Centennial Bank v. ServisFirst Bank Inc. et al
Filing
761
ORDERED: Third-Party/Counter-Defendant John W. Allison's Dispositive Motion for Final Summary Judgment 450, in which Plaintiff/ Counter-Defendant Centennial Bank joined 451, is GRANTED. A judgment in favor of Third-Party/Counter-Defendant John W. Allison and Plaintiff/Counter-Defendant Centennial Bank, and against Defendant/Third-Party Plaintiff, Gregory W. Bryant, as to the Third-Party Counterclaim will be entered at the conclusion of this litigation. Signed by Judge Charlene Edwards Honeywell on 3/10/2021. (CSS)
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 1 of 23 PageID 36959
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CENTENNIAL BANK,
Plaintiff,
v.
Case No: 8:16-cv-88-CEH-CPT
SERVISFIRST BANK INC.,
GREGORY W. BRYANT, GWYNN
DAVEY, PATRICK MURRIN and
JONATHAN ZUNZ,
Defendants.
___________________________________/
ORDER
This matter comes before the Court on Third-Party/Counter-Defendant John
W. Allison’s Dispositive Motion for Final Summary Judgment [Doc. 450] in which
Plaintiff/Counter-Defendant Centennial Bank joined [Doc. 541], Gregory W.
Bryant’s Opposition [Doc. 492], John W. Allison’s Reply [Doc. 511], and the Joint
Statement of Agreed Material Facts [Doc. 501]. In his motion, Mr. Allison presents
several arguments as to why the Court should enter judgment as a matter of law on
Mr. Bryant’s counterclaim against him for defamation. The Court heard arguments on
November 13, 2020 [Doc. 744].
Having reviewed the evidence presented and
considered the arguments of counsel, the Court will GRANT Third-Party/CounterDefendant John W. Allison’s and Plaintiff/Counter-Defendant Centennial Bank’s
Dispositive Motion for Final Summary Judgment.
1
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 2 of 23 PageID 36960
I.
BACKGROUND AND FACTS 1
Undisputed Material Facts
On June 17, 2015, Home BancShares, Inc. and its wholly-owned entity
Centennial Bank entered into an Agreement and Plan of Merger with Florida Business
BancGroup, Inc. and its wholly-owned entity Bay Cities Bank. [Doc. 501 ¶ ¶ 2, 14].
At the time, Mr. Bryant served as the President/CEO of Bay Cities. [Doc. 263 at p. 61
¶ 7, Doc. 37 ¶ 3]. By an agreement bearing the same date, Mr. Bryant also agreed to
employment with Centennial. [Doc. 199-2 at pp. 69-76]. A press release was issued
that same day and news of the merger was published by the Tampa Bay Business
Journal (“the Journal”). [Doc. 450-11; Doc. 450-7 at pp. 25-34]. On October 1, 2015,
Centennial acquired Bay Cities. [Doc. 391 ¶ 8].
On December 31, 2015, Mr. Bryant emailed his letter of resignation as Regional
President for the Tampa Bay region to Centennial’s President and CEO, Tracy French.
[Doc. 501 ¶ 21; Doc. 450-2 at p. 57]. Mr. Bryant also emailed resignation letters from
Patrick J. Murrin who served as Chief Lending Officer for the Tampa Bay Division;
Gwynn Davey who served as Market President for Hillsborough County; and
Jonathan Zunz who served as a Commercial Loan Officer II. [Doc. 501 ¶ 21; Doc. 38
¶ 3; Doc. 450-a at p. 74; Doc. 40 ¶ 3]. On January 4, 2016, the Journal ran a story that
1
The Court has determined the facts, which are undisputed unless otherwise noted, based on
the parties’ submissions, including affidavits/declarations, depositions, responses to requests
for admission, and the Joint Statement of Agreed Material Facts.
2
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 3 of 23 PageID 36961
“[t]wo months after Centennial Bank bought Bay Cities Bank, the former president
and CEO of Bay Cities has left.” [Doc. 450-7 at p. 53].
Centennial’s founder and chairman John Allison found out “fairly quickly” that
Bryant and the others might have been leaving for ServisFirst Bank and made a call
about this to ServisFirst’s CEO Thomas Broughton “pretty early in January.” [Doc.
450-2 at p. 44: l. 6 – p. 45: l. 15]. The two “were friends.” Id. at p. 38: l. 11-12; Doc.
450-4 at pp. 14, Tr. 228: l. 1 -12. During the call, Mr. Allison asked Mr. Broughton if
he had hired Mr. Bryant and why he had done so. [Doc. 450-2 at p. 38: l. 1 – l. 10;
450-4 at p. 14, Tr. 22: l. 12 – l. 23]. Mr. Allison also stated that he would have
eventually fired Mr. Bryant because Tampa Bay was Centennial’s worst performing
region. [Doc. 35-1; Doc. 450-2 at p. 38: l. 13 – l.14; Doc. 450-4 at p. 14, Tr. 228: l. 11
– l. 15].
Shortly after, Mr. Bryant, Mr. Davey, and Mr. Murrin were each sent copies of
their agreements with Centennial, reminded of their non-compete and non-solicitation
obligations, and admonished not to breach the non-solicitation and non-compete
provisions. [Doc. 501 ¶ 22]. Mr. Zunz and Mr. Broughton were also advised to refrain
from any acts which would violate the obligations of the non-compete or nonsolicitation provisions in Mr. Bryant’s, Mr. Davey’s, or Mr. Murrin’s agreements with
Centennial. Id. ¶¶ 23, 24. On January 14, 2016, Centennial filed suit against ServisFirst
and Mr. Bryant, alleging among other things that its former employees had engaged
in a pattern of actionable misconduct by leaving their senior positions in an
orchestrated manner in order to directly compete with Centennial as new employees
3
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 4 of 23 PageID 36962
of ServisFirst. [Doc. 1 ¶ 7]. The Journal ran a news story about the lawsuit that same
day. [Doc. 4507 at pp. 59-60]. The following day Centennial moved for an order
temporarily and permanently enjoining ServisFirst, Mr. Bryant, Mr. Davey, Mr.
Murrin, and Mr. Zunz from engaging in their “actionable misconduct” pending the
Court’s adjudication of the claims asserted in the complaint. [Doc. 4 at p. 1]. The
Journal also published a story about “the newest bank in Tampa Bay,” ServisFirst.
[Doc. 450-7 at p. 62]. The story was accompanied by a picture of Mr. Bryant, who was
identified as “former president and CEO of Bay Cities Bank and former Tampa
division president – briefly – for Centennial Bank after Centennial bought Bay Cities.”2
Id.
On January 21, 2016, Home Bancshares had a scheduled earnings call with
investors to discuss its fourth quarter 2015 performance. [Doc. 501 ¶ 25]. During that
meeting, Mr. Allison made the following statement:
Asset quality remained good except for, as always, when
we buy new a new bank. We bought Tampa, and we’ve got
to go in and clean that up - clean that mess up as always.
We’ve got about $23 million worth of non- performing and
past due loans are about 5% and it really was the only one
that ticked up, but it pulled our totals up just a little bit, but
we’ll get through that before too long as we always do. $23
million is something that we can deal with. The good news
is the CEO and the CLO are no longer with us.
2
The Journal had previously reported on January 11, 2016, that Mr. Bryant had joined
ServisFirst and had set up a loan production office in Lutz, Paso County—because of his oneyear employment agreement with Centennial—and hoped to have branches in Hillsborough
County upon expiration of his noncompete restrictions. [[450-7 at p. 57].
4
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 5 of 23 PageID 36963
Id. Details of the call were published by the Journal on January 26, 2016, in a story
titled “ServisFirst celebrates, Centennial bashes well-known Tampa banker.” [Doc.
450-7 at pp. 64-65].
Procedural history
On November 14, 2016, Centennial filed a second amended complaint adding
Ms. Davey, Mr. Murrin, and Mr. Zunz as defendants. [Doc. 199]. Mr. Bryant
answered that complaint on November 29, 2017 and filed a counterclaim against
Centennial and Mr. Allision for defamation. [Doc. 263 at pp. 61-65]. The counterclaim
specifically identified Mr. Allision’s statements to Mr. Broughton during the January
7, 2016, telephone call and his statements during the corporate earnings call on
January 21, 2016 and alleged that these statements—made on Centennial’s behalf—
damaged him. Id. ¶¶ 14, 15, 22. Additionally, Mr. Bryant alleged that these statements
may have been knowingly and deliberately false based on verified allegations in the
amended complaint that he was a talented banker who built Bay Cities Bank into a
“robust” institution for which Centennial agreed to pay a record amount of money. Id.
¶¶ 17-21.
After months of discovery and motion practice, Mr. Allison moved for
summary judgment on the counterclaim for defamation. [Doc. 450]. First, Mr. Allison
contends that because Mr. Bryant is a “public figure” he must show that the statements
were made with actual malice and he cannot do so. Id. at pp. 29-37. In fact, Mr. Allison
posits that the statements are not actionable because they constitute rhetorical
hyperbole or opinion. Id. at pp. 33-36. Mr. Allison further contends that summary
5
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 6 of 23 PageID 36964
judgment is warranted even if the Court determines that Mr. Bryant is not a public
figure as there is no evidence that he was negligent in making his statements about
Bryant; he relied on information provided to him by reliable sources. Id. at pp. 37-38.
Moreover, Mr. Allision contends that Mr. Bryant has no evidence of injury, as he
suffered no demotion, loss of pay or loss of authority, and was promoted at ServisFirst
Bank. Id. at p. 38. Mr. Allison further argues that a qualified privilege, under common
law, extends to his speech and the showing of express malice required to overcome
this privilege has not been shown. Id. at pp. 39-41. Mr. Allison also argues that
dismissal is required pursuant to Florida Statutes § 770.01 because Mr. Bryant did not
provide him with notice five days prior to filing suit of the specific words alleged to be
false and defamatory as the statute requires. Id. at pp. 41-42. Lastly, he argues that
summary judgment is required on the punitive damage claim as both constitutional
actual malice and common law express malice are required to sustain any recovery of
punitive damages in a defamation action and Mr. Bryant can show neither. Id. at p 42.
In his response, Mr. Bryant has called into question the contradiction between
Mr. Allison’s two statements and the allegations in the Verified Amended Complaint
“which depicted [Mr.] Bryant as a talented banker whose departure crippled
Centennial and destroyed the purpose of the Bay Cities acquisition.” [Doc. 492 at pp.
6-7. First, he argues that he is neither a public figure for all purpose nor for a limited
purpose, such that he is only required to establish that Mr. Allison was negligent in
making the statements at issue. Id. at pp. 7-13. But, he contends that genuine issues of
fact preclude summary judgment on the issue of Mr. Allison’s negligence. Id. at pp.
6
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 7 of 23 PageID 36965
18. On the one hand, he explains that Mr. Allison purports to have evidence that in
making the statements he relied on information provided to him by Kevin Hester, the
bank’s chief lending officer. Id. On the other hand, he states that if it turns out that Mr.
Hester’s information was false, Mr. Allison would have jumped the gun in making his
statements and would have been at least negligent. Id. At the same time, he contends
that even though proof of actual malice isn’t required, there are contradictions between
Mr. Allison’s statements and the allegations in the complaint and interrogatory
responses, which entwine his counterclaim with Centennial’s claims, and are sufficient
to defeat summary judgment. Id. at pp. 13-17. Mr. Bryant further contends that the
common law privilege does not apply and that the protections afforded by the Florida
Statutes only extend to members of the media. Id. at pp. 19-21.
Mr. Allison filed a reply, explaining that all the material facts are not in dispute,
and again defending each of his grounds for summary judgment. [Doc. 511]. There,
he described Mr. Bryant as “a civic leader in Tampa Bay . . . for more than 30 years”
who “reigned over an institution that provided extensive financing to businesses large
and small, amassing for itself assets of more than $500 million;” “regularly accessed
the media;” and “used his post to become a statewide figure, playing a prominent role
in influencing state and federal legislative and regulatory decisions,” which rendered
him a pervasive public figure in his community. Id. at pp. 10-11. According to Mr.
Allison, Mr. Bryant also meets the requirements to qualify as a limited purpose public
figure or a vortex public figure at the center of a public controversy. Id. at p. 11-12.
Among other things, Mr. Allison argues that Mr. Bryant cannot make the threshold
7
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 8 of 23 PageID 36966
showing that the statements were substantially false, and that Mr. Allison made the
statements with actual malice. Id. at pp. 13-16.
II.
LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show 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(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Issues of fact are “genuine only if a reasonable jury, considering the evidence
present, could find for the nonmoving party,” and 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, 248–49 (1986). In determining whether a genuine issue of material fact exists, the
court must consider all the evidence in the light most favorable to the nonmoving
party. Celotex, 477 U.S. at 323.
The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of
material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to support the nonmoving party’s case.”
Celotex, 477 U.S. at 325. When the moving party has discharged its burden, the
nonmoving party must then designate specific facts showing that there is a genuine
issue of material fact. Id. at 324. However, a party cannot defeat summary judgment
8
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 9 of 23 PageID 36967
by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x
852, 858 (11th Cir. 2006). Likewise, “[a] ‘mere existence of a scintilla of evidence’
cannot suffice to create a genuine issue of material fact.” Johnson v. New Destiny
Christian Ctr. Church, Inc., No. 19-11070, 2020 WL 5289881, at *3 (11th Cir. Sept. 4,
2020) (quoting Anderson, 477 U.S. at 252).
III.
DISCUSSION
Under Florida law, defamation has these five elements: “(1) publication; (2)
falsity; (3) the statement was made with knowledge or reckless disregard as to the
falsity on a matter concerning a public official, or at least negligently on a matter
concerning a private person; (4) actual damages; and (5) the statement must be
defamatory.” Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews For
Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008)). Mr. Bryant has raised issues as
to the falsity of the statements, the presence of malice or negligence, as well as the
existence of an injury. [Doc. 450 at pp. 26-38].
a. Falsity
“A false statement of fact is the sine qua non for recovery in a defamation
action.” Hallmark Builders, Inc. v. Gaylord Broad. Co., 733 F.2d 1461, 1464 (11th Cir.
1984) (citing Byrd v. Hustler Magazine, Inc., 433 So.2d 593, 595 (Fla.App.1983)); see also
Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1308 (11th Cir. 2001) (“[A]
statement must be false to be libelous.”). Without falsity, a claim for defamation
cannot lie. For example, in Dunn v. Air Line Pilots Ass'n, 193 F.3d 1185, 1188 (11th Cir.
9
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 10 of 23 PageID 36968
1999), the appellate court held that that the district court for the Southern District of
Florida had correctly granted summary judgment against the pilots on their libel
claims—against the Air Line Pilots Association—for failure to show falsity in listing
them as “scabs.” In so holding, the court reasoned that considering the undisputed
facts, a reasonable reader of defendant’s list of “The Scabs of Eastern of the Strike of
'89” would interpret it as a list of those pilots who crossed the union's picket lines and
worked during the 1989 work stoppage, and because the pilots admitted that they had
crossed picket lines to work during that 1989 work stoppage, defendant’s listing of
them as “scabs” was factually true. Id. at 1194.
Addressing this element of defamation, the Eleventh Circuit recently stated:
True statements, statements that are not readily capable of
being proven false, and statements of pure opinion are
protected from defamation actions by the First
Amendment. Keller v. Miami Herald Publ'g Co., 778 F.2d 711,
714–15, 717 (11th Cir. 1985) (applying Florida law); Blake
v. Giustibelli, 182 So.3d 881, 884 n.1 (Fla. Dist. Ct. App.
2016) (“Statements of pure opinion are not
actionable.”); Anson v. Paxson Commc'ns Corp., 736 So.2d
1209, 1211 (Fla. Dist. Ct. App. 1999); Miami Child's World,
Inc. v. Sunbeam Television Corp., 669 So.2d 336, 336 (Fla.
Dist. Ct. App. 1996).
Under Florida law, a defendant publishes a “pure opinion”
when the defendant makes a comment or opinion based on
facts which are set forth in the publication or which are
otherwise known or available to the reader or listener as a
member of the public. From v. Tallahassee Democrat, Inc., 400
So.2d 52, 57 (Fla. Dist. Ct. App. 1981). Mixed expression
of opinion occurs when an opinion or comment is made
which is based upon facts regarding the plaintiff or his
conduct that have not been stated in the publication or
assumed
to
exist
by
the
parties
to
the
10
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 11 of 23 PageID 36969
communication. Id.; Stembridge v. Mintz, 652 So.2d 444, 446
(Fla. Dist. Ct. App. 1995).
Whether the statement is one of fact or opinion and whether
a statement of fact is susceptible to defamatory
interpretation are questions of law for the court. Keller, 778
F.2d at 715; Fortson v. Colangelo, 434 F.Supp.2d 1369, 1379
(S.D. Fla. 2006); From, 400 So.2d at 56-57. When making
this assessment, a court should construe statements in their
totality, with attention given to any cautionary terms used
by the publisher in qualifying the statement. Keller, 778 F.2d
at 717. It is also the court's function to determine “whether
an expression of opinion is capable of bearing a defamatory
meaning because it may reasonably be understood to imply
the assertion of undisclosed facts that justify the expressed
opinion about the plaintiff or his conduct.” Stembridge, 652
So.2d at 446 (quoting Restatement (Second) of Torts § 566,
comment c).
Turner, 879 F.3d at 1262-63. See Hamze v. Cummings, 652 F. App'x 876, 881 (11th Cir.
2016) (“Jenne's June 2007 statements to the media are not actionable because they
were either statements of opinion or true statements. Jenne's expression of his opinion
that Hamze's crime was ‘a brutal, senseless, roadrage killing’ that showed a ‘disregard
for human life[]’ . . . cannot support a claim for defamation. And, as alleged in the
complaint, Jenne's statement that he intended to charge Hamze with first degree
murder was substantially true.”). “[A] speaker cannot invoke a ‘pure opinion’ defense,
[however,] if the facts underlying the opinion are false or inaccurately presented.” Deeb
v. Saati, 778 F. App'x 683, 687–88 (11th Cir. 2019).
To illustrate what qualifies as a pure opinion, the Supreme Court in Milkovich v.
Lorain Journal Co., 497 U.S. 1, 18-19 (1990), explained that the statement, “In my
opinion Mayor Jones is a liar” would be actionable because the speaker “implies a
11
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 12 of 23 PageID 36970
knowledge of facts which lead to the conclusion that Jones told an untruth.” However,
the Court noted that the statement “ ‘In my opinion Mayor Jones shows his abysmal
ignorance by accepting the teachings of Marx and Lenin,’ would not be
actionable.” Id. at 20. The Court reasoned that “a statement of opinion relating to
matters of public concern which does not contain a provably false factual connotation
will receive full constitutional protection.” Id. (with reference to Philadelphia
Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)).
In Turner, the Eleventh Circuit considered several statements made in an
investigative report prepared by a law firm hired to investigate allegations of bullying
within the Miami Dolphins professional football organization. 879 F.3d at 1259, 1263.
One of the statements was that on at least one occasion plaintiff had participated in
“homophobic taunting” of a particular player. Id. at 1264. The court found that the
statement was an opinion as it was the defendants' subjective assessment of the
plaintiff’s conduct—as outlined in the investigative report—and was not readily
capable of being proven true or false. Id. The court also found that statements in the
report that plaintiff “should have realized that it was inappropriate to send [certain]
text messages to an emotionally troubled player” and that this “demonstrated poor
judgment on [plaintiff’s] part” were also not actionable as they were pure opinions. Id.
at 1266. See also Keller, 778 F.2d at 717-718 (holding that a newspaper cartoon's
suggestion that plaintiff acted objectionably by taking advantage of patients at
Krestview Nursing Home constituted a statement of pure opinion as “[t]he facts upon
which the statement was based were contained in the cartoon: the condition of the
12
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 13 of 23 PageID 36971
nursing home and the large amount of money the ‘Boss’ had made” and “the facts . .
. had been well publicized so that . . . readers were aware of the series of events upon
which the cartoonist based his opinion.”).
The Court agrees with Mr. Allison that his statement to Mr. Broughton, that he
would have fired Mr. Bryant eventually because Tampa Bay was Centennial’s worst
performing region is a statement of pure opinion. Again, “[a] ‘pure opinion’ is ‘a
comment or opinion based on facts which are set forth in the publication or which are
otherwise known or available to the reader or listener as a member of the public.’ ”.
Deeb, 778 F. App'x at 687 (quoting Turner, 879 F.3d at 1262). The comment that Mr.
Bryant would have been fired eventually is based on facts presented in the statement
that Tampa Bay had the worst performance. The statement did not leave anything to
implication. Milkovich, 497 U.S. at 18-19. Mr. Bryant has presented no evidence that
the facts underlying the opinion are false or inaccurately presented. 3 Therefore, as a
matter of law, a claim cannot lie as to Mr. Allison’s statement to Mr. Broughton.
“[S]tatements of pure opinion are protected from defamation actions by the First
Amendment.” Turner, 879 F.3d at 1262 (citing Keller, 778 F.2d at 714–15, 717).
Likewise, Mr. Allison’s statement, during the corporate earnings call, that Mr.
Bryant’s departure from Centennial is “good news” and that Centennial had to clean
up a mess when it acquired Bay Cities, including $23 million in non-performing loans
3
In fact, as Mr. Allison notes in the reply, Mr. Bryant does not contest that Tampa was
Centennial’s worst performing bank or that Mr. Allison would have fired him. [Doc. 511 at
p. 16].
13
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 14 of 23 PageID 36972
and past due loans of 5 percent, 4 also constitutes pure opinion. This is because the
opinion that it was “good news” that Mr. Bryant was no longer with Centennial was
accompanied by the factual statements as to the value of non-performing loans and
percentage of past due loans acquired following the merger. Mr. Allision provided a
factual reason for his opinion and there is no implication that there are any undisclosed
facts, which serve as the basis for that opinion. As is the case with the other statement,
Mr. Bryant does not claim that the facts underlying the opinion are false or
inaccurately presented. 5 Hence, judgment as a matter of law is warranted as to the lack
of falsity of these statements. Because Mr. Bryant cannot establish falsity, the Court
need not consider the remaining elements of defamation and the counterclaim fails as
a matter of law. However, the Court will consider the issue of Mr. Bryant’s status as
a public figure.
b. Malice regarding a public figure
The absence of malice provides another independent basis for summary judgment
in this case. It has long been established that “[i]f the injured party is a public figure or
official and the defamatory material involves issues of legitimate public concern, the
4
In contending that Mr. Bryant has sued on three statements, Mr. Allison presents these
allegations as two defamatory statements. [Doc. 450 at p. 27, Doc. 511 at p. 15]. However,
the Court construes these allegations, both raised in the same paragraph of the counterclaim,
as one defamatory statement. See generally Mahoney v. Owens, 818 F. App'x 894, 898 (11th Cir.
2020) (“[I]n making the necessary preliminary determination of what claims the plaintiff has
actually raised ... we are bound by the contents of the plaintiff's pleadings, even
on summary judgment.”) (quoting Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir.
2005)).
5
Mr. Allison points out that Mr. Bryant does not contest the assertion that he left Centennial
holding $23 million in non-performing or past due loans. Id.
14
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 15 of 23 PageID 36973
plaintiff must prove that the defendant acted with actual malice to establish liability.”6
Silvester v. Am. Broad. Companies, Inc., 839 F.2d 1491, 1493 (11th Cir. 1988) (collecting
cases). Proof of actual malice is required in such situations “[b]ecause of the expressive
freedom guaranteed by the First Amendment.” Berisha v. Lawson, 973 F.3d 1304, 1310
(11th Cir. 2020). To show actual malice, a plaintiff must show that the “defendant[]
published the defamatory material with a ‘high degree of awareness of ... [its] probable
falsity.’ ” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13
L.Ed.2d 125 (1964)).
i.
Mr. Bryant is a public figure
“Determining whether an individual is a public figure—and thus subject to the
actual malice analysis—is a question of law for the court to decide.” Michel v. NYP
Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016). “An individual may qualify as a
public figure either generally—that is one with such fame and notoriety that he will be
a public figure in any case—or for only ‘limited’ purposes, where the individual has
thrust himself into a particular public controversy.” Berisha, 973 F.3d at 1310
(citing Turner v. Wells, 879 F.3d 1254, 1272 (11th Cir. 2018)). “We apply a two-part
test to determine whether someone is a limited public figure: ‘First, [we] must
determine whether the individual played a central role in the controversy. Second, [we]
6
To the contrary, a private figure need only establish negligence to recover for defamation.
Miami Herald Pub. Co. v. Ane, 458 So. 2d 239, 242 (Fla. 1984); Rubin v. U.S. News & World
Report, Inc., 271 F.3d 1305, 1306 (11th Cir. 2001) (stating same); see also Straw v. Chase Revel,
Inc., 813 F.2d 356, 361–62 (11th Cir. 1987) (“[A]lthough a private figure can recover
compensatory damages upon a showing of simple fault or negligence, to recover punitive
damages the aggrieved party must meet the New York Times standard of actual malice.”).
15
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 16 of 23 PageID 36974
must determine whether the alleged defamation was germane to the individual's role
in the controversy.’ ” Id. (quoting Turner, 879 F.3d at 1272); see also Little v. Breland, 93
F.3d 755, 757 (11th Cir. 1996) (stating that “to determine if the plaintiff is a limited
purpose public figure . . . we must ‘(1) isolate the public controversy, (2) examine the
plaintiff's involvement in the controversy, and (3) determine whether the alleged
defamation [was] germane to the plaintiff's participation in the controversy’ ”)
(quoting Silvester v. Am. Broad. Cos., 839 F.2d 1491, 1494 (11th Cir. 1988)).
The Eleventh Circuit has explained that:
Two “fundamental” criteria help draw the line between
public and private figures: (1) “public figures usually have
greater access to the media which gives them a more
realistic opportunity to counteract false statements than
private individuals normally enjoy”; and, more
importantly, (2) public figures typically “voluntarily expose
themselves to increased risk of injury from defamatory
falsehoods.”
Id. (quoting Silvester, 839 F.2d at 1494). “For the most part those who attain this status
[of public figure] have assumed roles of especial prominence in the affairs of society.”
Hutchinson v. Proxmire, 443 U.S. 111, 134, 99 S. Ct. 2675, 2687–88, 61 L. Ed. 2d 411
(1979). They usually “invite attention and comment.” Id. at 134.
The record before the Court shows that over the years—from as early as the
year 2000—Mr. Bryant has been quoted and pictured in the Journal in relation to the
affairs of Bay Cities during his time at the helm of that bank and in relation to the
banking industry. [Doc. 450-6 at pp. 5, 8-9, 11-12, 13-14, 15-17, 18-19, 20-21, 29-30,
31-32, 33-35, 37, 39-41, 43-44, 46, 47-49, 50-51, 53-54, 79]. He was also featured in a
16
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 17 of 23 PageID 36975
number of articles in that publication regarding Centennial’s acquisition of Bay Cities.
[Doc. 450-7 at pp. 25-26, 27, 28, 29, 32-33, 34, 42]. Shortly after he informed
Centennial of his resignation, the Journal ran a story about it. Id. at pp. 53. The Journal
also reported that he joined ServisFirst after he resigned, and that Centennial had filed
a lawsuit against both Mr. Bryant and his new employer. Id. at pp. 57, 59-60, 62, 6465.
The undisputed evidence easily qualifies Mr. Bryant as a public figure for the
limited purpose of the banking profession and the merger between Centennial and Bay
Cities under Mr. Bryant’s leadership and Mr. Bryant’s departure to ServisFirst shortly
after. He is undoubtedly the central figure in the controversy, which according to the
complaint is the “orchestrated relocation of Bryant, Murrin, Davey, and Zunz . . .
from Centennial to ServisFirst, shortly after Centennial’s acquisition of the Departed
Officers’ former employer, Bay Cities Bank.” [Doc. 199 ¶ 10].
To determine whether the first part of the test is satisfied, the Court considered
the press surrounding the sale of Bay Cities to Centennial. Forty-three banks were
initially approached to buy Bay Cities and eight of those banks submitted initial bids.
[Doc. 501 ¶¶ 6, 7, 9]. It was Centennial that emerged as the ultimate buyer, executing
the agreement to merge on June 17, 2015. Id. ¶ 14. According to a story in the Journal
the following day, “[t]he $101.6 million purchase price . . . is the second-highest price
paid for a bank in Florida since 2007, and the highest price paid for a bank that's under
$1 billion in assets.” [Doc. 450-7 at p. 25]. The Journal further reported that “[a]ll of
Bay Cities top executives plan to stay with Centennial, including Bryant, who will
17
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 18 of 23 PageID 36976
oversee banking activities in greater Tampa Bay.” Id. at p. 26. In his “exclusive
interview” with the Journal for the story, Mr. Bryant remarked that Centennial was
“paying a big price for [Bay Cities]” and that “[y]ou just don't pay a big premium for
someone and then fundamentally change what they do and what they're about and the
people." Id. In fact, the Journal specifically reported in subsequent stories that “all of
the bank's top executives plan to stay with Centennial, and customer-facing employees
won't be affected by the deal, although some back-office workers may be impacted.”
Id. at pp. 28, 30.
On December 31, 2015, Mr. Bryant emailed his letter of resignation to
Centennial’s president and he also attached the resignations of Mr. Murrin, Ms.
Davey, and Mr. Zunz. [Doc. 501 ¶ 21]. The news was reported a few days later in the
Journal, which described Mr. Bryant as “a key player in negotiating Bay Cities' $104
million sale to Centennial.” [Doc. 450 at p. 53]. The following week, the Journal
reported that Mr. Bryant had “joined ServisFirst Bank as CEO for Tampa Bay” and
that Centennial had filed a lawsuit related to this. Id. a pp. 57, 59. The evidence before
the Court shows continued coverage by the Journal regarding the developments
following the merger between the two banks and a focus on Mr. Bryant’s role, as the
“key player,” in these events. He has provided no evidence to the contrary.
Moreover, the statements made by Mr. Allison were certainly germane to Mr.
Bryant’s involvement in the controversy, thus satisfying the second part of the test as
to whether one qualifies as a public person for a limited purpose. The first statement,
that Mr. Allison would have eventually fired Mr. Bryant because Tampa Bay was
18
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 19 of 23 PageID 36977
Centennial’s worst performing region, goes directly to Mr. Bryant’s departure from
Centennial. It is the departure from Centennial that has given rise to this lawsuit and
by his statement, Mr. Allison certainly offered comment related to Mr. Bryant’s
continued occupation with the bank had he not left for ServisFirst. Likewise, the
statements during the earnings call that “[t]he good news is the CEO[, Mr. Bryant,]
and the CLO are no longer with us” because Centennial had to go in and “clean that
mess up” and there was about $23 million worth of non- performing and about 5%
past due loans, also relate directly to Mr. Bryant’s exit from the bank as regional
president and the reason Mr. Allison believes this was “good news.”
As Mr. Allison contends, Mr. Bryant’s role and conduct has invited attention,
comment, and criticism. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974);
Silvester, 839 F.2d at 1494. Based on his involvement in the merger of the banks and
his role in providing comments to the Journal on this and other issues in banking in
the Tampa Bay area, the Court finds that Mr. Bryant is clearly a public figure for a
limited purpose, his participation in the banking industry. As such, for liability to exist
there must be a showing that Mr. Allison acted with malice. 7 Silvester, 839 F.2d at
1493.
ii.
No proof of actual malice
7
While the Court need not address whether Mr. Bryant also qualifies as a public figure for all
purposes, the evidence presented does not reflect that Mr. Bryant has the “persuasive power
and influence” that is characteristic of one who is a public figure for all purposes. Hutchinson,
443 U.S. at 134. Additionally, the Court need not consider whether common law protections
or those provided by the Florida Statutes apply.
19
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 20 of 23 PageID 36978
Because Mr. Bryant is a public figure, proof of actual malice—by clear and
convincing evidence—is required. Berisha, 973 F.3d at 1310, 1312. To show actual
malice, a plaintiff must show that the “defendant[] published the defamatory material
with a ‘high degree of awareness of ... [its] probable falsity.’ ” Id. at 1312 (quoting
Garrison, 379 U.S. at 74). “It is a subjective test, which asks whether the publisher ‘in
fact entertained serious doubts as to the truth of his publication.’ ” Id. (quoting Silvester,
839 F.2d at 1498). Mr. Allison argues that even if Mr. Bryant could offer evidence as
to the falsity of the statements, the Court could not also conclude that a reasonable
jury could find with convincing clarity that when he made his statements to Broughton
and to the investors, he knew that his statements about Mr. Bryant were false or that
he recklessly disregarded the truth. [Doc. 450 at pp. 36-37]. Mr. Allison explains that
when he made the statements Centennial had only just begun to uncover facts relating
to self-dealing that Mr. Bryant had engaged in and actively concealed. Id. at pp. 12-14,
19-20, 33-37. Mr. Allison also argues—in the section on negligence—that he relied on
information available from his reliable team of bank officers when he made the
statement to Mr. Broughton and when he spoke during the earnings conference call.
Id. at pp. 37-38.
Mr. Bryant contends that Mr. Allison displayed extreme personal animosity and
express malice towards him. [Doc. 492 at pp. 4-6, 15]. In fact, he claims that Mr.
Allision concluded that he deserved to pay. Id. at p. 15. Allegedly, Mr. Allison was
upset because: (i) Centennial paid more for Bay Cities than Allison wanted to pay; (ii)
20
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 21 of 23 PageID 36979
Hovde 8 negotiated stock for Bryant (which Bryant abandoned before it vested); and
(iii) after the merger closed, Bryant decided he did not want to work for Centennial
“forever.” Id. at p. 6. Mr. Bryant also notes that Mr. Allision’s statements conflicted
with the claims in the verified complaint, which depicted him as a talented banker
whose departure crippled Centennial and destroyed the purpose of the acquisition. Id.
at pp. 6-7.
The evidence before the Court does not reflect an issue of fact as to whether Mr.
Allision made the statements at issue with a “high degree of awareness of ... [their]
probable falsity.” Berisha, 973 F.3d at 1310 (internal quotes omitted). As Mr. Allision
notes, in his reply, “Bryant does not contest that Tampa was Centennial’s worst
performing bank under Bryant or that Allison would have fired him.” [Doc. 511 at p.
16]. This is telling. Moreover, and importantly, it is unrefuted that regardless of
whatever animosity Mr. Allison harbored towards Mr. Bryant, he relied on
information from his team of bank officers when the statements were made. 9 Id. at pp.
37-38. That Mr. Bryant was described in a verified complaint as “a mature and
experienced community banker” whose “departure inhibits growth” is by no means
indicative of whether there were nonperforming loans at the bank, whether they had
also then discovered information as to his self-dealing, and even whether they would
have still kept him on. Bryant fails to establish actual malice. Accordingly, no genuine
8
Hovde Group, LLC had been hired to market Bay Cities for sale. [Doc. 492 at p. 4 n.3].
Mr. Allision’s behavior towards Mr. Bryant during the deposition is not sufficient to
establish actual malice at the time the alleged defamatory statements were made, about three
years earlier.
9
21
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 22 of 23 PageID 36980
issues of material fact exist as to whether Mr. Allison acted with actual malice when
making the statements about Mr. Bryant, a limited public figure.
IV.
CONCLUSION
In sum, Mr. Allision’s statements are not actionable as they constitute pure
opinion. In making the statements at issue, Mr. Allison presented an opinion along
with facts supporting that opinion. Therefore, as a matter of law, Mr. Bryant cannot
show the falsity of the statements. Mr. Bryant also has not created an issue of fact as
to the existence of malice, which he must do as a limited public figure, a designation
warranted by his key role in the acquisition of Bay Cities by Centennial and the series
of events that unfolded afterwards, as reported in the media. Because no genuine
issues of material fact exist, Third-Party/Counter-Defendant John W. Allison is
entitled to judgment in his favor.
Accordingly, it is hereby ORDERED:
1. Third-Party/Counter-Defendant John W. Allison’s Dispositive Motion
for Final Summary Judgment [Doc. 450], in which Plaintiff/ CounterDefendant Centennial Bank joined [Doc. 451], is GRANTED.
2. A judgment in favor of Third-Party/Counter-Defendant John W. Allison
and
Plaintiff/Counter-Defendant Centennial
Bank,
and
against
Defendant/Third-Party Plaintiff, Gregory W. Bryant, as to the ThirdParty Counterclaim will be entered at the conclusion of this litigation.
22
Case 8:16-cv-00088-CEH-CPT Document 761 Filed 03/10/21 Page 23 of 23 PageID 36981
DONE AND ORDERED at Tampa, Florida on March 10, 2020.
Copies to:
Counsel of record and unrepresented parties, if any
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?