what was said and conclusions drawn during the deposition. There were alot of accusations made about Mr. Calvins guilt of this, that and the other thing. But, never a quote of what he did say. In fact it was sold in the papers as ‘it’s time to get back to real people and have real conversations’... blah, blah. Was that a quote of Mr. Calvins? No. Mr. Calvins first action item was inquiring with the developers over the development, lets talk face to face. You want to know what happened with that request, nothing. In fact, meetings that were set up were canceled.
So, I too don’t appreciate the ‘stink’ per se but, make sure you understand that you are down wind of it, as is Mr. Calvin.
Challenge to JDC:
"Come and take our cannons!" ;-)
Related post:
Thursday, March 23, 2006
NOTIFICATION Sienna Plantation Residents: Is "SELECTIVE CODE ENFORCEMENT" harassment?
Hello All,
Just wanted to keep all those Sienna homeowners/residents, who have supported or been involved with the CRD in its efforts to address development issues in our community (no more apartment petition drive, second firestation delay, sales maps updated, participation in the national petition drive to reform the developer/building trades, opposed the airport expansion project, support value added growth in our community and surrounding areas, etc.), informed that we have been receiving reports from Sienna residents who participated with the CRD of "SELECTIVE CODE ENFORCEMENT". Although we strongly urge all residents to comply with their deed restrictions we would also like those of you who supported or participated with the CRD to be aware that reports are coming in. We are keeping tabs on this and have given the information to our legal counsel. If you fall into the above categories and feel you are being singled out then please contact us here at responsible_dvlpmnt@yahoo.com. Currently we have a Fraud, Trade Deception & Harassment Lawsuit filed on Sienna Johnson Developers who also run our SPRAI board (homeowners association). During this process the courts have requested potential witness lists which are made available to SJD's legal counsel. If these lists are being misused then legal recourse through the courts via our attorneys is an option, but they must be well documented. First we must collect this data and then report it to the courts. So please if you suspect this is happening to you or your family then feel free to contact us.
Stay informed and keep in touch for regular updates on the SLAPP-suit by Johnson Development Co. of Houston (Larry Johnson, Pres.) and the counter-suit listed above by Sienna homeowners(SLAPP-back).
*****
Committee for Responsible Development-SP Group
responsible_dvlpmnt@yahoo.com
http://missouricitychatter.blogspot.com
Missouri City, TX
posted by responsible_dvlpmnt at Thursday, March 23, 2006
Who can define corporate paternalism for me?
Here's a blast fromt he past article ('05)-
Remember--
FB Sun Article (7/25-7/29/05)
This article appeared recently in the FB Sun. Any comments are welcome:
Missouri City mayor gets piece of advice from residents
By: DIANE TEZENO, Reporter 07/26/2005
Comments made by Missouri City Mayor Allen Owen at the June 6 council meeting have evoked adverse response from some residents and one of them asked the city to hire a consultant to advise city council members and the mayor on their public behavior.
Four citizens spoke at the July 18 council meeting regarding the mayor's comments.
In the June 6 meeting, Owen told Roy Die, a resident of Sienna Plantation, to "sell" his home in response to the homeowner's concerns over lack of communication by Johnson Development Corporation on the issue of bringing apartments to Sienna.
As the discussion continued Owen said, "The developer that has his name on the note says that when you want to start telling him how to run Sienna, you need to sign the note with him because he has a lot more invested in that than you do in your house."
Paul Malone, a resident of the Waterbrook subdivision off Sienna Parkway, was one of the four who spoke at the council meeting. Malone said he is a consulting clinical psychologist for businesses and government entities, but he had no interest in securing a consulting relationship with the city.
Malone said he is not "an amateur observer of organizational dysfunction." He suggested that the city engage the services of a consultant to address recent behavior that has locked citizens in a "double bind" when trying to express their concerns, much like dysfunctional behaviors that develop in families.
Malone said he was focusing his comments on the mayor because he was the leader of the organization, but that he was not solely to blame for recent perceptions, and his views pertained to others on council as well.
Malone said that Owen has made significant contributions during his many years of public service, including countless hours of volunteer service, and that "no one person is more responsible for development of the city of Missouri City than Owen." He said that he did not believe that Owen's recent public statements were intentional, but the fact remains that perceptions have been shaped by those comments.
"Governments were created to serve people, not people to serve governments," said Malone.
Malone told the mayor and council that the perception from Owen's comments in the June 6 council meeting were that "how much money a person contributes determines how you will be treated by city government."
Malone said that public records show that over his political history Owen has received the largest campaign contributions from Johnson Development Corporation, the developer of Sienna Plantation, which fuels the perception of a conflict of interest. Owen, who gave Malone additional time beyond the standard five minutes allowed for public comments, thanked the resident for his comments. He then responded that the Sienna apartments issue, has divided council and divided the city and there is not an easy solution to it.
With respect to campaign contributions, Owen said, "I'm proud that developers and builders have chosen to support me as Mayor. I haven't intentionally shown favoritism to any developer, and I am not at all ashamed of the people that have supported me in the past. If not for the relationship with Larry Johnson, the City would not have not been able to sit down with him and compromise on what they finally compromised to do."
Owen said the city has hired consultants in the past to iron out problems, but the "A" word (referring to apartments), has created divisions on council and in the city.
Chris Calvin, who coordinates a group called the 'Committee for Responsible Development', during public comments said Owen had violated the code of ethics.
The mayor knowingly accepted campaign contributions from Johnson Development, Inc., and did not recuse himself when pushing through the apartments issue in February and continues to defend those actions even now, Calvin said later. The Sienna resident says Owen should have recused himself during the voting as well as during the arguments in February.
Sixty percent of campaign contributions over the last two years, according to city records, came from developers, Calvin said.
Calvin also criticized the Mayor for comments made to two Sienna residents, Roy Die and Mary McClure, in the June 6 council meeting. He asked council to investigate his allegations of code of ethics violations by the Mayor.
©Houston Community Newspapers Online 2005
Reader Opinions:
Responsible Development Jul, 26 2005
Excellent article Sun! Some coverage of the 1100 to 1200 petition signatures against the second grouping of 1800 apartments coming to Sienna/Mo-City might have been a nice addition too.--CRD
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