01-2472 BARNES V. HORAN

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 01-2472 BARNES V. HORAN

Case Date: 11/27/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2002 MICHAEL R. BARNES, Appellant, vs. ** ** ** CASE NO. 3D01-2472 LOWER TRIBUNAL NO. 01-195

DAVID PAUL HORAN, KAREN HORAN,** EDWARD W. HORAN, DAVID PAUL ** HORAN, P.A., and EDWARD W. HORAN, P.A., ** Appellees. ** Opinion filed November 27, 2002.

An Appeal from the Circuit Court for Monroe County, Jon I. Gordon, Judge. Michael R. Barnes(Key West); Richard L. Wilson (Orlando), for appellant. Horan, Horan & Wallace, and David Horan (Key West), for appellees. Before GREEN and SHEVIN, JJ., and NESBITT, Senior Judge. SHEVIN, Judge. Michael Barnes appeals an Order Striking Plaintiff's Second Amended Complaint and Dismissing Action with Prejudice. following analysis, we reverse. On the

Two days before the 16th Judicial Circuit State Attorney election, David Horan ran a paid political advertisement,

entitled "An Apology to the Citizens of the Florida Keys", published in the Key West Citizen. The letter concerned The

candidate Barnes, who had been a Horan & Horan employee.

publication was printed on Horan & Horan stationery and signed by attorney David Horan. letter: For 30 years I have had the privilege of practicing law in the Keys. I have not, and will not, run for political office. As a former prosecutor, Assistant County Attorney, Special Counsel for the City of Key West, Chairman of the Military Affairs Committee and immediate past President of the Greater Key West Chamber of Commerce, I am acutely aware of how important our political office holders are to our county. It is for this reason I am publishing this apology/explanation. In late 1990, my firm decided to add an additional associate/attorney, and I was introduced to Michael "Mick" Barnes by a former professor for whom I had a great deal of respect. Mr. Barnes was about to graduate from law school. After his initial office interview, my brother/law partner expressed doubts about Mr. Barnes, and my secretary/wife expressed even stronger concerns, advised me against offering him a position in our firm. I'm apologizing to everybody for not following their advice. For a period of three (3) months "Mick" Barnes was an employee of my firm. Toward the end of his employment, every secretary, book- keeper, partner and associate became convinced that Mr. Barnes' employment had to be terminated. Because of numerous contradictory misrepresentations by Mr. Barnes' to everyone in the firm (including myself), not one person in my firm could, or would, trust him to tell the truth. Mr. Barnes has stated that he has practiced law -2The following is the text of the

for 11 years but he was not sworn into the Florida Bar until October 18, 1991. In his July 2000 Public Disclosure Statement (filed with our Supervisor of Elections), Mr. Barnes was forced to disclose that having practiced law for nearly ten (10) years, he still owes his student loan of nearly $28,000.00. In his Financial Disclosure, Mr. Barnes shows his real estate assets as being $325,000 and then disclosed his liabilities as including $162,838 to Fleet Mortgage and $129,324 to Stillwater National Bank. While one could assume these are mortgages on his real estate, such is not the case. The disclosure of $129,324 liabi1ity to the Stillwater National Bank - made by "Mick" Barnes, under oath on July 17th, 2000 was false and Mr. Barnes knew it. The Stillwater Bank obtained a personal judgment against Mr. Barnes on January 5th, 1996... "against the Defendant Michael R. Barnes, in the sum of $129,324.21, with interest thereon at the rate of 8.5% per annum from the 5th day of January 1996 until paid; plus attorneys fees in the sum of $15,500.00 and costs accrued and accruing." This language is directly from the District Court Order. Only July 17th, 2000, when Mr: Barnes swore his liability to Stillwater National Bank was $129,324.21, he left out $50,382.23 in accrued interest and the $15,500.00 in attorney fees. Mr. Barnes' true liability on this one Judgment is over $195,000.00 and he has failed to pay a penny on it for nearly 5 years. His net worth was overstated by 54%. Mr. Barnes' conduct in Court has earned him somewhat unanimous disdain and contempt from most of the Monroe County attorneys and nearly all of our Judges. The Code of Judicial Conduct prohibits Judges from publishing their opinions regarding "Mick" Barnes, but attorneys are under no such prohibition. Mr. Barnes is not a viable candidate for our State Attorney. For 30 years I have built credibility within this community, with my clients and our courts. Since I have a longer personal and professional relationship with Michael "Mick"'Barnes than any other Monroe County citizen, I am asking that you give my informed opinion credibility for purposes of your upcoming decision and vote. -3-

The Florida Keys deserve better than "Mick" Barnes. The taxpayers should not have to pay his student loan or his judgement. (emphasis in original). Barnes lost the election. He thereafter filed a defamation

and conspiracy action against David Horan, Karen and Edward Horan, individually, as well as David and Edward's P.A., and Horan & Horan, a partnership. Barnes' first amended complaint

was based on four claimed false statements appearing in the ad: a) Toward the end of his employment, every secretary, bookkeeper, partner and associate became convinced that Mr. Barnes' employment had to be terminated. Because of numerous contradictory misrepresentations by Mr. Barnes to everyone in the firm (including myself), not one person in my firm could, or would trust him to tell the truth; b) Mr. Barnes was forced to disclose that having practiced law for nearly ten (10) years he still owes his student loan of nearly $28,000.00; c) The disclosure of $129,324 liability to the Stillwater National Bank, made by "Mick" Barnes, under oath on July 17, 2000 was false and Mr. Barnes knew it; and d) Mr. Barnes' conduct in court has earned him somewhat unanimous disdain and contempt from most of the Monroe County Attorneys and nearly all of our judges. Barnes' complaint also alleged that Edward Horan sent a

defamatory email to another attorney, which evidenced Edward's complicity in the publication of the letter. The defendants filed motions to dismiss. The court entered

an omnibus order granting the business entities motion; denying David, Karen, and Edward's motion as to the conspiracy count; ruling that statements (a) and (d) of the first amended

complaint were not actionable as defamatory; and permitting -4-

discovery.

The court denied Barnes' motion for rehearing.

The

court entered an order on amended motion granting Barnes ten days to file a second amended complaint against the business entities. Barnes filed a second amended complaint.1 However, despite

the findings in the trial court's omnibus order, Barnes used the second amended complaint to reassert claims (a) and (d), the two claims that the court had previously rejected as a basis for recovery, and dropped claims (b) and (c), the two claims on which the trial court had concluded that the case could proceed. The defendants filed a motion to strike the pleadings. hearing on the motion was held on July 26, 2001. At the hearing, David Horan maintained that the trial court should strike the complaint and dismiss for noncompliance with the omnibus order. Barnes told the court that if it dismissed A

with prejudice, he could appeal the points raised in the second amended complaint, including the points the trial court had initially rejected. David Horan maintained that the time for

appeal of the rejected points was when the court had ruled that the defamation action could not rest on those points and when Barnes's motion for rehearing of those rulings had been denied. Thus, according to Horan, the time to seek review of the

rejected points had passed.

He argued that the court could

An amended pleading that is complete in itself and that does not refer to or adopt a former pleading as a part of it supersedes the former pleading. See Dee v. Southern Brewing Co., 1 So. 2d 562, 563 (Fla. 1941)(By the filing of this declaration the plaintiff abandoned the original declaration and it no longer served any purpose in the record).

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dismiss the second amended complaint even without finding wilful noncompliance. A reading of the July 26, 2001, transcript shows that the trial court was confused as to the effect an order dismissing the action would have. The judge was troubled that under David

Horan's analysis, he was not sure how Barnes could have gotten appellate review of the court's rulings as to the rejection of the two allegedly defamatory statements, upon which Barnes

wanted to proceed.

Finally, the trial judge concluded that he

was granting the motion to strike, but specifically said he was not making a finding of wilfulness or contempt, observing "[a]nd to the extent the parties will bring the case to the Appellate Court, I will welcome it and God speed." The order under review specifically provided that the judge had considered the file, the motions and responses, and oral arguments of the parties. the court granted the Then, in a two sentence adjudication, to strike and denied further

motion

amendment. prejudice.

Additionally, the court dismissed the action with Our review of the record leads us to the inescapable

conclusion that the trial judge struck the complaint not because he found a violation of a court order that deserved this

severest of sanctions,2 but rather, because with the two claims he had decided had no merit stricken, and the plaintiff having abandoned his other claims, the plaintiff had no other basis to

As stated in Kelley v. Schmidt, 613 So. 2d 918, 919 (Fla. 5th DCA 1993), the striking of a party's pleadings resulting in a dismissal or a default is the most severe sanction and it should be used "sparingly and reserved to those instances where the conduct is flagrant, willful or persistent."

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proceed.3 Initially, we note that we do not agree with David Horan's claim that the time for review of the two claims at issue has passed. Because all of the claims involved relate to a specific

publication, the claims are intertwined and would not have been reviewed had Barnes attempted to appeal those intermediate

rulings while the matter proceeded. the trial judge's statements

In dismissing the action, that he was doing so

reflect

because all of the claims had been stricken.

The dismissal with

prejudice marked the end to litigation and allows our review of the case. In this posture, the only way we can decide if the trial court erred in striking the second amended complaint is to determine whether the claims as stated can support an action for defamation. specific type Barnes maintains that the statements are of a in that they imply undisclosed facts. In

assessing such a claim, we must consider the law as set out in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), 4 and

reflected in this court's opinion in

Stembridge v. Mintz, 652

At one point in the record, counsel for Barnes asked for dismissal "in a way that all the issues go up on appeal." The court asked, "What would be necessary to do that?" Barnes responded "I think that dismissal with prejudice is all that is required." The court immediately thereafter observed: "I think you are entitled to a review, and know that you are all serious about it, and I guess it is a significant issue for the bar." It is undisputed that as a candidate for public office, Barnes is a public figure. Although Milkovich may be distinguished from the instant case in that Milkovich does not involve a plaintiff who qualifies as a public figure, the analysis contained therein concerning the differences between pure and mixed opinions is still relevant.
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So. 2d 444, 446 (Fla. 3d DCA 1995), wherein we observed: In Eastern Air Lines, Inc. v. Gellert, 438 So. 2d 923 (Fla. 3d DCA 1983), this court followed [Restatement(Second) of Torts] section 566 and summarized the applicable principles: [S]tatements of pure opinion cannot constitute actionable defamation. However, a statement that although ostensibly in the form of an opinion "implies the allegation of undisclosed defamatory facts as the basis for the opinion," Restatement (Second) of Torts

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