IN THE SUPREME COURT OF FLORIDA Case No. DCA Case No. 2D L.T. Case No CA

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1 William O. Murtagh, M.D., Plaintiff/Appellant, vs. IN THE SUPREME COURT OF FLORIDA Case No. DCA Case No. 2D L.T. Case No CA Lynn Hurley, Defendant/Appellee. / PLAINTIFF/PETITIONER/APPELLANT, WILLIAM O. MURTAGH, M.D. S, BRIEF ON JURISDICTION FOR PETITIONER, ON APPEAL FROM AN ORDER OF THE SECOND DISTRICT COURT OF APPEAL Robert M. Presley, Esq. Florida Bar No Presley Law and Associates 1200 Corporate Center Way Suite 200 Wellington, Florida Phone: Fax: rpresley@plaa-pa.com Counsel for Plaintiff/Appellant/Petitioner

2 TABLE OF CONTENTS TABLE OF CONTENTS... I TABLE OF AUTHORITY... II PRELIMINARY STATEMENTS... 1 SUMMARY OF ARGUMENT... 1 ARGUMENT... 2 WHETHER THE FLORIDA SUPREME COURT HAS JURISDICTION TO REVIEW THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL PURSUANT TO FLA. R. APP. P (A)(2)(A)(IV) AS THAT DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THE DECISION OF THE THIRD DISTRICT COURT OF APPEAL IN UNISTAR CORP. V. CHILD, 415 SO.2D 733 (FLA. 3D DCA 1982) AND THE FLORIDA SUPREME COURT DECISION OF JOOPANENKO V. GAVAGAN, 67 SO.2D 434 (FLA. 1953) WHETHER THE SUPREME COURT SHOULD EXERCISE ITS DISCRETIONARY JURISDICTION AND CONSIDER THE MERITS OF THE DECISION OF THE SECOND DISTRICT COURT OF APPEAL CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 9 i

3 TABLE OF AUTHORITY Case Page Gertz v. Robert Welch, Inc, 418 U.S. 323 (1974)... Passim Jooopanenko v. Gavagan, 67 So.2d 434 (Fla. 1953)... Passim Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982)... Passim Rule Page Fla. R. App. P (a)(2)(A)(iv)... Passim ii

4 PRELIMINARY STATEMENTS Plaintiff/Petitioner/Appellant, William O. Murtagh, M.D. refers to himself as Petitioner and Dr. Murtagh. Petitioner refers to Defendant/Respondent/Appellee, Lynn Hurley as Respondent and Hurley. Petitioner refers to the Second District Court of Appeal as 2 nd DCA. Petitioner refers to the Third District Court of Appeal as 3 rd DCA. SUMMARY OF ARGUMENT In the case below, the 2 nd DCA correctly acknowledged in its written opinion that injunctive relief is rightly available as a remedy in cases where defamatory statements serve as the verbal acts for the commission of tortious interference with business relations. However, despite now recognizing this facet of the law, the 2 nd DCA mistakenly placed the burden on the Petitioner to provide proof to a reasonable certainty of the cause of action stated in the complaint by providing evidence that would allow for an inference of damages on Dr. Murtagh s business. By placing the burden for proving damages on the Dr. Murtagh, the 2 nd DCA wrongly deprived Dr. Murtagh of the benefit of the 3 rd DCA s presumption of damages that flow from the cause of action for interference with business relationships, thereby placing the 2 nd DCA decision in direct conflict and odds with the 3 rd DCA s decision in Unistar Corp. v. Child, 415 So. 2d 733 (Fla. 3d DCA Page 1 of 9

5 1982). Furthermore, by requiring the Petitioner to present proof to a reasonable certainty of damages, the 2 nd DCA also prevented Dr. Murtagh from utilizing the Florida s Supreme Court s affirmation of a presumption of damages found in defamation per se cases, thus causing the 2 nd DCA s decision to also be at odds with the Florida Supreme Court decision in Joopanenko v. Gavagan, 67 So.2d 434 (Fla. 1953). As a result of the conflict, the Florida Supreme Court possesses jurisdiction to review the decision of the 2 nd DCA pursuant to Fla. R. App. P (a)(2)(A)(iv) as the decision expressly and directly conflicts with decisions of both Florida s District Court of Appeal and the Florida Supreme Court. ARGUMENT I. Whether the Florida Supreme Court has jurisdiction to review the decision of the Second District Court of Appeal pursuant to Fla. R. App. P (a)(2)(A)(iv) as that decision expressly and directly conflicts with the decision of the Third District Court of Appeal in Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982) and the Florida Supreme Court Decision of Joopanenko v. Gavagan, 67 So.2d 434 (Fla. 1953). The 2 nd DCA in the case styled Murtagh, M.D. v. Hurley, Case No. 2D , ruled that injunctive relief is proper in cases where defamatory remarks serve as the verbal acts for wrongful interference with business relations, yet refrained from issuing the injunction against Hurley due to the Petitioner not presenting specific proof of damages. The Petitioner then filed a Motion for Rehearing on July 19, 2010 arguing that the 2 nd DCA did not consider the presumptions of damages recognized by Florida Case Law. The 2 nd DCA denied the Motion for Page 2 of 9

6 Rehearing on August 10, In this case, the Florida Supreme Court possesses discretionary jurisdiction to review Florida s 2 nd DCA s decision in the case styled as Murtagh, M.D. v. Hurley, Case No. 2D as the 2 nd DCA s decision expressly and directly conflicts with the decisions of the both the Florida Supreme Court and the Florida s 3 rd DCA on the same questions of law. Although recognizing that injunction could be issued in instances where defamation acted as the verbal act for the tort of wrongful interference with business relationships, the 2 nd DCA failed to utilize the presumption of damages recognized by both the 3 rd DCA and the Florida Supreme Court, and required the Petitioner to prove damages. The 2 nd DCA s decision in Murtagh v. Hurley directly conflicts with the 3 rd DCA s decision in Unistar Corp. v. Child, 415 So.2d 733 (Fla. 3d DCA 1982) and also with the Florida Supreme Court s decision in Joopanenko v. Gavagan, 67 So.2d 434 (Fla. 1953) by not applying any of the two presumptions for damages in the case, thereby providing this Honorable Court with jurisdiction to review the decision of the Second District Court of Appeal pursuant to Fla. R. App. P (a)(2)(A)(iv) due to the existence of express and direct conflict. The Appendix attached contains copies of both the 3 rd DCA and Florida Supreme Court decisions. The Unistar court found that when a party seeks a preliminary injunction for the tort of wrongful interference with business relationships, a presumption of Page 3 of 9

7 irreparable injury or damages exists removing the need to present proof of a harm. Unistar Corp. v. Child 415 So.2d at 735. In Unistar, the appellant corporation sought review of the lower court s order denying issuance of a preliminary injunction for the tort of unjustified interference with a business relationship. Id. at 734. Although the 3 rd DCA found that the corporation did present a prima facie case of irreparable injury, it added that even if positive proof of an injury did not appear from the record, such irreparable harm could be presumed and need not be alleged or proved in a case involving wrongful interference with a business relationship. Id. at 735. The pleading of wrongful interference with a business relationship thus comes with a presumption of damages for use, among other instances, in cases seeking temporary and permanent injunctive relief. Id. The 2 nd DCA, as stated above, did not allow Dr. Murtagh to rely on the presumption of damages found in the tort of interference with business relationships, which is a presumption of damages recognized by the 3 rd DCA. Even if Dr. Murtagh did not present positive proof of an injury, the harm and damages that the 2 nd DCA sought would have came from within the allegation of the tort itself if the court recognized the presumption of damages found in the 3 rd DCA s holding in Unistar. Since the 2 nd DCA denied Dr. Murtagh the use of this presumption of damages by requiring him to present actual proof of damages, this decision directly conflicts with the 3 rd DCA s decision. Therefore, this direct and Page 4 of 9

8 express conflict provides the Florida Supreme Court with jurisdiction to fully review the case. Furthermore, the 2 nd DCA s decision conflicts with the Florida Supreme Court s finding in Joopanenko v. Gavagan, 67 So.2d 434 (Fla. 1953), thus providing this Honorable Court with jurisdiction to review the decision of the 2 nd DCA pursuant to Fla. R. App. P (a)(2)(A)(iv). In Joopanenko, the Florida Supreme Court, citing the case of Commander v. Pedersen, 156 So. 337 (Fla. 1934), re-stated that in instances involving defamation per se, the allegations necessarily import damage and, therefore, in such cases general damages need not be pleaded or proved but are conclusively presumed to result and special damages need not be shown to sustain the action. Id. at 436. When words constitute defamation per se, they come with an injurious character that then allows for the court to presume legal injury from the act of publishing the statements themselves. Id. The 2 nd DCA, as stated above, did not allow Dr. Murtagh to rely on this presumption of damages for defamation per se, which served as the verbal acts for committing the tort of wrongful interference with business relationships. The Florida Supreme Court recognized the presumption of damages where defamation per se is involved. Since the 2 nd DCA denied Dr. Murtagh the use of this presumption of damages by requiring him to present actual proof of damages, this Page 5 of 9

9 decision directly conflicts with the Florida Supreme Court s decision to permit a presumption of damages in instances involving defamation per se. Therefore, this direct and express conflict as explained above provides the Florida Supreme Court with jurisdiction under Fla. R. App. P (a)(2)(A)(iv) to fully review the case. II. Whether the Supreme Court should exercise its discretionary jurisdiction and consider the merits of the decision of the Second District Court of Appeal. In this case, the Florida Supreme Court should exercise its discretionary jurisdiction to review the 2 nd DCA s decision and consider the merits of the decision as the 2 nd DCA s decision places not only the Petitioner but also any party suffering an ongoing and continuous harm of wrongful interference with business relationships in the inherently difficult position of determining specific damages in instances where Florida case law has never required in the past. The conflict that exists between the 2 nd DCA and the Florida Supreme Court and 3 rd DCA create uncertainty in the 2 nd DCA. The presumptions exist due to the difficulties of proving injuries of loss of reputation and loss of business, among other reasons. The defamation per se or verbal acts of wrongful interference with business relationships may only affect the recipients in subtle ways in which the recipients may not be aware. The testimony that comes from the recipients may improperly explain that the reasons why the recipient no longer holds the Page 6 of 9

10 individual in high esteem. The United States Supreme Court case of Gertz v. Robert Welch, Inc. 418 U.S. 323 (1974) echoed these sentiments as to slander per se, concluding that without the benefit of a presumption, plaintiffs run the risk of receiving inadequate remedies. Id. at 394, Footnote 30. Florida case law has recognized the presumption of irreparable injury in cases involving continuous and on-going actions that tortuously interfere with business relationships, and the presumption of damages in those cases involving slander per se. Had the 2 nd DCA adopted these presumptions, the need to present proof to a reasonable certainty of the cause of action by demonstrating a deleterious effect on the Petitioner s business is therefore obviated by way of this presumption, and the Petitioner would be adequately compensated in that he would no longer have to fear loss of business due to the defamatory statements and wrongful interference of business occasioned by Hurley. The existence of these two presumptions providing for damages through irreparable injuries removes the need to present proof to a reasonable certainty of the cause of action by demonstrating a deleterious effect on Petitioner s business. Damages may be presumed through both the tort of defamation and tortious interference with business relationships. By electing to exercise its jurisdiction in order to fully review the 2 nd DCA s decision, this Honorable Court prevents the 2 nd DCA from placing not only Dr. Murtagh in a position of requiring him, through Page 7 of 9

11 law of the case, to prove specific damages in a case where Florida case law provides a conclusive legal presumptions as a matter of law, but also any other future plaintiffs who seek recourse for either the tort of slander per se or the tort of wrongful interference with business relationships. Therefore, the Florida Supreme Court should elect to exercise its discretionary jurisdiction over the 2 nd DCA s decision under Fla. R. App. P (a)(2)(A)(iv) in order to fully review the case and consider the merits of the 2 nd DCA s decision. CONCLUSION Wherefore, the Petitioner/Appellant, William O. Murtagh, M.D., requests this Honorable Court to determine that it has jurisdiction to entertain this case on the merits and further requests that this Honorable Court exercise that jurisdiction. Dated: August 31, 2010 Respectfully Submitted, Robert M. Presley, Esq. Florida Bar No Presley Law and Associates, P.A Corporate Center Way Suite 200 Wellington, Florida Phone: // Fax: rpresley@plaa-pa.com Attorney for Petitioner/Appellant, William O. Murtagh, M.D. Page 8 of 9

12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished to: Richard Weldon II, Esq., 7935 Airport Pulling Rd. N. Ste. 205, Naples, Florida, as attorney for the Appellee/Defendant, Lynn Hurley, by regular mail on this 31st day of August Robert M. Presley, Esq. Attorney for Petitioner/Appellant CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this brief has been prepared using 14-point Times New Roman type, a font that is proportionately spaced, and that this brief is in compliance with the requirements set forth under the Florida Rules for Appellate Procedure. Robert M. Presley, Esq. Attorney for Petitioner/Appellant Page 9 of 9