5D04-3384 Scott v. Busch

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-3384

Case Date: 07/25/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

JAMES A. SCOTT, JR., Appellant, v. RANDY BUSCH, ET AL., Appellee. ________________________________/ Opinion filed July 29, 2005 Appeal from the Circuit Court for Flagler County, Kim C. Hammond, Judge. James Allen Scott, Jr., Palm Coast, pro se. Patrick T. Canan and Clyde M. Taylor, III, of Canan Law, St. Augustine, for Appellee. Case No. 5D04-3384

SHARP, W., J. Scott, an attorney, represented the plaintiff below, Marie Melton-Treworgy, in a slander case, which was resolved by a final judgment of dismissal for failure to state a cause of action. Scott appeals from a subsequent final judgment rendered in that cause, which assessed him $1,275.20 for costs and attorney fees, pursuant to section 57.105, Florida Statutes. Treworgy was assessed an identical amount, but she took no appeal from the judgment.

In its order dismissing Treworgy's second amended complaint, the trial court announced three reasons why a cause of action had not been stated: 1. The defamation particularity; was not pled with sufficient

2.

The alleged statement was not defamatory as a matter of law; The statement was one of pure opinion.

3.

The trial court concluded that the defamation claim was "devoid of even arguable substance," and thus attorney fees would be awarded pursuant to section 57.105. We disagree that the second amended complaint failed to state a cause of action and accordingly reverse the award of attorney fees against Scott. This suit had its genesis in a dispute between neighbors who are residents of Flagler Beach. Treworgy runs a type of bed and breakfast business by renting rooms in her home, which fronts on Oceanshore Boulevard, as well as rooms in a second residence which fronts on South Central Avenue, in the City. The defendant below, Randy Bush, and her husband own and reside in a home adjacent to Treworgy, which fronts on Oceanshore Boulevard. They had used part of the property that fronts on South Central, before Treworgy purchased it, to provide access to their home to South Central Avenue. However, Treworgy closed off their access. As a result, bad feelings developed between the parties. According to the

plaintiff's allegations, the Bushes tried to block and oppose Treworgy's obtaining building permits and variances for improvements to her properties, including an undeveloped piece she later purchased fronting Oceanshore Boulevard. The Bushes were unsuccessful.

2

In 2002, Randy decided to run for a seat on the City Commission of Flagler Beach. At a question and answer session attended by over 100 voters, including

Treworgy, when Randy was answering questions from the audience, her husband asked her what she would do, if elected, to stop the approval of construction projects in the City that violate the City's ordinances and harm the residential properties around them. The second amended complaint alleged: When answering her husband's question, the Defendant turned her attention from her husband and physically turned and looked directly at the plaintiff. While looking directly at the Plaintiff, the Defendant angrily stated that a person in her neighborhood had obtained an illegal permit to build in her neighborhood. The second amended complaint further alleged that several members of the audience turned and looked angrily at the Plaintiff, and understood that the Defendant was speaking about the Plaintiff. Several people who attended the meeting and those who had not but who had heard about the Defendant's accusations, questioned Treworgy about obtaining illegal permits and suggested they questioned her honesty and integrity. In addition, the second amended complaint alleged that Randy's

statement was false, and that she made the statement knowing it was false, with improper motives and malice, and that as a result the Defendant suffered general damages: upset, shock, emotional and physical distress, shame, humiliation, and embarrassment, and that this caused her not to participate in City meetings, or work on local committees and local projects.

3

Scott filed an initial complaint in this case on March 5, 2002, which faced no motion to dismiss. He filed an amended complaint on March 22, 2002. It is It was

substantially similar to the second amended complaint discussed above.

dismissed for failure to state a cause of action with leave to amend within 15 days. The reasons for dismissal were the same as those given for dismissing the second amended complaint: failure to set forth the defamatory statement with sufficient particularity; the statement was not defamatory as a matter of law; and that it was a statement of pure opinion. Thereafter, Scott filed a motion to extend the time to file a second amended complaint for 15 days, which was apparently never acted on. He asserted that he needed more time to research the law of defamation. His second amended complaint was filed beyond the 30 days. However, that was not the basis relied upon by the court for dismissal of the second amended complaint. An appellate court reviews an award of attorney fees pursuant to section 57.105 on an abuse of discretion standard.1 However, an appellate court reviews the granting of a motion to dismiss for failure to state a cause of action de novo.2 Our review is limited to the four corners of the pleading

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