THE TRIAL - WHAT WAS IT ALL ABOUT?
2/27/18

Ginny Sherlock filed a motion this week that gives a full explanation about the Lake Point Trial from a legal perspective.  If you want to read all the details, scroll down to the motion.

HIGHLIGHTS
The text in italics are Maggy's summary.
The bold text is from Ginny Sherlock's motion to the court.  
The page numbers refer to the motion which can be downloaded by clicking here.  
The full text of the motion is typed below the excerpted highlights.

For those who watched the trial, the striking thing was the lack of actual evidence.  What passed for evidence were the bold assertions and misstatements of fact by Lake Point's attorneys. They were not under oath.

MRS. HURCHALLA is entitled to a judgment in her favor as a matter of law because there is insufficient evidence in the record to sustain a finding that her statements were not privileged or that the Interlocal Agreement was breached, or that any action or inaction by Martin County was caused by any conduct or any statement made by MRS. HURCHALLA. p2

Lake Point claimed that freedom of speech does not apply to contracts.

According to LAKE POINT, rights of free speech and to petition government for redress of grievances do not protect a citizen from liability if a private entity claims it has been damaged by a citizen’s communication with government about cost benefits, performance or other matters related to a contractual relationship.

Although this argument is not supported by statutory, decisional, or constitutional law, the judge accepted it.

Citizens have a qualified privilege to communicate with government representatives regarding matters of public interest. Absent express malice or use of improper methods such as threats, bribery or intimidation, a citizen's communications about a government contract are not unjustified and thus, cannot serve as the basis for a claim of tortious interference. p3

Lake Point used contract law to try to avoid the very basic protections for free speech.

Lake Point framed its pleadings as an interference with contract action in an attempt to avoid constitutional principles that protect free speech and advocacy on public issues.

Lake Point is not the first litigant to attempt this misdirection.p5

My only actions cited by Lake Point were emails to county commissioners. Emails, private or public, are not a threat or a bribe. They are a form of communication.

Plaintiff's claims were based solely on emails Mrs. Hurchalla sent to government representatives. No other conduct, actions, or statements by Mrs. Hurchalla were identified in support of Plaintiff’s claims.

No evidence was presented that demonstrated any intent by Mrs. Hurchalla to harm Lake Point or any animosity by Mrs. Hurchalla toward Lake Point.

Instead the evidence showed that Mrs. Hurchalla’s motivation was to advocate for government action to protect the environment and County development rules by way of constitutionally protected communications.

Plaintiff’s assert that Mrs. Hurchalla was attempting to influence County Commissioners in her communications. This is, of course, the foundation of representative democracy. A citizen engages in entirely proper conduct in attempting to influence elected officials by expressing an opinion about a matter of public interest. p12-13

The constitutionally protected right to discuss, comment upon, criticize and debate, indeed, the freedom to speak on any and all matters is extended to all persons and is privileged to the extent that the statements are made in good faith without knowledge that the statements were false. p13

Lake Point convinced Judge Roby to direct the jury that any intentional interference with a contract proved guilt.

The court rejected Mrs. Hurchalla’s proposed jury instructions on tortious interference which defined the cause of action as intentional interference and unjustified interference. The plaintiffs defined the tort only as intentional interference, despite the note accompanying the standard instructions which says that instructions must be altered when there is a claim of privilege or justification in communicating with commissioners about the Lake Point project.

There is no evidence supporting the Plaintiff’s claim that Mrs. Hurchalla’s communications with commissioners about the Lake Point project was motivated by the singular purpose of putting Lake Point out of business. To the contrary, there is overwhelming evidence that Mrs. Hurchalla’s environmental activism and her dedication to local rules and regulations and the Comprehensive Plan of Martin County were the driving forces behind her communications with government representatives about the project. p9-10.

In all of the emails Mrs. Hurchalla sent to Commissioners, there is not a single sentence that reflects animus toward the Plaintiffs or any desire to do anything other than to protect the environment and honor the requirements of the Martin County Comprehensive Plan and Land Development Regulations. p10

There is no evidence from which a reasonable jury could ascertain or infer that Mrs. Hurchalla was not acting in good faith in raising environmental and land use concerns with the County Commissioners. Mrs. Hurchalla maintains that all of her statements were true or reflect her opinion and there is no evidence from which a reasonable jury could ascertain that any of her statements were made with actual knowledge of falsity. p.13


There was no evidence whatsoever that could lead the jury to conclude that Mrs. Hurchalla’s sole purpose in writing emails about the Lake Point project to local government officials was to harm Lake Point. p14

Absent proof of malice; absent proof that the sole purpose was to harm; the US Supreme Court has defended free speech as the bedrock of democracy. Lake Point clams that these protections do not apply when a citizen discuses a contract with his government representatives.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to ensure unfettered interchange of ideas for the bringing about of political and social changes desired by the people’... it is a prized American privilege to speak one’s mind although not always with perfect good taste, on all public institutions and this opportunity is to be afforded for ‘vigorous advocacy’ no less than ‘abstract discussion’....those who won our independence believed ... that public discussion is a political duty, and that this should be fundamental principle of the American government.... The constitutional protection does not turn upon the truth, the popularity or social utility of the ideas and beliefs that are offered. p15

On the third day of trial when I had yet to present any part of my defense, Judge Roby asked for a private meeting with me and my attorneys. He read a written copy of a letter he had drafted for me to sign to resolve the case.

The judge’s proposed resolution had two major features: First, Mrs. Hurchalla should apologize to Lake Point for criticizing the project.

Second, she should agree not to criticize Lake Point in the future.

The importance of this event is not merely in supporting Mrs. Hurchalla’s argument that she did not receive a fair trial (see motion for New Trial below). It also reveals that the judge discerned the true motivation of the Plaintiff’s case. p15-16


It was clear the purpose of Lake Point’s lawsuit was to prevent public discussion about Lake Point. George Lindemann Jr. testified at trial that the Martin County Commission should never have been allowed to discuss his project in a public meeting.

Lake Point maintained that emails, like threats and bribery, are an improper means of communication.

Lake Point argued that Mrs. Hurchalla’s emails were public records and the County’s failure to comply with Chapter 119, F.S., Florida’s Public Records Act by delaying production of emails sent to commissioner’s personal addresses was evidence of an improper method used by Mrs. Hurchalla to communicate with her elected representatives.

However, it is not Mrs. Hurchalla’s responsibility as a private citizen to preserve and produce public records. As a matter of law Mrs. Hurchalla as private citizen is not governed by Chapter 119, and she cannot be held liable for any potential violation of the Public Records Act. p17-18


Because Lake Point insisted that ANY interference was tortious, they failed to even try to prove the legal elements of tortious interference.

The Plaintiffs failed to present evidence at trial that could support a finding by a reasonable jury that essential elements of tortious interference exist, that is (1) that there was a contract between Lake Point and Martin County. (2) that Mrs. Hurchalla intentionally and unjustifiably interfered with the contract, or (3) that the contract was breached as a result of Mrs. Hurchalla’s communication with government representatives. p18-19.

Lake Point did not have a contract with Martin County.

The plain unambiguous language of the Interlocal Agreement confirms that it is an agreement between Martin County and the South Florida Water Management District, who are identified as the only parties to the agreement. p19

An Interlocal Agreement is authorized only between governmental units or agencies. There is no authority for a private entity to be a party to an interlocal agreement under the Florida Interlocal Cooperation Act (FICA), Section 163.01, F.S. p19

Lake Point is not a party to the Interlocal Agreement and cannot maintain an action for tortious interference with that contract. See Florida Attorney General Opinion 82-1 finding that the City of North Fort Lauderdale is not authorized to enter into an Interlocal Agreement with North Lauderdale Utility Authority, Inc. because FICA “does not authorize such contracts between municipalities and non-governmental or private utilities.” p20


While Judge Roby, at Lake Point’s request, told the jury that ANY interference with a private contract is tortious, the courts have ruled that the standard is different in communications with public officials.

Even if Lake Point were a party with rights to enforce the agreement between SFWMD and the County, no evidence was offered at trial to establish the second essential element of tortious interference, that is, that Mrs. Hurchalla unjustifiably interfered with the contract. p20

Mrs. Hurchalla’s communications with her local government representatives were qualifiedly privileged and justifiable pursuant to her First Amendment Rights to free speech and to petition government for redress of grievances. p20

Mrs. Hurchalla has the right to communicate with her elected representatives and to express her opinions about a public contract. So long as she did not act with express malice, there can be no tortious interference with the Interlocal Agreement as a result of those communications as a matter of law. p20


There was no breach of the contract between Martin County and the SFWMD.

No evidence was produced at trial to sustain the third essential element of tortious interference, that is, that the Interlocal Agreement was breached.

In fact, there is irrefutable evidence that the agreement was not breached.

The settlement agreement entered into between Lake Point and Martin County states in clear and unambiguous language that the Interlocal Agreement was in full force and effect as of November 2017, long after the lawsuit was filed.

The breaches claimed by Plaintiffs were identified by their corporate representatives as:
1. Issuance of two Notices of Violations by Martin County staff asserting potential violations of County codes.
2. Failure by the County to terminate the unity of title and the development order for the Lake Point Ranches subdivision.
3. Refusal by the County to accept payment from Lake Point of an environmental enhancement fee. p21

Judge Roby refused to provide standard instructions on what constitutes a breach.

The court rejected jury instructions proposed by Mrs. Hurchalla that set out the essential elements for a breach of contract claim. If properly instructed, the jury would have had no doubt that none of the actions (or inactions) cited by Lake Point constituted a breach of the Interlocal Agreement. p21

Were the Notices of Violations issued by Martin County a breach of the agreement? Lake Point told the jury that any enforcement of the contract would be a breach because it would interfere with Lake Points “mining rights”. 

The Interlocal Agreement expressly provides that Lake Point must comply with the provisions of the approved development order and the County Land Development Regulations and Comprehensive Plan. Notices of Violation were issued by staff after advising John Metzger, Lake Point’s attorney, of questionable activities on the site. Compliance provisions were set out in the Notices. There was no “stop work order” issued and no effort ever was made by the County or any other agency to shut down Lake Point’s operation. p22

In any event, the County has a legal right and duty to exercise it s police powers to regulate and restrict use of land. The police powers reflected in the Notices of Violation cannot be waived or contracted away. Any agreement that purports to give a private party the ability to avoid or circumvent requirements imposed by regulations adopted by a local government legislative process is void and unenforceable. p22

The Interlocal Agreement does not and cannot exempt Lake Point from compliance with local government regulations regarding the use of land or prohibit the County from exercising its police powers to enforce those regulations. p22


Was failure to vacate the development order on the Lake Point Ranches subdivision a breach? In spite of the fact that the agreement stated that, until the Phase I land was deeded to the SFWMD, the development order remained in effect, Lake Point sent a letter on January 2, 2013 asking for the development order to be terminated. The Phase I land had not been transferred.

Termination of unity of title and a development order generally takes several months, according to the County Growth Management Director, Nicki Van Vonno. p23

Lake Point argues that the County rejected the application when the Commission directed staff to “take no action” or to refrain from processing the application to terminate the development agreement and unity of title. However, the County never voted to reject the application, which was not presented to the Commission before Lake Point filed this action on February 5, 2013. In fact the commission asked the staff to take no action until additional information was presented regarding the status of the project.

At the February 5, 2013 meeting Commissioners made no decision about the project or the Interlocal Agreement but rather instructed staff to return with an update in 30 days. p23


What about not accepting a fee from Lake Point, was that a breach?

It is impossible to determine that the County’s failure to accept the environmental enhancement fee constituted a breach of the Interlocal Agreement. p23

On all of the breaches that Lake Point claimed, there was no evidence at all that anything that I did caused the County to act.

Finally there was no evidence offered at trial that could lead a reasonable jury to conclude that Mrs. Hurchalla’s emails to her elected County Commissioners caused any of the actions the Plaintiffs identified as breaches of the Interlocal Agreement. p24

Mrs. Hurchalla is undisputedly a private citizen with no authority to act on behalf of the County or to direct any County official or any member of the County staff to take any action or refrain from taking any action. p24

Don Donaldson, former County Engineering Director, testified that it was staff, acting on its own investigation and analysis, that issued Notices of Violations to Lake Point. Mr. Donaldson testified that Maggy Hurchalla did not raise any of the issues identified in the Notices of Violation and had no communications with staff about those issues. p24

Both Mr. Donaldson and Mrs. Van Vonno testified that the Code Enforcement process is a staff process, not overseen or directed by the Commission. p24

Mrs. Van Vonno testified that the Code Enforcement process provided an opportunity for a property owner to correct code violations with an appeal to a Code Enforcement Magistrate if an owner contest a notice of violation. The Lake Point mining operation was never shut down or curtailed by the County as a result of the issuance of the Notices of Violation. p24

Mr. Donaldson also testified that Maggy Hurchalla had nothing to with how the County handled the request to release the unity of title and terminate the development order for Lake Point Ranches. There is no evidence that Mrs. Hurchalla urged the County to delay or refuse to rescind the Lake Point Ranches development order and unity of title. On the contrary, Mrs. Hurchalla specifically suggested that the development order should be rescinded and the mining operation should not be shut down. p24-25

There is a total lack of evidence that any action or inaction of the County staff was directed or controlled by Mrs. Hurchalla. p25


Lake Point’s attorney told the jury that the apology letter the County was forced to write as part of their settlement agreement proved my guilt.

The apology letter does not mention Maggy Hurchalla or any individual citizen. It does not refer to any breach of the Interlocal Agreement. It apologized for “harsh words’ used by the County Commissioners in discussing an Interlocal Agreement. p25

Lake Point produced no evidence my emails made the staff or commission take specific actions that were breaches of the contract. Their claim seemed to be that when I expressed concerns to commissioners it caused staff to look at the project for the first time in years. When the staff looked at the project, they found violations.

Mrs. Hurchalla did nothing to improperly interfere with the Interlocal Agreement and nothing she did, said, or wrote caused any breach of the agreement or any harm or damage to the Plaintiffs. p25

Plaintiffs failed to prove any of the elements of tortious interference with the Interlocal Agreement. p26

In an action for procuring breach of contract, a defendant may not be held liable where action or inaction by a party to the contract caused the breach rather than persuasion by the defendant. p25

It is uncontroverted that Mrs. Hurchalla lacks authority to cause the County to breach the Interlocal Agreement, if in fact, any breach were established. p25-26

The damage claims Lake Point made were inconsistent and based on theory instead of evidence.

Lake Point provided no evidence of a single customer who failed to purchase rock as a result of anything Mrs. Hurchalla did. p26

Neither of their experts identified damages resulting from any communications by Maggy Hurchalla with County Commissioners. p26-27

But Dr. Fishkind admitted that he does not have access to financial reports or business records from similar competing businesses to calculate comparable profits for Lake Point and he made no effort to obtain such records. p28

Lake Point lost money from 2008 to 2013 - prior to my emails. After my alleged interference they actually improved their profits. The experts estimates of losses due to harm to Lake Point’s reputation was based purely on the theory that their profits should have increased at the same rate as housing starts increased.

This was a gross over simplification and highly speculative calculation. In fact one of the Lake Point’s best years financially (2009) was a year with low housing starts. p28

Judge Roby would not allow Hurchalla's attorney to point out testimony that would lessen the damages.

The court rejected efforts by defendant Hurchalla to offer testimony regarding potential set-offs to damages based on proffered testimony by a SFWMD representative as to the value of work that was to be performed at Lake Point’s expense. p30

Lake Point’s damages were significantly inflated and evidence and testimony regarding set-offs was not allowed by the court over objection by Mrs. Hurchalla. p31


See below for the entire motion filed by my attorney, Virginia Sherlock.

________________________________________________________________

IN THE CIRCUIT COURT OF THE 19th JUDICIAL CIRCUIT

IN AND FOR MARTIN COUNTY, FLORIDA


LAKE POINT PHASE I, LLC, and LAKE

POINT PHASE II, LLC, Florida Limited CASE NO. 2013-001321-CA

Liability Companies, Judge Roby

Plaintiffs,

vs.


SOUTH FLORIDA WATER MANAGEMENT

DISTRICT, a public corporation of the State of

Florida; MARTIN COUNTY, a political subdivision

of the State of Florida; and MAGGY HURCHALLA,


Defendants.

_____________________________________/


DEFENDANT MAGGY HURCHALLA’S MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT OR,

IN THE ALTERNATIVE, MOTION FOR NEW TRIAL


Defendant, MAGGY HURCHALLA, pursuant to Rule 1.480(b), Fla. R. Civ. Pro., moves the Court to set aside the jury verdict and Final Judgment entered thereon and to enter judgment in her favor notwithstanding the verdict and states:

STANDARD OF REVIEW

In considering a motion for judgment notwithstanding the verdict (JNOV), a trial court must “view all of the evidence in a light most favorable to the non-movant,” and may grant the motion “only where there is no evidence upon which a jury could properly rely in finding for the plaintiff.” Stokes v. Ruttger, 610 So.2d 711, 713 (Fla. 4th DCA 1992)

However, in cases which raise First Amendment issues, the U.S. Supreme Court has “repeatedly held that an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499 (1984) (citations omitted). See also Miami Herald Publishing Co. v. Ane, 458 So.2d 239, 242 (Fla. 1984), citing Bose. Subsequent authority has applied the doctrine of independent review to trial courts considering post-trial motions as well as appellate courts. See Masson v. New Yorker Magazine, Inc., 832 F.Supp. 1350 (N.D. Cal. 1993). Thus, rather than reviewing the record in the light most favorable to the non-moving parties, this Court must conduct an independent examination of the evidence as a whole to determine whether the verdict violates the constitutional protections afforded to the Defendant MAGGY HURCHALLA.1

FACTS

Plaintiffs LAKE POINT PHASE I, LLC, and LAKE POINT PHASE II, LLC (“LAKE POINT”) are Florida limited liability companies that own property in western Martin County which is the site of a mining operation known as the Lake Point project.

Defendant MAGGY HURCHALLA (“MRS. HURCHALLA”) is a resident of Martin County who holds no elected or appointed government office. She was a Martin County Commissioner from 1974 to 1994 and has been a community activist and environmental advocate for more than two decades since she last held public office. She has served on state and regional boards and advisory committees and has received many awards for environmental advocacy. On January 11, 2014, she was inducted into the Everglades Hall of Fame.

LAKE POINT filed this action seeking damages from MRS. HURCHALLA for alleged tortious interference with an agreement between the SOUTH FLORIDA WATER MANAGEMENT DISTRICT (“SFWMD”) and MARTIN COUNTY (“COUNTY”) known as “the Interlocal Agreement”.2 LAKE POINT asserts that e-mails written by MRS. HURCHALLA to County Commissioners raising questions and concerns about the purported environmental benefits of the Lake Point project caused the COUNTY to breach the Interlocal Agreement.

Plaintiffs argued that citizens may not complain about existing contracts between local governments and private entities without facing liability for tortious interference. According to LAKE POINT, the right of free speech and the right to petition government for redress of grievances do not protect a citizen from liability if a private entity claims it has been damaged by the citizen’s communications with government about cost benefits, performance, or other matters related to a contractual relationship. Although this argument is not supported by statutory, decisional or constitutional law, the trial judge accepted it.

Citizens have a qualified privilege to communicate with government representatives regarding matters of public interest. Absent express malice or use of improper methods such as threats, bribery or intimidation, a citizen’s communications about a government contract are not unjustified and, thus, cannot serve as the basis for a claim of tortious interference.

LAKE POINT’s Third Amended Complaint contains eight counts. MRS. HURCHALLA is named as a Defendant only as to Count V.3

Counts I and II asserted claims against SFWMD and Counts III, IV, VI, VII and VIII set out claims against the COUNTY. Prior to trial, SFWMD and the COUNTY entered into settlement agreements with the Plaintiffs, and all claims against the government entities were dismissed with prejudice.

The stipulated facts set out in the parties’ pre-trial statement are adopted and incorporated herein, establishing that LAKE POINT purchased property in western Martin County in 2008 that was to be used for environmental enhancement programs in partnership with SFWMD and the COUNTY. When news reports were published in September of 2012 that detailed a previously undisclosed plan to convert the project to a water privatization scheme, MRS. HURCHALLA and other members of the environmental community began asking questions.

LAKE POINT’s representative testified that LAKE POINT always intended to deliver water from Lake Okeechobee to be sold for drinking water in communities south of Martin County pursuant to the Acquisition and Development Agreement and that the plan was originated by SFWMD. However, a representative of the water management district testified that the water privatization proposal was initiated by LAKE POINT, not by SFWMD.4

LAKE POINT claimed that MRS. HURCHALLA’s e-mails to COUNTY representatives asking questions, seeking information and offering suggestions about the project constituted tortious interference with the Acquisition and Development Agreement and the Interlocal Agreement. Plaintiffs’ claims were based solely on e-mails MRS. HURCHALLA sent to government representatives. No other conduct, actions, or statements by MRS. HURCHALLA were identified in support of Plaintiffs’ claims.

No evidence was presented that demonstrated any intent by MRS. HURCHALLA to harm LAKE POINT or any animosity by MRS. HURCHALLA toward LAKE POINT.

Instead, the evidence showed that MRS. HURCHALLA’s motivation was to advocate for government action to protect the environment and COUNTY development rules by way of constitutionally protected communications.

ARGUMENT

Although the claim alleged against MRS. HURCHALLA relates solely to her contact with public officials on matters of public concern, LAKE POINT framed its pleading as an interference with contract action in an attempt to avoid constitutional principles that protect free speech and advocacy on public issues.

LAKE POINT is not the first litigant to attempt this misdirection. Similar attempts have been made citing product disparagement5 and false light privacy6 claims, but most attempts to avoid constitutional protections of free speech appear to have been brought as interference with contract cases. Some of these cases, such as Wackenhut Corp. v. Maimone, 389 So.2d 656 (Fla. 4th DCA 1980) (jury verdict reversed), were decided on the basis that the challenged communication was privileged and, therefore, interference was justified.

Others also point out the danger in attempting to use interference with contract “to avoid the specific limitations with which the law of defamation –presumably to some purpose – is hedged about.” Seminole Tribe of Fla. v. Times Pub. Co., Inc., 780 So.2d 310, 318 (Fla. 4th DCA 2001), quoting Brown & Williamson Tobacco Corp. v. Jacobson, 713 F.2d 262, 273-274 (7th Cir. 1983).

The Fourth District Court of Appeal has addressed the question of whether claims for disparagement of title, tortious interference and abuse of process must adhere to the standards of a defamation action. In Calloway Land & Cattle Co., Inc. v. Banyon Lakes C. Corp., 831 So. 2d 204 (Fla. 4th DCA 2002), the Court held that rules governing defamation apply to slander of title claims: “Not only has the legislature failed to make a distinction, but neither have the courts in allowing a defendant in a slander of title action to enjoy the same privilege defenses which he would enjoy in a libel action.”

Calloway cited to Procacci v. Zacco, 402 So. 2d 425 (Fla. 4th DCA 1981), a case where the plaintiff filed a claim for slander of title and interference with contract. The court addressed the application of privileges and held that both the slander of title and tortious interference claims are “subject to the same privilege defenses.” 402 So.2d at 427.

In 2002, the Fourth District decided Curry v. State, 811 So.2d 736 (Fla. 4th DCA 2002), reversing a criminal conviction and announcing principles that apply in this case:7

The right to petition the government for redress of grievances is . . . one of the most precious liberties “safeguarded by the Bill of Rights.” . . . The history of the right to petition for the redress of grievances is ancient, stretching back in time to before the Magna Carta. . . . The right to petition has evolved to its current place in both the federal and Florida constitutions, which protect the right of the people to petition the government for redress of grievances.


Id. at 742 (internal citations omitted).


These Fourth District cases are consistent with other authority, including decisions from the United Supreme Court. Bose v. Consumers Union, cited above, arose under a claim for product disparagement. Justice Stevens applied the New York Times v. Sullivan standard in rejecting the claim and recited one of the important holdings of that case: “[E]rroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’” Bose, 466 U.S. at 512, quoting New York Times v. Sullivan, 376 U.S. at 271-72.

The U.S. Supreme Court’s endorsement of principles protecting free speech about government and public affairs appears most prominently in Sullivan but also occurs in many other decisions, notably in the two cases that developed the Noerr/ Pennington doctrine.8 Those cases held that antitrust laws could not be applied to intrude on the right to advocate for government action, even though the publicity campaign conducted by a combination of railroad interests attacked in Noerr was clearly intended to harm the business of the plaintiff truckers.9

In addition to political speech protections granted under Sullivan, there are in this context both belts and suspenders, for the common law privileges protecting discussion of public issues did not vanish when the Sullivan principles were announced. See George Rahdert and David M. Snyder, Rediscovering Fla.’s Common Law Defenses to Libel & Slander, 11 Stetson L. Rev. 1 (Fall 1981)(“In sum, the Florida Supreme Court decisions in Firestone left the common law privilege it established in Gibson undisturbed.”)

In Gibson v. Maloney, 231 So. 2d 823 (Fla. 1970), the Supreme Court stated that, in cases of qualified privilege, “‘the presumption which attends cases not so privileged of malice from the publication of libelous language does not prevail. The burden of proof is changed, and, in order for the plaintiff to recover he is called upon affirmatively and expressly to show malice in the publisher.’” Id. at 825, quoting Coogler v. Rhodes, 38 Fla. 240 (Fla. 1897).

I. Defendant properly exercised her constitutional rights to free speech and to petition government for redress of grievances.

MRS. HURCHALLA denied the Plaintiffs’ claim of tortious interference with contract on grounds that any comments or communications she engaged in regarding the Lake Point project were justified as protected speech in furtherance of her right to petition government for redress of grievances under the Constitutions of the United States and the State of Florida.10

As discussed above, the Supreme Court of Florida has repeatedly and consistently held that statements made by a citizen to a political authority regarding matters of public concern are protected by qualified privilege, and there can be no recovery for conduct based on privileged statements absent express malice. Nodar, 462 So.2d at 810.

MRS. HURCHALLA asserted that all of her conduct is qualifiedly privileged in that she was communicating with government representatives about a matter of public interest, that is, the private-public partnership known as the Lake Point project.

The law is clear that a qualified privilege exists for communications between citizens and their government representatives so long as the sole purpose of the communications is not to harm the plaintiff. Express malice must be shown to overcome the privilege.

Communications with government representatives may be privileged even if actual malice is present so long the speaker also has a justifiable or proper purpose.

The privilege will not operate to protect the speaker from tort liability only when there is express malice – that is, when the sole purpose of the communication is to harm the plaintiff.

There is no evidence supporting Plaintiffs’ claim that in communicating with commissioners about the Lake Point project, MRS. HURCHALLA was motivated by the singular purpose of putting LAKE POINT out of business. To the contrary, there is overwhelming evidence that MRS. HURCHALLA’s environmental activism and her dedication to local rules and regulations and the Comprehensive Plan of Martin County were the driving forces behind her communications with government representatives about the project.

Florida courts have long endorsed the proposition that statements made by a citizen to a political authority are privileged as a matter of law absent express malice. See McCurdy v. Collis, 508 So.2d 380 (Fla. 1st DCA 1987).

In all of the e-mails MRS. HURCHALLA sent to Commissioners, there is not a single sentence that reflects animus toward the Plaintiffs or any desire to do anything other than to protect the environment and honor the requirements of the Martin County Comprehensive Plan and Land Development Regulations.

The Fifth District Court of Appeal opined that “malice is key to the tort of tortious interference with a business relationship” and “[t]he only way that malice can be proven in the absence of direct evidence is by proving a series of acts which, in their context or in light of the totality of the circumstances, are 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 bad motive.” Rockledge Mall Associates, Ltd. v. Custom Fences of South Brevard, Inc., 779 So.2d 554, 557 (Fla. 5th DCA 2001), citing Southern Bell Tel. and Tel. Co. v. Roper, 482 So.2d 538 (Fla. 3d DCA 1986).

MRS. HURCHALLA filed a motion to dismiss the tortious interference claim pursuant to Sec. 768.295, F.S., the Citizen Participation in Government Act (Florida’s anti-SLAPP statute), which expresses the intent of the Legislature

to protect the right in Florida to exercise the rights of free speech in connection with public issues, and the rights to peacefully assemble, instruct representatives, and petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. It is the public policy of this state that a person or governmental entity not engage in SLAPP suits because such actions are inconsistent with the right of persons to exercise such constitutional rights of free speech in connection with public issues. Therefore, the Legislature finds and declares that prohibiting such lawsuits as herein described will preserve this fundamental state policy, preserve the constitutional rights of persons in Florida, and assure the continuation of representative government in this state.

MRS. HURCHALLA asserted that Plaintiffs’ Third Amended Complaint is a Strategic Lawsuit Against Public Participation (SLAPP suit) which seeks to silence and punish the Defendant who communicated concerns to government representatives and raised questions about environmental issues related to the Lake Point project.11

The lawsuit against MRS. HURCHALLA is an attempt to improperly use the judicial process to create emotional and financial burdens to force her – and others who may now remain silent rather than risk being named in future litigation – to stop speaking about the project and to stop expressing opinions to government representatives. The suit was barred by Sec. 768.295, F.S., as an unlawful action filed by an instrumentality of government and is barred now by the statute as subsequently amended to prohibit the filing of SLAPP suits by private entities.

Where the circumstances surrounding communications are so clear under the evidence as to be unquestionable, the issue of whether the communications were privileged is a question of law to be decided by the court. Florida Fern Growers Association v. Concerned Citizens of Putnam County, 616 So.2d 562, 570 (Fla. 5th DCA 1993), citing Nodar v. Galbreath, 462 So.2d at 810. See also, Londono v. Turkey Creek, Inc., 609 So.2d 14, 18 (Fla. 1992) (a citizen’s statements to a political authority are privileged as a matter of law absent express malice).

All of the statements relied on by Plaintiffs reflect MRS. HURCHALLA’s concern for the environmental efficacy of the Lake Point project. She raised questions, made suggestions, and offered explanations of environmental issues as well as land use or growth management issues.

There is not a single statement in any of MRS. HURCHALLA’s e-mails that expresses any desire to harm LAKE POINT, and Plaintiffs offered no evidence to support their spurious contention that MRS. HURCHALLA’s motive was to put them out of business. In any event, the Plaintiffs – LAKE POINT PHASE I, LLC, and LAKE POINT PHASE II, LLC – operate no business; they are merely the owners of the property where the Lake Point project is located. As the only “business” of the Plaintiffs is holding title to the property, it would not be possible for MRS. HURCHALLA to put Plaintiffs out of business even if that were her intent.12

MRS. HURCHALLA’s communications were plainly made for the purpose of obtaining information about a “public works project” to be developed on land that was to be donated to SFWMD and, in part, to the COUNTY. Such communications with government representatives fall within the right to petition government for redress of grievances, which is a constitutionally protected activity and “one of the most precious liberties ‘safeguarded by the Bill of Rights.’” Curry v. State, 811 So. 2d 736, 742 (Fla. 4th DCA 2002).

Plaintiffs assert that MRS. HURCHALLA was attempting to influence County Commissioners in her communications. This is, of course, the foundation of representative democracy. A citizen engages in entirely proper conduct in attempting to influence elected officials by expressing an opinion about a matter of public interest. Animal Rights Foundation of Florida, Inc. v. Siegel, 867 So.2d 451, 458 (Fla. 5th DCA 2004), rev. den., Siegel v. Animal Rights Foundation, 879 So.2d 624 (Fla. 2004).

The right of the people to petition government for redress of grievances is not limited to communications seeking passage and enforcement of laws and cannot be made to depend upon their intent in doing so. Eastern R. Presidents Conference v. Noerr Motor Fright, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed. 2d 464 (1961).

While Plaintiffs went to great lengths at trial to suggest that MRS. HURCHALLA’s statements are false, even untrue statements are qualifiedly privileged if made in good faith by one who has an interest in the subject matter to someone who has a corresponding interest or duty. Demby v. English, 667 So.2d 350 (Fla. 1st DCA)

Malice or improper purpose cannot be inferred from the fact that some statements may be untrue. Id. See also Abram v. Odham, 89 So.2d 334, 338 (Fla. 1956).

The constitutionally protected right to discuss, comment upon, criticize and debate, indeed, the freedom to speak on any and all matters is extended to all persons and is privileged to the extent that the statements are made in good faith without knowledge that the statements were false. Demby v. English, 667 So.2d at 354.

There is no evidence from which a reasonable jury could ascertain or infer that Mrs. Hurchalla was not acting in good faith in raising environmental and land use concerns with COUNTY commissioners. MRS. HURCHALLA maintains that all of her statements were true or reflect her opinion. And there is no evidence from which a reasonable jury could ascertain or infer that any of her statements were made with actual knowledge of falsity.

Most of MRS. HURCHALLA’s e-mails consist of questions to be asked of COUNTY Engineering Department and Growth Management Department staff or SFWMD representatives.

LAKE POINT’s corporate representative, Jamie Rusbridge, testified that he did not know what MRS. HURCHALLA’s intentions were in communicating about the project.

There was no evidence whatsoever that could lead the jury to conclude that MRS. HURCHALLA’s sole purpose in writing e-mails about the Lake Point project to local government officials was to harm LAKE POINT.

As a matter of law, her comments are qualifiedly privileged and cannot sustain a claim of tortious interference.

The communications the Plaintiffs complain of in this case are “pure speech” – that is, speech in which society has an interest wholly apart from the speaker’s or listener’s economic interest. “Pure speech” is distinguished from “commercial speech,” which proposes a commercial transaction.

It is undisputed that MRS. HURCHALLA was not engaging in commercial speech in her communications with Commissioners and staff. Pure speech is afforded the maximum level of protection in our democracy.

Speech of a political nature is pure speech which is not properly restrained to prevent tortious interference. Animal Rights Foundation of Florida, Inc. v. Siegel, 867 So.2d at 457-458. See also Neptune v. Lanoue, 178 So.3d 520 (Fla. 4th DCA 2015).

The U.S. Supreme Court discussed pure speech and political discourse in New York Times Co. v. Sullivan, concluding that even a false statement may be deemed to make a valuable contribution to public debate.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ . . . It is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions,’ and this opportunity is to be afforded for ‘vigorous advocacy’ no less than ‘abstract discussion.’ . . . ‘Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. . . . The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.’

376 U.S. 254, 271; 84 S.Ct. 710, 721; 11 L.Ed. 2d 686, 701 (1964).

The Court concluded “[t]hat erroneous statement is inevitable in free debate and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’” Id.

II. Plaintiffs’ improper motivation for instituting this action was confirmed by Court-attempted “mediation”.

At the commencement of the third day of trial, after the seating of the jury and after Plaintiffs had presented just one day of testimony and before MRS. HURCHALLA presented any evidence at all, the trial judge asked the parties to meet with him separately, without a court reporter and each outside the presence of the other. Both parties and their counsel agreed.

MRS. HURCHALLA and her counsel were ushered into a room where the judge informed them that, in his opinion, Plaintiffs would prevail in the case, that the jury was against MRS. HURCHALLA, and she should consider abandoning her position.

The judge then read a letter he said he had drafted for MRS. HURCHALLA to consider presenting to the Plaintiffs.

The judge’s proposed resolution had two major features:

First, MRS. HURCHALLA should apologize to LAKE POINT for criticizing the project.13

Second, she should agree not to criticize LAKE POINT in the future.14

Although there is no transcript of this meeting,15 MRS. HURCHALLA and her counsel described the incident in open court in a motion for recusal or, alternatively, for a mistrial. The motions were supported by sworn testimony.

The judge, while tacitly admitting that he had suggested that MRS. HURCHALLA issue an apology to LAKE POINT, denied the motion for recusal and took the motion for mistrial under advisement. The motion for mistrial was denied after the jury verdict was returned.

The importance of this event is not merely in supporting MRS. HURCHALLA’s argument that she did not receive a fair trial (see Motion for New Trial below). It also reveals that the judge discerned the true motivation of the Plaintiffs’ case.

The judge sought resolution, not by suggesting any monetary payment, but through an agreement for steps that would intrude on MRS. HURCHALLA’s rights to free discussion of public issues, past and future.

The apology would serve to erase any past advocacy and the pledge of silence would commit MRS. HURCHALLA to future silence as a critic of the Plaintiffs’ development.

Understandably, MRS. HURCHALLA refused to consider this outrageous proposal.

As a citizen and a taxpayer of MARTIN COUNTY, MAGGY HURCHALLA has constitutionally guaranteed rights to communicate with local government officials and to share her opinions, concerns, questions and suggestions about environmental, fiscal, and land use matters that affect her and her fellow residents of Martin County.

MRS. HURCHALLA engaged in entirely proper methods of communication with her elected government representatives about a matter of public concern. She expressed her opinions and communicated what she believed to be facts designed to generate a closer look at a project

that was initially supported as an environmental enhancement plan but subsequently was changed to a water privatization program that appeared to have little benefit for Martin County.

III. E-mails to elected officials do not constitute an improper method of communication.

There is no authority to conclude, as LAKE POINT asserted, that MRS. HURCHALLA acted improperly in sending e-mails to commissioners’ personal e-mail accounts.

LAKE POINT argued that MRS. HURCHALLA’s e-mails were public records and the COUNTY’s failure to comply with Chapter 119, F.S., Florida’s Public Records Act, by delaying production of e-mails sent to commissioners’ personal addresses was evidence of an improper method used by MRS. HURCHALLA to communicate with her elected representatives.

However, it is not MRS. HURCHALLA’s responsibility as a private citizen to preserve and produce public records. As a matter of law, MRS. HURCHALLA, as a private citizen, is not governed by Chapter 119, F.S., and she cannot be held liable for any potential violation of the Public Records Act by County Commissioners with whom she communicated.

LAKE POINT argued that MRS. HURCHALLA was attempting to engage in “secret communications” by sending e-mails to commissioners’ personal e-mail addresses.

There was, however, no evidence and no authority offered to support this contention. On the contrary, COUNTY representatives testified that there is no requirement that citizens use any particular e-mail addresses to communicate with commissioners.

Assistant County Administrator Don Donaldson and Growth Management Department Director Nicki van Vonno agreed that it is the responsibility of COUNTY commissioners and staff, not private citizens, to preserve and produce public records. They testified there is nothing wrong with citizens using personal e-mail addresses to send e-mails to commissioners.

This form of communication is no more “secretive” than a phone call or a one-on-one meeting with a commissioner in his or her office, which are common methods of communicating with government representatives in Martin County and elsewhere.

Communications which constitute public records should be forwarded by the recipient to an official COUNTY e-mail address. A citizen who sends an e-mail to a local government representative, regardless of the address to which it is sent, is not engaging in an improper method of expressing opinions, asking questions, and instructing elected representatives pursuant to her constitutional rights of free speech and to petition government for redress of grievances.

IV. Plaintiffs failed to prove the elements of tortious interference.

The Plaintiffs failed to present evidence at trial that could support a finding by a reasonable jury that the essential elements of tortious interference exist in this case, that is, (1) that there was a contract between LAKE POINT and MARTIN COUNTY, (2) that Mrs. Hurchalla intentionally and unjustifiably interfered with the contract, or (3) that the contract was breached as a result of Mrs. Hurchalla’s communications with government representatives.

A. No proof of an agreement between the Plaintiffs and the COUNTY.

The first element of the cause of action for tortious interference is the existence of an enforceable contract between the Plaintiff and a third party. Seminole Tribe of Florida v. Times Publishing Co., Inc., 789 So.2d 310 (Fla. 4th DCA 2001)

The plain and unambiguous language of the Interlocal Agreement confirms that it is an agreement between MARTIN COUNTY and the SOUTH FLORIDA WATER MANAGEMENT DISTRICT, who are identified as the only parties to the agreement.

LAKE POINT executed a unilateral joinder and consent in just four sections of the agreement (Sections 11, 12, 16 and 17). No consideration is recited, and the joinder and consent established only certain obligations of LAKE POINT that were enforceable by the COUNTY and SFWMD. The Plaintiffs are not identified as parties within the agreement, and no enforceable rights were conferred on LAKE POINT by the Interlocal Agreement.

An Interlocal Agreement is authorized only between governmental units or agencies. There is no authority for a private entity to be a party to an interlocal agreement under the Florida Interlocal Cooperation Act (FICA), Section 163.01, F.S.16

LAKE POINT is not a party to the Interlocal Agreement and cannot maintain an action for tortious interference with that contract. See Florida Attorney General Opinion 82-1 finding that the City of North Lauderdale is not authorized to enter into an interlocal agreement with North Lauderdale Utility Authority, Inc., because FICA “does not authorize such contracts between municipalities and non-governmental or private utilities.”

B. No evidence of unjustifiable interference.

Even if Lake Point were a party with rights to enforce the agreement between SFWMD and the COUNTY, no evidence was offered at trial to establish the second essential element of tortious interference, that is, that MRS. HURCHALLA unjustifiably interferred with the contract.

MRS. HURCHALLA’s communications with her local government representatives were qualifiedly privileged and justifiable pursuant to her First Amendment rights to free speech and to petition government for redress of grievances. (See argument set out in Section I. above)

MRS. HURCHALLA has the right to communicate with her elected representatives and to express her opinions about a public contract. So long as she did not act with express malice, there can be no tortious interference with the Interlocal Agreement as a result of those communications as a matter of law.

In addressing unjustifiable interference with a contract, it is necessary to determine the ultimate purpose and object of the defendant to determine whether a privilege exists. Wackenhut Corp. v. Maimone, 389 So.2d 656, 658 (Fla. 4th DCA 1980). If a defendant is attempting to protect or further a legitimate interest, even when malice or ill will also is present, interference is not “unlawful” or “unjustified” and is not actionable. Id.

C. No evidence of breach.

No evidence was produced at trial to sustain the third essential element of tortious interference, that is, that the Interlocal Agreement was breached.

In fact, there is irrefutable evidence that the agreement was NOT breached.

The settlement agreement entered into between LAKE POINT and MARTIN COUNTY states in clear and unambiguous language that the Interlocal Agreement was in full force and effect as of November 2017, long after this lawsuit was filed. The agreement was not terminated or breached. It was affirmatively described as valid and in effect until superseded by an amended and restated agreement negotiated in settlement of claims against the COUNTY.

The breaches claimed by Plaintiffs were identified by their corporate representative as:

1. Issuance of two Notices of Violation by Martin County staff asserting potential violations of COUNTY codes (including allowing cattle to graze in the preserve area, failure to post a sign designating the preserve area, and mining outside the boundaries of the areas approved in the development order for mining);

2. Failure by the COUNTY to terminate the unity of title and the development order for the Lake Point Ranches subdivision; and

3. Refusal by the COUNTY to accept payment from Lake Point of an environmental enhancement fee.

The Court rejected jury instructions proposed by MRS. HURCHALLA that set out the essential elements for a breach of contract claim. If properly instructed, the jury would have had no doubt that none of the actions (or inactions) cited by LAKE POINT constituted a breach of the Interlocal Agreement.

The Interlocal Agreement expressly provides that LAKE POINT must comply with the provisions of the approved development order and the COUNTY’s Land Development Regulations and Comprehensive Plan. Notices of Violation were issued by staff, after advising John Metzger, LAKE POINT’s attorney, of questionable activities on the site. Compliance provisions were set out in the Notices. There was no “stop work order” issued and no effort ever was made by the COUNTY or any other agency to shut down LAKE POINT’s operations.

In any event, the COUNTY has a legal right and duty to exercise its police powers to regulate and restrict the use of land. The police powers reflected in the issuance of Notices of Violation cannot be waived or contracted away. An agreement that purports to give a private party the ability to avoid or circumvent requirements imposed by regulations adopted by a local government’s legislative process is void and unenforceable. See S.A. Healey Co. v. Town of Highland Beach, 355 So.2d 813, 814 (Fla. 4th DCA 1978); P.C.B. Partnership v. City of Largo, 549 So.2d 738, 741 (Fla. 2d DCA 1989).

The Interlocal Agreement does not – and cannot – exempt LAKE POINT from compliance with local government regulations regarding the use of land or prohibit the COUNTY from exercising its police powers to enforce those regulations.

If the Interlocal Agreement prohibits enforcement of local land use regulations by the COUNTY, then the agreement is is invalid and void ab initio as illegal contract zoning and contrary to public policy.

After first seeking – and receiving – approval from the COUNTY for an extension of the Lake Point Ranches development order through December 2014, LAKE POINT submitted an application for termination of the unity of title and the development order on January 2, 2013. Termination of a unity of title and a development order generally takes several months, according to the testimony of the COUNTY’s Growth Management Director, Nicki van Vonno.

LAKE POINT argued that the COUNTY rejected the application when the Commission directed staff to “take no action” with respect to processing the application to terminate the development agreement and unity of title. However, the Commission never voted to reject the application, which was not presented to Commissioners before LAKE POINT filed this action on February 5, 2013. In fact, the evidence showed that Commissioners asked staff to take no action until additional information was presented regarding the status of the project.

At the February 5, 2013, meeting, Commissioners made no decisions about the project or the Interlocal Agreement but rather instructed staff to return with an update in 30 days.

In any event, the Interlocal Agreement does not require the COUNTY to terminate the unity of title and development order on demand. The agreement contains no requirement that the unity of title or development order be terminated within a specific time period. In fact, the agreement provides that the development order remains in full force and effect until the property is conveyed to SFWMD, and the evidence confirmed that no such conveyance ever occurred.

It is impossible to determine that the COUNTY’s failure to accept the environmental enhancement fee constituted a breach of the Interlocal Agreement. There is no language anywhere in the agreement that requires the COUNTY to accept such payments. In fact, LAKE POINT benefitted financially from not having to make payments it was obligated to make – but which the COUNTY was not obligated to accept under the agreement.

V. Plaintiffs failed to prove that any statement or conduct of MAGGY HURCHALLA caused the COUNTY to act or fail to act pursuant to the Interlocal Agreement.

Finally, there was no evidence offered at trial that could lead a reasonable jury to conclude that MRS. HURCHALLA’s e-mails to her elected County Commissioners caused any of the actions the Plaintiffs identify as breaches of the Interlocal Agreement.

MRS. HURCHALLA is undisputedly a private citizen with no authority to act on behalf of the COUNTY or to direct any COUNTY official or any member of COUNTY staff to take any action or to refrain from acting.

A review of the e-mails written by MRS. HURCHALLA confirms that some of her suggestions actually went unheeded.

Don Donaldson, former COUNTY Engineering Director, testified that it was staff, acting on its own investigation and analysis, that issued Notices of Violation to LAKE POINT. Mr. Donaldson testified that MAGGY HURCHALLA did not raise any of the issues identified in the Notices of Violation and had no communications with staff about those issues.

Both Mr. Donaldson and Mrs. van Vonno testified that the Code Enforcement process is a staff process, not overseen or directed by the County Commission. While staff may be directed to look into code enforcement issues, it is staff’s responsibility to determine whether potential violations exist, and Notices of Violation are issued by staff, not by the Commission.

Mrs. van Vonno testified that the Code Enforcement process provides an opportunity for a property owner to correct code violations, with appeal to a Code Enforcement Magistrate if the owner contests a notice of violation. The LAKE POINT mining operation was never shut down or curtailed by the COUNTY as a result of the issuance of Notices of Violation.

Mr. Donaldson also said that MAGGY HURCHALLA had nothing to do with how the COUNTY handled the request to release the unity of title and terminate the development order for Lake Point Ranches. There is no evidence that MRS. HURCHALLA urged the COUNTY to delay or refuse to rescind the Lake Point Ranches development order and unity of title. On the contrary, MRS. HURCHALLA specifically suggested that the development order should be rescinded and that the mining operation should not be shut down.

There is no evidence that MRS. HURCHALLA was responsible for the actions of the COUNTY or individual commissioners who were referred to in an apology letter that was issued as part of the negotiated settlement between LAKE POINT and the COUNTY. The apology letter does not mention MAGGY HURCHALLA or any individual citizen. It does not refer to any breach of the Interlocal Agreement. It apologizes for “harsh words” used by some commissioners – not by MAGGY HURCHALLA. As a matter of law, a private citizen cannot be liable for “harsh words” used by County Commissioners in discussing an Interlocal Agreement.

There is a total lack of evidence that any action or inaction by the COUNTY Commission or by COUNTY staff was directed or controlled by Mrs. Hurchalla.

By law, the authority of a County to take action on a matter is limited to official actions by the board of commissioners taken at a public meeting, not by statements made or actions taken by individual commissioners. See 125.01, F.S.; Kirkland v. State, 97 So. 502 (Fla. 1923).

There is simply no nexus between any communication by MRS. HURCHALLA and any action taken by the COUNTY that could be considered a breach of the Interlocal Agreement.

In an action for procuring breach of a contract, a defendant may not be held liable where action or inaction by a party to the contract caused the breach rather than persuasion by the defendant. Farah v. Canada, 740 So.2d 560, 561 (Fla. 5th DCA 1999).

It is uncontroverted that MRS. HURCHALLA lacks authority to cause the COUNTY to breach the Interlocal Agreement if, in fact, any breach were established.

Even if, arguendo, MRS. HURCHALLA’s communications persuaded a particular commissioner or staff member to take action to terminate the Interlocal Agreement, the action of a single commissioner or staff member cannot be viewed as the act of the COUNTY. Only an act of the entire governing body of a county can bind the county. See Turk v. Richard, 47 So.2d 543 (Fla. 1950); Beck v. Littlefield, 68 So.2d 889 (Fla. 1953).

Plaintiffs failed to prove any of the elements of tortious interference with the Interlocal Agreement.

VI. Damage claims are speculative.

Damages allegedly sustained by LAKE POINT as set out in testimony and evidence offered at trial were based on grossly inaccurate information and were speculative and without substance or merit.

LAKE POINT provided no evidence of a single customer who cancelled a contract or failed to purchase rock as a result of anything MAGGY HURCHALLA said or did.

LAKE POINT provided no calculations or evidence of the value of any contract or sales allegedly lost as a result of a purported breach of the Interlocal Agreement.

Witnesses for LAKE POINT testified that it was necessary to maintain a larger inventory of rock on hand and that the mine was asked by an unidentified customer to provide a performance bond; however, there was no testimony or evidence offered that assigned any cost or loss to LAKE POINT as a result of these matters.

LAKE POINT relied on the testimony of Dr. Henry Fishkind and Lloyd Morgenstern, C.P.A., for calculation of damages. Neither of the experts identified damage resulting from any communication by MAGGY HURCHALLA with her County Commissioners. Both experts testified that their damage calculations were developed prior to the time that settlements were entered into by LAKE POINT with the COUNTY and SFWMD. Neither made a distinction between damages purportedly caused by alleged breach of the Acquisition and Development Agreement as opposed to alleged breaches of the Interlocal Agreement. At trial, Plaintiffs asserted claims for damages associated with alleged breaches of only the Interlocal Agreement.

Dr. Fishkind testified that the economic model he created to ascertain damages for LAKE POINT consisted of calculating actual rock sales compared to his estimate of the amount of rock that would have been sold based on housing start projections. His calculations were based on the actions of all defendants (MRS. HURCHALLA, the COUNTY and SFWMD) and purported breaches of both the Acquisition and Development Agreement and the Interlocal Agreement). No effort was made by Dr. Fishkind to apportion damages among any of the defendants associated with the alleged breach or breaches of either contract.

Dr. Fishkind’s calculations were relied upon by Mr. Morgenstern.

Dr. Fishkind based his calculations on housing starts within the market area, drawing data from the entirety of Palm Beach and St. Lucie counties, using a 75-mile radius from the rock mine to calculate the market area. However, LAKE POINT’s corporate representative testified that the market area was a 60-mile circumference from the mine.

The LAKE POINT representative appeared to conflate “radius” with “circumference” in describing the mine’s market area.

It was not clear which measurement Mr. Rusbridge intended to use, making the calculations impossible to reconcile.

Despite inconsistent terminology used to determine market area, neither circumference or radius is appropriate since the distance between the mine and job sites should be measured by road miles rather than as the crow flies using radius or circumference measurements.

In any event, the housing start data relied upon by the LAKE POINT experts was based on statewide housing starts vs. aggregates sold, although Dr. Fishkind testified there was no causation per se between housing starts and aggregates sold. Because LAKE POINT did not have a history of profitability, Dr. Fishkind testified that he used the “yardstick test” which is generally used when a business has not been established long enough to compile an earnings record that would sufficiently demonstrate lost profits. This method compares profits of businesses closely comparable to the plaintiff’s business. But Dr. Fishkind admitted that he did not have access to financial reports or business records from similar, competing businesses to calculate comparable profits for LAKE POINT and he made no effort to obtain such records.

Neither of LAKE POINT’s experts reviewed profits reported by a comparable company, and Dr. Fishkind’s and Mr. Morgenstern’s testimony “lacked the reasonable certainty necessary to support the yardstick approach to lost profits, rendering the testimony too speculative to sustain the damages.” Devon Medical, Inc. v. Ryvmed Medical, Inc., 60 So.3d 1125 (Fla. 4th DCA 2011), rev. den. Ryvmed Medical, Inc. v. Devon Medical, Inc., 76 So. 3d 938 (Fla. 2011).

Dr. Fishkind explained that he used a comparison between housing starts and aggregates sold because there is a historical correlation between such data based on the fact that more infrastructure and projects using aggregates are generally built when more houses are being built. This was a gross oversimplification and highly speculative calculation. In fact, one of LAKE POINT’s best years financially (2009) was a year with low housing starts due to the fact that large infrastructure projects are often funded by the federal government and are not necessarily related to an increase in population or housing starts.

Lost profits must be established with a reasonable degree of certainty and must be a natural consequence of the alleged wrongdoing of the defendant. An award of lost profits cannot be based upon speculation or conjecture. River Bridge Corp. v. Am. Somax Ventures ex rel. Am. Home Dev. Corp., 18 So.3d 648 (Fla. 4th DCA 2009), quoting Sostchin v. Doll Enters, Inc., 847 So.2d 1123, 1128 (Fla. 3d DCA 2003).

LAKE POINT claimed millions of dollars in damages extending for decades into the future. The method used by Dr. Fishkind, and relied upon by Mr. Morgenstern, (correlating aggregate sales to housing starts) leads to even more speculative future damage calculations extending long after any alleged wrongdoing by any defendant could affect mining operations and failing to take into account the fact that rock is still available for mining and sale for another 40 years or more, providing a windfall to LAKE POINT.

LAKE POINT suggested that damages resulted from injury to the reputation of the company caused by actions or inactions of the COUNTY.17 However, no evidence or testimony was offered from any customer, former customer or potential customer to support any claim of lost profits resulting from damage to LAKE POINT’s reputation.

No reasonable jury could have relied on the LAKE POINT experts’ speculative and inconsistent reports to form a solid basis of calculating damages.

As a matter of law, LAKE POINT’s damages were not based on tangible or reasonable calculations but were based solely on speculation.

The Court rejected efforts by Defendant HURCHALLA to offer testimony regarding potential set-offs to damages based upon proffered testimony by a SFWMD representative as to the value of work that was to be performed at LAKE POINT’s expense in creating Stormwater Treatment Areas on the property pursuant to the Acquisition and Development Agreement. The proffered testimony showed that LAKE POINT saved in excess of $17 million in expenditures that were required of LAKE POINT pursuant to the initial agreement.

Dr. Fishkind and Mr. Morgenstern failed to take into account the financial benefits of the settlement agreements with SFWMD and the COUNTY that significantly reduced overall damages, such as the amounts LAKE POINT will no longer be required to spend to construct the STAs pursuant to the settlement with SFWMD. One of LAKE POINT’s owners, George Lindemann, Jr., testified it would have cost millions of dollars to comply with construction requirements mandated by the original agreement with SFWMD, but MRS. HURCHALLA was prohibited from introducing evidence of such savings to set-off against claimed damages.

The Court also prohibited MRS. HURCHALLA from offering evidence of the amount of money LAKE POINT may earn from the privatization of water plan which was included in and authorized by the settlement agreements with SFWMD and the COUNTY. The value of water sales could have and should have been applied as a set-off to alleged damages purportedly sustained by the rock mining operation.

LAKE POINT representatives testified that the Plaintiffs spent nearly $2 million investigating and planning the water sales project, which suggests that water sales would likely generate considerably more than $2 million in revenue for LAKE POINT.

The settlement agreement with SFWMD provides for a guaranteed payment from the agency for a 15-year no-bid contract to purchase rock. The settlement agreement with the COUNTY relieves LAKE POINT from future payments for environmental enhancement and other fees and provides for reduced hauling fees. These financial benefits could have and should have been included in the calculation of damages purportedly sustained by LAKE POINT.

The Court prohibited MRS. HURCHALLA from eliciting testimony about the EB-5 program that infused millions of dollars into the LAKE POINT project and loans that created significant carrying costs that were not included in the LAKE POINT experts’ calculations.

LAKE POINT’s damages were significantly inflated and evidence and testimony regarding set-offs was not allowed by the Court, over objections by MRS. HURCHALLA. The Plaintiffs failed to provide accurate valuations of benefits gained from the settlement agreements, including enlargement of the time allowed for mining the property from 20 years to 50 years.

There was no proof of apportionment of damages between defendants or between alleged breaches of the Acquisition and Development Agreement and the Interlocal Agreement.

Damages alleged by LAKE POINT were speculative and not reasonably calculated to show an amount that would fairly compensate for damages caused by MRS. HURCHALLA for alleged tortious interference with the Interlocal Agreement if any such interference occurred.

CONCLUSION

As a matter of law, MAGGY HURCHALLA is entitled to a verdict in her favor in accordance with the motions for directed verdict made by the Defendant during trial and the arguments set forth herein.

WHEREFORE, Defendant, MAGGY HURCHALLA, requests the Court to set aside the jury’s verdict and enter Final Judgment in her favor on the Plaintiffs’ claim of tortious interference with the Interlocal Agreement, with Plaintiffs to take nothing.

MOTION FOR NEW TRIAL

Based upon the arguments set forth above, absent entry of a Final Judgment Notwithstanding the Verdict, Defendant MAGGY HURCHALLA requests the Court to order a new trial pursuant to Rules 1.480(c) and 1.530(a), Fla. R. Civ. Pro.

Defendant is entitled to a new trial as to both liability and damages because the jury’s verdict was against the manifest weight of the evidence, the jury was not fairly and adequately instructed with respect to the law to be applied to the issues, and improper closing argument by the Plaintiffs undermined the fairness of the trial.

I. Verdict against manifest weight of the evidence.

A trial court has a duty to grant a motion for new trial when the verdict fails to comport with the manifest weight of the evidence. Pierce v. Nicholson Supply Co., 676 So.2d 70, 71 (Fla. 2d DCA 1996). For the reasons set forth above in the Defendant’s Motion for Judgment Notwithstanding the Verdict, which are incorporated herein, the jury’s verdict is contrary to the evidence and testimony produced at trial. The manifest weight of the evidence showed that:

A. Defendant HURCHALLA had a qualified privilege to communicate with her elected representatives about a matter of public interest.

B. Defendant HURCHALLA did not unjustifiably interfere with the Interlocal Agreement.

C. Defendant HURCHALLA had no authority to compel MARTIN COUNTY to take any action or to fail to act in accordance with the Interlocal Agreement and was privileged to

communicate her opinions and suggestions to her elected government officials pursuant to the First Amendment to the United States Constitution.

D. There was no evidence of express malice or improper method used by MRS. HURCHALLA in exercising her constitutional rights to free speech and to petition government for redress of grievances.

E. There was no evidence that Defendant HURCHALLA had specific intent to harm the Plaintiffs and, in fact, there was overwhelming evidence that MRS. HURCHALLA was motivated by dedication to the environment and to Martin County’s development rules.

F. Statements made by MRS. HURCHALLA in her e-mails to County Commissioners were not only privileged but were protected opinion or facts which she believed to be true.

G. Plaintiffs’ claims against MRS. HURCHALLA were barred by Sec. 768.295, F.S., the Citizen Participation in Government Act (Florida’s anti-SLAPP statute).

H. None of the elements of tortious interference with contract were established.

I. The Plaintiffs were not parties to the Interlocal Agreement between MARTIN COUNTY and the SOUTH FLORIDA WATER MANAGEMENT DISTRICT.

J. The Interlocal Agreement was not breached.

K. Defendant HURCHALLA was not the cause of any actions or inaction taken by MARTIN COUNTY which the Plaintiffs claim constituted a breach of the Interlocal Agreement.

L. LAKE POINT did not suffer damages as a result of any action or statement made by MAGGY HURCHALLA.

M. Damages purportedly sustained by the Plaintiffs were speculative and were not established with reasonable certainty.

N. Plaintiffs could have sustained no damages to their business operation because Plaintiffs’ only interest in the Lake Point project is as record owners of the property; LAKE POINT PHASE I, LLC, and LAKE POINT PHASE II, LLC, engage in no business on the property.

Because the jury’s verdict failed to comport with the manifest weight of the evidence on these issues, the Court has a duty to grant MRS. HURCHALLA’s motion for a new trial.

II. Defendant HURCHALLA was denied a fair trial.

The trial commenced on February 5, 2018. After the jury was seated and following the first day of testimony presented on behalf of the LAKE POINT Plaintiffs, the presiding judge asked to speak privately with Defendant HURCHALLA and her counsel.

On February 7, 2018, before trial proceedings commenced, Judge Roby advised MRS. HURCHALLA in a private meeting that he wanted to try to mediate a settlement between the parties. In furtherance thereof, he read an apology letter that he said he had drafted for MRS. HURCHALLA to offer to LAKE POINT.

The letter consisted of an apology for MRS. HURCHALLA’s criticism of the project and assured LAKE POINT that MRS. HURCHALLA would never speak about the project in the future, effectively forever surrendering her First Amendment right to free speech.

The letter drafted by Judge Roby stated that MRS. HURCHALLA had been wrong about the Lake Point project and that she regretted her statements.

The letter drafted by the presiding judge prior to the presentation of any evidence or testimony offered on behalf of MRS. HURCHALLA clearly demonstrated bias by the judge against MRS. HURCHALLA and in favor of LAKE POINT.18

Despite his statement that he wanted to try to “mediate a settlement” between the parties, Judge Roby made no effort to ask if MRS. HURCHALLA wished to make a proposal of her own. Instead, after she declined to agree to issue the apology drafted by the judge, Judge Roby advised MRS. HURCHALLA and her counsel that trial would proceed. Immediately thereafter, at the request of counsel for LAKE POINT, the judge met privately with opposing counsel for a minute or so, apparently to communicate the results of the unsuccessful effort to persuade MRS. HURCHALLA to acknowledge wrongdoing and give up her future constitutional rights.

It was obvious to MRS. HURCHALLA that Judge Roby was not trying mediate a settlement in an impartial manner. The judge clearly recognized the motivation of the Plaintiffs’ action, that is, to silence MRS. HURCHALLA and other critics of their project rather than to obtain compensation for damages suffered, because no effort was made to discuss monetary settlement terms. The judge sought only to have MRS. HURCHALLA apologize for past criticism and agree not to speak about the Plaintiffs’ project ever again.

It was obvious to MRS. HURCHALLA after this “mediation effort” by the Court that she was not going to get a fair trial from Judge Roby.

MRS. HURCHALLA moved for mistrial and for recusal of Judge Roby based on her perception that she could not receive a fair trial after having been “encouraged” by the judge to acknowledge wrongdoing and apologize to the Plaintiffs before she even offered any testimony or evidence in her defense.

MRS. HURCHALLA advised Judge Roby that she was concerned about whether his rulings and instructions to the jury would be fair and unbiased.

Nonetheless, Judge Roby denied the motions for mistrial and for recusal.

Evidentiary rulings during the trial were inconsistent and largely favored the Plaintiffs. For instance, a key issue raised by Plaintiffs was whether MRS. HURCHALLA made false statements in communications with County Commissioners. MRS. HURCHALLA was repeatedly accused by Plaintiffs and their counsel of “lying” and communicating “lies” about the Lake Point project. But when MRS. HURCHALLA attempted to present testimony from an environmental colleague that she has not been known to lie about environmental issues, Judge Roby struck the testimony as “improper character bolstering testimony,” leaving Plaintiffs’ repeated accusations of “lying” unrebutted before the jury.

Jury instructions were heavily weighted in favor of Plaintiffs, with the court rejecting basic instructions submitted by MRS. HURCHALLA setting out the essential elements of a breach of contract, making it difficult for the jury to know how to determine a key issue in the case, that is, whether the Interlocal Agreement was breached.

Instructions proposed by Plaintiffs were granted over Defendant’s objections, including misstatements of law (such as an instruction that the constitutional privilege does not attach to false statements) and directions that intruded on the jury’s fact-finding role (instructing the jury, for instance, that it must determine that Lake Point was a party to the Interlocal Agreement).

Plaintiffs submitted standard jury instructions setting out the elements of tortious interference, which the Court approved over Defendant’s objections. Defendant HURCHALLA submitted jury instructions which altered the standard jury instruction pursuant to Note 2, which requires alteration when privilege or justification is asserted with respect to alleged interference.

Standard Jury Instruction 408.5 “is intended to apply to the majority of cases where the issue to be determined is whether the defendant has intentionally interfered with a contract not terminable at will . . . However, in certain relatively rare factual situations, interference with a contract not terminable at will may be justified or privileged and, therefore, proper even though intentional . . . In such cases, instruction 408.5 will have to be modified.” Note 2, Standard Jury Instruction 408.5 (emphasis supplied).

Inclusion of an adverse inference instruction allowed the Plaintiffs to argue to the jury that the fact that no e-mails were produced which proved their case was, in and of itself, proof of their case.

The judge granted the adverse inference instruction over MRS. HURCHALLA’s objection on grounds that certain e-mails were produced by a County Commissioner which were not produced by MRS. HURCHALLA, who acknowledged that she deleted e-mails about the

Lake Point project prior to the filing of the lawsuit when she had no inkling that litigation was imminent and she had no duty to preserve the communications.

MRS. HURCHALLA testified that she did not delete e-mails about LAKE POINT after the lawsuit was filed. E-mails the judge cited in granting the adverse inference jury instruction were not about the Lake Point project and were irrelevant to this action. (Counsel for Plaintiffs nonetheless used one of those e-mails, admitted in evidence over MRS. HURCHALLA’s objection, to attack not only MRS. HURCHALLA but her counsel in closing argument.)

More than a dozen motions in limine proposed by Plaintiffs were granted or implemented by Judge Roby during the course of the trial, effectively tying MRS. HURCHALLA’s hands in questioning and cross-examining witnesses.19 Virtually all of MRS. HURCHALLA’s objections to motions in limine proposed by the Plaintiffs were overruled and motions in limine that she submitted were either denied or significantly restricted.

The judge prohibited introduction of any testimony that could cause the jury to have sympathy for MRS. HURCHALLA20 and simultaneously prohibited introduction of testimony or evidence about the extraordinary wealth of the owners of LAKE POINT which might cause the jury to be unsympathetic to the Plaintiffs.

Judge Roby’s rulings, his demeanor toward MRS. HURCHALLA and her counsel, and the jury instructions he approved showed consistent and obvious bias against MRS. HURCHALLA and in favor of LAKE POINT from the time he unsuccessfully sought to have MRS. HURCHALLA apologize to Plaintiffs and give up her constitutional rights before she began presentation of her defense. The motion to recuse was well-grounded and should have been granted. The judge failed to provide MRS. HURCHALLA a fair and impartial hearing.

Absent recusal, MRS. HURCHALLA’s motion for mistrial should have been granted.

III. Plaintiffs’ counsel made improper and inaccurate statements in closing arguments.

Counsel for the Plaintiffs made erroneous and inaccurate statements in closing arguments that fundamentally undermined the fairness of the trial.

An improper closing argument requires a new trial, even without contemporaneous objection, where the impropriety was (1) harmful, (2) incurable and (3) so damaged the fairness of the trial that the public’s interest in the judicial system requires a new trial. Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1028-30 (Fla. 2000).

In closing arguments, Plaintiffs’ counsel assailed Defendant HURCHALLA’s counsel, citing an e-mail from MRS. HURCHALLA to a new commissioner that was admitted into evidence over objection because it had absolutely nothing to do with LAKE POINT or any of the issues in this case.

In closing, Plaintiffs’ counsel pointed his finger at Defendant’s counsel and exclaimed:

“Well, Ms. Hurchalla and Ms. Sherlock attacked the Business Development Board gratuitously. I don’t know about you, but that seems pretty bad when you have somebody who is trying to figure out how to attack gratuitously behind the scenes any organization in this County, any business in this County, anybody. That ain’t right. Everybody in this courtroom, whether it’s y’all, whether it’s the judge, whether it’s those people sitting out there, everybody knows that’s not the right thing to do.” (Emphasis supplied)

The improper and entirely unjustified attack on Defendant’s counsel was intended to prejudice the jury not only against MRS. HURCHALLA but against her counsel as well.21

During rebuttal argument, Plaintiffs’ counsel exhibited a portion of the Interlocal Agreement to the jury and falsely told the jury that highlighted language prohibited the COUNTY from placing encumbrances on the LAKE POINT property.

The portion displayed to the jury was from Section 10.7 of the Interlocal Agreement. The consent and joinder executed by LAKE POINT did not include Section 10 as one of the four specific sections of the Interlocal Agreement in which LAKE POINT joined.

Moreover, the highlighted language prohibited any encumbrance “which impairs the mining reservation, the farming reservation, the right of reverter” and prohibited “any action to frustrate or interfere with the mining reservation or the farming reservation,” which Plaintiffs’ counsel argued applied to the COUNTY’s Notices of Violation.

The Interlocal Agreement defines the mining reservation and the farming reservation as the right to farm and the right to mine the property, which rights were to be “retained by Lake Point in those portions of the Lake Point property donated to the District.”

Plaintiffs’ counsel told the jury that the COUNTY’s Notices of Violation encumbered the mining and farming reservations in violation of the Interlocal Agreement. However, the Notices of Violation issued by COUNTY staff in no way impacted the mining reservation or the farming reservation or the reverter, none of which were ever established due to the fact that none of the property was ever conveyed to SFWMD.

Furthermore, COUNTY representatives testified that Notices of Violation are not recorded, posted or published but are served only on the affected property owner to commence a process to cure potential code violations. An unrecorded, unpublished Notice of Violation does not, as a matter of law, create an encumbrance on real property.

Plaintiffs’ counsel also implied that a “cease and desist” order was issued in the Notices of Violations and falsely led the jury to believe that mining operations were significantly restricted. In fact, the mining and farming operations were never affected by the COUNTY’s Notices of Violation or any other act of COUNTY staff or officers.

Plaintiffs’ counsel materially misrepresented the law with respect to MRS. HURCHALLA’s claim of qualified privilege, repeatedly arguing that First Amendment rights to free speech and to petition for redress of grievances do not protect statements which are untrue.

This was an incorrect statement of the law.

Combined with the Court’s refusal to properly instruct the jury on qualified privilege, Plaintiffs’ argument misled and confused the jury, causing an unfair result.

WHEREFORE, Defendant MAGGY HURCHALLA requests the Court to order a new trial on all issues and damages as the jury’s verdict was against the manifest weight of the evidence, the jury was not fairly and adequately instructed with respect to the law, and improper closing argument by Plaintiffs’ counsel undermined the fairness of the trial.

LITTMAN, SHERLOCK & HEIMS, P.A.

Attorneys for Defendant MAGGY HURCHALLA

P.O. Box 1197

Stuart, FL 34995

Telephone: (772) 287-0200

E-service address: LSHLawfirm@gmail.com




By:____________________________________

Virginia P. Sherlock

Florida Bar No. 893544




CERTIFICATE OF SERVICE


I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished through the Florida Courts E-Filing Portal to: ETHAN J. LOEB, ESQ., JOHN P. TASSO, ESQ., DAN BISHOP, ESQ., CHRISTINA CARLSON DODDS, ESQ., E. COLIN THOMPSON, ESQ. counsel for Plaintiffs, at ethanl@smolkerbartlett.com, Susanm@smolkerbarlett.com, jont@smolkerbartlett.com, cynthiam@smolkerbartlett.com, dbishop@bishoplondon.com, ColinT@smolkerbartlett.com, cdodds61@gmail.com this 28th day of February, 2018.


Click here to download a PDF version.

_______________________________

Virginia P. Sherlock

1. Even if this Court were to apply the basic JNOV standard of review, MRS. HURCHALLA is entitled to a judgment in her favor as a matter of law because there is insufficient evidence in the record to sustain a finding that her statements were not privileged or that the Interlocal Agreement was breached or that any action or inaction by Martin County was caused by any conduct or any statement made by MRS. HURCHALLA.


2. Plaintiffs initially claimed that MRS. HURCHALLA tortiously interfered with an agreement between LAKE POINT and SFMWD known as “the Acquisition and Development Agreement” which established a plan for donation of the property owned by LAKE POINT to SFWMD for construction of Stormwater Treatment Areas to clean water from Lake Okeechobee and divert it to areas such as the Loxahatchee River for environmental enhancement. Shortly before trial, however, LAKE POINT advised that it would seek recovery of damages from MRS. HURCHALLA only on the claim of tortious interference with the Interlocal Agreement.

3. A separate count against MRS. HURCHALLA for injunctive relief, seeking to prohibit her from speaking publicly about the Lake Point project in the future, was dismissed by the Court in an Order granting Defendant’s motion to dismiss which was entered on October 25, 2013.


4. During the course of this proceeding, the Court entered orders granting motions for summary judgment which determined that the Acquisition and Development Agreement and the Interlocal Agreement did not authorize LAKE POINT to sell water and that LAKE POINT was operating only a mining and farming operation on the property. Nonetheless, the Court rejected Defendant HURCHALLA’s request to prohibit LAKE POINT from offering evidence of the Plaintiffs’ entitlement to operate a private water supply business from the property pursuant to the Acquisition and Development and Interlocal Agreements.

5. Bose v. Consumers Union of the U.S., Inc., 466 U.S. 485 (1984).

6. Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098 (Fla. 2008), in which the Court refused to recognize false light invasion of privacy, relying in part on the Restatement (Second) of Torts, Section 652E, comment e: “[L]imitations of long standing that have been found desirable for the action for defamation should not be successfully evaded by proceeding upon a different theory of later origin . . . .” 977 So.2d at 1112. See also Gannett Co., Inc. v. Anderson, 947 So.2d 1 (Fla. 1st DCA 2006), affirmed on other grounds, Anderson v. Gannett Co., Inc., 994 So.2d 1048 (Fla. 2008)

7. Another recent case arising in a different context, but relying on the core values of free expression, is Neptune v. Lanoue, 178 So.3d 520 (Fla. 4th DCA 2015). There, the Court struck a provision in an injunction that intruded into free speech and quoted from several U.S. Supreme Court cases: “[S]peech on ‘matters of public concern’ . . . is ‘at the heart of the First Amendment’s protection.’ . . . [E]xpression on public issues has ‘always rested on the highest rung of the hierarchy of First Amendment values.’” Id. at 522 (internal citations omitted)

8. Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961), and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965).

9. Antitrust laws are designed for the business world and “are not at all appropriate for application in the political arena.” Noerr, 365 U.S. at 141.

10. The Court rejected MRS. HURCHALLA’s proposed jury instructions on tortious interference, which defined the cause of action as intentional and unjustified interference. The Court instead approved use of the standard jury instruction on tortious interference proposed by Plaintiffs, defining the interference element of the tort as only “intentional” interference and eliminating reference to “unjustified” interference despite the note accompanying the standard instructions which says the instructions must be altered when there is a claim of privilege or justification.

11. The Court denied the motion to dismiss pursuant to Sec. 768.295, F.S., without explanation.

12. The Court prohibited MRS. HURCHALLA from offering evidence regarding the LAKE POINT business entities which operated the mine. There are many entities associated with the project. Unlike some of the other entities, the Plaintiffs have no employees, no equipment, no interest in the project except as the record owners of the property.

13. Judge Roby said he developed this proposal after seeing the reaction when the apology from the county commission that was included in the settlement agreement between LAKE POINT and the COUNTY was published to the jury.

14. Earlier, LAKE POINT sought an injunction to prevent MRS. HURCHALLA from criticizing the Lake Point project. Although the claim for injunctive relief was denied, the judge’s settlement proposal demonstrated the Plaintiffs’ objectives in the litigation.

15. Defense counsel requested that Judge Roby place a copy of the apology letter that he drafted in the Court file; however, the judge did not produce the document, provide a copy to counsel, or file it as requested.

16. The court denied a motion for summary judgment in which MARTIN COUNTY asserted that an Interlocal Agreement cannot, as a matter of law, include a private entity as a party and, thus, LAKE POINT was not a party to the agreement between the COUNTY and SFWMD. The court denied the COUNTY’s motion in a non-final, non-appealable order. MRS. HURCHALLA asserts that the order improperly interpreted and applied FICA to allow LAKE POINT to incorrectly claim to be a party to the Interlocal Agreement.

17. Defendant HURCHALLA repeatedly objected to introduction of testimony regarding damage to reputation, which is not an element of a tortious interference claim; however, her objections were overruled by the Court.

18. Counsel for MRS. HURCHALLA requested that Judge Roby include the document he drafted in the record during the hearing on the motion for recusal, but the judge declined to do so. Subsequently, Judge Roby was sent a letter on behalf of MRS. HURCHALLA demanding preservation of the document and requesting a copy of the draft that was read to MRS. HURCHALLA and her counsel by the judge. The document has not been provided.


19. Although written orders on some of the Plaintiffs’ motions in limine indicated that the Court reserved ruling, in virtually every case the motions were granted when applied during trial.

20. During five years of litigatation, MRS. HURCHALLA was the primary caregiver for three critically ill siblings who resided in Miami-Dade County, all of whom died prior to trial. MRS. HURCHALLA was unable to attend hearings or meetings due to family obligations and used e-mail to communicate with government representatives while she was in Miami caring for her brothers and her sister. The Court granted Plaintiffs’ motion in limine to prevent testimony that might evoke sympathy for MRS. HURCHALLA from the jury by prohibiting any mention of her role as caregiver to her siblings in response to questions from Plaintiffs’ counsel about why she failed to appear for hearings or to schedule meetings with LAKE POINT representatives, leaving her to say only that she had “other commitments” that kept her from more actively participating in presentations and information-gathering regarding the Lake Point project. MRS. HURCHALLA also was prohibited by the Court from mentioning her own significant health problems which interfered with her ability to more actively and more personally participate.

21. Prior to trial, counsel for the Plaintiffs attempted to intimidate and threaten a witness who testified on behalf of MRS. HURCHALLA, accusing him of being untruthful in deposition and demanding that he change his testimony at trial to avoid being charged with perjury.