IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA, FOURTH DISTRICT

CHARLES GRANDE, EDWARD McKAY,

ROGER SHARP and KEVIN STINNETTE,

Appellants,

vs.

FIGG BRIDGE ENGINEERS, INC.,

Appellee.

ON APPEAL FROM A FINAL ORDER

OF THE NINETEENTH JUDICIAL CIRCUIT COURT,

ST. LUCIE COUNTY, FLORIDA

U.S. Const. Amend. 1 1, 37

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 45

Barnes v. Horan, So. 2d , 27 Fla. L. Weekly D2570,

2002 WL 31662603 (Fla. 3d DCA Nov. 27, 2002) 33

Village Corp., 805 So. 2d 22 (Fla. 4^th DCA 2001) 23

Bush v. Ayer, 728 So. 2d 799 (Fla. 4^th DCA 1999) 24

Byrd v. Hustler Magazine, Inc., 433 So. 2d 593 (Fla. 4^th DCA 1983) 36

Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002) 2

Cronley v. Pensacola News-Journal, Inc., 561 So. 2d 402 (Fla. 1^st DCA 1990) 45

Daniels v. Patterson, 751 So. 2d 678 (Fla. 1^st DCA 2000) 46-47

Demby v. English, 667 So. 2d 350 (Fla. 1^st DCA 1995) 28, 46-47

Dockery v. Florida Democratic Party,

799 So. 2d 291 (Fla. 2d DCA 2001) 25, 31, 37-38, 45

Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211 (1979) 34

Forum v. Boca Burger, Inc., 788 So. 2d 1055 (Fla. 4^th DCA 2001) 47

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) 24, 28

Hustler Magazine v. Falwell, 485 U.S. 46 (1988) 27

Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230 (11^th Cir. 1999) 33

Masson v. The New Yorker Magazine, 501 U.S. 496 (1991) 28, 33

Mile Marker, Inc. v. Petersen Publishing, L.L.C.,

811 So. 2d 841 (Fla. 4^th DCA 2002) 26

Morrone v. State Farm Fire and Cas. Ins. Co.,

664 So. 2d 972 (Fla. 4^th DCA 1995) 47

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) 24-25, 32, 44-45

Newton v. Florida Freedom Newspapers, Inc.,

447 So. 2d 906 (Fla. 1^st DCA 1984) 45

Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984) 33

Palm Beach Newspapers, Inc. v. Early, 334 So. 2d 50 (Fla. 4^th DCA 1976) 26

Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) 33

Seropian v. Forman, 652 So. 2d 490 (Fla. 4^th DCA 1995) 25, 37

Standard Jury Instructions - Civil Cases, 795 So. 2d 51 (Fla. 2001) 25

Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) cert. denied sub nom

Tavoulareas v. Washington Post Co., 484 U.S. 870 (1987) 25, 27, 33

Thomas v. Jacksonville Television, Inc., 699 So. 2d 800 (Fla. 1^st DCA 1997) 36

Time, Inc. v. Pape, 401 U.S. 279 (1971) 31-32

Times Pub. Co. v. Huffstetler, 409 So. 2d 112 (Fla. 5^th DCA 1982) 28

Zorc v. Jordan, 765 So. 2d 768 (Fla. 4^th DCA 2000),

cert. denied 533 U.S. 930 (2001) 33, 37

33 U.S.C. § 1319 8

§ 57.105(1), Fla. Stat. (2003) 2, 22, 35, 40, 44-48

§ 119.07, Fla. Stat. (2003) 12

Fed. R. Crim. P. 6(e) 12, 16-17, 34

Pring, George W., and Canan, Penelope: SLAPPs: Getting Sued

For Speaking Out, Temple University Press (1996) 41

The appellee Figg Bridge Engineers, Inc. ("Figg") filed the action below against appellants on September 5, 2000, alleging libel, slander, and "conspiracy." R-Vol. 1 at 1-21. Throughout the litigation, the defendants maintained that the action was "a SLAPP suit, or a Strategic Lawsuit Against Public Participation, aimed at silencing opponents of the Walton Road Bridge project," and attempted to prove that Figg sought "only to intimidate not only the defendants, but all the people of St. Lucie County, from exercising their First Amendment-protected rights to free speech and to petition the government for redress of grievances." R-Vol. 1 at 22; see also R-Vol. 3 at 550.

After some discovery, in July 2001 the defendants filed a motion for final summary judgment, arguing primarily that the action was a SLAPP and the allegedly defamatory statements about Figg were: (1) in some cases, not said; (2) in all cases, true; and (2) in no case spoken with constitutional actual malice or common law malice in fact. R-Vol. 1 at 549-561. While the motion for summary judgment was pending, the plaintiff Figg filed a notice of voluntary dismissal, admitting that the core allegedly defamatory statement — that Figg was a subject of a federal grand jury investigation into environmental crimes —was true. R-Vol. 3 at 589-592.

On November 14, 2001 the defendants filed a motion to recover their attorney’s fees against Figg pursuant to section 57.105(1), Florida Statutes. R-Vol. 4 at 717-726. The trial court denied this motion in an order rendered on June 6, 2002. R-Vol. 5 at 975-976. This appeal is from that order.

The proceedings in this court commenced as a Petition for Writ of Certiorari; however, the petitioners moved for, and were granted, a stay of these proceedings while the Supreme Court of Florida considered Caufield v. Cantele, which was recently decided. See Caufield v. Cantele, 837 So. 2d 371 (Fla. 2002). In light of the holding in Caufield, this Court, by order dated January 21, 2003, dissolved the stay and ordered that this action be redesignated as a final appeal. This Initial Brief of Appellant is filed accordingly.

During the 1990s, Figg contracted with the Santa Rosa Bay Bridge Authority to serve as the project consultant and design engineer for the Garcon Point Bridge in Santa Rosa County, Florida, and to oversee its construction. R-Vol. 1 at 64. The bridge was completed in June 1999. R-Vol. 1 at 66-67. While the Garcon Point Bridge was under construction, Figg was also acting as the project consultant for the St. Lucie County Expressway & Bridge Authority to design and secure financing and regulatory approval and, if these efforts proved successful, oversee the construction of the Walton Road Bridge, R-Vol. 1 at 2, Vol. 4 at 741-742, a controversial proposal to build a 14,000-foot-long span from South Indian River Drive to Hutchinson Island. R-SUPP-Vol. 3 at 422, 573-578.

There was public opposition to the bridge on a wide variety of practical and environmental grounds. The appellants publicly opposed the bridge as representatives of several local organizations. Appellant Charles Grande spoke at meetings and wrote a column in a local newspaper as president of the Presidents Council, a group of presidents of about 30 local homeowner and condominium associations. R-SUPP-Vol. 1 at 10, 25-26, 30-33. Appellant Ed McKay spoke at public meetings as president of the Islandia I Condominium Association and vice president of the Presidents Council. R-SUPP-Vol. 1 at 29, Vol. 3 at 471, 474-476, 484. Appellant Roger Sharp opposed the bridge at public meetings as president of the Indian River Drive Freeholders Association. R-SUPP-Vol. 2 at 325-336. Appellant Kevin Stinnette spoke at meetings and wrote a letter to the editor of a newspaper as a leader in many environmental groups and vice president of the Indian River Drive Freeholders Association. R-SUPP-Vol. 2 at 236.

Beginning in 1998, seeking to generate public support for the bridge, Figg invited the appellants to participate in "charettes," or public workshop meetings, to give input into the proposed project. At Figg’s "charettes," Figg held up the Garcon Point Bridge as a model for the bridge St. Lucie County could have, and as proof of Figg’s ability to secure regulatory approval and financing of such a project, and to serve as construction engineer.

The Garcon Point and Walton Road bridges were similar in design and Figg’s role as consultant to the St. Lucie County Expressway & Bridge Authority paralleled its role at Garcon Point on behalf of the Santa Rosa Bay Bridge Authority. For instance, Roger Sharp testified that the:

R-Vol. 1 at 187. See also R-SUPP-Vol. 1 at 42-43 (Charles Grande testifies that Figg "used such terms as ‘We built this, we built that, we built the Garcon Point Bridge’," and at 86, "Figg repeatedly purported to us that they were bridge builders"); R-SUPP-Vol. 2 at 216-217 (same from Kevin Stinnette); R-SUPP-Vol. 3 at 483 (same from Ed McKay).

In December 1999, as the public dialog about the Walton Road Bridge was underway in St. Lucie County, the news media throughout Florida reported that a federal grand jury was investigating the Garcon Point Bridge’s construction. R-SUPP-Vol. 1 at 44-47, 115. The defendants’ first information about the grand jury investigation was gleaned from an article in The Palm Beach Post on December 21, 1999, R-SUPP. Vol. 3 at 495-496, which said:

R-SUPP-Vol. 1 at 115 (Exhibit 1 to defendants’ depositions).

The appellants investigated and searched the Internet and found more news articles about the environmental tragedy at Garcon Point, and contacted other persons with knowledge of the investigation to confirm that Figg’s role in the bridge construction was within the scope of the investigation. In addition, they read an article that said Figg was "targeted in state and federal investigations because of its role as supervisor of the Garcon Point Bridge construction project in the Panhandle." R-Vol. 2 at 227. From what the appellants knew, based on what was publicly revealed, it would have been unreasonable to believe Figg was not within the scope of the investigation; to believe that, one would have had to believe Figg was somehow exempted from the investigation before it began, in spite of being the owner’s representative at the construction site.

The appellants’ allegedly tortious, conspiratorial statements about Garcon Point, made in January and February of 2000, were published in a newspaper column, a letter to the editor, in statements at public meetings, and in the text of a resolution overwhelmingly supported by a local advisory council. In these fora, the appellants, joined by 17 local neighborhood groups, said that because Figg was the consultant and project engineer at Garcon Point, just as it was at Walton Road, the St. Lucie County Expressway & Bridge Authority should suspend further consideration of the St. Lucie County project until more information could be obtained about the Garcon Point Bridge situation, and Figg’s role in the investigation; or until the grand jury’s investigation was completed.

Figg did not file its libel suit against the defendants promptly, in early 2000, while the allegedly tortious words were newly minted and the federal grand jury investigation was still underway. Figg waited until the federal grand jury investigation was completed.

In August 2000 the U.S. Attorney for the Northern District of Florida filed federal informations as a result of the grand jury investigation. R-Vol. 1 at 64. One information charged Odebrecht-Metric with three violations of the federal Clean Water Act, 33 U.S.C. § 1319. R-Vol. 1 at 64-70. Although the information specifically recited that "[o]versight of construction of the Garcon Point Bridge was performed by Figg Engineering, Inc., a Florida Corporation," R-Vol. 1 at 64, Figg was not charged with any crime. Three individual executives of Odebrecht-Metric were charged.

On September 6, 2000, a month after the charges were filed, Figg brought this action against the defendants for four counts of libel, six counts of slander, and a boilerplate count of conspiracy to commit the other 10 counts. R-Vol. 1 at 1-21. Although the defendants had actually made a variety of statements in different words, Figg based the allegations of the Complaint on interpreting every reference to the state and federal investigation as a statement that Figg was "under investigation" or was the "subject or target" of the investigation. R-Vol. 1 at 1-21 (Complaint at ¶¶ 20, 25, 29, 34, 40, 45, 56). Figg alleged that "such is not now nor has it ever been true." R-Vol. 1 at 5-13 (¶¶ 20, 25).

Only Counts IV and VII alleged defamatory statements other than that the defendants stated that Figg was the "subject" or "target" of the investigation or was "under" investigation. In Count IV, the Complaint alleged (¶ 35) that defendant Roger Sharp, at a February 16, 2000 meeting of the St. Lucie County Property and Homeowners Association, said "that Figg had been fined for ‘environmental fines’ concerning Garcon Point Bridge when same was not true." R-Vol. 1 at 7. In fact, to the contrary, the transcript of the meeting reflects that Sharp said: "The DEP has levied already, by having nothing even to do with this investigation, a hundred and thirty-five thousand dollars in fines against the Santa Rosa Bay Bridge Authority. Not against Figg Engineering, the Santa Rosa Bay Bridge Authority. Now if this happens to us I wonder who is going to pay these fines." R-Vol. 1 at 39 (admitted, R-Vol. 1 at 91).

Count VII the Complaint alleged that defendant/appellant Ed McKay stated at a public meeting that Figg "had committed ‘outright lies’ in connection with its February 1, 2000 project notification letter." R-Vol. 1 at 10. In fact, however, the February 1, 2000 "project notification letter" was a long, detailed, complex, formal government document issued by the St. Lucie County Expressway & Bridge Authority and making many debatable contentions about the Walton Road Bridge project. R-SUPP-Vol. 3 at 573-585. McKay’s statement that the document contained "outright lies" was a statement about the St. Lucie County Expressway & Bridge Authority, not about Figg. R-SUPP. Vol. 3 at 510-527.

All the allegedly defamatory statements were made in January or February of 2000 except one. R-Vol. 1 at 1-21. Count IX of the Complaint alleges that Grande, at an August 17, 2000 meeting of the St. Lucie County Expressway & Bridge Authority, stated that Figg "was under criminal investigation by a federal grand jury." However, the transcript of the meeting shows that Grande made no such statement about Figg at the meeting. R-Vol. 1 at 51-57 (admitted, see R-Vol. 1 at 93).

Shortly after the SLAPP was filed, before the defendants were even represented by counsel, Figg’s attorney sent a letter to a St. Lucie County commissioner stating that Figg would "end this lawsuit in the immediate future" in exchange for "an honest, good faith apology and retraction, acceptable to Figg." R-Vol. 4 at 744, Vol. 5 at 818. Figg circulated the letter to newspapers, R-Vol. 4 at 745, before communicating this "offer" to the defendants. R-Vol. 4 at 733.

Figg’s attorney organized a meeting with the county commissioner and presented him with a draft "apology and retraction, acceptable to Figg" for the commissioner to present to the defendants. R-Vol. 4 at 733-734, 746. Figg’s "settlement offers" were a public spectacle. R-Vol. 4 at 778-779.

The spectacle had a profound impact on the public. Grande’s column in the Forum Islander newspaper was killed because the publisher’s lawyer warned of "a potential liability." R-SUPP-Vol. 1 at 18. Many local citizens reported feeling intimidated out of writing letters to the editor "under their own name" or speaking at public meetings about the Walton Road Bridge. R-SUPP-Vol. 1 at 84-85, Vol. 3 at 411. Attendance at public meetings about the project waned. R-SUPP. Vol. 3 at 535. Membership in the Indian River Drive Freeholders Association dropped off, and the organization could not persuade members to serve as officers, specifically because of the fear of being sued. R-SUPP-Vol. 3 at 411-412.

Instead of settling on Figg’s terms, the defendants set about to defend themselves. They demanded access, under the Public Records Act, section 119.07 of Florida Statutes, to the investigative reports and other records of the Florida Department of Environmental Protection ("DEP") in regard to the Garcon Point Bridge investigation, and filed a public records action against DEP in Tallahassee. R-Vol. 6 at 54-55, 95, 125-127. The federal grand jury investigation had originated in early 1999 as a Florida DEP investigation into "felony littering." R-Vol. 3 at 599, Vol. 4 at 600-612. In a deposition taken in this case below, the lead DEP investigator, Agent John D. Brown, testified that as of April 14, 1999, the federal agencies took charge of the investigation and brought it under the shroud of Rule 6(e) of the Federal Rules of Criminal Procedure, governing the confidentiality of grand jury proceedings. R-Vol. 4 at 612-630.

Agent Brown testified freely about the events that took place prior to April 14, 1999, but invoked Rule 6(e) to decline to testify as to matters occurring subsequently. R-Vol. 4 at 612. DEP also released many of his investigative reports and other formerly confidential investigative documents. R-Vol. 4 at 659-683, 703-716. With regard to documents generated after April 14, 1999, Agent Brown would only authenticate them and state that they were true and accurate. R-Vol. 4 at 623-630. Agent Brown’s limited testimony and the publicly available documents showed that Figg; its chief engineering inspector, Pat Hickox; and its agent, subcontractor Sandy Young, a consultant in environmental issues, were being actively investigated at least through late 1999, and to a point in time not revealed. R-Vol. 4 at 682, 706-709.

As documented in Agent Brown’s reports, the low- to mid-level construction workers regularly told Agent Brown and the FBI investigators that Figg’s on-site engineering inspectors were routinely present when cement was dumped into Pensacola Bay. R-Vol. 4 at 663, 664, 669, 677, 705. One such witness, former Odebrecht-Metric employee Brian K. Hubler, told investigators that "Fig[g] Engineering, the consultant company hired by the Santa Rosa [Bay] Bridge Authority to see that the bridge was built to proper specifications, was on scene ‘all the time’." R-Vol. 4 at 664.

As the bridge extended farther and farther out into the bay, where activities were less visible to persons on shore, the dumping got "progressively worse." R-Vol. 4 at 662. Under Figg’s watchful eye, the contractors were not only pouring wet cement into the bay, but were also dumping sections of formed concrete pilings that had been cut off as excess. R-Vol. 4 at 662, 664, 667. Supervisors would call out the words "tighten up" over the radio to warn employees when a Marine Patrol boat was approaching the bridge. R-Vol. 4 at 668.

On July 14, 1999, former bridge construction worker Shawn F. Stokes, questioned by the investigators, told them that "when the company was having trouble meeting deadlines the footers were rushed and became inferior in quality. Stokes reported that many footers which did not meet specification passed inspection ... after personnel from the Santa Rosa [Bay] Bridge Authority’s consulting company, Fig[g] Engineering, were pressured by bridge superintendent, Steven Spry. Stokes said personnel sometimes present during these inspections were: ‘Scott’, ‘Lyle,’ ‘Chris’, Keith Cole (Odebrecht survey crew), ‘Pat’ (supervisor for Fig[g] [E]ngineering), Marcos Tepidino, and Frank Dotti (project managers for Odebrecht-Metric)." R-Vol. 4 at 669 (parentheses in original). Stokes’s reference to "Pat" would be Pat Hickox, Figg’s "resident engineer" at the Garcon Point site. R-Vol. 4 at 710-711; Vol. 6 at 157.

Figg’s "resident engineer" Hickox also tried to pressure a Figg subcontractor, Post Buckley, to assist in covering up improper stormwater runoff from the roadbed at the foot of the bridge into the adjoining wetlands and ultimately into the bay, R-Vol. 4 at 672, and replaced Post Buckley as the subcontractor when Post Buckley objected. R-Vol. 4 at 680. As of November 5, 1999, the Assistant United States Attorney supervising the investigation asked the investigators to "do preliminary background work" to "form a preliminary assessment of the criminal liability" of Hickox and Figg’s agent/subcontractor Sandy Young. R-Vol. 4 at 682.

When the defendants’ attorney provided the DEP documents to Figg’s first attorney in the case below, Figg’s attorney felt compelled to withdraw, so uncomfortable was he with the allegations of the Complaint he had filed. R-Vol. 6 at 95, 125-127, 135-136. He had doubts as to the truth of Figg’s allegation that it was "never" investigated. Id.

In his last act as counsel for Figg, on the eve of filing his motion to withdraw (R-Vol. 3 at 428-429), Figg’s first attorney filed the Affidavit of Phil B. Abernethy, an attorney in Jackson, Mississippi who represented Figg in regard to the Garcon Point investigation. R-Vol. 3 at 404-408. In this affidavit, Abernethy swore that Daniel W. Dooher, a trial attorney in the Environmental Crimes Section of the U.S. Department of Justice, spoke with him on September 28, 1999, and "subsequent thereto," about the Garcon Point investigation, which Dooher headed. Abernethy’s testimony was that Dooher "assured me that Figg Bridge Engineers, Inc., was not under investigation by the [f]ederal [g]rand [j]ury and that Figg Bridge Engineers, Inc., was neither the subject nor a target of the [f]ederal [g]rand [j]ury investigation." R-Vol. 3 at 405, ¶ 10.

To his affidavit Abernethy attached what purported to be a "confirmation letter" from him to Dooher, confirming their conversations. R-Vol. 3 at 406-407. However, the "confirmation letter" was dated March 20, 2000, six months after the purported September 28, 1999 telephone conversation, and after the allegedly defamatory statements of January and February 2000 were allegedly spoken. R-Vol. 3 at 407. On its face, the letter only confirmed a conversation with Dooher "today," as in, a conversation on March 20, 2000, more than a month after the last of the allegedly defamatory statements was made. Similarly, although other witnesses in the Garcon Point Bridge investigation secured letters from the Department of Justice confirming to them that they were not a "subject or target" of the federal grand jury investigation, R-Vol. 3 at 419, Vol. 6 at 123, Figg never sought or obtained such a letter. R-Vol. 6 at 123-124.

Dooher had previously been asked to give testimony in the case below, and declined, based on Federal Rule 6(e). R-Vol. 1 at 121-125. Upon receipt of Abernethy’s affidavit, the defendants’s attorney faxed it to Dooher and implored him, in the name of justice, to find a way to break his silence. R-Vol. 6 at 57-58. This provoked Dooher to send the following letter on October 1, 2001 to Figg’s attorney:

R-Vol. 4 at 747, Vol. 5 at 814, 967-968. Thus, at the time of the allegedly defamatory statements, in January and February 2000, Figg was a "subject" of the investigation. Figg ceased to be a "subject" of the investigation in March 2000, at "some point" after the statements were made and before Abernethy confirmed his telephone conversation with Dooher on March 20, 2000.

Figg filed its voluntary dismissal shortly after receiving the Dooher letter.

In moving to recover attorney’s fees, the appellants argued that Figg undertook its "settlement negotiations" in public, even before the defendants were represented, in order to pressure the defendants. R-Vol. 4 at 734. In addition, the appellants argued that Figg’s posture showed that Figg had no intention to, or ability to, actually prosecute the SLAPP. R-Vol. 4 at 734.

A hearing on the motion took place on May 30, 2002. R-Vol. 6 at 1. Abernethy testified, repeating the statements he had made in his mid-2001 affidavit about his telephone conversations with Dooher, the Department of Justice official in charge of the investigation. R-Vol. 6 at 154-173. Figg’s first lawyer, Harold Melville, also testified, R-Vol. 6 at 116-139, and his testimony raised questions about Abernethy’s version of his conversations with Dooher. Melville said that the first time he personally spoke with Dooher was on February 17, 2000. R-Vol. 6 at 123, 137-138. On that date, Dooher specifically refused to state that Figg was not a "subject or target" of the investigation, although, according to Abernethy, Dooher had made that statement to him as of September 1999. R-Vol. 6 at 123, 137-138. Neither witness indicated that this gave him any pause, at the time.

Although Melville was aware of the Department of Justice’s practice of giving letters to witnesses to confirm that they are not a "subject or target" of the investigation, he testified that he did not ask for such a letter because he thought it was "obvious" that Figg was never investigated. R-Vol. 6 at 123-124. He never gave any testimony — and neither did Abernethy — as to how Figg intended to prove, at a trial of this case, by any admissible evidence whatsoever, much less by the required clear and convincing evidence, that Figg was "never" investigated. Figg’s attorneys conceded that Dooher’s statements to Abernethy, and several other similar hearsay statements, were admissible over a hearsay objection not to prove that Figg was "never" investigated (the truth of the matter asserted), but only for the limited purpose of proving Figg’s subjective state of mind that it was not under investigation. R-Vol. 6 at 12, 109-112.

The trial court judge took the matter under advisement and served the parties with an order signed on June 5, 2002. R-Vol. 5 at 975-976. In denying the motion for attorney’s fees, the order held that the appellants had "failed to establish" that Figg or its attorneys "knew or should have known the claim asserted was not supported by the facts, either when the Complaint was filed or at any time prior to October 1, 2001," and, in a footnote to that statement, added, "A Notice of Voluntary Dismissal was filed on October 22, 2001."

Figg brought the action below without being in possession of any evidence of (1) actual malice, or (2) falsity. Therefore, the trial court erred in finding that the action was "supported by the material facts necessary to establish the claim."

Though the plaintiff Figg knew it was a public figure, and would have to prove actual malice by clear and convincing evidence, Figg filed its lawsuit without any evidence that the defendants published the allegedly tortious words with actual malice. Figg could not have proven actual malice even by a preponderance of the evidence, neither before the action was filed nor when it ended.

The actual malice standard also required Figg to prove, by clear and convincing evidence, that the alleged defamations were false. Three of the allegedly defamatory statements, in Counts IV, VII and X, were not made at all. With respect to them, and to the core allegedly defamatory statement, that Figg was a "subject or target" of the state and federal investigation, Figg had to prove that it was not a "subject or target" of the investigation at the time the statements were made. Instead, the record shows that Figg was a "subject" of the investigation at the time the statements were made.

Figg never generated any substantial competent evidence to show how it intended to prove the false proposition that it was "never" a "subject" of the investigation. It is crucial to note here that any statements Dooher made to Figg’s lawyer over the telephone were hearsay when offered to prove the truth of the matter asserted, that Figg was never investigated.

The trial court held that something in the evidentiary calculus changed as of October 1, 2001, the date Dooher wrote Abernethy a letter forcing Abernethy to stop using Dooher’s name to claim that Figg was "never" investigated. The only part of the evidentiary calculus that was changed in light of the Dooher letter was the proof of whether Figg reasonably believed it was "never" investigated. The letter was admissible only to prove Figg’s subjective state of mind on this factual proposition, not the proposition itself. The letter supported no inference with respect to the defendants’ actual malice, and gave no clue as to how Figg ever intended to prove, by clear and convincing evidence, its false allegation that it was "never" investigated.

The trial court’s order shows that the trial court was misled as to the significance of the October 1, 2001 letter. Even if the trial court was not misled,

the trial court erred in finding that Figg had a reasonable basis to believe the action was supported by the material facts.

Finally, the appellants urge this Court to hold that the standard set by section 57.105 requires the trial court, in a public figure libel case, to evaluate the reasonableness of a plaintiff’s action in light of the heightened burden of proof a plaintiff is required to bear. In so holding, the Court would acknowledge a heightened scrutiny of the material facts cited in support of a case such as this one, affecting, as it does, the fundamental rights of freedom of speech, of association, of the press, and to petition the government for redress of grievances. Figg’s action was a Strategic Lawsuit Against Public Participation ("SLAPP"), intended to silence the most effective opponents of the Walton Road Bridge project and intimidate other like-minded citizens of St. Lucie County.

The record reflects that Figg never had any intention to pursue this lawsuit to trial, but instead brought this action in the assumption that the defendants would promptly agree to publicly apologize to Figg. Figg sought not justice, but silence, and abused our legal system to that end. Figg not only punished the defendants for telling the truth, but intimidated the entire community. Thus, this case affects the ability of local government in Florida to function democratically.

Questions of law are reviewed de novo. E.g., Board of Trustees of the Internal Improvement Fund v. Lost Tree Village Corp., 805 So. 2d 22, 24 (Fla. 4^th DCA 2001). Most of the issues raised in this case are question of pure law, and are reviewed de novo.

For instance, the appellee’s main argument in support of a finding that the appellee had a factual basis to believe it could prove actual malice is that the words used in the December 1999 Palm Beach Post story required the appellants to know that Figg was not within the scope of the grand jury investigation. This is purely a matter of interpreting the words in the story, and the trial judge’s interpretation is reviewed de novo. Cf id. Virtually all of the arguments made by the appellants below are that the trial court erred as a matter of law. To that extent, this case is reviewed de novo.

Only a small part of the record below — the testimony of Abernethy and Melville — was placed into evidence before the trial judge. Only with respect to that testimony was she in a better position than this Court to determine facts by evaluating credibility. Otherwise, the trial judge’s decision was analogous to a summary judgment determination, inasmuch as it was based on a cold record. At issue were the legal conclusions to be drawn from undisputed ultimate facts in the court file. This Court holds that "a finding which rests on conclusions drawn from undisputed evidence, rather than conflicts in the evidence, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion." Bush v. Ayer, 728 So. 2d 799, 801 (Fla. 4^th DCA 1999). The appellate court is "not bound by the trial court’s legal conclusions where those conclusions conflict with established law." Id. Because the trial court’s holding could only be founded on an erroneous view of the law, the issues in this case are reviewed de novo.

A public official may recover for defamation only upon proof that the defendant published a false statement of fact with " ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964). In this case, Figg always acknowledged that it was covered by the "actual malice" standard of New York Times, and thus was required to prove that the appellants intentionally lied or made false statements with "reckless disregard for the truth." R-Vol. 1 at 95, 111.

At no time did Figg possess a factual basis to believe it could prove this element of its case by any standard. Yet, to prevail in the SLAPP, Figg had to prove the appellants’ "reckless disregard for the truth" with "convincing clarity," New York Times, 376 U.S. at 285-286, which is to say, by "clear and convincing evidence." See Dockery v. Florida Democratic Party, 799 So. 2d 291, 294 (Fla. 2d DCA 2001); Seropian v. Forman, 652 So. 2d 490, 494 (Fla. 4^th DCA 1995); Tavoulareas v. Piro, 817 F.2d 762, 776 (D.C. Cir. 1987) cert. denied sub nom Tavoulareas v. Washington Post Co., 484 U.S. 870 (1987). "Clear and convincing" evidence is "precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue." Standard Jury Instructions - Civil Cases, 795 So. 2d 51, 55-56 (Fla. 2001).

Proof of a "reckless disregard for the truth" requires proof that the speaker "in fact entertained serious doubts as to the truth of his publication," or entertained "a high degree of awareness" of the statement’s "probable falsity." Seropian, 652 So. 2d at 494; Tavoulareas, 817 F.2d at 775-776. This refers to the speaker’s "subjective awareness of probable falsity." Palm Beach Newspapers, Inc. v. Early, 334 So. 2d 50, 52 (Fla. 4^th DCA 1976). The proof must show that the awareness of probable falsity was "brought home" to the publisher before he published the allegedly defamatory statement. Mile Marker, Inc. v. Petersen Publishing, L.L.C., 811 So. 2d 841, 847 (Fla. 4^th DCA 2002). The entire record lacks any substantial evidence of actual malice.

The Complaint itself illustrates Figg’s failure to become aware of the meaning of "actual malice" before filing suit. Even while acknowledging the actual malice standard, R-Vol. 1 at 3 (¶ 14), the Complaint attempted to show actual malice by alleging that two of the appellants, the ones who live on Hutchinson Island, opposed the new bridge (¶ 11) because they "selfishly do not want to share the beaches of South Hutchinson Island with the residents of the City of Port St. Lucie and other residents of St. Lucie County." The other two appellants, the ones who live on the mainland, allegedly (¶ 12) opposed the new bridge "for their own personal reasons which include concerns about increased traffic on Indian River Drive and a desire not to have their views across the Indian River obstructed by a bridge."

Even if "true," these allegations would not provide any evidence that the appellants knew their statements about Figg were false. In a public figure case, it is constitutionally prohibited to base civil liability for speech on the speaker’s motive. E.g., Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988) ("even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth"). A "bad motive" does not show actual malice. E.g., Tavoulareas, 817 F.2d at 795 ("It is well settled that ill will toward the plaintiff or bad motives are not elements of actual malice.").

The focus must remain on whether the speaker knew the statement was false, not whether he had a motivation, even a "bad" one, to make the statement. Id. If a person’s motive for taking a stand on an issue could "prove" actual malice, the standard would provide no protection for speech at all. Everyone who takes a stand on an issue has a reason to do so, and all citizens are "selfish" for supporting their public policy choice to the exclusion of others, whether or not the policy choice affects the view from their porch or the traffic in their neighborhood.

At times, Figg has argued that the appellants should have investigated the facts more thoroughly before making their statements. This is truly an ironic argument, for in retrospect it is clear that no amount of investigation would have led the appellants to any true reason to doubt the truth of their statements, their statements being true; Figg is thus arguing that they should have investigated until they got misled. In fact, however, Figg has never produced any evidence to show that it knew anything whatsoever, when it filed suit, about what steps the appellants had taken to investigate their statements.

Moreover, proof of a failure to investigate the truth of a statement is significant in a libel suit only if the plaintiff is a private figure, attempting to prove negligence. To prove actual malice, "Mere negligence does not suffice." Masson v. The New Yorker Magazine, 501 U.S. 496, 510 (1991). "Reckless disregard is not measured by whether a reasonably prudent person would have published or would have investigated before publishing." Demby v. English, 667 So. 2d 350, 354 (Fla. 1^st DCA 1995); See also Times Pub. Co. v. Huffstetler, 409 So. 2d 112, 113 (Fla. 5^th DCA 1982) ("mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth," quoting Gertz). Figg’s argument that the appellants had no "reasonable basis" for their statements fails as a matter of law to support actual malice.

Figg’s lawyers have also argued that The Palm Beach Post’s December 21, 1999 article provided proof of actual malice. R-Vol. 6 at 143-144. This is so, they say, because the first paragraph of the story said state "and federal authorities are conducting a criminal probe to determine if contractors dumped tons of concrete and debris into Pensacola Bay." Figg’s attorneys assert that any reader would have been "on notice" that the word "contractors" in that sentence excluded Figg, since Figg was an "engineer," and Odebrecht-Metric was the "contractor." This, they say, proves the appellants must have known they were speaking falsely if they made any statement indicating Figg was within the scope of the investigation.

This contention cannot be taken seriously by any native speaker of English. No reader of the newspaper would reasonably have assumed, in context, that the Associated Press was purporting to identify the one and only possible subject of the investigation. Moreover, if "contractors," in the first sentence of the Post article, was an exclusive reference to Odebrecht-Metric, and excluded any other person or entity from being within the scope of the investigation, it would not have been written in the plural. Because it was in the plural, and given the incomplete, general thrust of the article, a reader is being informed that the persons and companies involved in the construction of the bridge, a/k/a, the "contractors," are under investigation.

Figg, after all, was supervising the construction project under a "contract" with the Santa Rosa Bay Bridge Authority. To a reasonable reader, the article raised a serious question about Figg’s involvement by saying that documents had been subpoenaed from Figg and by describing Figg as the "firm that designed the Garcon Point Bridge and oversaw its construction by Orlando-based Odebrecht-Metric."

Figg’s bizarre interpretation would even have eliminated the "subcontractor" who poured the concrete, to name but one of many persons or business entities who logically would have to be within the scope of the Post article. It even would have eliminated most of the people who ultimately were charged and pled guilty to the environmental crimes; three of the criminal defendants turned out to be individual Odebrecht-Metric personnel.

In search of actual malice, Figg’s lawyers also point to other newspaper articles, where it was reported that "Odebrecht-Metric appears to be the focus of the investigation." Having read this statement, they say, the appellants could not have believed Figg was within the scope of the investigation. Again, Figg’s argument depends on a lack of familiarity with English. A statement that "Odebrecht-Metric appears to be the focus of the investigation" does not mean "Figg is not, and has never been, within the scope of the investigation."

Figg’s argument on this point deserves no credit whatsoever. There is nothing on the face of the newspaper articles that could create an inference that the appellants subjectively doubted the truth of their statements. To the contrary, one of the articles explicitly said Figg was "targeted" in the investigation. That alone precludes a finding of actual malice. See Dockery, 799 So. 2d at 296 ("Reliance upon a reliable source insulates a defendant from a finding of actual malice as a matter of law.").

In the public statements the appellants were sued for making, the appellants basically said the government agencies in St. Lucie County should look into Figg’s role in the Pensacola Bay crimes, or stop the St. Lucie County project until the federal grand jury investigation was concluded. That statement is not a false and defamatory statement of fact. As did the libel defendant in Time, Inc. v. Pape, 401 U.S. 279, 290 (1971), the appellants made a "deliberate choice" to accept and publish "one of a number of possible rational interpretations" of a set of facts that "bristled with ambiguity." At best, and this is quite a stretch, that is all Figg’s evidence could be argued to prove.

Id. Contrary to the law, the untenable theory of Figg's libel suit is that anyone caught wondering aloud whether Figg was under investigation would be guilty of libel unless that person could bear a burden to prove that he or she had a "sufficient basis" for the statement, which, to Figg, means the basis must be founded on some evidence besides the known facts: Fact, there was a federal grand jury investigation. Fact, tons of concrete and steel were dumped into Pensacola Bay at the site of the construction of the Garcon Point Bridge. Fact, the dumping was so extensive that it would have been improbable for this to take place without massive involvement and knowledge by many workers at the construction site, including supervisory personnel. Fact, Figg was the owner's agent at the site, in charge of regularly inspecting the construction to ensure its compliance with the plans and engineering specifications. Fact, Figg's inspection records were subpoenaed by the federal grand jury.

Figg's lawsuit sought to stop people from stating the truth and drawing the obvious inferences. The public had a right to demand answers to the questions the defendants raised.

A public figure bears the burden of proving falsity in a libel suit on a matter of public concern. See Masson, 501 U.S. at 516-517; Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1238-1239 (11^th Cir. 1999). Moreover, the falsity of the allegedly defamatory statement of fact, like the existence of actual malice, must be proven by clear and convincing evidence. E.g., Zorc v. Jordan, 765 So. 2d 768, 771 (Fla. 4^th DCA 2000), cert. denied 533 U.S. 930 (2001). Thus, in this case, Figg was required to prove its allegation that it was "never" investigated by clear and convincing evidence. Nothing in the record shows how Figg intended to produce any admissible evidence that Figg was "never" investigated.

There is nothing in the record reflecting any attempt by the plaintiff to secure evidence from testimony or public records to support its position. It was the defendants (though they bore no burden whatsoever on this point) who generated all of the evidence below with respect to the conduct of the state and federal investigation, through their public records demand and litigation against DEP, and their communications with Dooher. The plaintiff Figg could have taken the same steps, but did not.

There were other avenues Figg could have pursued to prove it was "never" investigated. For instance, Figg could have filed a motion for the U.S. District Court to authorize certain disclosures, as provided for in Rule 6. See Fed. R. Crim. P. 6(e)(3)(E)(i). When this action was pending below, Figg would have had an excellent argument in support of a motion for the judge in charge of the grand jury investigation to authorize Dooher to provide testimony and documents, limited to Figg’s role in the investigation.

One can draw two conclusions from Figg’s insouciance about the lack of evidence that Figg was "never" investigated. First, to the extent of this element of Figg’s cause of action, Figg or its attorneys "knew or should have known" that their claim was "not supported by the material facts necessary to establish the claim." § 57.105. Second, Figg never had any intention of trying this case. They simply never conducted the litigation as if they intended to prove the elements of the cause of action in court.

Figg crafted the allegations of its Complaint so as to hide behind federal grand jury secrecy. Figg assumed that federal grand jury secrecy would shield Figg from proof that Figg was investigated. Figg underestimated the defendants’ determination to prove that they spoke the truth about Figg (even though, again, they had no such burden and undertook to prove this only to vindicate their own reputations in the community).

Counts IV, VII and X of the Complaint were not supported by the material facts for all the foregoing reasons, and for additional reasons. In each of these instances, even before the constitutional actual malice standard is invoked, Figg’s case fails to meet the common law elements for a defamation claim.

Count IV alleged that Roger Sharp said, at a February 16, 2000 meeting of the St. Lucie County Property and Homeowners Association, said "that Figg had been fined for ‘environmental fines’ concerning Garcon Point Bridge when same was not true." In fact, he did not say that. He said, precisely accurately, as supported by the December 21, 1999 Palm Beach Post article, that fines of $135,000 had been levied "against the Santa Rosa Bay Bridge Authority. Not against Figg Engineering, the Santa Rosa Bay Bridge Authority." R-Vol. 2 at 223-229, Vol. 3 at 542-544.

"A false statement of fact is the sine qua non for recovery in a defamation action." Byrd v. Hustler Magazine, Inc., 433 So. 2d 593, 595 (Fla. 4^th DCA 1983). There being no false statement in Sharp’s comments at the meeting, Figg cannot recover against him for defamation based on his comments at the meeting. In addition, an allegedly defamatory statement must be "of and concerning" the plaintiff, or the plaintiff may not recover. Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 805 (Fla. 1^st DCA 1997). Here, because Sharp’s statement about the environmental fines was "of and concerning" the Santa Rosa Bay Bridge Authority, Figg could not recover based on them even if they were false and defamatory.

Count VII the Complaint alleged that appellant McKay stated at a public meeting that Figg "had committed ‘outright lies’ in connection with its February 1, 2000 project notification letter." R-Vol. 1 at 10. Again, the statement was not "of and concerning" Figg; it was "of and concerning" the St. Lucie County Expressway & Bridge Authority, which authored the project notification letter. Therefore, Figg could not recover for this statement.

Moreover, the statement cited in Count VII was an opinion. See Zorc, 765 So. 2d at 771-772; Seropian, 652 So. 2d at 491-493. The very nature of the project notification letter and its complicated, contentious contents gave any reasonable listener at the meeting to know that McKay was merely using a "rhetorical hyperbole, a vigorous epithet," Seropian at 496, to say that he found the project indefensible and felt his local government agency’s determination to push forward with the project was based on self-serving arguments. McKay was entitled to be as unreasonable and unkind to his local government as he cared to be. See, e.g., Dockery, 799 So. 2d at 293 ("The First Amendment requires neither politeness or fairness.") (citation omitted).

Finally, there is Count X, the matter of Grande’s statements at an August 17, 2000 meeting of the St. Lucie County Expressway & Bridge Authority, the only one of the allegedly tortious statements that was not made in January-February 2000. Though the Complaint alleges that Grande stated that Figg "was under criminal investigation by a federal grand jury," he did not, in fact, say that, particularly not when the "entire publication" is seen "in context," as it must be in a proper analysis of its defamatory content. Dockery, 799 So. 2d at 295. Grande connected Figg to Garcon Point for several reasons:

R-Vol. 1 at 51-57. Grande did not say Figg "was under criminal investigation by a federal grand jury." Instead, he made statements of opinion that he was entitled to make. Even if Figg were not "under criminal investigation," anyone would have a right to express the opinion that Figg’s supervision of the Garcon Point Bridge project was a disgrace, as was its self-interested production of inflated traffic studies; and that the citizens of St. Lucie County should study the environmental tragedy at Garcon Point before allowing Figg to serve as project consultant and construction engineer in St. Lucie County.

Of course the people of St. Lucie County should "watch the indictments come down" and "look at the concrete" in Pensacola Bay. The indictments could potentially be hugely informative, whether or not Figg was indicted. And it is a perfectly legitimate opinion that people should "look at the concrete" in Pensacola Bay to help inform themselves about Figg’s competence and qualifications as a bridge construction engineering firm.

As Count X illustrates, this lawsuit was about Figg’s legally erroneous belief that it could to force people to stop mentioning the Garcon Point Bridge and Figg in the same context. Figg’s effort to use our legal system in this misguided endeavor should be sanctioned by an award of attorney’s fees to the defendants in this case.

Under section 57.105(1), a trial court "shall award a reasonable attorney’s fee ... on any claim ... in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim ... Was not supported by the material facts necessary to establish the claim ... " In this case, the statute required an award of attorney’s fees because Figg and its attorneys knew or should have known, as more fully argued above, that the material facts did not support two of the fundamental elements of the cause of action, actual malice and falsity, with respect to any count of the Complaint, and three of the counts were based on allegedly defamatory statements the defendants did not even make.

Actual malice and falsity were the very two elements that Figg had to prove by "clear and convincing" evidence. The "clear and convincing" standard only widens the gulf between the facts in Figg’s possession and the facts Figg would have needed to prove in order to prevail at trial with respect to the elements of actual malice and falsity.

Figg’s conduct of the litigation only underscored Figg’s lack of attention to whether it could prevail. Figg brought the SLAPP in the belief that these appellants would not be able to afford the money and stress of fighting a well-financed opponent in court. Figg’s public negotiating posture proved that Figg anticipated the appellants would not mount a defense, but would instead promptly apologize, and would be held up as a public warning to others not to make any public reference to Figg in the same paragraph as a reference to the environmental crimes at Garcon Point.

It is clear from the trial court’s Order that the trial court’s analysis got sidetracked into focusing on the issue of whether Figg’s officers and lawyers had a factual basis to believe that Figg was not under investigation. That is the only factual issue the trial court addressed in its written order. By noting that the defendants failed to "establish" that Figg or Figg’s attorneys "knew or should have known the claim asserted was not supported by the facts, either when the Complaint was filed or at any time prior to October 1, 2001," the trial court was pointing to a fundamental change in the case that took place as of that date. That date was the date of Dooher’s letter, confirming that Figg had been under investigation as of the dates of the allegedly defamatory statements.

In light of Dooher’s October 1, 2001 letter, Figg was forced to stop using his name to claim that Figg was "never" investigated. Dooher’s letter tore away the fig leaf Figg had hidden behind in order to bring a SLAPP, i.e., Figg’s assumption that it could, with impunity, continue to claim that it was never investigated. Yet Dooher’s letter did not make any change in the state of proof with regard to actual malice (the subjective state of mind of the defendants at the

time they made the allegedly tortious statements), and affirmatively proved, with substantial competent evidence, that Figg was investigated, which is to say, there was no "falsity" in the defendants’ allegedly tortious statements.

The trial court might also have been misled by the attorneys’ testimony at the hearing about their "good faith" and that of the officers of Figg. R-Vol. 6 at 120-121, 163-173. Whether the officers of Figg acted in "good faith," in the sense of some lack of malicious spirit, is barely probative of the issue of whether Figg’s lawsuit was supported by the material facts necessary to establish the claim. The testimony at the hearing provided no evidence on any material, purely factual matter that is in conflict with the contentions made in this brief. That is why the appellants contend that this Court is confronted only with questions of law, there being no need to defer to the trial court’s assessment of the witnesses’ credibility; even if the witnesses are fully believed, once their legal conclusions are discarded, there is not substantial competent evidence in the record to support the trial court’s finding that the plaintiff’s complaint was supported by evidence of (1) actual malice, or (2) falsity. There are only arguments that fail as a matter of law.

A motion for attorney’s fees in a public figure libel case should be evaluated in light of the "clear and convincing" evidentiary burden the plaintiff was obligated to overcome. This conclusion is compelled inasmuch as the plaintiff, in filing the suit, is not only representing to the trial court that the claim is supported by the material facts of actual malice and falsity, but that the material facts in the plaintiff’s possession support a finding of actual malice and falsity by clear and convincing evidence. Material facts that are insufficient under the New York Times standard to present a jury question are likewise insufficient to form a basis for the plaintiff to reasonably believe the case was "supported by the material facts necessary to establish the claim."

Thus, the very terms of section 57.105(1) should lead to a more exacting judicial scrutiny of a public figure plaintiff’s defense to a motion for attorney’s fees than a court normally affords to a motion for attorney’s fees filed by the prevailing defendant in a garden variety civil case under the greater weight standard. Such a heightened scrutiny flows logically from, and mirrors, the rule of law that a motion for summary judgment or for a directed verdict in a public figure libel case must be evaluated in light of the "clear and convincing" standard. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-258 (1986).

To bring a libel suit, public figure plaintiffs and their attorneys are supposed to know that "summary judgments are to be liberally granted where the constitutional requirement of actual malice applies." Cronley v. Pensacola News-Journal, Inc., 561 So. 2d 402, 405 (Fla. 1^st DCA 1990). See also Dockery, 799 So. 2d at 294 ("summary judgments are to be more liberally granted"); Newton v. Florida Freedom Newspapers, Inc., 447 So. 2d 906, 907 (Fla. 1^st DCA 1984) ("summary judgment should be more liberally granted where, as in this case, the constitutional requirement of ‘actual malice’ applies").

The liberal granting of summary judgments flows from the fact that the trial court is required to consider whether there is a "genuine issue of material fact" not in the usual manner, but in light of the burden of proof as elevated by the New York Times standard. "A public-figure plaintiff ... must present record evidence sufficient to satisfy the court that a genuine issue of material fact exists which would allow a jury to find by clear and convincing evidence the existence of actual malice on the part of the defendant." Dockery, 799 So. 2d at 294, quoting Anderson, 477 U.S. at 252-258.

To hold otherwise would be to allow a plaintiff in a public figure lawsuit to bring the lawsuit without sufficient supporting material facts. Such a result would not only be contrary to the apparent intention and plain language of section 57.105, but it would be a step in the wrong direction. The fundamental constitutional rights at issue militate in favor of our court system being more favorable to prevailing defendants in public figure libel cases, not less favorable. They should not be disfavored by a public figure plaintiff being able to bring a libel suit without contemplating the heightened evidentiary burden.

Florida courts seem to look more favorably on a motion for attorney’s fees under 57.105(1) in a libel case on a matter of public interest. In Demby, 667 So. 2d, and Daniels v. Patterson, 751 So. 2d 678 (Fla. 1^st DCA 2000), the First District reversed trial court decisions to deny a recovery of attorney’s fees under section 57.105(1). Those two cases have in common that they were appeals from orders denying a recovery of attorney’s fees at the conclusion of libel suits by public figures in matters of public interest, just as this case is.

Demby and Daniels illustrate that Florida courts take special care to use section 57.105(1) to support and protect the right of free speech. This court should further expand on the trend established by the First District and hold that an appeal from a denial of attorney’s fees under 57.105(1) will receive especially close scrutiny when the action below was a SLAPP, designed to infringe on the defendants’ exercise of fundamental rights.

Demby and Daniels were both decided under the pre-1999 version of section 57.105(1). Under that version of the statute, the courts of this state used to routinely say that a "frivolous" action was "one that is so readily recognizable as devoid of merit ... that there is little, if any, prospect whatsoever that it can ever succeed," and one whose "character" as a "frivolous" action "may be determined without argument or research." Morrone v. State Farm Fire and Cas. Ins. Co.,
664 So. 2d 972, 974 (Fla. 4^th DCA 1995) (citations omitted).

In the crowd of 57.105(1) cases, Demby and Daniels stand out. When trial courts were so often being reversed for awarding attorney’s fees under 57.105(1),

the court in these two cases reversed a trial court’s decision to deny fees. A careful reading of the facts of these two cases does not support the view that their frivolousness was much more readily apparent, "without argument or research," than the frivolousness of Figg’s lawsuit in this case.

CONCLUSION

For the foregoing reasons, the trial court’s Order of June 5, 2002 should be reversed, and this matter remanded with directions that the trial court to make an award of attorney’s fees under section 57.105(1), Florida Statutes.

Respectfully submitted,

Robert Rivas

The Rivas Law Firm

311 S. Calhoun St., Suite 206

Tallahassee, FL 32301

Tel: (850) 412-0306

Fax: (850) 412-0909

Florida Bar No. 896969

I hereby certify that a copy of this Initial Brief of Appellants was served by U.S. Mail on April 21, 2003 on counsel (and former counsel) for Appellees: Harold G. Melville, Melville & Sowerby, P.L., 2940 S. 25^th St., Fort Pierce, FL 34981-5605; Nancy Gregorie, Bunnell, Woulfe, etc., P.A., P.O. Drawer 030340, Fort Lauderdale, FL 33303; and LeAnn Mercer, Butler, Snow, etc., P.O. Box 22567, Jackson, MS, 39225-2567.

Robert Rivas

Pursuant to Fla. R. App. P. 9.210(a)(2), I hereby certify that this brief is printed in 14-point Times New Roman type.

Robert Rivas