Phillips et al v. Epic Aviation, LLC
Filing
124
OPINION AND ORDER denying 69 Motion for Partial Summary Judgment; denying 78 Motion for Partial Summary Judgment; denying 79 Motion for summary judgment. Signed by Judge John E. Steele on 9/22/2015. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BONITA
B.
PHILLIPS
JEFFREY S. PHILLIPS,
and
Plaintiffs,
v.
Case No: 2:13-cv-410-FtM-29MRM
EPIC
AVIATION,
LLC,
Oregon corporation,
an
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiffs' Renewed
Motion for Partial Summary Judgment on Count II (Doc. #69) of the
Third Amended Complaint; plaintiffs’ Motion for Partial Summary
Judgment on Count I (Doc. #78) of the Third Amended Complaint; and
defendant’s Motion for Final Summary Judgment (Doc. #79) in its
favor on both counts.
ripe for review.
Responses were filed, and the motions are
(Docs. ## 76, 81, 82.)
I.
Summary
judgment
is
appropriate
only
when
the
Court
is
satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(a).
“An issue of fact is ‘genuine’ if
the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”
Baby Buddies, Inc. v. Toys “R” Us,
Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).
A fact is “material”
if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“A
court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.
Scott v. Harris, 550 U.S. 372, 380 (2007); Tana
v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).
However, “if
reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even where the parties agree
on the basic facts, but disagree about the factual inferences that
should be drawn from these facts”)).
“If a reasonable fact finder
evaluating the evidence could draw more than one inference from
the facts, and if that inference introduces a genuine issue of
material fact, then the court should not grant summary judgment.”
Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1315 (11th Cir. 2007).
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II.
Plaintiffs’ verified and renewed motion for summary judgment
is based almost entirely on the facts established in the underlying
bankruptcy record, Bankruptcy Case Numbers 9:06-bk-5685-FMD and
9:06-bk-07489-FMD, and the district appellate record, Case Numbers
2:12-cv-585-FTM-29, 2:12-cv-669-FTM-29, and 2:13-cv-113-FTM-29 1.
The facts are well known by the parties and the undersigned.
May
7,
2013,
in
the
consolidated
bankruptcy
appeals,
On
the
undersigned issued an Opinion and Order setting forth the relevant
history between the parties, affirming the Bankruptcy Court, and
finding that the lis pendens on plaintiffs’ homestead property was
properly dissolved and extinguished by the Bankruptcy Court.
In
re Phillips, No. 2:12-CV-585-FTM-29, 2013 WL 1899611, at *11 (M.D.
Fla. May 7, 2013).
On September 24, 2014, the Eleventh Circuit
Court of Appeals affirmed the Opinion and Order and otherwise
dismissed defendant’s “Sale Order Appeal” as moot.
See In re
Phillips, 574 F. App'x 926 (11th Cir. 2014).
A. Count II – Quiet Title
Plaintiffs seek summary judgment on Count II of the Third
Amended Complaint (Doc. #58) to quiet title on their property.
Defendant also seeks summary judgment in its favor, asserting that
1
This case was initially opened as a miscellaneous case, Case
Number 2:13-mc-5-FTM-29.
3
the
issue
is
moot
and
the
Court
also
lacks
subject-matter
jurisdiction due to the lack of any case or controversy.
As
previously summarized on March 19, 2014, in this case,
To state a claim for quiet title, plaintiffs
must show that they have title to the
property, that a cloud on the property exists,
identify and show what is clouding the title,
and allege facts giving rise to the validity
and invalidity of the claim. Stark v. Frayer,
67 So. 2d 237, 239 (Fla. 1953).
Phillips v. Epic Aviation, LLC, No. 2:13-CV-410-FTM-29, 2014 WL
1092458, at *4 (M.D. Fla. Mar. 19, 2014).
they
have
title
to
the
property,
and
Plaintiffs assert that
this
first
element
is
undisputed by defendant or the record. Having reviewed the record,
including the Joint Pre-Trial Statement (Doc. #113), the Court
finds material facts remain in dispute with regard to whether a
cloud on the property exists, and that the dissolution of the lis
pendens does not render the issues moot.
Both motions for summary
judgment will be denied.
B. Count I - Slander
Plaintiffs also seek summary judgment on Count I of the Third
Amended Complaint (Doc. #58) for slander of title. Defendant seeks
summary
judgment
in
its
favor
arguing
that
the
actions
were
privileged acts undertaken in a judicial proceeding and taken in
good faith.
The elements of slander of title are that: (1)
A falsehood (2) has been published, or
communicated to a third person (3) when the
4
defendant-publisher
knows
or
reasonably
should know that it will likely result in
inducing others not to deal with the plaintiff
and (4) in fact, the falsehood does play a
material and substantial part in inducing
others not to deal with the plaintiff; and (5)
[actual
and/or]
special
damages
are
proximately caused as a result of the
published falsehood.
. . .
Even if these factors are met, if an
affirmative defense of privilege is raised,
the burden shifts to the plaintiff to prove
actual malice in order to recover.” [ ]. The
affirmative defense of good faith raises a
privilege and creates a factual issue as to
the existence of malice.
IberiaBank v. Coconut 41, LLC, 984 F. Supp. 2d 1283, 1304 (M.D.
Fla. 2013) (citations omitted), aff'd, 589 F. App'x 479 (11th Cir.
2014).
In
the
Amended
Complaint,
plaintiffs
seek
compensatory
damages, consequential damages, punitive damages, and attorney
fees.
(Doc. #58, ¶ 59.)
“In a disparagement action, the pecuniary
loss recoverable for the injurious falsehood is restricted to that
which results directly and immediately from the falsehood's effect
on the conduct of third persons and the expenses incurred to
counteract the publication.”
Bothmann v. Harrington, 458 So. 2d
1163, 1170 (Fla. 3d DCA 1984) (emphasis in original).
Special
damages are an essential element in a disparagement of title cause
of action.
Id.
There is at best disputed evidence of actual or
special damages caused by the disparaging title.
5
Damages for a
claim of slander of title include reasonable attorney’s fees, and
those damages must be determined by the trier of fact.
Fraser v.
Sec. & Inv. Corp., 615 So. 2d 841, 843 (Fla. 4th DCA 1993).
Plaintiffs have presented some evidence of potential damage
related to the loss of contract for the purchase of the home,
however no evidence is presented with regard to a current purchase
price or current value of a sales contract.
(Second) of Torts § 633 (1977).
See Restatement
Based on the Declaration of Mr.
Wood, attorney’s fees were clearly incurred while trying to remove
the cloud on the property, however the reasonable amount of fees
is not undisputed. Plaintiffs used the services of an expert based
on the Expert Disclosures (Doc. #78, Exh. 4), however no expenses
are detailed.
As plaintiffs have failed to establish damages,
plaintiffs have failed to establish a prima facie case for slander
of title.
See, e.g., IberiaBank v. Coconut 41, LLC, 984 F. Supp.
2d at 1305; Donald M. Paterson, Inc. v. Bonda, 425 So. 2d 206, 208
(Fla. 4th DCA 1983); Cont’l Dev. Corp. of Fla. v. Duval Title &
Abstract
Co.,
356
So.
2d
925,
927-28
(Fla.
2d
DCA
1978).
Plaintiffs’ request for summary judgment will be denied.
Since the Court finds that plaintiffs fail to establish
slander of title on summary judgment, the Court need not reach
6
defendant’s
defense
of
privilege,
or
whether
plaintiff
could
establish actual malice to overcome the privilege. 2
Accordingly, it is now
ORDERED:
1.
Plaintiffs' Renewed Motion for Partial Summary Judgment
on Count II (Doc. #69) as to Count II of the Third Amended Complaint
is DENIED.
2.
Plaintiffs’ Motion for Partial Summary Judgment on Count
I (Doc. #78) as to Count I of the Third Amended Complaint is
DENIED.
3.
Defendant’s Motion for Final Summary Judgment (Doc. #79)
is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
22nd
day of
September, 2015.
Copies:
Counsel of record
2
“If a privilege is shown by a defendant, however, the
plaintiff must establish the defendant acted with “actual malice”
to overcome the privilege.” Bothmann v. Harrington, 458 So. 2d at
1168 n.3.
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