DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          MAGGY HURCHALLA,
                              Appellant,

                                     v.

    LAKE POINT PHASE I, LLC, and LAKE POINT PHASE II, LLC,
               Florida Limited Liability Companies,
                            Appellees.

                      Nos. 4D18-1221 & 4D18-1632

                             [June 19, 2019]

   Consolidated appeal from the Circuit Court for the Nineteenth Judicial
Circuit, Martin County; William L. Roby, Judge; L.T. Case No. 43-2013-
CA-001321.

   Richard J. Ovelmen, Rachel A. Oostendorp, Alix I. Cohen and Dorothy
Kafka of Carlton Fields Jorden Burt, P.A., Miami, Virginia P. Sherlock and
Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, Talbot
D’Alemberte of D’Alemberte & Palmer, PLLC, Tallahassee, and Jamie S.
Gorelick, David W. Ogden, David Lehn and Justin Baxenberg of Wilmer
Cutler Pickering Hale and Dorr, LLP, Washington, DC, for appellant.

   Michael J. Labbee, Ethan J. Loeb and Jon P. Tasso of Smolker, Bartlett,
Loeb, Hinds & Thompson, P.A., Tampa, for appellees Lake Point Phase I,
LLC, and Lake Point Phase II, LLC.

   Richard Grosso of Richard Grosso, P.A., Davie, for Amici Curiae Dr.
Penelope Canan and George W. Pring.

   Richard Grosso of Richard Grosso, P.A., Davie, for Amici Curiae
Bullsugar.org, Florida Wildlife Federation, Friends of the Everglades, and
the Pegasus Foundation.

  Jack Schramm Cox, Hobe Sound, for Amicus Curiae The Guardians of
Martin County, Inc.

   Paul M. Crochet of Weber, Crabb & Wein, P.A., St. Petersburg, for Amici
Curiae First Amendment Foundation, The League of Women Voters of
Florida, Florida Press Association, Florida Society of News Editors, Natural
Resources Defense Council, Sierra Club, American Civil Liberties Union
Foundation of Florida, Fane Lozman, and The Brechner Center.

CONNER, J.

    Maggy Hurchalla (“Hurchalla”) appeals the final judgment entered after
a jury found in favor of Lake Point Phase I, LLC and Lake Point Phase II,
LLC (collectively, “Lake Point”), on its claim of tortious interference. Prior
to trial, the South Florida Water Management District (“the District”) and
Martin County (“the County”) were co-defendants, but the claims against
them were settled. Hurchalla argues the trial court erred by: (1) improperly
instructing the jury on her defense of First Amendment privilege to petition
the government; (2) entering the judgment against her when the evidence
was insufficient to defeat her First Amendment privilege; (3) improperly
instructing the jury on her defense of common law privilege to make
statements to a governmental entity for mutual and public interest; (4)
entering the judgment against her when the evidence was insufficient to
defeat her common law privilege; (5) denying her motion for judgment
notwithstanding the verdict (contending insufficient evidence of breach,
causation, and damages); (6) giving an adverse inference jury instruction;
and (7) ordering her to pay attorneys’ fees as a sanction. We affirm on the
issues regarding the First Amendment and common law privileges and
explain our analysis. We affirm as to the other issues raised without
discussion.

   As to the jury instructions regarding the privilege defenses, we
determine there was no reversible error. As to the evidentiary arguments,
we determine that the jury was presented with sufficient evidence to
conclude the privileges were negated by malice on the part of Hurchalla.

                                Background

   This appeal involves a 2,266-acre tract of land in Martin County (“the
Property”). The previous owners of the Property planned to develop a
subdivision of twenty-acre “ranchettes,” for which the County issued a
development order (“the Development Order”) for a large segment of the
Property. The Development Order allowed the owners to mine limestone
from the Property. When the real estate market started to decline in 2008,
the previous owners looked to sell the Property. They contacted the
District about buying the Property. The Property was of value to the
District because of its unique location at the intersection of three different
water basins and its potential for storing, cleansing, and then conveying
water to different areas. However, the District was not able to acquire the
funding to purchase the Property in a timely manner. Since Lake Point

                                      2
had been a contractor building on the Property for the previous owners, it
“realized that there was a very economical limestone on the [P]roperty” that
the company could use for its heavy highway construction business, so it
purchased the Property.

   Lake Point approached the District with a concept for a public-private
partnership to construct a stormwater treatment project (“the Project”) on
the Property. After the District oversaw an in-depth due diligence
investigation, Lake Point and the District entered into an agreement titled
“Acquisition and Development Agreement for Public Works Project” (“the
ADA”) in November 2008. The ADA addressed the Project in two phases,
Phase I and Phase II, based on the fact that a portion of the Property was
under the Development Order. As to the Phase I parcel, mining would
continue under the Development Order. As to the Phase II parcel, which
was not under the Development Order, it was contemplated that Lake
Point would conduct mining to create stormwater treatment facilities, but
as to that parcel, mining permits would be obtained from both the Florida
Department of Environmental Protection (“FDEP”) and the Army Corps of
Engineers (“the Corps”). The Project envisioned that excavation of
limestone would create the stormwater management lakes that could be
used by the District for water storage and conveyance purposes. The
agreement required Lake Point to donate the Property to the District in
phases over a 20-year period, as Lake Point mined limestone from the
property. Because the Development Order was an encumbrance on the
Property, the ADA provided that Lake Point would have the Development
Order vacated as to the portions of the Phase I parcel donated to the
District.

   Since the County was a necessary player in accomplishing the Project,
the District and the County entered into an interlocal agreement (“the
Interlocal Agreement”) for the Project in May 2009. The Interlocal
Agreement expressly acknowledged the Project’s numerous “water related
benefits.” Mirroring the ADA, the Interlocal Agreement required that the
Development Order (authorizing mining) had to be vacated as to any
portion of the Phase I parcel donated to the District. The County expressly
agreed that it would take no action to otherwise create any encumbrances
on the Property. The agreement also provided that until portions of the
Property were donated to the District, the Development Order would
remain in full force and effect.

   The Interlocal Agreement also allowed Lake Point to mine limestone on
the Phase II portion of the Property, if it obtained permits from both the
FDEP and the Corps. Once Lake Point obtained those permits, additional
permission from the County to mine the Phase II parcel was not required

                                     3
because the Project qualified as an exempt public stormwater project. The
Interlocal Agreement also provided that Lake Point would pay the County
an annual monetary contribution based on the amount of limestone
mined.

   Over the next several years, Lake Point worked to implement the
Project. Lake Point commissioned additional engineering reports to ensure
the Project’s success. It applied for and obtained the necessary mining
permits from the FDEP and the Corps. During this time, the County
monitored the Project and never identified any problems with the Project.

   Hurchalla served as a Martin County Commissioner from 1974 to 1994.
She has received numerous awards for her long commitment to
environmental issues and had served on state and regional environmental
boards and committees. When the County entered into the Interlocal
Agreement in 2009, Hurchalla knew of the Project and expressed a few
concerns, but took no action in protest.

   In September 2012, local media published an article about a plan by
Lake Point to convert the Project into one that would supply water to the
City of West Palm Beach for consumptive use. The article alarmed
Hurchalla. Prompted by the news article, by late 2012 Hurchalla became
vehemently opposed to the Project. This was in the same time frame as
the 2012 general election, which saw a change to the composition of the
Board of the Martin County Commission (“BOCC”) with the election of
Hurchalla’s good friend Anne Scott, joining another close friend, Sarah
Heard on the BOCC. Hurchalla began expressing her disagreement with
the Project in a series of emails sent to these close friends on the BOCC
using their private email accounts; messages were also sent to the BOCC
email address of Commissioner Ed Fielding. These emails encouraged the
commissioners to copy and paste Hurchalla’s statements and forward
them in emails to the other county commissioners and county staff.
Hurchalla also began giving explicit instructions in the emails to her
commissioner friends as to how to stop the Project with various
maneuvers.

  As found by the jury, the emails resulted in the County changing course
and moving to thwart, or at the least, significantly delay the Project.

    In 2013, Lake Point sued the District and the County, asserting claims
for declaratory relief, breach of contract, and tortious interference. In an
amended complaint, Lake Point also asserted two counts against
Hurchalla, individually; one for tortious interference seeking injunctive
relief, the other for tortious interference seeking damages. Regarding


                                     4
Hurchalla, Lake Point alleged that there were new members elected to
serve on the BOCC, and that “[l]eading up to and in conjunction with this
change in the BOCC’s composition, Hurchalla started to engage in
surreptitious activities targeted to interfere with Lake Point’s interests.”
Lake Point alleged that Hurchalla scheduled and attended meetings, and
also had email communications with various members of the BOCC,
having a “plan to interfere with the” Interlocal Agreement and ADA. It was
also alleged that Hurchalla “began making numerous false and misleading
statements verbally and in writing to the BOCC, [the District] and others,
outside of normal public meetings.” Lake Point specifically listed in the
amended complaint seven statements Hurchalla made in a January 4,
2013 email sent to all five county commissioners. Finally, Lake Point
alleged that “[a]s a result of and in direct response to Hurchalla’s efforts
and false statements, the County and [the District] have begun breaching
various obligations under the Interlocal Agreement and Development
Agreement with Lake Point[.]”

    The District and the County settled with Lake Point, which resulted in
amendments to the ADA and Interlocal Agreement more favorable to Lake
Point, and the County paid Lake Point $12 million. Lake Point abandoned
its count against Hurchalla for an injunction. The only remaining count
at the time of trial was against Hurchalla for damages, focusing on her
alleged tortious interference with the Interlocal Agreement.

   The jury returned a verdict for Lake Point, awarding $4.4 million in
damages.    The trial court denied Hurchalla’s motion for judgment
notwithstanding the verdict. Hurchalla gave notice of appeal.

                            Appellate Analysis

   Hurchalla argues that the trial court improperly instructed the jury on
her First Amendment privilege to petition her government and her common
law privilege to make statements to a political authority regarding matters
of public concern. Additionally, she argues the evidence presented to the
jury was insufficient to defeat both privileges. We first address the
arguments regarding the jury instructions.

Jury Instructions Regarding the Privilege Defense

   On appeal, Hurchalla asserts the trial court erred in instructing the
jury on her defense under the First Amendment privilege to petition her
government and her defense under the Florida common law to make
statements to a political authority regarding matters of public concern.



                                     5
   Our review of the trial transcript reveals that most of defense counsel’s
charge conference arguments focused on legal principles regarding the
common law privilege. However, there were times when defense counsel
would infuse arguments about the First Amendment privilege, thus
blurring the distinction between the two privileges. It is clear there were
no separate and distinct proposed jury instructions for each privilege
submitted by Hurchalla for the trial court to consider. Similarly, there is
nothing in the record suggesting that Hurchalla attempted to offer two
separate privileges for the jury to consider. Instead, Hurchalla’s counsel
submitted “Defendant’s Proposed Jury Instruction No. 10 First
Amendment Privilege,” which actually contained the elements of the
common law privilege, rather than the First Amendment privilege.

   There are important differences between the federal constitutional First
Amendment privilege to petition government and the Florida common law
privilege to speak to another about matters of mutual and public interest.
Our supreme court, in Nodar v. Galbreath, 

(Fla. 1984),
explained the similarities and differences.

    Both privileges are qualified, meaning they are not absolute. 

(discussing New York Times Co. v. Sullivan, 

, 

,

(1964), regarding the right of a public official to bring a
defamation action and describing the Florida common law privilege as
“conditional” and “qualified”). Both privileges can be overcome by a
showing of malice. 

types of malice necessary to overcome
the privileges are different. 

the First Amendment
privilege, actual malice must be shown. 

express malice
must be shown to overcome the Florida common law privilege. 

court described the difference in the malice standards:

      “Actual malice[]” . . . consists of knowledge of falsity or
      reckless disregard of truth or falsity, and must be shown by
      clear and convincing evidence. Express malice under the
      common law of Florida, necessary to overcome the common-
      law qualified privilege, is present where the primary motive for
      the statement is shown to have been an intention to injure the
      plaintiff. The plaintiff need only show this fact by a
      preponderance of the evidence, the ordinary standard of proof
      in civil cases.

-07 (internal citations omitted). Thus, not only are the standards
of malice different, but so are the burdens of proof to establish the malice.




                                     6
    The differences between the two privileges are important for
understanding the proper interplay between the First Amendment
privilege and the common law privilege with the elements of tortious
interference with contractual relationships.         For example, the two
privileges require different types of malice: actual malice or express malice.
Hurchalla argued only express malice for her defense in the trial court.
While she affirmatively requested an instruction discussing express malice
below, on appeal, she argues the trial court failed to instruct on actual
malice. Additionally, regarding the interplay of privilege with the elements
of tortious interference and the burden of proof as to privilege, defense
counsel briefly argued at one point that it was Lake Point’s burden to
negate Hurchalla’s privileged statements; however, that argument was
virtually abandoned or countermanded by defense counsel’s repeated
assertion that the privilege was an affirmative defense.

    Because defense counsel’s submissions and arguments during the
charge conference failed to make important distinctions between the two
privileges, we determine the trial court’s instructions regarding privileged
communication and the privilege defense were not reversible error. 1 See
Universal Ins. Co. of N. Am. v. Warfel, 

, 65 (Fla. 2012)
(“Fundamental error is waived where defense counsel requests an
erroneous instruction.”); Goodwin v. State, 

, 544 (Fla. 1999)
(“If the error is ‘invited,’ . . . the appellate court will not consider the error
a basis for reversal.” (footnote omitted)).

Sufficiency of Evidence Concerning the First Amendment Privilege

   We address the argument by Hurchalla’s appellate counsel that “an
appellate court has an obligation ‘to make an independent examination of
the whole record’ to ensure that ‘the judgment does not constitute a
forbidden intrusion on the field of free expression.’” Bose Corp. v.
Consumers Union of U.S., Inc., 

, 499, 

, 1958
80 L. Ed. 2d, 502, (1984) (quoting 

, 84 S. Ct.
at 728-29); see also Seropian v. Forman, 

, 494 (Fla. 4th DCA
1995). In other words, we address Hurchalla’s counsel’s assertion that it
is our responsibility to determine if there was clear and convincing
evidence to support a determination that Hurchalla demonstrated actual
malice by interfering with Lake Point’s contract.


1 Because we determined above that there is no reversible error in the jury
instructions due to the fact that separate instructions for each privilege were not
requested, we do not address Hurchalla’s argument on appeal that express
malice must be the sole, rather than merely the primary, motive in a tortious
interference case.

                                        7
    As discussed above, actual malice “consists of knowledge of falsity or
reckless disregard of truth or falsity, and must be shown by clear and
convincing evidence.” 

. In this case, Hurchalla
sent an email to all five county commissioners on January 4, 2013,
expressing her concerns about the Project. We focus on two statements
in the email that Lake Point contends were false (as alleged in the operative
amended complaint). After discussing the status of the project back in
2008, Hurchalla made the following statement:

      At that point[,] [in 2008,] the District staff continued to
      suggest some vague storage value but changed the emphasis
      to the STA [stormwater treatment area] that would be built on
      site as the completion of the project in 20 years. A study was
      to follow that documented the benefits [of the stormwater
      treatment area]. That study has not been provided.

(emphases added). Several sentences later, Hurchalla wrote in a bullet
point: “Neither the storage nor the treatment benefits have been
documented.” (emphasis added).

    These statements are examples of competent substantial evidence that
clearly and convincingly proved that Hurchalla demonstrated actual
malice in interfering with Lake Point’s contracts with the County and the
District, by making statements she either knew were false or with reckless
disregard as to whether they were false. Hurchalla’s comments were
represented as statements of fact, as opposed to statements of pure
opinion. Even if we viewed the statements as “mixed opinions,” the
statements would not be privileged under the First Amendment. See
Zambrano v. Devanesan, 

, 606-07 (Fla. 4th DCA 1986)
(determining statements were not privileged opinion “where the speaker or
writer neglects to provide the audience with an adequate factual
foundation prior to engaging in the offending discourse”). The evidence
before the jury showed that Hurchalla admitted that there actually were
documented treatment benefits. At trial, she stated: “As far as the
treatment benefits, there is a study [documenting treatment benefits], and
I did review that study . . . [but i]t’s a preliminary study and other studies
would need to be done.” (emphasis added). Similarly, her expert agreed
that 2008 models showed storage and treatment benefits of the
stormwater treatment area. Therefore, even if Hurchalla thought there
should have been more studies, she admitted that she had reviewed the
study showing treatment benefits, and thus, she was aware that her
statement that there were no documented benefits was false.




                                      8
   It is also significant that the false statements were emailed to two
recently elected commissioners, Commissioners Scott and Haddox, who
each admitted at trial that they had not read the permits or studies
conducted on the Project, indicating that they were unfamiliar with the
details about the Project (establishing reckless disregard for the truth).
See 

. Thus, upon our independent review
of the record, we determine there was sufficient clear and convincing
evidence to refute Hurchalla’s First Amendment privilege to petition her
government as to those two statements.

Sufficiency of Evidence Concerning the Florida Common Law Privilege

    Hurchalla also argues the evidence was insufficient to prove she made
false statements with express malice. We determine that Hurchalla has
not shown reversible error.

    Case law indicates that there are two ways that express malice can be
proven. Some cases discuss that express malice is proven when the motive
is characterized as “out of spite, to do harm, or for some other bad motive.”
See 

(explaining that “[s]trong, angry, or
intemperate words do not alone show express malice; rather, there must
be a showing that the speaker used his privileged position ‘to gratify his
malevolence’” (quoting Myers v. Hodges, 

, 362 (Fla. 1907)));
Boehm v. Am. Bankers Ins. Grp., Inc., 

, 97 (Fla. 3d DCA 1990)
(applying the description of express malice in Nodar to a tortious
interference claim). Other cases contend that “even where the defendant’s
motive is not purely malicious, a tortious interference claim may succeed
if improper methods were used,” thus demonstrating the required express
malice. KMS Rest. Corp. v. Wendy’s Int’l, Inc., 

, 1327 (11th
Cir. 2004); see also Morsani v. Major League Baseball, 

, 657
(Fla. 2d DCA 1995) (reversing dismissal of tortious interference complaint,
holding that allegations of “the use of threats, intimidation, and
conspiratorial conduct” were indicative of malice).

   We agree with the proposition that in tortious interference cases, when
a privilege is asserted for the interference, the express malice necessary to
negate the privilege can be proven either by direct or circumstantial
evidence of malice through malevolent intent to harm, or by harm
accomplished by improper methods. In this case, we find that there was
sufficient evidence as to both methods. We address the issue of proof of
express malice by improper methods, followed by our analysis as to
malevolent intent.

   Express Malice – Improper Methods


                                     9
    In his dissent in GNB, Inc. v. United Danco Batteries, Inc., 

(Fla. 2d DCA 1993), Judge Altenbernd expressed his view that
“[i]mproper business methods seem to fall into three distinct categories:
(1) acts which are already proscribed by statute, (2) acts which constitute
separate independent torts, and (3) other ill-defined ‘bad’ acts.” 

(Altenbernd, J., dissenting). Here, the trial court’s instruction to the jury
included Judge Alternbernd’s second category of improper methods,
namely, misrepresentation. One of the instructions given to the jury
regarding tortious interference was:

         You must render your verdict in favor of Hurchalla on Lake
         Point’s tortious interference claim if you find that Hurchalla used
         proper methods to attempt to influence Martin County. . . .
         However, deliberate misrepresentation of facts are not considered
         a proper method.

(emphases added).

     Florida Standard Jury Instruction 408.5 applies to intentional
interference with a contract not terminable at will.2 As Hurchalla noted in
her brief, the notes to instruction 408.5 indicate that for most tortious
interference cases there is no “justification” or “privilege”; “[h]owever, in
certain relatively rare factual situations, interference with a contract not
terminable at will may be justified or privileged,” and in those situations,
“instruction 408.5 will have to be modified.” See Fla. Std. Jury Instr. (Civ.)
408.5 notes on use. The notes also point to several sources, including the
Restatement (Second) of Torts § 767 (1979), titled “Factors in Determining
Whether Interference is Improper.” Section 767 states that “[t]he issue is
not simply whether the actor is justified in causing the harm, but rather
whether he is justified in causing it in the manner in which he does cause
it.”     

      “Thus physical violence, fraudulent
misrepresentation and threats of illegal conduct are ordinarily wrongful
means and subject their user to liability even though he is free to
accomplish the same result by more suitable means.” 

We focus on improper means by fraudulent misrepresentation in
the instant case.

   “Fraudulent misrepresentations are . . . ordinarily a wrongful means of
interference and make an interference improper.” 

is
fraudulent when, to the knowledge or belief of its utterer, it is false in the
sense in which it is intended to be understood by its recipient.” 

four elements of fraudulent misrepresentation: ‘(1) a false statement


2   The parties do not dispute that the contracts were not terminable at will.

                                          10
concerning a material fact; (2) the representor’s knowledge that the
representation is false; (3) an intention that the representation induce
another to act on it; and (4) consequent injury by the party acting in
reliance on the representation.’” Butler v. Yusem, 

, 105 (Fla.
2010) (quoting Johnson v. Davis, 

, 627 (Fla. 1985)).

   As we analyzed above, there were two statements in the January 4,
2013 email to all five county commissioners from which the jury could
conclude that Hurchalla intentionally, or at the least, with reckless
disregard, made purportedly factual statements to induce the BOCC not
to go forward with its contract with Lake Point. Using the elements of
misrepresentation described in Butler: (1) Hurchalla made two false
statements concerning a material fact to the BOCC (effectively, the
County); (2) Hurchalla knew that the representations were false; (3)
Hurchalla intended that the representations induce the BOCC (the
County) to act on them; and (4) the County was injured when the BOCC
acted upon the representation and was subsequently sued for its actions
based on the reliance.

   The Restatement also discusses the situation where an actor “seek[s]
to promote not solely an interest of his own but a public interest.”
Restatement (Second) of Torts § 767. In the instant case, Hurchalla put
on evidence and maintained that she is a champion for environmental
causes, and that she did not act with the purpose of harming Lake Point,
but “to promote the public interest in the environment.” However:

      If the actor [Hurchalla] causes a third person [the County] not
      to perform a contract or not to enter into or continue a
      contractual relation with the other [Lake Point] in order to
      protect the public interest affected by these practices, relevant
      questions in determining whether his [or her] interference is
      improper are: whether the practices are actually being used
      by the other [Lake Point], whether the actor [Hurchalla]
      actually believes that the practices are prejudicial to the
      public interest, whether his [or her] belief is reasonable,
      whether he [or she] is acting in good faith for the protection of
      the public interest, whether the contractual relation involved
      is incident or foreign to the continuance of the practices and
      whether the actor [Hurchalla] employs wrongful means to
      accomplish the result.

According to the evidence, several of the factors
clearly weigh in favor of Hurchalla. However, as we discussed above, there
was sufficient evidence presented for the jury to decide the issue of express

                                     11
malice based on Hurchalla using wrongful means to interfere in Lake
Point’s contract with the County by the use of misrepresentations to the
BOCC in her January 4, 2013 email to the commissioners.

   Express Malice – Malevolent Intent to Harm

   We also conclude that there was sufficient evidence presented to the
jury to prove that Hurchalla demonstrated express malice toward Lake
Point through malevolent intent to harm. In addition to her January 4,
2013 email, there were emails she sent to her commissioner friends
instructing them in detail on what to do at board meetings to work towards
voiding the Interlocal Agreement, signed by her as “Deep Rockpit,” as well
as references to herself in emails as “Ms. Machiavelli.” That evidence,
coupled with evidence of her significant influence with a majority of the
commissioners and her ability over time to have them assert oppositional
positions on a project they knew little-to-nothing about, was sufficient to
support an inference of malevolent intent to harm Lake Point.

                                Conclusion

    Having determined that Hurchalla has not demonstrated trial court
error regarding the jury instructions on the defense of privilege, and the
evidence was sufficient to allow the jury to find in favor of Lake Point on
its claim of tortious interference by Hurchalla, we affirm the trial court
rulings and the judgment entered against Hurchalla.

   Affirmed.

DAMOORGIAN and FORST, JJ., concur.

                           *         *          *

   Not final until disposition of timely filed motion for rehearing.




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