Opinion
No. 3D23-1431
04-03-2024
Chris BORCHETTA, Appellant, v. Scott HANKINS, Appellee.
Chris Borchetta, in proper person. Scott J. Edwards, P.A., Scott J. Edwards (Boca Raton), Breuer Law, PLLC, and Stephen Breuer (Boca Raton), for appellee.
An appeal from the Circuit Court for Miami-Dade County, Maria de Jesus Santovenia, Judge. Lower Tribunal No. 22-2298
Chris Borchetta, in proper person.
Scott J. Edwards, P.A., Scott J. Edwards (Boca Raton), Breuer Law, PLLC, and Stephen Breuer (Boca Raton), for appellee.
Before SCALES, MILLER, and GORDO, JJ.
MILLER, J.
[1, 2] Appellant, Chris Borchetta, appeals from a final summary judgment rendered in favor of appellee, Scott Hankins. We affirm and write only to reiterate the well-established tenet that "‘if a defamation count fails, the other counts based on the same publication must fail as well because the same privileges and defenses apply.’ " Ozyesilpinar v. Reach PLC, 365 So. 3d 453, 461 (Fla. 3d DCA 2023) (quoting Callaway Land & Cattle Co. v. Banyon Lakes C. Corp., 831 So. 2d 204, 208 (Fla. 4th DCA 2002)). And here, casting aside the fact that several other courts have construed the very statement at issue, when tethered to established facts, to be the type of "loose, figurative[,] or hyperbolic" language that is immunized from defamation claims, the essential element of publication fails upon the summary judgment record before us. Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 (N.Y. App. Div., 1st Dep’t 1999); see also Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) ("A defamatory statement does not become actionable … until it is published or communicated to a third person; statements made to the person alleging the defamation do not qualify."); Hullick v. Gibraltar Priv. Bank & Tr. Co., 279 So. 3d 809, 810 (Fla. 3d DCA 2019) (affirming summary judgment for non-actionable defamation claims that failed to establish "the essential element of publication to a third party"); Mogged v. Lindamood, No. 02-18-00126-CV, 2020 WL 7074390, at *16 (Tex. App.–Fort Worth Dec. 3, 2020) ("[The phrase ‘sexual predator’] falls within the broader principle that a speaker’s individual judgment that ‘rests solely in the eye of the beholder’ is mere opinion.") (quoting Falk & Mayfield, L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.–Houston [14th Dist.] 1998)); Rosado v. Daily News, L.P., 2014 WL 883648, at *2 (N.Y. Sup. Ct. Jan. 31, 2014) (finding "the phrase ‘sexual predator’ is a non-actionable statement of opinion"); Burgoon v. Delahunt, 2000 WL 1780285, at *4 (Minn. Ct. App. Dec. 5, 2000) (holding phrase "sexual predator" fell "within the doctrines of hyperbole, opinion, and substantial truth" and therefore was non-actionable). This failure of proof cannot be defeated by the unsupported claim that the testimony offered in opposition to summary judgment was untruthful. See Francois v. JFK Med. Ctr. Ltd. P’ship, 370 So. 3d 324, 329–30 (Fla. 4th DCA 2023) ("Under the new standard, a unilateral claim from the plaintiff that the defendant is lying, standing alone, is not enough to avert summary judgment.") (citing In re Amends. to Fla. R. Civ. P. 1.510 , 317 So. 3d 72, 76 (Fla. 2021)). Accordingly, the judgment is affirmed.
Affirmed.