Clarke v. Phelan et al
Filing
191
ORDER granting 126 Motion for Summary Judgment. Signed by Judge Robert N. Scola, Jr. (ak02)
United States District Court
for the
Southern District of Florida
Dara Clarke, Plaintiff,
v.
Charles Phelan, and others,
Defendants.
)
)
)
) Civil Action No. 16-25217-Civ-Scola
)
)
Order on Motion for Summary Judgment
This matter is before the Court upon the motion for summary judgment
filed by the Defendants Charles Phelan, Gary Cohen, Daniel Lebensohn, BH3
Realty, LLC, Last Lot Corp., NI Holdings, LLC, Nomur Holdings, LLC, Privé
Developers, LLC, Two Islands Development Corp., and the Successor Trustee of
Trust No. 75-LT-21 (collectively, the “Developer Defendants”) (ECF No. 126).
After careful consideration of the motion, all opposing and supporting
submissions, and the applicable case law, the Court grants the motion (ECF
No. 126).
1. Introduction
At the heart of this case lies a bitter dispute over property rights among
individual homeowners, including the Plaintiff Dara Clarke and her husband
David Clarke, the City of Aventura (“City”), and the Developer Defendants,
which, for purposes of this case, ultimately resulted in the arrests of the
Plaintiff and her husband. The Plaintiff and her husband, as well as a number
of other homeowners, have clashed with the Developer Defendants and the City
over the construction of a sidewalk along a portion of land that the
homeowners contend belongs to them, and on which the Developer Defendants
maintain they had a right to build pursuant to an easement, and as a
requirement by the City related to the development of high rise condominiums
near their homes. The underlying dispute over property rights is not at issue
before this Court. However, as a result of the dispute, and the resulting arrests,
the Plaintiff filed suit asserting claims pursuant to 42 U.S.C. section 1983
against the police officer Defendants for excessive force (Count 1), for which the
Court denied summary judgment and against the City (Counts 2 and 3), for
which the Court granted summary judgment in favor of the City; and against
the Developer Defendants for malicious prosecution (Count 4), negligent
reporting to the police (Count 5), and defamation (Count 6 and Count 7 against
Lebensohn).
The Developer Defendants seek summary judgment on all the Plaintiff’s
claims against them.
2. Relevant Facts
The facts regarding the Clarkes’ arrests and the Plaintiff’s interactions
with the police officer Defendants are set forth in detail in the Court’s order on
the City and Officers’ motion for summary judgment (ECF No. 186). For
purposes of the present motion, there are several additional relevant facts,
which are undisputed. When Clarke returned to her home on the evening of
February 26, 2015 at approximately 5:30 p.m., she encountered the
construction crew still working on installing the sidewalk, after the hours
during which construction work is permitted in the development. (ECF No. 125
at ¶ 62 (“Defs.’ SOMF”); ECF No. 148 at ¶ 184 (“Pl.’s SOMF”).) She called the
police, and Officer Terry Scott responded, and spoke to both her and Phelan.
(Defs.’ SOMF at ¶¶ 62-63; Pl.’s SOMF at ¶ 184.) Phelan informed Officer Scott
that the work remaining included brushing down the concrete and finishing
clean up, and Officer Scott told Clarke that the workers would soon finish and
asked her to please allow them to do so. (Defs.’ SOMF at ¶¶ 64-65.) The
workers finished at around 6:30 p.m. (Id. at ¶ 66.) Phelan remained at the
worksite, and Clarke left in her Porsche sports utility vehicle (“SUV”) to pick up
her husband. (Id. at ¶¶ 67-68.) While he was waiting, Phelan called Cohen, and
while they were talking, Clarke and her husband, who was driving the SUV,
returned to the property and proceeded to drive over the newly-poured
concrete. (Id. at ¶¶ 67-68, 70, 72; Pl.’s SOMF at ¶¶ 186-187.) Although the
parties do not dispute that David Clarke drove over the offending structure,
they disagree as to whether the Plaintiff remained inside or exited the SUV
while he did so. (Defs.’ SOMF at ¶¶ 73, 83-84; Pl.’s SOMF at ¶ 187.) At the
time, Phelan was still on the phone with Cohen, who based upon Phelan’s
exclamations that Clarke was running over the sidewalk, hung up and called 91-1. (Defs.’ SOMF at ¶ 74.) Cohen assumed, based upon the Plaintiff’s conduct
earlier in the day, that she was the one driving over the sidewalks, which is
what he told the emergency dispatcher. (Id. at ¶ 75.) However, Phelan, who
Cohen consulted during the call with the dispatcher, specified that it was
David Clarke who ran over the sidewalk. (Id. at ¶ 78.) Cohen, who
coincidentally also lives in the Island Estates development, gave his address for
the dispatcher to send the police. (Id. at ¶ 76.)
Before the Officers arrived on scene, Clarke and her husband drove to
the development marina for Clarke to retrieve their other vehicle, a BMW,
which was parked there. (Id. at ¶ 87; Pl.’s SOMF at ¶ 189.) Phelan followed
them there. (Defs.’ SOMF at ¶ 88; Pl.’s SOMF at ¶ 189.) Clarke exited the SUV
and got into the BMW, whereupon David Clarke drove away in the SUV, and
Clarke, who had observed Phelan return to her property, also returned to the
property and called the police on the way. (Defs.’ SOMF at ¶¶ 87-89; Pl.’s
SOMF at ¶¶ 189-90.)
The parties dispute whether Phelan asked the Officers to arrest Clarke
when they responded; however, it is undisputed that Phelan did not tell the
Officers that Clarke herself had driven over the sidewalk, and ultimately, that
Sergeant Scott decided to arrest Clarke for disturbing the peace and resisting
arrest. (Defs.’ SOMF at ¶¶ 97, 109.) Phelan provided an approximate cost of
$3,000.00 to repair the curb installation. (Id. at ¶ 98.) The criminal mischief
charge was added later, following further police investigation determining that
Clarke had driven over the concrete. (Id. at ¶ 111.) Shortly after Clarke’s arrest,
Defendant Lebensohn shared information regarding her arrest, including her
mugshot, with the Defendant Privé’s marketing and public relations firm,
Boardroom Communications, Inc. (“Boardroom”), to publicize. (Id. at ¶¶ 12427.) Boardroom’s efforts resulted in the publication of three articles on Clarke’s
arrest, which were also referenced on Aventura Bytes blog posts. (Id. at ¶¶ 12833.) There were also several follow-up articles and subsequent media coverage.
(Id. at ¶¶ 135-42.)
Following the Clarkes’ release from jail, their cases fell under review of
the Felony Screening Unit of the State Attorney’s Office. (Id. at ¶ 143.) It is
undisputed that the assigned assistant state attorney (“ASA”) did not rely on
Phelan or Cohen’s estimates of the amount of damages, and that after
conducting his review, the ASA determined that the true issue at the heart of
the situation was to whom the property properly belongs. (Id. at ¶¶ 147, 150.)
As a result, the ASA decided not to pursue formal charges against Clarke or
her husband because the ultimate property rights had not been determined.
(Id. at ¶ 152.)
3. Legal Standard
Summary judgment is proper if following discovery, the pleadings,
depositions, answers to interrogatories, affidavits and admissions on file show
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. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “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.” Id. at 1260.
All the evidence and factual inferences reasonably drawn from the
evidence must be viewed in the light most favorable to the nonmoving party.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth
Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). “If more than one inference
could be construed from the facts by a reasonable fact finder, and that
inference introduces a genuine issue of material fact, then the district court
should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale,
901 F.2d 989, 996 (11th Cir. 1990).
Once a party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material fact, whether or not
accompanied by affidavits, the nonmoving party must go beyond the pleadings
through the use of affidavits, depositions, answers to interrogatories and
admissions on file, and designate specific facts showing that there is a genuine
issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant’s evidence must be
significantly probative to support the claims. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make
findings of fact. Id. at 249; Morrison v. Amway Corp., 323 F.3d 920, 924 (11th
Cir. 2003). Rather, the Court’s role is limited to deciding whether there is
sufficient evidence upon which a reasonable juror could find for the nonmoving
party. Id.
4. Analysis
The Developer Defendants have moved for summary judgment on all
claims asserted against them, arguing (1) that she cannot satisfy four of six
essential elements of the malicious prosecution claim; (2) that Clarke’s
negligent reporting claim fails because Phelan and Cohen made good faith
reports to the police and neither engaged in conduct sufficient to justify
punitive damages; (3) that Clarke’s defamation claim fails because she cannot
link any of the Developer Defendants to an allegedly defamatory statement, and
the statements made by Lebensohn are not actionable as defamation. The
Court considers each argument in turn.
A. The Developer Defendants are entitled to summary judgment
upon Clarke’s claim for malicious prosecution
To prevail in a malicious prosecution action, a plaintiff must establish
that the defendant commenced or continued a criminal prosecution against the
plaintiff, that there was no probable cause to justify the criminal prosecution,
that the criminal prosecution was ultimately terminated in favor of the plaintiff,
and that the plaintiff was damaged by the criminal prosecution. Alamo Rent-ACar, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994). The Developer
Defendants argue that Clarke cannot show an absence of probable cause for
her arrest because the officers had probable cause to arrest her for disturbing
the peace, resisting arrest, and felony criminal mischief. Clarke responds that
there was no probable cause to arrest her for criminal mischief because the
elements of the offense were not present when she was arrested. By her own
admission, Clarke appears to attempt to interlineate a challenge to her arrest,
though she has not asserted a claim for false arrest against the Officers.
Indeed, in her Response, Clarke asserts that her claim for malicious
prosecution “is based upon her arrest for criminal mischief.” (Resp., ECF No.
149 at 10.) However, Clarke does not dispute that she was initially arrested at
the scene for disorderly conduct and resisting arrest without violence (ECF No.
96-4 at 69-70, or that the charge of criminal mischief was added later (Pl.’s
SOMF at ¶ 109). Therefore, the argument that her arrest lacked probable cause
is not well-taken.
Moreover, Clarke does not dispute that in conducting his case screening,
the ASA did not rely on Phelan or Cohen’s estimates of the amount of damages,
and that he ultimately determined that no criminal charges be filed against
Clarke, as the true issue at the heart of the case involved a civil ownership
dispute in legal proceedings. Clarke also does not dispute that in the ASA’s
view, the Clarkes drove over the sidewalk, and there is no evidence that that
conclusion came from the Developer Defendants. Therefore, there is no
evidence to show that the Developer Defendants commenced or continued a
criminal prosecution against the plaintiff, or that a criminal prosecution even
existed, as no charges were in fact filed. Accordingly, Clarke cannot
demonstrate that there is a genuine issue of material fact with respect to her
claim for malicious prosecution, and the Court need not consider the
remaining arguments with respect to the claim. Thus, the Developer
Defendants are entitled to summary judgment on Count 4.
B. The Developer Defendants are entitled to summary judgment on
Clarke’s claim for negligent reporting
The Developer Defendants argue that they are entitled to summary
judgment upon Clarke’s claim for negligent reporting because there is no
evidence that the Developer Defendants made false reports to the police or that
they acted in a manner equivalent to punitive conduct. Upon review, the Court
agrees.
“[A] cause of action is available to one injured as a result of a false report
of criminal behavior to law enforcement when the report is made by a party
which has knowledge or by the exercise of reasonable diligence should have
knowledge that the accusations are false or acts in a gross or flagrant manner
in reckless disregard of the rights of the party exposed, or acts with indifference
or wantonness or recklessness equivalent to punitive conduct.” Valladares v.
Bank of Am. Corp., 197 So. 3d 1, 2 (Fla. 2016). Moreover, there is a “qualified
privilege for mistaken, but good faith reports of suspected criminal activity . . .
rooted in a public policy concern.” Id. at 11. However, “[t]he Supreme Court of
Florida recognized in Valladares that reckless misrepresentations to law
enforcement may overcome qualified privilege.” Lozada v. Hobby Lobby Stores,
Inc., 702 F. App’x 904, 913 (11th Cir. 2017).
Here, the record reflects that after talking to Phelan, Cohen called the
emergency dispatcher requesting the police believing, based upon Clarke’s
conduct earlier in the day, that Clarke was driving over the newly-poured
cement. However, in the recording of the 9-1-1 call, Phelan corrects Cohen’s
belief, clarifying that it is David Clarke who is driving over the cement. (ECF
No. 131.) It is undisputed that David Clarke drove over the cement, that the
Plaintiff was present when he did so, and that the Developer Defendants did
not tell the officers that Clarke herself had driven over the cement. Although
Clarke argues in response that the Developer Defendants made additional false
reports by representing that the curb was approved, and that they had a right
to build based upon the permit, the Court does not find that these are the
types of representations properly encompassed in a claim for negligent
reporting, principally because the reports do not entail criminal behavior—
especially when ownership of the subject property and the right to build on it is
as hotly contested as it is in this case. Therefore, the Developer Defendants are
entitled to summary judgment upon Count 5.
C. The Developer Defendants and Lebensohn are entitled to
summary judgment upon the defamation claims
The Developer Defendants argue that they are entitled to summary
judgment upon Clarke’s defamation claims because Cohen and Phelan made
good faith reports to the police and she cannot link any of the Developer
Defendants to any allegedly defamatory statements. In response, Clarke argues
that the dissemination of facts regarding her improper arrest was made in bad
faith.
To recover for either libel or slander, a plaintiff must establish that: 1)
the defendant published a false statement; 2) about the plaintiff; 3) to a third
party; and 4) the party suffered damages as a result of the publication. See
Valencia v. Citibank Int'l, 728 So. 2d 330 (Fla. 3d DCA 1999). “The first element
of the claim, a false statement of fact, is the sine qua non for recovery in a
defamation action.” Fortson v. Colangelo, 434 F. Supp. 2d 1369, 1378 (S.D. Fla.
2006) (Seltzer, M.J.) (internal quotations and citation omitted).
Once again, the Court notes that Clarke conspicuously has not
challenged the propriety of her arrest by claiming false arrest against the
officers. And Clarke’s defamation claims suffer a similar infirmity to her claim
for negligent reporting—she truly takes issue with the propriety of her arrest,
and the Developer Defendants sharing that information with their public
relations firm, but she fails to show that the Developer Defendants reported
false statements, as alleged in the Amended Complaint (ECF No. 14 at ¶ 108).
Clarke further alleged that the Aventura Bytes blog was used to defame her by
falsely and maliciously claiming that she was guilty of a felony; however, there
is no evidence in the record to support that allegation.1 Indeed, Clarke was
arrested, and the publication of information that is publicly accessible in a
police report cannot sustain a claim of defamation, especially where the police
report does not contain false statements. See Gregory v. City of Tarpon Springs,
Case No. 8:16-cv-237-T-33AEP, 2016 WL 7157554, at *9 (M.D. Fla. Dec. 8,
2016).
Lebensohn argues that his statements about the South Island
homeowners behaving like “spoiled brats”2 and about the Clarkes engaging in a
“fraternity prank” are not actionable as statements of pure opinion. “Pure
opinion occurs when the defendant makes a comment or opinion based on
facts which are set forth in the article which are otherwise known or available
to the reader or listener as a member of the public.” Fortson, 434 F. Supp. 2d
at 1378 (quoting From v. Tallahassee Democrat, Inc., 400 So. 2d 52, 57 (Fla. 1st
DCA 1982). Furthermore “[i]t is for the Court to decide, as a matter of law,
whether the complained of words are actionable expressions of fact or nonactionable expressions of pure opinion . . . .” Id. at 1379. As the Court has
previously stated, context is key to the determination of whether a statement
constitutes pure opinion. Horsley v. Rivera, 292 F.3d 695, 702 (11th Cir. 2002).
The record evidence reflects that Lebensohn made the “fraternity prank”
comment regarding the trespass action filed by the homeowners including the
Clarkes, in the midst of the bitter underlying ownership dispute over the land
upon which the sidewalks were built. (See ECF No. 124-9.) Although not
expressed in particularly sensitive or diplomatic fashion, Lebensohn’s comment
reflects his point of view with respect to the trespass claim. Therefore, the
Court finds that the statement is not defamatory as a matter of law because it
is statement of pure opinion. As a result, the Developer Defendants are entitled
to summary judgment upon Clarke’s defamation claims.
D. Conclusion
For the reasons set forth above, the Court grants the Developer
Defendants’ motion for summary judgment (ECF No. 126).
Clarke urges the Court to find that the Developer Defendants’ actions nevertheless
raise an issue of fact with respect to defamation, arguing that because their motives in
disseminating the information about her were improper, they may still constitute
defamation; however, her Amended Complaint alleges that the Developer Defendants
made false statements, which is not supported by the record evidence. Therefore, the
improper motive case law cited by Clarke is inapplicable in this case.
2 Clarke has agreed to withdraw the portion of her defamation claim based upon the
“spoiled brats” comment. (See Resp., ECF No. 149 at 25 n.8.)
1
Done and ordered at Miami, Florida on February 22, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge
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