Utterback v. Morris

Full title: THOMAS M. UTTERBACK, Plaintiff, v. CRAIG B. MORRIS, Defendant.

Court: United States District Court, Northern District of Florida

Date published: Jul 26, 2024

5:23-cv-279-TKW/MJF (N.D. Fla. Jul. 26, 2024)

Opinion

5:23-cv-279-TKW/MJF

07-26-2024

THOMAS M. UTTERBACK, Plaintiff, v. CRAIG B. MORRIS, Defendant.

Michael J. Frank United States Magistrate Judge

REPORT AND RECOMMENDATION

Michael J. Frank United States Magistrate Judge

Plaintiff alleges that Defendant committed the tort of “defamation by implication” when he made statements about Plaintiff's felony conviction for money laundering and Plaintiff's history of civil litigation. Defendant moves to dismiss for failure to state a claim upon which relief can be granted. Because Plaintiff fails to allege any defamatory implication and because Defendant's statements are substantially true or constitute mere opinion, Plaintiff has failed to state a claim upon which relief can be granted. The District Court, therefore, should dismiss this civil action.

I. Background

A. The Parties

In 1998, Plaintiff Thomas M. Utterback-who then was an attorney practicing law in Missouri-pleaded guilty to money laundering. Doc. 15 at 6; see United States v. Utterback, 4:98-cr-26-CDP (E.D. Mo. Aug. 7, 1998). Not surprisingly, the Missouri Supreme Court promptly disbarred Plaintiff after his conviction.

Subsequently, from 2003 to 2015, Plaintiff worked as a real estate agent in the Florida Panhandle. Doc. 15 at 4. During that same period, Plaintiff was a manager of a limited liability company called “A&J Holdings, LLC,” which owned forty percent of an entity called “the Calypso Developer Entities,” which in turn “owned certain property rights” in another entity called the “Calypso Towers Resort Community Association, Inc.” (“Calypso Towers Association”). Id. at 1, 5.

Defendant Craig B. Morris is an attorney. Id. at 1. The Calypso Towers Association is a client of Defendant. Id. at 1-2.

B. The Calypso Towers Litigation

On May 25, 2017, in the Circuit Court in and for Escambia County, Florida, the Calypso Towers Association, represented by Defendant, initiated a lawsuit against ten defendants, including Plaintiff and A&J Holdings, LLC. Complaint at 1, Calypso Towers Resort Cmty. Ass'n, v. The Calypso Grp., LLC, No. 2017 CA 000784 (Fla. Cir. Ct. May 25, 2017) (Attachment 1 to this R&R). Relevant here, the complaint alleged that certain defendants-including Plaintiff-induced other defendants to breach an option contract between themselves and the Calypso Towers Association.¹ Id. at 8-10.

1 On September 15, 2017, the litigation was transferred to the Circuit Court in and for the Fourteenth Judicial Circuit of the State of Florida, Bay County. Calypso Towers Resort Cmty. Ass'n, v. The Calypso Grp., LLC, No. 2017 CA 000784, slip. op. at 1 (Fla. Cir. Ct. Sept. 15, 2017) (Attachment 2 to this R&R). Plaintiff urged this court to take judicial notice of this lawsuit. Doc. 17 at 6. Federal courts may take judicial notice of documents filed in state courts. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1276 (11th Cir. 1999).

On January 11, 2018, the Calypso Towers Association voluntarily dismissed its case against Plaintiff. See Notice of Dismissal of Defendants Thomas Utterback, William Smith, and Mimosa Capital Partners, LLC at 1, Calypso Towers Resort Cmty. Ass'n, v. The Calypso Grp., LLC (“Calypso Towers Litigation”), No. 2017 CA 1165 (Fla. Cir. Ct. 2023) (Attachment 3 to this R&R), appeal docketed, No. 1D2023-1450 (Dist. Ct. App. May 12, 2023). However, A&J Holdings, LLC-the company of which Plaintiff was a manager-remained a party to the lawsuit. Id.; see Doc. 15 at 5.

On February 15, 2023, Plaintiff testified during the trial. See Excerpt Testimony of Mr. Utterback taken the 15th day of February, 2023, 5:23-6:1, Calypso Towers Litigation, No. 2017 CA 1165 (Fla. Cir. Ct. 2023), appeal docketed, No. 1D2023-1166 (Dist. Ct. App. May 12, 2023) (Attachment 4 to this R&R). Among other things, Plaintiff testified about his personal history, including his previous career as a licensed attorney, his money laundering conviction, and his subsequent disbarment. Id.

C. Plaintiff's Malicious Prosecution Lawsuit

On July 2, 2020, Plaintiff sued Calypso Towers Association and Defendant. Complaint at 1, Utterback v. Calypso Towers Resort Cmty. Ass'n, No. 20001249CA (Fla. Cir. Ct. 2023), appeal docketed, No. 1D2023-1166 (Attachment 5 to this R&R). Plaintiff contended that Defendant conspired to and did maliciously prosecute Plaintiff by suing him in the Calypso Towers Litigation case. Id. at 5-6.

On April 24, 2023, the Bay County Circuit Court granted Defendant's motion for summary judgment and closed the case. Utterback, No. 20001249CA slip op. at 1 (Fla. Cir. Ct. dismissed April 24, 2023) (Attachment 6 to this R&R). Plaintiff appealed. That appeal remains pending. See Doc. 17 at 7.

D. Defendant's Alleged Defamation by Implication

On November 11, 2021, Defendant made a presentation to the board members and condominium owners of the Edgewater Beach Resort Community Association (“Edgewater Beach Association”). Doc. 15 at 2. The purpose of the meeting was to “introduce himself” and answer questions regarding “his representation” of the Edgewater Beach Association. Id. In response to a question about “Utterback's lawsuit against Morris,” Plaintiff alleges that Defendant stated:

Why would I tell you the name of the person who sued me? Why would I tell you the name of the person who sued me? Cause I want you to Google him. I want you to Google him. The first thing that will come up is a mug shot. This is a well-known disbarred attorney who can't get his license back because the State of Missouri says he is not . . . to tell the truth and he is a convicted felon. He took money. Millions of dollars. Put them in a suitcase. Allegedly with some drug connection. Took the money. Millions of dollars in a suitcase. Tried to take through an airport down in another country. Got arrested. Got put in jail for a while and lost his bar license. The only way he can practice law is to sue people. He can only represent himself. So, if you deal with him in any way, shape or form, he is going to sue you and he is going to get to practice law again. He has sued Hand Arendall, one of the best law firms in Alabama and Florida, he sued myself, he sued my

association, he sued Trustmark Bank - have you ever heard of Trustmark Bank? Okay. He is suing someone right now probably. That is the one lawsuit against prior to this lawsuit. That lawsuit will be thrown out of court that I was telling you about with Utterback and this lawsuit right here we've already discussed in enough detail. So please do not repeat things that are not true.

Id. at 3.

E. This Civil Action

On October 23, 2023, Plaintiff, proceeding pro se, filed this civil action against Defendant. Doc. 1. Plaintiff contends that on November 11, 2021, through the statements set forth above, Defendant defamed Plaintiff by implication. Id. at 3, 6. On December 12, 2023, Plaintiff filed his first amended complaint. Doc. 15.

Plaintiff alleges that Defendant's statements created the following false and defamatory implications:

• Plaintiff “was involved in the illegal drug trade.”

• Plaintiff “stole money.”

• Plaintiff's “plea of guilty to a money laundering charge in 1998 negatively affected [Plaintiff]'s work and involvement in the Calypso Resort or his career in Florida from 2003 to the present.”

• Plaintiff is “maliciously litigious . . . without ethics or honor and poised to harm well-intentioned persons.”

Id. at 6.

As noted above, Defendant has moved to dismiss this civil action for failure to state a claim upon which relief can be granted. Doc. 16.

F. The Telephonic Hearing

On June 18, 2024, the undersigned conducted a telephonic hearing regarding Defendant's motion to dismiss. Doc. 16. During the hearing- which was recorded-Plaintiff conceded:

• except for two relevant clauses, Defendant's statements on November 11, 2021 literally were true; and

• Plaintiff did not understand Defendant's statements, “He took money.... Took the money,” to imply that Plaintiff stole the money that Plaintiff laundered.

II. Discussion

A. Rule 12(b)(6) Standard

Federal Rule of Civil Procedure 12(b)(6) authorizes defendants to move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). For a claim to survive dismissal, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” rather than the mere possibility that the defendant acted unlawfully. Id.

B. Defamation by Implication Under Florida law

The parties agree that Florida law governs this case. Under Florida law, a private figure is entitled to recover if a defendant negligently makes statements with false and defamatory implications which injure the plaintiff. Rubin v. U.S. News & World Rep., Inc., 271 F.3d 1305, 1306 (11th Cir. 2001). The elements of a claim of “defamation by implication” are:

(1) the defendant published literally true statements,

(2) the statements:

a. are juxtaposed in such a way as to imply a false and defamatory connection between them, or

b. omit facts in such a way as to create a false and defamatory implication, or “gist,” and

(3) the false and defamatory connection, implication, or “gist,” is about the plaintiff, (4) the plaintiff was damaged thereby, and

(5) the defendant acted with the requisite culpability-in this case, negligence. Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106, 1107-08 (Fla. 2008); Johnston v. Borders, 36 F.4th 1254, 1275 (11th Cir. 2022). In such cases, the defendant may be liable unless the alleged defamation qualifies as an opinion. Jews For Jesus, Inc., 997 So.2d at 1108.

Florida law entrusts courts with determining whether the defendant's published words are reasonably susceptible to the implication alleged by the plaintiff. Turner v. Wells (“Turner II”), 879 F.3d 1254, 1269 (11th Cir. 2018); see Brown v. Tallahassee Democrat, Inc., 440 So.2d 588, 590 (Fla. Dist. Ct. App. 1983). That is, under Florida law, it falls to courts in the first instance to determine whether the reasonable implications derived from a defendant's statements are as the plaintiff alleges. See Readon v. WPLG, LLC, 317 So.3d 1229, 1237 (Fla. Dist. Ct. App. 2021); Bongino v. Daily Beast Co., LLC, 477 F.Supp.3d 1310, 1319-20 (S.D. Fla. 2020). In determining the implication of statements, the entire publication must be examined. Turner v. Wells (“Turner I”), 198 F.Supp.3d 1355, 1367 (S.D. Fla. 2016), aff'd, 879 F.3d 1254 (11th Cir. 2018).

Once a court determines the reasonable implications of a defendant's statements, the court then must determine whether such implications are defamatory. Smith v. Cuban Am. Na't Found., 731 So.2d 702, 704 (Fla. Dist. Ct. App. 1999); Johnston, 36 F.4th at 1275. An implication is defamatory if it “tends to injure the plaintiff's ‘business or reputation, or occupation[]'” in the view of at least a “substantial and respectable minority” of the community. Jews For Jesus, Inc., 997 So.2d at 1115 & n.16. The relevant “community” is a plaintiff's “personal, social, official, or business relations.” Id. at 1115 (quoting Land v. Tampa Times Publ'g Co., 67 So. 130, 130 (Fla. 1914)).

If “a statement is not capable of a defamatory meaning, it should not be submitted to a jury.” Smith, 731 So.2d at 704; Wolfson v. Kirk, 273 So.2d 774, 778 (Fla. Dist. Ct. App. 1973). Thus, whether “the defendant's statements constitute defamation by implication is a question [of] law for the court to determine.” Turner II, 879 F.3d at 1269. Similarly, whether a statement constitutes merely the speaker's opinion is a question of law to be decided by the court. Keller v. Miami Herald Publ'g Co., 778 F.2d 711, 715 (11th Cir. 1985).

1. Defendant's Statements Did Not Reasonably Imply that Plaintiff's Plea of Guilty to Money Laundering Negatively Affected Plaintiff's Work From 2003 to The Present

Plaintiff first alleges that Defendant's statements implied that Plaintiff's “plea of guilty to a money laundering charge in 1998 negatively affected [Plaintiff]'s work and involvement in the Calypso Resort or his career in Florida from 2003 to the present.” Doc. 15 at 6.

Defendant's Actual Words: Defendant stated:

This is a well-known disbarred attorney who can't get his license back because the State of Missouri says he is not . . . to tell the truth and he is a convicted felon. He took money. Millions of dollars. Put them in a suitcase. Allegedly with some drug connection. Took the money. Millions of dollars in a suitcase. Tried to take through an airport down in another country. Got arrested. Got put in jail for a while and lost his bar license.

Id. at 3 (emphasis added).

The Tense of The Statements:

Although the tense of the words employed by Defendant is not dispositive, it is highly relevant. Defendant used the past tense when he mentioned Plaintiff's money laundering: “took,” “put” “took,” “tried,” “got arrested,” “got put in jail.” Id. In this context, a reasonable person would understand Defendant's use of the past tense to indicate that these events took place in the past, not that they were recurring events or a pattern of conduct. Given the absence of any indicia of continuing criminal conduct in Defendant's statements, a reasonable person would not perceive Defendant's statements to be implying that Plaintiff's money laundering continued after he was arrested.² See Cianci v. New Times Publ'g Co., 639 F.2d 54, 60 (2d Cir. 1980) (the words must be “taken as they are commonly understood”); Siercke v. Siercke, 476 P.3d 376, 385-86 (Idaho 2020) (“the words used are to be given their common and usually accepted meaning and are to be read and interpreted as they would be read and understood by the persons to whom they are published”) (quoting Gough v. Tribune-Journal Co., 275 P.2d 663, 666 (Idaho 1954)).³

2 If Defendant had falsely accused Plaintiff of committing a crime, Plaintiff would have a claim for defamation per se. See, e.g., Myers v. Jim Russo Prison Ministries, Inc., 3 So.3d 411, 412 (Fla. Dist. Ct. App. 2009); Guccione v. Hustler Mag., Inc., 800 F.2d 298, 299 (2d Cir. 1986); Restatement (Second) of Torts § 581A (1977) cmt. c. It is telling that Plaintiff has not asserted such a claim.

3 Throughout this R&R, the undersigned has cited decisions of courts that have applied the law of States other than Florida. The holdings of these cases obviously do not bind Florida courts, but their analysis is persuasive insofar as law of the respective States regarding defamation by implication is substantially similar to Florida law.

The Context of the Statements:

As stated above, in determining the implication of statements, the relevant statement must be examined in its context. Smith, 731 So.2d at 705; Turner I, 198 F.Supp.3d at 1367; see Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113-14 (2d Cir. 2005) (noting that “courts must give the disputed language a fair reading in the context of the publication as a whole” and should not be “read in isolation”).

Defendant published his statements about Plaintiff's conviction in the context of questions from members of the Edgewater Beach Association-Defendant's client-about ongoing litigation involving Defendant. Doc. 15 at 2; see Doc. 17 at 7. Plaintiff concedes that, in this context, Defendant was compelled to “defend[] himself” in response to the question. Doc. 15 at 3. Only after Defendant described Plaintiff as “a well-known disbarred attorney” did Defendant mention Plaintiff's money laundering, which was the reason for Plaintiff's disbarment and logically relevant to explain the reason for Plaintiff's disbarment. Id. No reasonable person would perceive Defendant's statements as implying that Plaintiff continued to engage in money laundering after his arrest.

Accordingly, Plaintiff has failed to state a claim of implied defamation regarding Defendant's discussion of Plaintiff's conviction for money laundering.

2. Defendant's Statements Did Not Reasonably Imply that Plaintiff Personally Was Involved in the Drug Trade

Plaintiff also alleges that Defendant's statements imply that Plaintiff “was involved in the illegal drug trade ....” Doc. 15 at 6.

Defendant's Actual Words: As noted above, Defendant stated:

He took money. Millions of dollars. Put them in a suitcase. Allegedly with some drug connection. Took the money. Millions of dollars in a suitcase. Tried to take through an airport down in another country. Got arrested. Got put in jail for a while and lost his bar license.

Id. at 3 (emphasis added).

The Tense of the Statement:

Again, Defendant employed the past tense when he used verbs. Although not dispositive, it is relevant to a determination of the reasonable implication of Defendant's words. See Krepps v. Reiner, 588 F.Supp.2d 471, 483-84 (S.D.N.Y. 2008) (applying New York law and recognizing that dismissal of a claim for defamation by implication is appropriate where “a plaintiff fails to identify any misleading omissions or factual suggestions” and the court cannot reasonably interpret the language otherwise), aff'd, 377 F. App'x. 65 (2d Cir. 2010).

Defendant's use of the past tense implies that he was discussing conduct that occurred in the past, not the present or future.

The Context of the Statement:

Defendant made this statement in the context of explaining why the Supreme Court of Missouri disbarred Plaintiff. See, e.g., Smith, 731 So.2d at 705. This context further indicates that a reasonable person would not perceive the implication of Defendant's statements to be that Plaintiff was involved in the drug trade beyond his money laundering of drug proceeds.

Defendant Qualified His Statement with the Word “Allegedly”:

In assessing the implication of a statement, courts must take into consideration all the words published by a defendant, including “giving weight to cautionary terms used by the person publishing the statement ....” Norris v. Bangor Publ'g Co., 53 F.Supp.2d 495, 506 (D. Me. 1999); see Brown, 440 So.2d at 589. Here, Defendant indicated that the money laundered by Plaintiff “allegedly” had some drug connection. This is an important qualification. It indicates to a reasonable person that Defendant is unsure about this fact, and that anyone should take Defendant's statements with the understanding that they may not be accurate. Although mere use of the word “allegedly” will not immunize an otherwise defamatory statement, it is relevant to understanding the message that a reasonable person would perceive from Defendant's words and their implications.

The Phrase “Allegedly with some drug connection” Modifies the Laundered Money, not Plaintiff:

The clear implication of Defendant's statement is that the money Plaintiff laundered “allegedly” had some connection with drugs. A reasonable person would not understand this to imply that Plaintiff personally was connected to drugs, except to the extent he laundered money that was connected to drugs. To the extent that a reasonable person would understand Defendant's statement to imply that the money Plaintiff laundered had “some drug connection,” that implication is true, and thus not defamatory.

The Gist of Defendant's Statements Regarding Plaintiff's Money Laundering-Including That the Laundered Money Allegedly Was Connected to Drugs-is True:

If the implication of a statement is true, a plaintiff cannot state a claim for defamation by implication as to that statement. See Jews For Jesus, Inc., 997 So.2d at 1106. Furthermore, under Florida law, a statement or implication “does not have to be perfectly accurate” to bar a claim of defamation by implication; only the ‘gist' or the ‘sting'” of the implication must be true. Smith, 731 So.2d at 706-07; Readon, 317 So.3d at 1235. Taken in context, an impliedly defamatory statement “is not considered false unless it ‘would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'” Nix v. ESPN, Inc., 772 Fed.Appx. 807, 814 (11th Cir. 2019) (per curiam) (quoting Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991)).

Here, as Plaintiff admitted in his amended complaint and during the telephonic hearing, he committed the crime of money laundering and was convicted, just as Defendant intimated. Doc. 15 at 6; see Doc. 17 at 4; see also Excerpt Testimony of Mr. Utterback (Attachment 4 to this R&R), supra, at 5:23-25. Specifically, Plaintiff admitted the following:

• Plaintiff is a convicted felon.

• Plaintiff's client instructed Plaintiff “to take [the client's] money.”

• Plaintiff took the money (in the sense that he handled, carried, and transported the money).

• The money that Plaintiff took amounted to over $3 million.

• Plaintiff took the money from the United States to Panama and then to Switzerland. From Panama to Switzerland, Plaintiff transported the money in suitcases.

• Plaintiff transported the money for a client, whom Plaintiff believed was involved in the illegal drug trade.⁴

• Plaintiff was aware of a high probability and believed that the money he transported constituted proceeds from drug trafficking and he deliberately avoided learning the truth about the origin of the funds.

• Plaintiff attempted to take the currency through an airport in Geneva, Switzerland.

• Plaintiff was arrested in Switzerland.

• Plaintiff was put in jail in Switzerland.

• Because of his felony conviction, the Supreme Court of Missouri disbarred Plaintiff from the practice of law.

• Plaintiff has been unable to persuade the Supreme Court of Missouri to reinstate Plaintiff's license.

4 Plaintiff's federal indictment also alleges that the money Plaintiff transported was derived from “the distribution of controlled substances.” Attachment 7 to this R&R. Plaintiff conceded this during the telephonic hearing.

These admitted and undisputed facts mirror the “gist” of the alleged implications of Defendant's statements. Therefore, any implications arising from Defendant's description of Plaintiff's conduct have the same “gist” or “sting” as the truth: that Plaintiff committed money laundering and was convicted of this crime, and this resulted in the Missouri Supreme Court barring Plaintiff from practicing law. Any implication arising from Defendant's description of the money Plaintiff laundered also has the same “gist” or “sting” as the truth: that the money was alleged (in the indictment) to be connected to drugs.

Accordingly, Plaintiff has failed to state a claim of implied defamation regarding Defendant's statements that Plaintiff laundered money “allegedly with some drug connections.”

3. Defendant's Statements Did Not Reasonably Imply that Plaintiff Stole The Money He Laundered

Plaintiff also contends that Defendant's remarks implied that Plaintiff “stole money.” Doc. 15 at 6.

The Defendant's Actual Words:

As before, Plaintiff relies primarily on the following statements by Defendant:

This is a well-known disbarred attorney who can't get his license back because the State of Missouri says he is not . . . to tell the truth and he is a convicted felon. He took money. Millions of dollars. Put them in a suitcase. Allegedly with some drug connection. Took the money. Millions of dollars in a suitcase. Tried to take through an airport down in another country.

Id. at 3 (emphasis added). Plaintiff Conceded that Defendant's Words Did Not Imply That Plaintiff Stole The Laundered Money:

During the telephonic hearing, the undersigned inquired about a reasonable person's understanding of Defendant's use of the word “took.” Plaintiff conceded that Plaintiff himself did not understand Defendant's use of the word “took” to mean that Plaintiff stole the laundered funds. As Plaintiff stated at the telephonic hearing: “I don't think he meant that. I think he just meant I took the money and put it in a suitcase.” Furthermore, Plaintiff essentially conceded that Defendant's words could not reasonably be understood as a statement that Plaintiff stole the money he laundered.

Regardless of Plaintiff's concession, it is obvious that a reasonable person would not perceive Defendant's statements to imply that Plaintiff had stolen the money he laundered. Rather, the clear implication of the word “took” in this context is that Plaintiff carried, transported, and laundered the money, not that he purloined the funds.

Furthermore, even if Defendant's statements can be said to suffer from minor inaccuracies, “[a]n incorrect identification of a person's crime in a published report is not, by itself, a triable issue of fact for a jury, particularly when the reported crime, although technically inaccurate, is an accurate reflection of the underlying incident.” Read v. Phoenix Newspapers, Inc., 819 P.2d 939, 942 (Ariz. 1991) (applying Arizona law and collecting cases on this point). Florida law does not impose a duty to present “a balanced view,” only a truthful one. Turner I, 198 F.Supp.3d at 1371 (quoting Perk v. Reader's Digest Ass'n, 931 F.2d 408, 412 (6th Cir.1991)); see Turner II, 879 F.3d at 1270. Thus, even if some person were to conclude from Defendant's statement that Plaintiff stole the money he laundered, Defendant perpetuated only a minor inaccuracy regarding Plaintiff's criminal history. A substantially true statement is not impliedly defamatory simply because it does not include a plaintiff's preferred facts and distinctions. Nix, 772 Fed.Appx. at 814; Readon, 317 So.3d at 1235; Jews For Jesus, Inc., 997 So.2d at 1108; Turner II, 879 F.3d at 1271. Here, Defendant's statements regarding Plaintiff's criminal conduct were substantially true, and thus not impliedly defamatory.

For this reason, to the extent Plaintiff alleges that Defendant implicitly accused him of stealing the money that he laundered, the facts alleged by Plaintiff in his first amended complaint fail to state a claim of defamation by implication.

4. The Gist of the Implications of Defendant's Statements About Plaintiff's Litigation Activities Was Truthful

Plaintiff also alleges that Defendant's statements implied that he is litigious. Doc. 15 at 6.

Defendant's Actual Words: Defendant stated in relevant part:

The only way he [Plaintiff] can practice law is to sue people. He can only represent himself. So, if you deal with him in any way, shape or form, he is going to sue you and he is going to get to practice law again. He has sued Hand Arendall, one of the best law firms in Alabama and Florida, he sued myself, he sued my association, he sued Trustmark Bank - have you ever heard of Trustmark Bank? Okay. He is suing someone right now probably. That is the one lawsuit against prior to this lawsuit. That lawsuit will be thrown out of court that I was telling you about with Utterback and this lawsuit right here we've already discussed in enough detail.

Id. at 6.

Plaintiff Conceded that The Implications of Most of the Defendant's Statements Regarding Plaintiff's Litigation Activities Are True:

During the telephonic hearing, Plaintiff conceded that the implications of most of Defendant's statements regarding his litigation activities are true. Plaintiff contends that only two of Defendant's statements relevant to Plaintiff's claim were literally and impliedly untrue:

• “So, if you deal with him [Plaintiff] in any way, shape, or form, he is going to sue you and he is going to get to practice law again.”⁵

• “He [Plaintiff] is suing someone right now probably.”

Id. at 3.

5 Plaintiff conceded during the telephonic hearing that Defendant's words did not convey a technical or legal definition of the term “practice law.”

As noted above, when an allegedly defamatory implication is true, a plaintiff cannot state a claim for defamation by implication. Jews For Jesus, Inc., 997 So.2d at 1106. Furthermore, a statement or implication “does not have to be perfectly accurate” so long as the “gist” of the implication is true. Smith, 731 So.2d at 706-07; Readon, 317 So.3d at 1235. Here, the gist of the implication of Defendant's statement about Plaintiff's litigation activity is true. For this reason alone, with respect to this portion of Defendant's statements, Plaintiff has failed to state a claim upon which relief can be granted.

5. The Implications of Defendant's Statements About Plaintiff's Litigation Activity Constitute Pure Opinion, and Thus Are Not Actionable

For a second independent reason Plaintiff fails to state a claim upon which relief can be granted regarding Defendant's statements about Plaintiff's litigation history: Defendant's statements were pure opinion.

Under Florida law, a plaintiff fails to state a claim of defamation by implication if a defendant's statements were pure opinion. Jews For Jesus, Inc., 997 So.2d at 1108; Turner 1, 198 F.Supp.3d at 1371-72; Nix, 772 Fed.Appx. at 814; Bongino, 477 F.Supp.3d at 1320. A speaker “cannot be sued for simply expressing his opinion of another person, however unreasonable the opinion or vituperous the expressing of it may be.” Hotchner v. Castillo-Puche, 551 F.2d 910, 913 (2d Cir. 1977). “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.” Turner II, 879 F.3d at 1262 (quoting From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. Dist. Ct. App. 1981)).

To determine whether statements are pure opinion, Florida courts have adopted the analytic framework created by the Ninth Circuit in Information Control Corporation v. Genesis One Computer Corporation, 611 F.2d 781, 783-84 (9th Cir. 1980). See Keller, 778 F.2d at 715; From, 400 So.2d at 57. Under this framework, courts consider:

• whether a reasonable person would consider the statements, evaluated in their context, to be defamatory.

• whether the statements were made in a context where the “‘audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole.'”

• whether in their context the statements are “likely to be understood as a statement of opinion rather than as a statement of fact.”

Info. Control Corp., 611 F.2d at 783-84 (quoting Gregory v. McDonnell Douglas Corp., 552 P.2d 425, 428 (Cal. 1976)). Courts also must consider “whether the speaker accurately presented the underlying facts of the situation ....” Zambrano v. Devanesan, 484 So.2d 603, 606 (Fla. Dist. Ct. App. 1986). However, when a defendant's statements could not reasonably be interpreted as stating “actual facts” about a plaintiff, such statements are rhetorical hyperbole and are nonactionable in light of the First Amendment's protection of speech. Hustler Mag., Inc. v. Falwell, 485 U.S. 46, 57 (1988); see Gray v. St. Martin's Press, Inc., 221 F.3d 243, 248 (1st Cir. 2000) (“[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” (alteration in original) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).

At best, reasonable persons could understand Defendant's words to imply that Plaintiff is litigious and that this is merely Defendant's opinion. Consider, for example, Defendant's statement: “So, if you deal with him [Plaintiff] in any way, shape or form, he is going to sue you and he is going to get to practice law again.” The clause “deal[ing] with [Plaintiff] in any way, shape or form” is indefinite and is not susceptible to objective verification. Keller, 778 F.2d 711, 718 n.15 (citing Ollman v. Evans, 750 F.2d 970, 980 (D.C. Cir. 1984) (noting that “statements that are ‘loosely definable' or ‘variously interpretable' cannot in most contexts support an action for defamation”)).

This statement also is a prediction of future events. “A prediction, or statement about the future, is essentially an expression of opinion.” Presidio Enterprises, Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 680 (5th Cir. 1986). Furthermore, as other courts have recognized, implying that another person is “litigious” constitutes a mere opinion. See, e.g., Shea v. Angulo, No. 93-CIV-4183 (AGS), 1994 WL 86374, at *3 (S.D.N.Y. Mar. 16, 1994) (holding, under New York law, that a description of the plaintiff's litigation as “nuisance suits” in context of defamation per se was nonactionable); Lukashok v. Concerned Residents of N. Salem, 554 N.Y.S.2d 39, 39 (N.Y.App.Div. 1990) (holding that accusing another of “malicious” use of the legal system were nonactionable opinion). Thus, a reasonable person would understand the implication of Defendant's statements to be merely Defendant's rhetorical opinion. Fortson v. Colangelo, 434 F.Supp.2d 1369, 1379 (S.D. Fla. 2006); Skupin v. Hemisphere Media Grp., Inc., 314 So.3d 353, 356 (Fla. Dist. Ct. App. 2020).

Additionally, at the same time Defendant stated his opinions, he related the truths upon which his opinions were based. That is, when Defendant stated his opinion-“if you deal with him [Plaintiff] in any way, shape, or form, he is going to sue you”-Defendant also stated that he had dealt with Plaintiff in the past. Doc. 15 at 3. Defendant stated that he had “filed a lawsuit” against Plaintiff on behalf of a client. Plaintiff conceded the truth of that statement:

• Plaintiff conceded that he “has a business relationship” with the Calypso Towers Association, whom Defendant represented. Doc. 15 at 1-2.

• Plaintiff conceded that Calypso Towers Association, while represented by Defendant, sued Plaintiff. Id. at 2-5; see also, e.g., Complaint at 1, Calypso Towers Litigation, No. 2017 CA 1165 (Fla. Cir. Ct. 2023), appeal docketed, No. 1D2023-1450 (Dist. Ct. App. May 12, 2023).

• Plaintiff conceded that he also sued Defendant. Doc. 15 at 2-3.

Thus, the implications of Defendant's statements not only are Defendant's nonactionable opinions, they also are truthful, and thus nonactionable for that reason too.

The same is true with respect to Defendant's statement that Plaintiff “is suing someone right now probably.” After stating this opinion, Defendant took the trouble to recite the list of persons and entities Plaintiff had sued. Doc. 15 at 3. Namely, Defendant stated that in his pro se capacity, Plaintiff sued:

• Hand Arendall;

• Defendant;

• Defendant's “association”; and

• Trustmark Bank.

Id. at 3. Plaintiff concedes that Defendant accurately listed the parties sued by Plaintiff in his pro se capacity. Id. at 3-4, 6-7. Therefore, Defendant's opinions regarding Plaintiff's litigation activities were not false and did not create any false implications.

The Context of Defendant's Statements:

As noted several times above, context is key. American Mfgrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 58 (1999) (“language must not be torn from the context out of which it arose ”). It is important, therefore, to keep in mind that Defendant was responding to a question asked by a client about the ongoing litigation against Defendant personally. This context is particularly relevant in three respects.

First, because Defendant was responding to a client about an ongoing lawsuit against him, Defendant's statements were made in a context in which the “audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole ....” Info. Control Corp., 611 F.2d at 784. In such cases, use of “aggressive language” and the “tactics of a determined adversary” is expected, and courts consider this in determining whether the implication is defamatory as a matter of law. See, e.g., Bakal v. Weare, 583 A.2d 1028, 1030 (Me. 1990); Tomson v. Stephan, 699 F.Supp. 860, 862 (D. Kan. 1988).

Bolstering this conclusion is the fact that Plaintiff himself has used similar rhetoric in his own descriptions of the Calypso Towers Litigation. See, e.g., Doc. 15 at 3 (accusing Defendant of filing a “baseless lawsuit” against Plaintiff); Id. at 5, 7 (accusing Defendant of “incompetence and malicious conduct” and “ill will and hostility” by filing the lawsuit). Plaintiff also characterizes Defendant's claims in the Calypso Towers Litigation as “frivolous.” Id. at 3. Plaintiff essentially hurls the same accusations of malicious litigiousness at Defendant as Defendant leveled against Plaintiff.

Second, as to the implication that Plaintiff's lawsuits lacked merit, Plaintiff concedes that he did not prevail in his malicious prosecution lawsuit against Defendant. Doc. 17 at 7. Indeed, the Florida court held that Plaintiff could not establish an essential element of his claim. Id. As Plaintiff also concedes, he also did not prevail in his lawsuit against Trustmark Bank. Doc. 15 at 7. Where, as here, Plaintiff contends that Defendant defamed Plaintiff by implying that he is “litigious,” Plaintiff's history of failed litigation is important. See, e.g., Soni v. Wespiser, 239 F.Supp.3d 373, 388-89 (D. Mass. 2017). Insofar as the term “litigious” suggests filing lawsuits that lack merit, at least one Florida court found that a lawsuit filed by Plaintiff lacked merit.

Third, the context cuts against Plaintiff's argument that Defendant failed to “fairly or accurately state his own status or role” in litigation involving Plaintiff and Defendant. Id. The fact that a person inquired about Plaintiff's lawsuit against Defendant indicates that at least one person already was aware of Plaintiff's lawsuit against Defendant. See Demby v. English, 667 So.2d 350, 355 (Fla. Dist. Ct. App. 1995) (explaining that statements can be “pure opinion” even when all the facts on which an opinion is based are not disclosed but an audience “would be expected” to be aware of those facts). Insofar as court documents are public records, and Plaintiff made no effort to hide his lawsuit against Defendant, it is likely that many people already knew of the lawsuit long before Defendant mentioned it. Defendant, therefore, was simply telling them something that at least some audience members already knew.

Furthermore, Defendant's statements yet again provided the essential facts upon which Defendant's opinions were based. Namely, that Plaintiff filed lawsuits against four parties who had done business with Plaintiff-including Defendant and his client. When a defendant “presents the facts at the same time he or she offers independent commentary, a finding of pure opinion will usually result.” Zambrano, 484 So.2d at 606; see Stembridge v. Mintz, 652 So.2d 444, 446 (Fla. Dist. Ct. App. 1995).

Therefore, taking Plaintiff's amended complaint as true and drawing all reasonable inferences in his favor, the implication that Plaintiff is litigious is not defamatory because it is pure opinion. As a matter of law, Plaintiff has failed to state a claim of defamation by implication.

III. Conclusion

Because Plaintiff has failed to state a claim upon which relief can be granted, the undersigned respectfully RECOMMENDS that the District Court:

1. GRANT Defendant Craig B. Morris's “Motion to Dismiss,” Doc. 16;

2. DISMISS Plaintiff Thomas M. Utterback's claims against Defendant Craig B. Morris.

3. DIRECT the clerk of the court to enter judgment and close the case.

NOTICE TO THE PARTIES

The District Court referred this case to the undersigned to address preliminary matters and to make recommendations regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b); Fed R. Civ. P. 72(b). Objections to these proposed findings and recommendations must be filed within fourteen (14) days of the date of the report and recommendation. Any different deadline that may appear on the electronic docket is for the court's internal use only and does not control. An objecting party must serve a copy of its objections upon all other parties. A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636. The parties also are advised that if they dispute the accuracy of any facts taken from judicially-noticed documents, or if they otherwise wish to be heard on the propriety of the court taking judicial notice of those facts, they must raise this issue in an objection to this report and recommendation.

ATTACHMENT 1

(Image Omitted)

CALYPSO TOWERS RESORT COMMUNITY ASSOCIATION, INC., Plaintiff, v.

THE CALYPSO GROUP LLC, THE CALYPSO DEVELOPERS I LLC, THE CALYPSO DEVELOPERS II LLC, THE CALYPSO DEVELOPERS III LLC A&J HOLDINGS, LLC, SOUTH WALTON PROPERTIES, LLC, YATES, LLC, MIMOSA CAPITAL PARTNERS, LLC, WILLIAM SMITH, AND THOMAS UTTERBACK, Defendants.

5:23-cv-279-TKW/MJF

In the Circuit Court in and For Escambia County, Florida

July 24, 2024

COMPLAINT

Plaintiff, Calypso Towers Resort Community Association, Inc. ("Calypso Association"), hereby sues The Calypso Group LLC, The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, A&J Holdings, LLC, South Walton Properties, LLC, Yates, LLC, Mimosa Capital Partners, LLC, William Smith, and Thomas Utterback, and alleges as follows:

Jurisdiction and Venue

1. Each cause of action for damages exceeds the sum of seventy-five thousand ($75,000.00) dollars, exclusive of interest and costs.

2. This Court also has original jurisdiction as to Plaintiff's equitable causes of action.

3. The Community Property at issue is located within Calypso Resort and Towers -a luxury condominium Resort complex located in Panama City Beach, Florida and presently consisting of two (2) residential Towers - Tower I and Tower II, as Tower III has yet to be built.

4. Plaintiff has an office for the transaction of its usual and customary business in Bay County, Florida.

Plaintiff

5. Plaintiff is a not-for-profit Florida Corporation organized and existing pursuant to Florida Statutes Chapter 617 to provide a corporate entity, pursuant to Florida Statutes §718.111, for the operation of Calypso Resort and Towers, a luxury condominium Resort which contains residential units, commercial units, common elements, limited common elements, and Developer-owned "Community Property."

6. Plaintiff's causes of action concern matters of common interest to the Resort's unit owners/Association members, all as described more fully hereinafter.

7. Plaintiff brings this action pursuant to Florida Statutes § 718.111(3), in its own right and as the lawful and adequate representative of all of the class of owners of the member condominiums, all of whom are members of the Association.

Defendants

8. Defendant, The Calypso Group LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a Developer of Calypso Resort and Towers. It has maintained its Florida office at the office of its registered agent in Escambia County, Florida.

9. Defendant, The Calypso Developers I LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a Developer of Calypso Resort and Towers. It has maintained its Florida office at the office of its registered agent in Escambia County, Florida.

10. Defendant, The Calypso Developers II LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a Developer of Calypso Resort and Towers. It has maintained its Florida office at the office of its registered agent in Escambia County, Florida.

11. Defendant, The Calypso Developers III LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a Developer of Calypso Resort and Towers located in Bay County, Florida. It has maintained its Florida office at the office of its registered agent in Escambia County, Florida

12. Defendant, A&J Holdings, LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a partner/member of Co-Defendants The Calypso Group LLC, The Calypso Developers I LLC, The Calypso Developers II LLC, and the Calypso Developers III LLC. Its principal place of business is in the State of Georgia.

13. Defendant, South Walton Properties, LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a partner/member of Co-Defendants The Calypso Group LLC, The Calypso Developers I LLC, The Calypso Developers II LLC, and the Calypso Developers III LLC.

14. Defendant, Yates, LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida and is a partner/member of Co-Defendants The Calypso Group LLC, The Calypso Developers I LLC, The Calypso Developers II LLC, and the Calypso Developers III LLC. Its principal place of business is in the State of Mississippi.

15. Defendant, Mimosa Capital Partners, LLC, is a Florida Limited Liability Company organized and existing pursuant to the laws of the State of Florida.

16. Defendant, William Smith, is of information and belief to be an adult resident citizen of Bay County, Florida.

17. Defendant, Thomas Utterback, is of information and belief to be an adult resident citizen of the State of Missouri.

Factual Allegations

18. During the development of Calypso Resort and Towers, the Defendant Developers specifically reserved for themselves fee simple title ownership to certain property located within the confines of the Resort, and designated said property as "Community Property." Examples of the same included swimming pools, a parking garage, a dune walk-over, portions of the beach, and on-site rental management space.

19. In the controlling "Community Property Agreement" the Defendant Developers also reserved to themselves (and/or their assigns/successors) the "exclusive" rights to engage in the following activities on the Community Property:

(i) To provide food and beverage services to the Calypso Resort, including Cabana and/or Tiki Hut facilities on the beach side of the Resort;

(ii) To provide rental management, property management, and property sales and marketing services;

(iii) To provide beach related services and rentals; and

(iv) To provide arcade and game facilities.

20. The value to the Developer Defendants (and/or their assigns/successors) of owning the Community Property and exclusively engaging in and profiting from the above-specified activities thereon was great.

21. Thus, in recognition of the same, in the Fall of 2016 Plaintiff Calypso Association began intense negotiations with the Defendant Developers to purchase therefrom the subject Community Property and related Property rights and interests.

22. The negotiations proved fruitful, and on January 5, 2017 Plaintiff Calypso Association and Defendants The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, and The Calypso Group LLC, executed the Option to Purchase attached hereto as Exhibit "A," incorporated herein, and made a part hereof.

23. By the terms of the Option to Purchase, for good and valuable consideration the aforesaid Defendant Developers granted Plaintiff the "exclusive and irrevocable" option to purchase the subject "Property" pursuant to the terms and conditions of the "Purchase and Sale Agreement" attached to the Option. (See Exhibit "A" to Exhibit "1" attached hereto, incorporated herein, and made a part hereof).

24. On or about February 7, 2017, Plaintiff Calypso Association delivered written notification to the Developer Defendants of its timely and proper exercising of its Option to Purchase.

25. Consequently, a closing of the Purchase and Sale Agreement was subsequently scheduled to take place in Bay County, Florida on February 17, 2017 at 1:00 p.m. (CST).

26. On February 17, 2017, Plaintiff Calypso Association attended the scheduled Closing of the Purchase and Sale Agreement at issue, and stood ready, willing, and able to deliver to the Developer Defendants the Purchase Price in consideration for all of the Defendant Developer's rights and interests in the Property.

27. Contrarily, the Defendant Developers executed the Closing Documents, but then failed to close the Purchase and Sale Agreement to the great detriment of the Calypso Association. No adequate remedy at law exists for the Defendant Developers' failure to perform.

28. Subsequently, wholly aware of the legally binding contracts in existence between Plaintiff Calypso Association and the Defendant Developers, intentionally and unjustifiably William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC efforted (absent justification or privilege) to not only prevent the Closing from taking place, but also to have the Defendant Developers sell their rights and interests in the subject Property to Mimosa Capital Partners, LLC (and/or others) for the personal benefit of Smith, Utterback, and Mimosa and to the great detriment of Plaintiff Calypso Association.

Count I

Specific Performance

(The Calypso Group LLC, The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, A&J Holdings, LLC, South Walton Properties, LLC, and Yates, LLC)

29. Florida Law is well-settled that the elements of a claim for specific performance are that (i) Plaintiff and Defendant are Parties to a contract, (ii) Plaintiff performed its obligation under the contract and was ready, willing, and able to perform, (iii) Defendant refused to perform its obligation under the contract, and (iv) no adequate remedy at law exists.

30. On January 5, 2017 Plaintiff Calypso Association and Defendants The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, and The Calypso Group LLC, executed the Option to Purchase attached hereto as Exhibit "A," incorporated herein, and made a part hereof.

31. By the terms of the Option to Purchase, for good and valuable consideration the aforesaid Defendant Developers granted Plaintiff the "exclusive and irrevocable" option to purchase the subject "Property" pursuant to the terms and conditions of the "Purchase and Sale Agreement" attached to the Option. (See Exhibit "A" to Exhibit "1" attached hereto, incorporated herein, and made a part hereof).

32. On or about February 7, 2017, Plaintiff Calypso Association delivered written notification to the Developer Defendants of its timely and proper exercising of its Option to Purchase.

33. Consequently, a closing of the Purchase and Sale Agreement was subsequently scheduled to take place in Bay County, Florida on February 17, 2017 at 1:00 p.m. (CST).

34. On February 17, 2017, Plaintiff Calypso Association attended the scheduled Closing of the Purchase and Sale Agreement at issue, and stood ready, willing, and able to deliver to the Developer Defendants the Purchase Price in consideration for all of the Defendant Developer's rights and interests in the Property.

35. Contrarily, the Defendant Developers executed the Closing Documents, but then failed to close the Purchase and Sale Agreement to the great detriment of the Calypso Association. No adequate remedy at law exists for the Defendant Developers' failure to perform.

WHEREFORE, Plaintiff Calypso Association demands judgment against The Calypso Group, LLC, The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, A&J Holdings, LLC, South Walton Properties, LLC, and Yates, LLC commanding said Defendants to specifically perform their obligations under the subject Option to Purchase and Purchase and Sale Agreement. (Attached hereto as Exhibit "1," incorporated herein, and made a part hereof). Alternatively, should the Court find the subject Agreement to be incapable of being specifically performed, Plaintiff Calypso Association demands judgment against said Defendants for damages in excess of seventy-five thousand ($75,000.00) dollars, plus interests, Court costs, and attorney/legal fees.

Count II

Tortious Interference with a Contractual Right

(William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC)

36. Florida Law is well-settled that the elements of a claim for tortious interference with a contractual right are (i) the existence of a contract to which Plaintiff is a Party, (ii) Defendant has knowledge of the contract, (iii) Defendant's intentional procurement of the contract's breach, (iv) the absence of justification or privilege, and (v) Plaintiff suffering damages from the breach.

37. On January 5, 2017 Plaintiff Calypso Association and Defendants The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, and The Calypso Group LLC, executed the Option to Purchase attached hereto as Exhibit "A," incorporated herein, and made a part hereof.

38. By the terms of the Option to Purchase, for good and valuable consideration the aforesaid Defendant Developers granted Plaintiff the "exclusive and irrevocable" option to purchase the subject "Property" pursuant to the terms and conditions of the "Purchase and Sale Agreement" attached to the Option. (See Exhibit "A" to Exhibit "1" attached hereto, incorporated herein, and made a part hereof).

39. On or about February 7, 2017, Plaintiff Calypso Association delivered written notification to the Developer Defendants of its timely and proper exercising of its Option to Purchase.

40. Consequently, a closing of the Purchase and Sale Agreement was subsequently scheduled to take place in Bay County, Florida on February 17, 2017 at 1:00 p.m. (CST).

41. On February 17, 2017, Plaintiff Calypso Association attended the scheduled Closing of the Purchase and Sale Agreement at issue, and stood ready, willing, and able to deliver to the Developer Defendants the Purchase Price in consideration for all of the Defendant Developer's rights and interests in the Property.

42. Contrarily, the Defendant Developers executed the Closing Documents, but then failed to close the Purchase and Sale Agreement to the great detriment of the Calypso Association.

43. Subsequently, wholly aware of the legally binding contracts in existence between Plaintiff Calypso Association and the Defendant Developers, intentionally and unjustifiably William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC efforted (absent justification or privilege) to not only prevent the Closing from taking place, but also to have the Defendant Developers sell their rights and interests in the subject Property to Mimosa Capital Partners, LLC (and/or others) for the personal benefit of Smith, Utterback, and Mimosa and to the great detriment of Plaintiff Calypso Association. (See Exhibit "2").

WHEREFORE, Plaintiff Calypso Association demands judgment against Defendants William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC for damages in excess of seventy-five thousand ($75,000.00) dollars, plus interest, Court costs, and attorney/legal fees.

Count III

Tortious Interference with Advantageous Business Relationship (William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC)

44. Florida Law is well-settled that the elements of a claim for tortious interference with an advantageous business relationship are that (i) Plaintiff has a business relationship, (ii) Defendant has knowledge of the relationship, (iii) Defendant intentionally and unjustifiably interfered with the relationship, and (iv) Plaintiff suffered damages.

45. On January 5, 2017 Plaintiff Calypso Association and Defendants The Calypso Developers I LLC, The Calypso Developers II LLC, The Calypso Developers III LLC, and The Calypso Group LLC, executed the Option to Purchase attached hereto as Exhibit "A," incorporated herein, and made a part hereof.

46. By the terms of the Option to Purchase, for good and valuable consideration the aforesaid Defendant Developers granted Plaintiff the "exclusive and irrevocable" option to purchase the subject "Property" pursuant to the terms and conditions of the "Purchase and Sale Agreement" attached to the Option. (See Exhibit "A" to Exhibit "1," attached hereto, incorporated herein, and made a part hereof).

47. On or about February 7, 2017, Plaintiff Calypso Association delivered written notification to the Developer Defendants of its timely and proper exercising of its Option to Purchase.

48. Consequently, a closing of the Purchase and Sale Agreement was subsequently scheduled to take place in Bay County, Florida on February 17, 2017 at 1:00 p.m. (CST).

49. On February 17, 2017, Plaintiff Calypso Association attended the scheduled Closing of the Purchase and Sale Agreement at issue, and stood ready, willing, and able to deliver to the Developer Defendants the Purchase Price in consideration for all of the Defendant Developer's rights and interests in the Property.

50. Contrarily, the Defendant Developers executed the Closing Documents, but then failed to close the Purchase and Sale Agreement to the great detriment of the Calypso Association.

51. Subsequently, wholly aware of the legally binding contracts in existence between Plaintiff Calypso Association and the Defendant Developers, intentionally and unjustifiably William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC efforted (absent justification or privilege) to not only prevent the Closing from taking place, but also to have the Defendant Developers sell their rights and interests in the subject Property to Mimosa Capital Partners, LLC (and/or others) for the personal benefit of Smith, Utterback, and Mimosa and to the great detriment of Plaintiff Calypso Association. (See Exhibit "2").

WHEREFORE, Plaintiff Calypso Association demands judgment against Defendants William Smith, Thomas Utterback, and Mimosa Capital Partners, LLC for damages in excess of seventy-five thousand ($75,000.00) dollars, plus interest, Court costs, and attorney/legal fees.

Demand for Jury Trial

Plaintiff hereby demands a trial by jury on all issues so triable.

MORRIS LAW FIRM, P.C.

Attorneys for Plaintiff - Calypso Towers Resort Community Association, Inc.

CRAIG B. MORRIS

DEFENDANTS WILL BE SERVED VIA PRIVATE PROCESS SERVER AS FOLLOWS:

THE CALYPSO GROUP LLC

JOHN DANIEL

THE CALYPSO DEVELOPERS I LLC

JOHN DANIEL

BEGGS & LANE

THE CALYPSO DEVELOPERS II LLC

JOHN DANIEL

BEGGS & LANE

THE CALYPSO DEVELOPERS III LLC

JOHN DANIEL

BEGGS & LANE

501 COMMENDENCIA STREET

PENSACOLA, FLORIDA 32502

A&J HOLDINGS, LLC BRADEN BALL

SOUTH WALTON PROPERTIES, LLC

C/O JOHN W ROBERTS AS REGISTERED AGENT

LAW OFFICES OF JOHN W. ROBERTS, PLLC

YATES, LLC DODDS DEHMER

WILLIAM SMITH

THOMAS UTTERBACK

MIMOSA CAPITAL PARTNERS, LLC RICHARD JOHNSON, PA

ATTACHMENT 2

CALYPSON TOWERS RESORT COMMUNITY ASSOCIATION, INC Plaintiff

v.

THE CALYPSO GROUP LLC, et al., Defendants

No. 2017 CA000784

In the Circuit Court in and For Escambia County, Florida

July 24, 2024

THOMAS DANNHEISSER JUDGE

ORDER

This matter was before the Court upon the Stipulation of the parties on the Amended Motion to Transfer Venue to Bay County, Florida, filed by Defendants South Walton Properties, LLC, William Smith, and Thomas Utterback. The Court having considered the Stipulation and being otherwise fully advised in the premises, therefore, it is

ORDERED AND ADJUDGED that,

(1) The Defendants' Amended Motion to Transfer Venue of this case to Bay County Circuit Court is granted.

(2) The Clerk of this Court, pursuant to Fla.R.C.P. 1.060 and 1.170(j) shall transmit all original papers in this action, including a certified copy of this Order, to the Circuit Court of Bay County, Florida.

(3) Any service charge of Bay County for the transfer shall be paid by Plaintiffs within 30 days of the date of this Order.

DONE AND ORDERED in Chambers in Escambia County, Pensacola, Florida.

ATTACHMENT 3

CALYPSO TOWERS RESORT COMMUNITY ASSOCIATION, INC., Plaintiff, v.

THE CALYPSO GROUP LLC, et. al. Defendant

No. 17-001165CA

In the Circuit Court in and For Bay County, Florida

July 24, 2024

NOTICE OF DISMISSAL OF DEFENDANTS THOMAS UTTERBACK, WILLIAM SMITH, AND MIMOSA CAPITAL PARTNERS, LLC

Plaintiff. Calypso Towers Resort Community Association. Inc., hereby notices the voluntary dismissal without prejudice of Defendants Thomas Utterback, William Smith, and Mimosa Capital Partners, LLC as named Defendants in the above-styled cause, as well as the voluntary dismissal without prejudice of all legal claims asserted in the above-styled cause against said named Defendants.

Attorneys for Plaintiff - Calypso Towers Resort Community Association, Inc. s/ Craig B. Morris

CRAIG B. MORRIS

ATTACHMENT 4

CALYPSO TOWERS RESORT COMMUNITY ASSOCIATON, INC, PLAINTIFF

v.

CALYPSO GROUP LLC, CALYPSO DEVELOPERS I LLC, CALYPSO DEVELOPERS II LLC, CALYPSO DEVELOPERS III LLC, A&J HOLDINGS LLC, SOUTH WALTON PROPERTIES LLC, YATES LLC, MIMOSA CAPITAL PARTNERS LLC, WILLIAM SIMITH, THOMAS UTTERBACK, CALYPSO COA HOLDINFGS LLC AND MARK HEALY, Defendant

Nos. 03-2017-CA-001165-CA, 03-2020-001319-CA

In the Circuit Court of the Fourteen Judicial Circuit In and For Bay County, Florida

July 24, 2024

Excerpt testimony of Mr. Utterback taken the 15th day of February, 2023, at 10:58 a.m. to 4:38 p.m. in Panama City, Florida, before The Honorable James J. Goodman, Circuit Judge, at the Bay County Courthouse. Reported by Kim L. Clark Waterhouse, FPR.

Coastal Reporting

Conference Room: 731 Airport Road, Suite H

Panama City, Florida 32405

Mail: P.O. Box 1945, Lynn Haven, Florida 32444

Telephone: (850)628-4148

Email: Coastalreporting@comcast.net

THE COURT: Mr. Morris, who do you want to call next?

MR. MORRIS: I call Mr. Utterback.

THE COURT: Come on, Mr. Utterback.

THCMAS UTTERBACK,

having been duly sworn to tell the truth, the whole truth and nothing but the truth, responded and testified as follows:

THE WITNESS: I do.

THE COURT: Mr. Morris, when Mr. Utterback gets comfortable, you can get started when you are ready.

DIRECT EXAMINATION

BY MR. MORRIS:

Q. Mr. Utterback, will you please state your full name for the ladies and gentlemen of the jury?

A. Thomas M. Michael. Thomas Michael Utterback.

Q. Where do you currently reside in terms of the county and state?

A. I currently reside in O'Fallon, Missouri.

Q. What is your connection at this point in time to the Calypso Resort and Towers?

A. I act as a, I guess, part owner of A&J. I am the A&J manager.

Q. When did you first become familiar with the Calypso Resort?

A. Oh, gosh. I guess back in 2003, 2004. Probably 2004.

Q. Will you please tell the ladies and gentlemen of the jury your educational background?

A. Undergraduate degree in Cultural Anthropology from the University of Missouri, class of '69. University of Missouri Law School, class of 1973.

Q. Do you have a law degree, Mr. Utterback?

A. I do.

Q. Were you employed as a lawyer at some point in time?

A. Excuse me?

Q. Were you employed as an attorney at some point in time?

A. Yes. For about 25 years, I believe.

Q. Were you a licensed attorney at some point in time?

A. For 25 years. From 1973 to 1998 when I surrendered my license.

Q. Mr. Utterback, have you ever been convicted of a felony?

A. Yes, I have.

Q. Have you ever been convicted of a felony crime involving moral turpitude or dishonesty?

A. It was money laundering. I believe that it falls in that category, yes.

Q. And were you disbarred, Mr. Utterback?

A. Like I say, I surrendered my license in 1998, yes.

Q. Have you tried to get your law license back since you got disbarred?

A. Oh, five or six times.

Q. Isn't it true that the state of Missouri has refused to give your law license back, because they find that you supplied them with incorrect information?

A. Well, it's true that the Missouri Supreme Court has refused to do that, yes.

Q. Finding that you continued to give them incorrect information, correct?

MR. SIPPLE: Your Honor?

A. No.

THE COURT: What is the objection?

MR. SIPPLE: Character.

THE COURT: Overruled.

BY MR. MORRIS:

Q. Correct?

A. That is not my understanding, no.

Q. Mr. Utterback, since you have been disbarred, you can't appear in court as an attorney and represent parties other than yourself, can you?

ATTACHMENT 5

THOMAS M. UTTERBACK, Plaintiff,

v.

THE CALYPSO TOWERS RESORT COMMUNITY ASSOCIATION, INC., FRED HAYES, DAVID EVRAS, DAVID KELLEY, CATHERINE MASON, and CRAIG B. MORRIS, Defendants.

No. 20001249CA

In the Circuit Court of the Fourteen Judicial Circuit In and For Bay County, Florida

July 24, 2024

JURY TRIAL DEMANDED

Thomas M. Utterback Pro Se Plaintiff.

COMPLAINT

The Plaintiff, Thomas M. Utterback, pro se, sues the Defendants, The Calypso Towers Resort Community Association, Inc. (“COA”), COA Board Members Fred Hayes, David Evras, David Kelley, Catherine Mason, and their attorney, Craig B. Morris (“Morris”), for malicious prosecution and conspiracy to maliciously prosecute.

JURISDICTION

1. Utterback seeks damages in excess of $15,000 against each Defendant.

2. Venue is in Bay County Florida because Defendant COA is a resident of Bay County, State of Florida, Defendant Board Members each own units at the Calypso Resort, and Defendant Morris is a licensed Florida Attorney who represents clients in Bay County. The COA's corporate headquarters is located at 15817 Front Beach Rd, Panama City, FL 32413, where Defendant Board Members own units, and Morris is listed as the COA's registered agent with an address at 114 East Gregory Street, Pensacola, FL 32502

3. Further, venue is proper in Bay County, Florida, in that this action emanates from the attempts by Morris and the COA to coerce Utterback and others to sell or cause to be sold certain real and personal property interests located in Bay County, Florida, constituting all or substantially all of the assets of A&J Holdings, LLC; The Calypso Group, LLC; The Calypso Developers I, LLC; The Calypso Developers II, LLC; and The Calypso Developers III, LCC (hereinafter collectively "Calypso"), to the COA.

4. Defendant Fred Hayes is and was a unit owner at the Calypso Resort and is and was a COA Board member at all times pertinent.

5. Defendant David Evras is and was a unit owner at the Calypso Resort and is and was a COA Board member at all times pertinent.

6. Defendant David Kelley is and was a unit owner at the Calypso Resort and is and was a COA Board member at all times pertinent.

7. Defendant Catherine Mason is and was a unit owner at the Calypso Resort and is and was a COA Board member at all times pertinent.

Facts Common to All Claims

8. On or about May 25, 2017, the Defendants commenced civil proceedings against the Plaintiff by filing a Complaint with the Clerk of the Escambia County Circuit Court, Case No. 2017 CA 000784, which was later transferred to the Circuit Court of Bay County as Case No. 2017 CA 001165.

9. On September 5, 2017, Utterback filed his verified motion to strike sham pleadings. On September 15, 2017, the Escambia County trial judge ordered the case moved to Bay County. On December 26, 2017, Utterback sent a Section 57.105 Fla. Stat, letter to Morris stating that his and the COA's lawsuit against him was without legal or factual basis. On January 11, 2018, Morris and the COA filed their notice of dismissal without prejudice “of all legal claims asserted in the above-styled cause against said named Defendants [Utterback, William Smith, and Mimosa Capital Partners, LLC].”

10. On May 25, 2017, when Morris and the COA filed the Complaint, the Defendants knew that the allegations contained in that Complaint were false and untrue; that the action was brought without probable cause; and further, that the action was instituted and prosecuted with malice and without any reasonable probability of success. However, notwithstanding these facts, the Defendant COA and its Board Members authorized the Complaint; Morris recommended, drafted, and signed the Complaint and caused it to be filed.

11. COA based its claims of tortious interference with contract on an unsigned document entitled “Purchase and Sale Agreement,” and an attempted, secret closing orchestrated by Morris, Hayes, and Co-conspirator Larry Covington, who purported at the bogus, sham February 17, 2017 closing to be South Walton Properties, LLC's manager.

12. On February 17, 2017, the COA's financing bank, Ameris Bank, requested to see the Calypso Group operating agreements, which required unanimous consent of members (A&J Holdings, LLC; Yates, LLC; and South Walton Properties, LLC). Upon review of the Calypso Group Operating Agreement, Ameris Bank demanded written consent of Calypso Group members before it would disperse funds to close the alleged contract.

13. Defendants could not produce the consent of South Walton Properties either at the February 17, 2017 closing or thereafter because Defendants did not seek the consent of South Walton Properties until March 2017 and only did so, obliquely, though co-conspirator Larry Covington who sought South Walton Properties consent without explaining the proposed transaction or providing those associated with South Walton Properties with a copy of the alleged February 17, 2017 Purchase Agreement or explaining that Covington, Hayes, and Morris had attempted to sell Calypso Group assets without the unanimous consent of its members.

14. At all times prior to the February 17, 2017 closing, South Walton Properties (through Plaintiff Utterback and South Walton Properties Manager William Smith) had put Defendants on notice that A&J Holdings, LLC owned the Calypso “beach services” and that South Walton Properties wanted to be involved in any negotiations that had to do with “beach services” or the Calypso Group, which is the original Developer of the Calypso Resort. However, Defendants and co-conspirator Covington ignored these notices and attempted to sell the Calypso Group assets, including beach services, to the COA on February 17, 2017, without the knowledge of South Walton Properties or those associated with South Walton Properties, including Plaintiff.

15. After the sham closing failed and South Walton Properties did not later consent, Defendants brought the unfounded Complaint with the intent to intimidate and injure Utterback, and to bring his good name into public disgrace and disrepute, and with the further intent to intimidate Utterback in his business relations with Smith, Mimosa Capital, and others in the development of the third Tower in the Calypso Resort Community; and that the action was filed with the specific and malicious intent on the part of the Defendants to coerce Utterback to use his influence with Smith and South Walton Properties to get South Walton Properties to consent to the sale of Calypso, including South Walton Properties, and A&J's assets to the COA.

16. After Defendants dismissed their action against Utterback in January 2018, Utterback disengaged from day-to-day business involvement with the Calypso Group, A&J Holdings, and South Walton Properties until September/October 2019 when he, again, became A&J Holdings Manager. From that point to the present, Defendants have waged a campaign of character assassination against Utterback, invading his privacy, and abusing the processes of this Court.

17. Defendants engaged in this character assassination and invasion of privacy by accusing Plaintiff of being a criminal, engaging in criminal conduct, and by belittling Utterback with his 22-year old plea of guilty in a federal criminal money laundering case all in order to inflame Unit Owners of Calypso to disregard Utterback's efforts to professionally manage the Calypso Group business of licensing service providers at the Calypso Resort and to resolve Parking Garage issues and the entry of newly-constructed Towers III into the Resort.

18. The COA's civil proceeding, which accused Utterback of tortious interference with contract and with a business relationship, was without merit and Defendants knew at the time of filing and before that Utterback has no knowledge of the alleged contract which Defendants failed to close on February 17, 2017. Defendants continuing attacks on Utterback, personally, through its scandalous and untrue accusations from October 2019 to the present, is evidence of Defendant's malicious intent.

Count I: Malicious Prosecution

19. Utterback incorporates paragraphs 1-18 herein as if fully pled.

20. The original complaint brought against Utterback was (1) brought by the parties that are the Defendants here; (2) without probable cause; (3) instituted with malice; (4) terminated in favor of the Plaintiff; and (5) are the actions for which Utterback has suffered injuries and damages.

21. At all times pertinent herein, Defendants had actual knowledge of the wrongfulness of suing Utterback and that there was a high probability of injury or damage to Utterback. Despite that knowledge, Defendants intentionally pursued their wrongful complaint against Utterback, resulting in injury or damage. Defendants' conduct was so reckless or wanting in care that it constitutes a conscious disregard or indifference to Utterback's life and rights.

22. Likewise, Defendants' wrongful conduct was motivated solely by unreasonable financial gain and the belief that the costs of and involvement in litigation would intimidate Utterback and coerce him either to cease his business associations with Smith and Mimosa or to urge Smith to settle with the COA even if Smith did not believe that the COA's offer was sufficient or in the best interests of the Calypso entities, A&J Holdings, and South Walton Properties.

23. Utterback seeks damages in excess of $15,000.

Count Two: Conspiracy to Maliciously Prosecute

24. Utterback incorporates paragraphs 1-18 and 20-22 herein as if fully pleaded.

25. The agreement between and among the Defendants to file and prosecute the tortious interference with contract action, knowing to a legal certainty that they had no legal basis and were devoid of factual or legal support, constituted a conspiracy to maliciously prosecute the tortious interference action and to abuse the processes of the Court.

26. Plaintiff seeks damages in excess of $15,000.

DEMAND FOR JURY TRIAL

Plaintiff demands a jury trial on all issues triable by right.

WHEREFORE, Plaintiff Utterback respectfully requests that the Court:

(a) Award damages against the Defendants on the cause of action and conspiracy for which the Defendants are found liable; and

(b) Grant such other relief as is proper, including pro se fees (equivalent to attorneys' fees) and costs.

RESPECTFULLY SUBMITTED.

ATTACHMENT 6

THOMAS M. UTTERBACK, PLAINTIFF

v.

THE CALYPSO TOWERS RESORT CXOMMUNITY ASSOCIATRION, INC., FRED HAYED, DAVID EVRAS, DAVID KELLY CATHERINE MASON, ANS CRAIG B. MORRIS, DEFENDANTS

No. 20-1249-CA

In the Circuit Court of the Fourteen Judicial Circuit In and For Bay County, Florida

July 24, 2024

E-filed date April 14, 2023

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS

JAMES J. GOODMAN, JUDGE

THIS MATTER is before the Court on the “Motion for Summary Judgment,” filed on January 26, 2021, by Defendant Craig B. Morris; “Plaintiff's Motion for Summary Judgment on the Issue of Probable Cause,” filed April 6, 2022; the “Renewed Motion for Leave to File Plaintiff's First Amended Complaint Seeking Punitive Damages from Defendant Craig B. Morris, with Brief in Support,” filed April 12, 2022; Plaintiff's “Motion to Disqualify Craig B. Morris with Incorporated Legal Memorandum,” filed April 12, 2022; and the “Calypso Association's Joinder in 1/26/21 Motion for Summary Judgment,” filed June 6, 2022. The Motions were heard on November 3, 2022. Having considered said Motions, court file and records, the summary judgment evidence, arguments of counsel and the self-represented Plaintiff, and being otherwise fully advised, this Court finds as follows:

PROCEDURAL HISTORY

1. This case was initiated by Plaintiff on July 2, 2020, with the filing of a two-count Complaint for malicious prosecution and conspiracy to maliciously prosecute. On December 23, 2020, after a hearing before Circuit Judge John Fishel, II, the Court dismissed Count I (Malicious Prosecution) against the individual Defendants Evras and Kelly and Count II of the Complaint (Conspiracy to Maliciously Prosecute) as to all Defendants with leave to amend within 20 days of the Court's Order.

2. Plaintiff has, as of the date of the hearing, chosen not to amend his initial Complaint. Accordingly, the only remaining claims in the instant matter are against the Calypso Tower Resort Association, Inc. (the “Calypso Association” or the “Association”) and its attorney of record, Craig B. Morris, Esq., for malicious prosecution under Count I.

3. Under the operative allegations in the Complaint, on or about May 25, 2017, the Defendants in this case initiated a civil lawsuit against Plaintiff for tortious interference with contract and business relations.¹The Complaint included ten (10) separate defendants and two causes of action. Count I of the Complaint sought specific performance regarding the transfer of certain property that was scheduled to close on February 17, 2017, in Bay County, Florida. Count II alleged that Plaintiff, along with Mr. William Smith and Mimosa Capital Partners, LLC, tortiously interfered with a contractual right by “preventing the closing from taking place, but also to have [other defendants] sell their rights and interest in the subject property to Mimosa Capital Partners, LLC (and/or others) for the personal benefit of Smith, Utterback, and Mimosa....” See Complaint, ¶43.

1 The Complaint was originally filed in Escambia County and was later transferred to Bay County on, or around, November 15, 2017. The Bay County case number is 17-CA-1165.

4. Approximately eight months after the lawsuit was filed, and approximately two months after the lawsuit was transferred to Bay County, the plaintiff in the earlier case filed a “Notice of Dismissal of Defendants Thomas Utterback, William Smith, and Mimosa Capital Partners, LLC” on January 11, 2011. The dismissal was filed without prejudice. It also appears that Plaintiff represented himself in a pro se capacity during the approximately eight months that the case proceeded against him.²

2 Of note, while Mr. Utterback was dismissed, the case proceeded as the plaintiff amended their Complaint to include a count for breach of contract to go along with their specific performance count. See Plaintiff's Mot. to Amend Compl., filed January 11, 2018, Case No. 17-CA-1165. As discussed in more detail below, said action was tried before a jury in February 2023. Plaintiff, Mr. Utterback, was a critical witness in that trial.

5. In his current pleadings, Plaintiff alleges that Defendants knew that the allegations contained in their Complaint, filed May 25, 2017, were false, that the action was brought without probable cause, and that it was instituted with malice and without any reasonable probability of success. Plaintiff subsequently sought leave to amend his Complaint to add a claim for punitive damages exclusively against Defendant Morris.

6. On January 26, 2021, Defendant Morris moved for summary judgment as to the claim against him. In essence, Defendants argue that Plaintiff cannot satisfy the essential elements required to succeed pursuant to a malicious prosecution cause of action. Defendant Morris claims that the dismissal without prejudice of the prior case did not support a finding that the proceeding terminated in favor of Plaintiff, that there was no evidence that the litigation was instigated with malice, and that Defendants had probable cause for the tortious interference claims against Plaintiff. Lastly, Defendant Morris argues that Plaintiff could not establish that he was damaged by the filing of the previous litigation.

7. On April 6, 2022, Plaintiff filed his Motion for Summary Judgment on the Issue of Probable Cause.³ In his Motion, Plaintiff asserts that the pleadings and record evidence reveal that there is no genuine issue of material fact and that prior to initiating the subject litigation against him, Defendant Morris failed to investigate the facts and research the law in relation to the tortious interference claim. Accordingly, Plaintiff claims that “as a result of his negligence and willful ignorance, [Defendant] Morris prosecuted claims which no reasonable lawyer would have regarded as tenable.” Pl.'s Mot. for Summ. J.

3 While Plaintiff filed his competing Motion for Summary Judgment, a review of the docket reveals that Plaintiff did not file a Response in Opposition to Defendant's Motion for Summary Judgment. However, Plaintiff's competing Motion does not completely address all issues raised by Defendants aside from “probable cause.” However, for the purposes of this Order, the Court recognizes that the analysis of the parties' respective motions is somewhat circular because, arguably, establishing lack of probable cause would allow Plaintiff to survive summary judgment as to some of the remaining elements for his alleged cause of action.

8. On April 12, 2022, Plaintiff filed his “Renewed Motion for Leave to File Plaintiff's First Amended Complaint Seeking Punitive Damages from Defendant Craig B. Morris, with Brief in Support” and “Motion to Disqualify Craig B. Morris with Incorporated Legal Memorandum.”

9. On May 11, 2022, Plaintiff filed his Motion to Compel Discovery, asking the Court to enter an order requiring Defendants to produce documents and executive session materials regarding Exhibits 4 & 5, attached to Plaintiff's Motion for Summary Judgment and to make themselves available for depositions regarding the circumstances and events concerning said Exhibits.

10. On June 6, 2022, the Calypso Association filed its Joinder in the January 26, 2021, Motion for Summary Judgment, filed by Defendant Morris.

11. On July 13, 2022, Plaintiff filed his Request for the Court to Take Judicial Notice and Incorporated Memorandum Submitted in Support of Plaintiff's Motions for Summary Judgement on Probable Cause, to Disqualify Morris from representing the COA, and to Amend Complaint to Add Punitive Damages Claim.

12. On August 26, 2022, Plaintiff filed his Motion to Waive Mediation, asserting, among other things, that mediation was unlikely to be successful because Plaintiff was pursuing a claim for punitive damages.

13. On October 14, 2022, Defendants filed their joint Response in Opposition to Plaintiff's “Motion for Summary Judgment on the Issue of Probable Cause.”

14. On February 17, 2023, a jury trial occurred in Bay County Case 17-CA-1165 (which was consolidated with other cases). Many of the factual issues currently at issue were intertwined with the testimony and evidence presented at that trial. Of note, the jury found as follows:

A. That the contract between the Association and the Calypso Developers to purchase the “beach services” was a valid contract based on Larry Covington having apparent authority to act on behalf of the Calypso Developers; and

B. That the Calypso Developers failed to do something essential which the contract required them to do by failing to complete the closing transaction.⁴

4 It should be noted that the later development in the original litigation were not determinative for the purposes of this Order and are included solely to provide the complete procedural framework in both litigations.

SUMMARY JUDGMENT STANDARD

15. Effective May 1, 2021, Florida became aligned with “the supermajority of states” by generally adopting the federal summary judgment standard articulated by the U.S. Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the “Celotex trilogy”). See, In re Amendments to Fla. Rule of Civ. Proc. 1.510, 317 So.3d 72 (Fla. 2021) (“The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.”).

16. Before May 1, 2021, Florida's prior Rule 1.510 entitled a movant to summary judgment “if the pleadings and summary judgment evidence on file show[ed] there [was] no genuine issue as to any material fact and that the moving party [was] entitled to judgment as a matter of law.” Conversely, Federal Rule 56 provided that “[t]he court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” While, at first blush, these summary judgment standards seem similar, the different interpretations given to them by Florida courts and Federal courts amounted to a growing chasm.

17. Until the new summary judgment standard was adopted, Florida movants had to jump the almost insurmountable hurdle of essentially “proving a negative, i.e., the non-existence of a genuine issue of material fact.” Hall v. Talcott, 191 So.2d 40, 43 (Fla. 1966). Consistent with this lofty standard, the prior standard also dictated that “[i]f the record reflects ... the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” See, e.g., St. Pierre v. United Pacific Life Ins., Co., 644 So.2d 1030, 1031 (Fla. 2d DCA 1994) (emphasis added).

18. Finally, under the old standard, a moving party was burdened with not only establishing their own case but also disproving the other party's defenses. In re Amendments to Fla. Rule of Civ. Proc. 1.510, 309 So.3d 192, 193 (Fla. 2020) (“Florida courts have required the moving party conclusively ‘to disprove the nonmovant's theory of the case in order to eliminate any issue of fact.”) (citations omitted). These extremely stringent thresholds ultimately “unduly hindered the use of summary judgment in our state” for over half a century. In re Amendments to Fla. Rule of Civ. Proc. 1.510, 317 So.3d 72, 75 (Fla. 2021).

19. Realizing that the historical summary judgment standard did not “best comport with the text and purpose of Rule 1.510,” the Florida Supreme Court determined that adopting the federal standard was “in the best interest of [the State of Florida].” In re Amendments to Fla. Rule of Civ. Proc. 1.510, 309 So.3d at 194. The purpose of the summary judgment procedure has traditionally been recognized as serving to avoid the cost and delay of unnecessary trials and to dispose of lifeless cases. See, i.e., Petruska v. Smartparks-Silver Springs, Inc., 914 So.2d 502, 503 (Fla. 5th DCA 2005) (“The great benefit derived from summary judgment is that it puts an end to useless and costly litigation where there is no genuine issue of material fact to present to a jury.”); Nat'l Airlines, Inc. v. Fla. Equip. Co. of Miami, 71 So.2d 741, 744 (Fla. 1954) (“The function of the rule authorizing summary judgments is to avoid the expense and delay of trials when all facts are admitted or when a party is unable to support by any competent evidence a contention of fact.”). In considering such overarching purpose, the Florida Supreme Court found that the adoption of the federal standard better “secures the just, speedy, and inexpensive determination of every action” without inappropriately trespassing upon fundamental and traditional processes for determining the rights of litigants. In re Amendments to Fla. Rule of Civ. Proc. 1.510, 309 So.3d at 194.

20. Under Florida's revised summary judgment standard, trial courts are to apply what generally mirrors a directed verdict standard. See, e.g., Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (“[T]he non-moving party must either point to evidence in the record or present additional evidence ‘sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency.'”) (citations omitted). More specifically, a movant in Florida no longer has any duty to negate the opposing party's defenses or denials. Instead, the burden of a moving party is much more aligned to their burden at trial. “[T]he burden on the moving party may be discharged by ‘showing' . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp., 477 U.S. at 325. “[I]f the nonmoving party must prove ‘X' to prevail at trial, the moving party at summary judgment can either produce evidence that ‘X' is not so or point out that the nonmoving party lacks the evidence to prove ‘X.'” Bedford v. Doe, 880 F.3d 993, 996-97 (8th Cir. 2018). Once a moving party satisfies said burden, the burden then shifts to the nonmoving party, who must establish the existence of a triable issue via qualified, competent evidence.

21. It is critical to comprehend what constitutes a “genuine issue of material fact” when applying the Celotex trilogy and its progeny. “An issue of fact is ‘material' if it is a legal element of the claim under applicable substantive law which might affect outcome of the case.” Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997) (citations omitted). 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. (citations omitted). Trial courts are tasked with viewing all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and to ultimately determine whether that evidence could reasonably sustain a jury verdict. Id.

22. In reviewing an application for summary judgment, trial courts are only to consider the record as identified in subdivision (c). Said materials include portions of the record in the case that represent either sworn testimony⁵ or admissions.⁶ Trial courts may not consider other materials, nor can they consider testimony at the summary judgment hearing. See., e.g., Nichols v. Preiser, 849 So.2d 478, 481 (Fla. 2d DCA 2003); First North American Nat'l Bank v. Hummel, 825 So.2d 502, 504 (Fla. 2d DCA 2002) (“[D]ocuments [that] were not authenticated or supported by an affidavit or other evidentiary proof” should not have been considered on summary judgment motion).

5 This may be in the form of sworn deposition testimony, sworn answers to interrogatories and affidavits submitted in support or in opposition to the motion.

6 Admissions may come either through the pleadings in the file or through admissions that are effectuated under Rule 1.370 regarding requests for admissions.

23. Rule 1.510 does not require that a party seeking summary judgment wait for the conclusion of all discovery to pursue the remedy. Instead, subsection (d) affords a responding party the ability to argue that it needs additional time “to obtain affidavits or declarations or to take discovery” to present facts essential to justify its opposition. Nonmovants seeking additional time should not make such applications, however, when they have been dilatory in seeking or taking advantage of discovery opportunities. See., e.g., Martins v. PNC Bank, NA, 170 So.3d 932, 936-37 (Fla. 5th DCA 2015) (“[I]f the non-moving party does not act diligently in completing discovery or uses discovery methods to thwart and/or delay the hearing on the motion for summary judgment, the trial court is within its discretion to grant judgment even though there is discovery still pending).

24. Finally, the revised Rule 1.510 places the onus on litigants to provide clear and concise arguments establishing their entitlement to relief. First, the parties' supporting factual positions must be filed well before the hearing, not at the last minute. Second, each party must specifically identify particular parts of the record, establishing that a fact cannot be or is genuinely disputed. “A party seeking summary judgment always bears the initial responsibility of informing the [trial] court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. “The nature of this responsibility varies, however, depending on whether the legal issues, as to which the facts in question pertain, are ones on which the movant or the nonmovant would bear the burden of proof at trial.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Where the movant bears the burden of proof at trial, “that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial.” Id. (citations omitted). For issues on which the movant does not bear the burden of proof, “the moving party simply may show there is an absence of evidence to support the nonmoving party's case.” Id. (citations omitted). Parties not fulfilling their pleading burdens under Rule 1.510 should expect to fail.

THE LAW

25. In a malicious prosecution action, a plaintiff must offer proof of the following six elements:

(1) an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant, and (6) the plaintiff suffered damage as a result of the original proceeding.

Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).

26. “The failure of a plaintiff to establish any one of these six elements is fatal to a claim of malicious prosecution.” Mancusi, 632 So.2d at 1355; see also Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1219 (Fla. 1986).

27. As it relates specifically to the element of probable cause, the burden in malicious prosecution cases is on the plaintiff to prove the absence of probable cause. Harris v. Boone, 519 So.2d 1065, 1067 (Fla. 1st DCA 1988). In the same context, the existence of probable cause will ultimately defeat a claim for malicious prosecution, even if the alleged wrongdoer may have acted with malice. Lewis v. Morgan, 79 So.3d 926 (Fla. 1st DCA 2012); see also Gallucci v. Milavic, 100 So.2d 375 (Fla. 1958).

28. To establish probable cause, it is not necessary to show that the instigator of a lawsuit was certain of the outcome of the proceeding but rather that he had a reasonable belief, based on facts and circumstances known to him, in the validity of the claim. Wright v. Yurko, 446 So.2d 1162, 1166 (Fla. 5th DCA 1984) (footnotes omitted). In other words, the instigator must have had “ ‘[a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.'” Goldstein v. Sabella, 88 So.2d 910, 911 (Fla. 1956) (quoting Dunnavant v. State, 46 So.2d 871, 874 (Fla. 1950)).

29. Moreover, “[p]robable cause in the context of a civil suit is measured by a lesser standard than in a criminal suit.” Wright, 446 So.2d at 1166. Thus, in a malicious prosecution action against an attorney, “[i]t is the attorney's reasonable and honest belief that his client has a tenable claim that is the attorney's probable cause for representation, and not the attorney's conviction that his client must prevail.” C.A Hansen Corp. v. Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, P.A., 613 So.2d 1336, 1338 (Fla. 3d DCA 1993) (quoting Central Fla. Mach. Co., Inc. v. Williams, 424 So.2d 201, 203 (Fla. 2d DCA 1983)). Indeed, an attorney has the duty to represent the client zealously, not to guarantee that the client will succeed. See C.A. Hansen Corp., 613 So.2d at 1338.

30. Finally, the question of probable cause is a mixed one of law and fact. City of Pensacola v. Owens, 369 So.2d 328, 329 (Fla. 1979). If the facts alleged to show probable cause are undisputed, the existence of probable cause is one of law for the court. Id. at 329. If, however, these facts are disputed, the question of their existence becomes one for the jury. Glass v. Parrish, 51 So.2d 717, 718 (Fla. 1951).

ANALYSIS

31. As mentioned above, this action derives from an earlier litigation initiated in May 2017 by the Calypso Association, represented by its counsel, Craig Morris, Esq., against the Calypso Developers and other entities and individuals, including Mr. Thomas Utterback, who is the Plaintiff in this case. The derivative lawsuit stemmed from an alleged breach of contract for the sale of the Calypso Developers' community property, primarily the “Beach Services,” after a scheduled Closing of a Purchase Sale Agreement between the Calypso Association and the Calypso Developers failed. Importantly, in its lawsuit for specific performance against the Calypso Developers, the Calypso Association also initially asserted two counts for tortious interference with contractual rights and tortious interference with advantageous business relationship against Mr. William Smith, Mimosa Capital Partners, LLC, and Plaintiff.

32. While there were numerous controversies that existed in the companion case at the time the pending motions were filed and at the time of the hearing, many of those controversies were decided by a jury in February 2023. Indeed, a jury has determined, after a week of hearing evidence and testimony, that Larry Covington had apparent authority to act on behalf of the Calypso Developers and that the option to purchase agreement was a valid and binding contract. According to the operative allegations against Plaintiff in the 2017 companion case, he, along with others, was aware of this contractual agreement but intentionally and unjustifiably interfered with the closing from occurring. More specifically, the complaint in the companion case alleges that Plaintiff attempted to influence the Calypso Developers to sell the subject property rights and interests to another entity, Mimosa Capital Partners, LLC, which was involved with the development of Tower III of the Calypso Resort.

33. Accordingly, as evident by the undisputed facts, the first two elements of the malicious prosecution claim are satisfied.

Element 4: An Absence of Probable Cause ⁷

7 For the reasons more thoroughly expressed below, the Court is analyzing the elements out of order.

34. Plaintiff argues that Defendants lacked probable cause for their tortious interference claim against him. In support of his contention, he propounds that when said claims were filed, there was no existing contract and no business relationship with which he could have interfered. Specifically, he claims that there was never a valid, binding contract between the Association and the Calypso Developers which required the closing to occur. Indeed, a substantial part of Plaintiff's Motion was dedicated to the argument that Mr. Covington lacked the required authority to negotiate and close the deal to sell the “Beach Services.” Further, Plaintiff asserts that even if a valid contract did exist, the contract terminated at the time of the failed closing and, thus, that any allegations of tortious interference after the scheduled closing date are without merit.

35. Ironically, while said issues had not yet been decided at the hearing, a jury did make certain determinations in February 2023 which cut directly against Plaintiff's assertions. Specifically, following a trial that lasted a week, a jury found that the contract between the Association and the Calypso Developers to purchase the “Beach Services” was a valid contract based on Larry Covington's apparent authority to act on behalf of the Calypso Developers. Further, the jury determined that the Calypso Developers failed to do something essential that the contract required them to do by failing to complete the closing transaction.⁸

8 Again, the Court is aware that the events in the trial of 17-CA-1165 are not dispositive for the purpose of this Order. However, the allegations and the assertions in said trial are closely intertwined with the issues currently at the Court's feet. Indeed, many of the exhibits presented as part of the summary judgment record are the same exhibits presented to the jury in the breach of contract claim. The Court's findings and rulings herein, while somewhat bolstered by the findings of the jury in 17-CA-1165, are completely independent thereof.

36. Defendants argue that they had a reasonable and honest belief that the Association had a tenable claim against Plaintiff. Specifically, Defendants argue that they obtained pre-suit information indicating that Mr. William Smith was consulted by Plaintiff to refuse to sign closing paperwork consenting to the scheduled sale of the “Beach Services.”

37. Defendants, in support of their Motion, submitted the affidavit of Mr. Morris, where he listed his communications, research, and activities that took place regarding his preparation prior to filing of the claims for tortious interference against Plaintiff. See Morris Aff., submitted October 14, 2022. Defendants' Motion for Summary Judgement and the attached Exhibits 1 to T1 further corroborated the specific circumstances known to Defendants at the time of filing. Additionally, Defendants provided the Affidavit of Edward P. Fleming, Esq., where Mr. Fleming stated that in the Spring of 2017, he became aware of multiple occasions in which Plaintiff and his associates sought to interfere with the Calypso Association's Option to Purchase Agreement. See Fleming Aff. ¶¶ 4-8. Mr. Fleming further attested that on or about May 23, 2017, he wrote an email to Morris in his capacity as the attorney for James Williams and his business interests, indicating that Smith and Plaintiff were the ones who sought to interfere with the contract at issue. Id. These statements were further supported by the Affidavits of David Evras and Fred Hayes, members of the Board of Directors of the Calypso Association, which Defendants provided. See Evras and Hayes Affs., filed October 14, 2022.

38. After scrutiny of all summary judgment evidence provided by both parties and studying in particularity Plaintiff's submissions in his Exhibits 1 to 27, it is safe to conclude that the factual dispute concerning Defendants' alleged lack of probable cause is not sufficiently substantial or legitimate to create a triable issue of fact. Accordingly, it cannot be concluded that Defendants lacked probable cause before filing their lawsuit against Plaintiff. Indeed, the evidence further confirmed that prior to initiating the suit, Defendants obtained sufficient information to support “a reasonable honest belief in a tenable claim” for tortious interference.⁹

9 When the facts are undisputed in a malicious prosecution action, the existence or nonexistence of probable cause is a pure question of law for the court. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979).

39. Furthermore, in malicious prosecution actions against attorneys, a plaintiff's burden is even heavier than in other circumstances. Such heightened burden stems from the concept that attorneys should not be required to meet too high of a standard prior to filing a claim since this “could prohibit . . . pursuing and establishing new causes of action and could hinder the development of new legal theories.” Central Florida Machine Company, Inc. v. Williams, 424 So.2d 201 (Fla. 2d DCA 1983). The applicable case law further suggests that the same standard as the one adopted to evaluate frivolous lawsuits and the award of attorneys' fees pursuant to section 57.105, Florida Statutes, should govern the determination of whether suits are filed without probable cause in the context of malicious prosecution suits against attorneys. Id.; see also Wright v. Yurko, 446 So. 1162, 1167 (Fla. 5th DCA 1984). Here, it is abundantly clear from the statements and communications as outlined in Defendants' summary judgment evidence that they had, at a minimum, a good faith basis to believe they had probable cause to file the claims against Plaintiff and that such claims were not frivolous. The record evidence illustrates that Defendant Morris reasonably researched and investigated the case and had a tenable theory to present to the court and a jury. Therefore, Plaintiff has failed to establish that a genuine issue of material fact exists as to whether Defendants lacked probable cause to bring suit against him.

Element 5: Malice on the Part of Defendant

40. The element of malice becomes an issue for the jury only upon the conclusive showing of lack of probable cause, which was not met in this case. Accordingly, while Plaintiff's claim fails for the reasons set forth above, it should be mentioned that the summary judgment evidence provided at this stage of the litigation was also deficient in establishing that Defendants acted with malice. See, i.e., Endacott v. International Hospitality, Inc., 910 So.2d 915, 924 (Fla. 3d DCA 2005) (“Because resolution of the issue of probable cause is dispositive, we need not address the issue of malice.”).

41. In malicious prosecution actions, "malice" may be one of two kinds: (a) actual or subjective malice, sometimes called "malice in fact," which results in intentional wrong, and (b) "legal malice," or "technical malice," which may be inferred from circumstances such as the want of probable cause, even though no actual malice or corrupt design is shown. Morgan Intern. Realty, Inc. v. Dade Underwriters Ins. Agency, Inc., 617 So.2d 455 (Fla. 3d DCA 1993). In the same context, the term "malicious" has been described as meaning "without reasonable cause and for a purpose other than that for which the criminal prosecution is provided and for spite out of ill will, animosity, and with a desire to do harm for harm's sake." Erp v. Carroll, 438 So.2d 31 (Fla. 5th DCA 1983).

42. In the instant matter, there is no competent record evidence of malice despite Plaintiff claiming as much in his various filings. This Court concedes that the relationship between Defendant Morris and Plaintiff is, at best, tenuous. Plaintiff, however, has failed to provide any competent evidence based upon which a reasonable juror could conclude that Defendants engaged in any conduct that constituted “gross negligence”¹⁰ or “in series of acts which in their context or in light of the totality of surrounding circumstances, [were] inconsistent with the premise of a reasonable man pursuing a lawful objective, but rather indicate a plan or course of conduct motivated by spite, ill-will, or other bad motive.” Southern Bell Tel. and Tel. Co. Roper, 482 So.2d 538, 539 (Fla. 3d DCA 1986). A wrongful act without a reasonable excuse is malicious within the legal meaning of the term, however, negligence alone, such as attorney's alleged failure to read a contract or understand the law, is insufficient to satisfy the showing of this element. See Pokorny v. First Federal Sav. & Loan Ass'n of Largo, 382 So.2d 678 (Fla. 1980). Put differently, poor judgment, inadequate preparation and misunderstanding of the applicable law might suffice for professional negligence but do not constitute legal malice. See, e.g., Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1982). Here, aside from the unverified filings of Plaintiff, there is no record evidence to substantiate such a finding.

10 "Gross negligence" is the absence of the exercise of "slight care" and is the omission or commission of an act with a conscious indifference to consequences so far as other persons are concerned. Faircloth v. Hill, 85 So.2d 870 (Fla. 1956); City of Sebring v. Avant, 117 So. 383 (Fla. 1928).

Element 6: The Plaintiff Suffered Damages

43. The record evidence regarding Plaintiff's alleged damages is also insufficient to survive summary judgment. Because Plaintiff has moved to amend his Complaint to add a claim for punitive damages, a brief explanation of this specific matter is in order.

44. Generally, there are two kinds of damages that are recoverable in any tort action -compensatory and punitive. S.H. Kress & Co. v. Powell, 180 So. 757, 763 (Fla. 1938). In this context, the law defines compensatory damages as those that “arise from actual and indirect pecuniary loss, mental suffering, value of time, actual expenses, and bodily pain and suffering,” while punitive damages “are such as blend together the interests of society and of the aggrieved individual, and are not only a recompense to the sufferer but also a punishment to the offender and an example to the community.” Id.

45. As previously mentioned, the record evidence is void regarding any compensatory damages suffered by Plaintiff because of Defendants' alleged misconduct. Further, Plaintiff failed to provide proof that theoretically could have supported a plausible nominal damage award. Therefore, the issue before the Court is whether he might be entitled to recover exclusively punitive damages. The answer to this question is no.

46. In an action for malicious prosecution, punitive damages are recoverable when “actual malice and want of probable cause are shown, or where the legal proceedings complained of were commenced under circumstances of oppression, wantonness, or a reckless disregard of plaintiff's rights.” Powell, 180 So. at 763 (citation omitted).

47. In his motion to amend, Plaintiff argues that proving legal malice that is necessary to support his malicious prosecution case, and specifically the lack of probable cause for the filing of the tortious interference claims, would suffice to support an award of punitive damages. See Pl.'s Mot. to Am., p. 3. However, on this specific issue, the applicable law is somewhat different than what is argued by Plaintiff. Even though an absence of probable cause can result in a finding of legal malice, legal malice based solely on the lack of probable cause is insufficient to support an award of punitive damages. Louis v. Costco Wholesale Corp., 719 So.2d 1226, 1228 (Fla. 4th DCA 1998) (citing Jack Eckerd Corp. v. Smith, 558 So.2d 1060, 1063 (Fla. 1st DCA 1990). As explained in Jack Eckerd:

[i]n opposition to Eckerd's motion for a directed verdict, Smith argued to the trial court that the proof of malice required to make out a cause of action for malicious prosecution is also sufficient evidence of malice to permit a jury to award punitive damages as punishment. This is not necessarily true. Legal malice, which may be implied or inferred from an absence of probable cause, must be proved in order to recover compensatory damages in a malicious prosecution action, and such proof of legal malice may be sufficient for recovery of punitive damages as well, if it encompasses a showing of moral turpitude or willful and wanton disregard of the plaintiff's rights, which presupposes the defendant's knowledge or awareness of the risk to plaintiff's rights, or evidence of excessive and reckless disregard of the plaintiff's rights. Legal malice based solely upon the want of probable cause is not sufficient to support an award of punitive damages. Winn[-]Dixie Stores, Inc. v. Gazelle, 523 So.2d 648, 650 (Fla. 1st DCA 1988); and Harris v. Lewis State Bank, 482 So.2d 1378, 1385 (Fla. 1st DCA 1986).

Id. at 1063 (emphasis in original)(footnote omitted).

48. More importantly, a demand for punitive damages is dependent upon the existence of the underlying claim. Soffer v. R.J. Reynolds Tobacco Co., 187 So.3d 1219 (Fla. 2016). Here, Plaintiff failed to present any evidence with respect to some of the essential elements of his cause of action, including that he “suffered [any] damage as a result of the original proceeding.” Alamo, 632 So.2d at 1355.

49. This Court is aware there is authority suggesting that a malicious prosecution is actionable per se; meaning that specific proof as to the amount of damages is not necessary and assessing said amount is peculiarly within the province of the trier of fact. Schlesser v. Levinson, 406 So.2d 1265, 1266 (Fla. 4th DCA 1981) (affirming a malicious prosecution jury verdict of $2,500.00 in compensatory damages); Adler v. Segal, 108 So.2d 773, 775 (Fla. 3d DCA) (affirming a malicious prosecution jury verdict of $10,000.00 in compensatory damages and $5,000.00 in punitive damages), cert, denied, 113 So.2d 834 (Fla. 1959). However, “[t]he damages must be certain and proximate and not uncertain, contingent or speculative.” Id.

50. Furthermore, although a plaintiff may recover punitive damages where the fact finder has found a breach of duty, but no compensatory or actual damages have been proven, an award for punitive damages can only be entered after establishing some type of damage in conjunction with the underlying and successful claim. See, e.g., Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla. 2006) (per curiam, with two justices joining and two justices concurring separately in part).

51. Again, Plaintiff has failed to present any factual evidence, if not an amount, of the damage that he allegedly suffered as a result of the litigation against him. See, e.g., Cate v. Oldham, 450 So.2d 224 (Fla. 1984) (recognizing that malicious prosecution is considered a personal tort, where the gravamen of the action is injury to character and that it is not sufficient that the prosecution was malicious in nature, if the plaintiff did not show that he suffered special damage). Such failure is also fatal to Plaintiff's claim.

Element 3: Bona Fide Termination of Earlier Proceeding in Favor of Plaintiff

52. Finally, in somewhat of a circular fashion, the Court's previous finding that Plaintiff has failed to establish a lack of probable cause in Defendant Morris bringing the companion suite results in Plaintiff's failure as to the third element. With respect to the third element, the showing of bona fide termination of the earlier proceeding in favor of the plaintiff is necessary. Doss v. Bank of Am., N.A., 857 So.2d 991, 994 (Fla. 5th DCA 2003) (holding that “[i]t is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a ‘bona fide termination' in that party's favor”).

53. A “bona fide termination” of the proceedings has been defined as:

a fancy phrase which means that the first suit, on which the malicious prosecution suit is based, ended in a manner indicating the original defendant's (and current plaintiff's) innocence of the charges or allegations contained in the first suit, so that a court handling the malicious prosecution suit, can conclude with confidence, that the termination of the first suit was not only favorable to the defendant in that suit, but also that it demonstrated the first suit's lack of merit.

Id. at 994.

54. Whether a voluntary dismissal qualifies as “bona fide termination” of the proceedings depends upon the reasons and circumstances underlying the dismissal. Union Oil v. California Amsco Div. v. Watson, 468 So.2d 349, 353-55 (Fla. 3d DCA 1985). On some occasions, “a voluntary dismissal is reflective of the merits, such as where the allegations in the underlying complaint are demonstrated to be false and there is evidence the plaintiff knew they were false.” Cohen v. Corwin, 980 So.2d 1154, 1156 (Fla. 4th DCA 2008) (citation omitted). Conversely, there are times “such as where there is a dismissal as a consequence of a stipulation or settlement or because of a statute of limitations defense” when the voluntary dismissal is not reflective of the merits of the case. Id. More specifically, when a voluntary dismissal occurs due to “technical grounds, for procedural reasons, or any other reason not inconsistent with the guilt of the accused, it does not constitute a favorable termination.” Union Oil, 468 So.2d at 355. Ultimately, whether a voluntary dismissal constitutes a “favorable termination” turns on “the total circumstances of the dismissal.” Id. at 353.

55. As Defendants argue, the voluntary dismissal without prejudice does not prevent them from reinitiating the cause of action against Plaintiff at any time in the future. The reason for the voluntary dismissal expressed by Defendants - and even somewhat acknowledged by Plaintiff in his Motion - was that continuing to litigate the claim would significantly increase Defendants' litigation expenses.

56. There is case law that indicates that “a dismissal without prejudice does not support a finding that a proceeding terminated in favor of [the plaintiff] for purposes of a malicious prosecution claim.” See, Cowan v. MTGLQ Investors, L.P., 2011 WL 2462044, at *3 (M.D. Fla. 2011); see also, McRae v. Rollins College, 2006 WL 1320153, at *3 (M.D. Fla. 2006) (“A dismissal without prejudice does not support a finding that a defendant was a prevailing party.”). The Court believes, however, that finding that a dismissal “with” or “without prejudice” is critical to determining that the companion proceeding terminated in favor of Plaintiff is unnecessary in this matter. More specifically, no such holding is mandated because the Court's prior determination regarding probable cause is ultimately dispositive of the third element in favor of Defendants.

57. Plaintiff did meet his initial burden that the previous action against him was “terminated” and that such termination was “bona fide.” Generally, once a plaintiff meets this burden, a defendant has the burden to bring forward evidence to show that the termination was not “bona fide” or was not in the plaintiff's favor. Doss, 857 So.2d at n.6 (citation omitted). While the voluntary dismissal at issue is wholly silent as to why the matter was dismissed, the record evidence establishes that it was not dismissed based upon a lack of merit, as is argued by Plaintiff. Instead, and in accord with the Court's prior analysis regarding probable cause, it would be impossible to find that the voluntary dismissal without prejudice was a termination of the proceeding in Plaintiff's favor.

58. Accordingly, for the reasons discussed above, the Court finds that Defendants are entitled to summary judgment.

Therefore, it is

ORDERED AND ADJUDGED that Defendants' Motion for Summary Judgment is GRANTED. Plaintiff shall take nothing by this action and the Defendants shall go hence without day. This case is CLOSED and all pending motions are DENIED AS MOOT. Plaintiff's Notice of Case Management Conference to Schedule Decisions and to Set Case for Jury Trial scheduled May 23, 2023, is CANCELED.

DONE AND ORDERED.

ATTACHMENT 7

UNITED STATES OF AMERICA, Plaintiff

v.

THOMAS M. UTTERBACK, Defendant

5:23-cv-279-TKW/MJF

United States District Court, Eastern District of Missouri Eastern Division

July 24, 2024

INDICTMENT

COUNT I

The Grand Jury charges that:

From on or about November 1, 1997 to on or about November 20, 1997, in the Eastern District of Missouri and elsewhere, THOMAS M. UTTERBACK, the defendant, did knowingly and willfully transport, transmit and transfer monetary instruments and funds, that is United States currency in the amount of $3,200,000.00, more or less, from a place in the United States, that is St. Louis County, Missouri, to places outside the United States, that is the countries of Panama and Switzerland, knowing that the monetary instruments and funds involved in the transportation, transmission and transfer represented the proceeds of some form of unlawful activity and knowing that such transportation, transmission and transfer was designed in whole or in part: (1) to conceal and disguise the nature, the location, the source, the ownership and the control of the proceeds of specified unlawful activity, that is the distribution of controlled substances; and (2) to avoid a transaction reporting requirement under Federal law.

In violation of Title 18, United States Code, Sections 1956(a)(2)(B) and 2.

COUNT II

The Grand Jury further charges that:

From on or about November 1,1997 to on or about November 20, 1997 in the Eastern District of Missouri and elsewhere, THOMAS M. UTTERBACK, the defendant, did knowingly and wilfully engage in a monetary transaction, affecting interstate and foreign commerce, in criminally derived property of a value greater than $10,000.00, that is, the transportation, transmission and transfer of $3,200,000.00, more or less, in United States currency from St. Louis County, Missouri, to the countries of Panama and Switzerland, such property having been derived from specified unlawful activity, that is the distribution of controlled substances.

In violation of Title 18, United States Code, Section 1957 and 2.

COUNT III

The Grand Jury further charges that:

From on or about November 1, 1997 to on or about November 20, 1997 in the Eastern District of Missouri and elsewhere, THOMAS M. UTTERBACK, the defendant, did knowingly, willfully and intentionally transport monetary instruments of more than $10,000.00 at one time, that is $3,200,000.00, more or less, in United States currency, from places in the United States, that is St. Louis County, Missouri and Houma, Louisiana, to places outside the United States, that is the countries of Panama and Switzerland, without filing a Report of International Transportation of Currency or Monetary Instruments, Customs Form 4790, as required by 31 Code of Federal Regulations, Section 103.23, and did so while violating Title 18, United States Code, Section 1956 and 1957, which are laws of the United States.

In violation of Title 31, United States Code, Sections 5316(a)(1), 5322(b) and 2; and 31 Code of Federal Regulations, Section 103.23.

A TRUE BILL

FOREPERSON

EDWARD L. DOWD, JR. UNITED STATES ATTORNEY

JAMES E. CROWE, JR. Attorney