NITV, L.L.C. v. Baker, 4D10-1503
May 25, 2011

NITV appealed an adverse jury verdict in the amount of $575,000, based upon Baker’s defamation claim. Baker and NITV were in competition, as they both distributed and provided training for similar “truth verifier” software programs used by law enforcement agencies. NITV prepared two documents, one of which was entitled “Law Enforcement Scam Alert” in reference to Baker’s business, and published them to Baker’s actual and potential customers. This triggered Baker’s defamation suit. At trial, the jury gave Baker an award for the loss of the ability to earn money in the past and future, as well as for the injury to Baker’s reputation.

On appeal, the Fourth District reversed the former and affirmed the latter. Citing State, Dep’t of Children & Family Servs. v. Amora, 944 So.2d 431, 435 (Fla. 4th DCA 2006), the Court held that Baker’s damages award for the past and the future lost earnings were not supported by competent substantial evidence. The Court noted that Baker’s testimony regarding his economic damages was “vague and ill-defined.” Baker provided no documentation or specificity that would support his testimony of his actual loss. The court also noted that his tax returns show that his income actually increased from 2003-2006.

Despite reversing the economic damages, the court affirmed the damages for injury to Baker’s reputation. The court cited Hood v. Connors, 419 So.2d 742, 743 (Fla. 5th DCA 1982) holding that general damages are presumed in slander per se actions. The court concluded that the jury certainly could have reasonably inferred that NITV intended the publications to cause damage to Baker’s reputation. Since the jury was properly instructed on causation and damages, and in the absence of a fixed standard on general damages, the Court affirmed the $250,000 award for injury to Baker’s reputation.

The issue was whether the trial court abused its discretion in ordering our client and our client’s attorney to pay 57.105 attorney’s fees in a defamation action.

Our client sued the opposing party for defamation after being forced out of business by the opposing party’s outrageous allegation that our client, a jeweler, replaced diamonds from the opposing party’s ring with cubic zirconias. Even though our client vehemently denied the accusation, the opposing party filed a police report accusing our client of replacing the diamonds with artificial stones. Several days later, however, the opposing party contacted the police to notify them that the diamonds in the ring were not swapped but were the original diamonds. Nevertheless, the opposing party moved for summary judgment and 57.105 attorney’s fees, against our client and our client’s attorney, stating that the accusation was believed to be true and our client failed to show malice. The trial court granted the summary judgment and the 57.105 fees reasoning that the opposing party was entitled to a qualified privilege for reporting a crime to the police.

The Fourth District Court of Appeal reversed the trial court’s 57.105 award and hinted that summary judgment was inappropriate. Specifically, the court noted that when a trial court grants an award of 57.105 attorney’s fees, “the reviewing court must determine whether the trial court abused its discretion in finding no justifiable issues of law or fact.”  In other words, the court held that “[a] case is frivolous” justifying the award of fees, “when it can be said to be ‘completely without merit in law’ or ‘contradicted by overwhelming evidence.’” As applied to our client, the court found that express malice may be inferred from the opposing party’s unreasonable conduct in accusing our client of stealing the diamonds and then, without ever investigating the matter, filing a police report. The court noted that, at the time the opposing party filed the report accusing our client of theft, the opposing party made no attempt to find out if the accusation was true. The court concluded that there was a reasonable inference that the opposing party intended to harm our client by getting the police involved, “perhaps because of their heated exchange the day before.”

Editor’s Note: At the time of writing this blog entry, a mandate from the court had not been issued.