Defamation by Implication

[Conrad Hunter]

My question involves court procedures for the state of: Florida

Is the tort of Defamation by Implication included in Defamation or must it be specifically plead? Can't find anything that answers that question.

The first amended complaint includes defamation by implication, but the second amended complaint accidentially left it out.

Two individual defendants were dismissed based on the first amended complaint. They were dismissed from the case well before the second amended complaint was filed.

The dismissal of the two defendants was appealed. Then the corporate defendant got dismissed on a motion for summary judgment. They all have the same attorney of course.

If the appeals court reverses, then the two individual defendants will be back in the case. The two individual defendants are personally liable but for totally different reasons and both issues are cases of first impression in Florida.

The question, if defamation by implication must be specifically plead, and it was in the last complaint served on those defendants, does that claim still survive? The 2nd Amended Complaint was not answered by the individual defendants.

The 1st Amended Complaint was dismissed because it was too long and some claims were dismissed because they were alternative claims and then the implication got left out in re-writing. Defamation by implication was not dismissed.

What is really funny is that one of the individual defendants is a managing partner of the LLC, corporate media defendant. The appeal concerns a side issue concerning criminal conduct that could pierce the LLC veil. If I pierce the LLC veil, then all the partners of the LLC will be defendants by virtue of it then being a partnership without third party liability protection and all the partners would be equally and personally liable. In effect the LLC defendant will be back in the case, without actually being back in the case.

And of course the attorney's last trick is not going to work again.

[tex11]

...Is the tort of Defamation by Implication included in Defamation or must it be specifically plead? Can't find anything that answers that question...

Possibly to probably. In my jurisdiction, defamation by insinuation or implication IS required to be specifically pled. You need to look it up...

...The first amended complaint includes defamation by implication, but the second amended complaint accidentially left it out...

If a claim was left out in an amended petition, that claim is no longer valid. The amended complaint completely supersedes the original.

Two individual defendants were dismissed based on the 1st amended complaint.

They were dismissed from the case well before the second amended complaint was filed.
The 2nd Amended Complaint was not answered by the individual defendants.

Once the defendants were dismissed from the case, that included dismissal on ALL claims raised against them on your causes of action. The defendants did not need to answer your later amended complaints.



Conrad, you are in way over your head trying to sustain a pro se defamation case against a media defendant. I recently watched a hearing and read the pleadings in a defamation case in my area against a huge newspaper. The defendants team of lawyers walked away with a summary judgment in their favor. And the plaintiff had a good attorney who understood defamation law and put up a good fight but was outgunned. Point here is defamation laws afford media defendants strong legal protections that are extremely difficult to overcome.

It appears from your posting that you have already made several incorrect legal assumptions and procedural errors that doomed your case and any chance at winning an appeal.

[Conrad Hunter]

I agree about being in over my head. The newspaper's attorney told me that 19 months ago when this started.

I have 15 claims involving all the defendants. The defamation by implication would help to overcome a certain defense in retrospect, which is the reason for this posting. It would be insurance.

There was the newspaper LLC and two individuals. The individuals are the subject of an appeal and I have oral argument May 4. The newspaper attorney has over 20 years experience defending the media. She could not come up with one single case to prove her point in regards to one defendant and the other, she argued law that is not really relevant. Her main argument is the tipsy coachman doctrine, but the things she used are not in evidence besides not being true. She in effect tried supplanting the record on appeal. The appeals court just issued an opinion reminding lawyers that is prohibited. You can't add to the record on appeal which is exactly what she did. Both issues in the appeal are of first impression in Florida.

There is another group of three defendants who actually wrote and transmitted the defamatory letter that I have by the short hairs. They all have deep pockets but I am not letting the newspaper off the hook.

The court has already found that I am a private person and the defamation was for a private purpose. I well understand defamation law but due to the above facts, it is strictly a matter of Florida law. This type of defamation has not been federalized. The publication is also not constitutionally protected as it was illegal retaliation for political purposes. That part has not yet been formally decided and may take the appeals court to determine. I expect at least four appeals out of this case and all sorts of new case law.

The documents that sourced the letter were stolen in violation of federal and state law, are the subject of motions in limine and a motion for a protective order, so there are very complicated evidence isues that still must be determined. It is also mostly 30-40 year old hearsay. Even if admitted my case moves forward but it complicates the story to the jury. If they are not admissible, then I virtually win as the defense will have no evidence. The evidence in any case supports me, but one way is much messier than the other. The messier way also rather continues the defamation and I want to keep it out of the case.

This case involves all sorts of things of first impression and I have only written about specific bits of it that are going on now.

I do believe though you missed the point. The two defendants were dismissed early in the case. That is under appeal. May 4 is oral argument. Thus, if the circuit court is reversed (its one page opinion had no case law) and the two defendants, or at least one of them is added back into the case, the question is: What complaint would apply to them? Would I get to amend a new complaint for them? The last complaint they got included Defamatory by Implication. I would like to have that claim for insurance.

Of course they don't need to answer the later amended complaints. But if they get added back in, then what complain applies? THAT IS THE QUESTION.

I do appreciate all intelligent and relevant comments, especially from people that know law and procedure.

[tex11]

Your case is already over unless you win your appeal.

Given the nature of appeals and the odds of winning, it would be better to wait until you actually win one before discussing any further the merits of the underlying case.

[cmre3456]

I agree. I don't trust courts and especially appeals courts. I've seen them just blow off good arguments and not even address them. I don't mean to sound disrespectful; I just think it's naive to believe that all courts will follow the law.

I lost an appeal where a judge granted summary judgment but there were clearly at least 5 causes of action which were jury questions without a doubt. No doubt. I was up against a huge big city law firm in my state and a huge defendant (you'd know his name) and I swear that his law firm had attorneys who must have all gone to law school with court members or something. Something was badly wrong. You just never know.

[Conrad Hunter]

I have had plenty of experiences with crooked courts, including appeals courts. I wrote an appeals court in Wisconsin and told them they didn't read the reply brief and they were either incompetent or crooks and they could take their choice. They withdrew their opinion and issued a new one. I still lost but at least it was on a plausible basis. The city I sued at least got a lesson out of it all, spending 250k to fight me. Went to the appeals court to pick up the new opinion and ended up talking to the chief judge, which ended in him swearing at me.

I have lots of good stories.

This case has different parts. There are two groups of defendants with different attorneys. Only the media defendant has won anything. And that is a long way from the end.

In this case, the case continues against the 3 primary defendants. We have evidentiary hearings scheduled.

The newspaper defendant won a summary judgment but the judge was clueless so maybe my rehearing will be granted.

Prior to this, two defendants connected to the newspaper were dismissed at the trial level. They were dismissed for entirely two different unrelated reasons. The def. and court had no case law whatsoever to support one dismissal. They still don't have any on appeal.

The appeal is about two major issues of first impression. The decision in the appeal could be a big deal. Personally I think judges like writing major law because most appeals are crap and boring little things.

I also think I have a good chance on the appeal because the chief judge of the circuit put himself on both the motions panel and the appeal panel. If they were going to screw me, why would the chief judge bother involving himself? Also, the defs filed a motion to strike my initial brief. Their motion was denied the NEXT DAY. I have never heard of an appeal motions panel working that fast in this state.

I do wonder how long it will take from oral argument to an opinion. Then it will probably be off to appeal number two. In the meantime, the case will go forward to trial against the 3 principle defendants. They have already tried 4 motions to dismiss, and lost, and are out of ideas.

The appeal has oral argument in the morning. There are two defendants, two different issues, so chances are one at least will be reversed. The defs attorney didn't even have a meaningful argument and had to lie about the record to try to argue the tipsy coachman doctrine. Ironically this appeals court lambasted an attorney for doing the same thing last month. Added that to oral argument of course.

There are five appeals and I am second. The appeals court comes to my city one day a year so it is good timing.

[Conrad Hunter]

Well, I admit, I certainly didn't understand how oral argument in an appeals court works here. I thought I got to make a statement and then they'd maybe ask questions. In other states that is how it went. Not here in Florida.

One appeal went before me. You get ten minutes, but after about 30 seconds of any statement, the judges start asking questions. I soon discovered what I thought was important is not what they thought was important. They had the briefs and the record down cold, unlike other appeals I have ha. The case before me was a real estate property line case and the judges had the facts and law down cold and their questioning of counsel was aggressive. One attorney appeared by telephone which I think was a really big mistake, but he probably had scheduling conflicts and no choice. Of course the attorney there got grilled extra good.

What I didn't realize is that the 10 minutes has to include all of their questions and the answers.

They already had it distilled down to the root legal questions. So my 10 minutes was spent answering questions.
Two things seemed to emerge. You can kind of tell what the judges are thinking from facial expressions.

It seems they had already discarded the newspaper's lame tipsy coachman argument and they totally ignored my argument about piercing the LLC shield by the LLC's criminal conduct. So I would guess that the LLC partner I was suing will be out. Actually I had nothing on him personally. The one partner I had something on, is out of state and I was never able to serve him. But then I am, as the newspaper said, suing everybody, so there are still enough defendants still in the case. If I get back one of the two on appeal, that will be a big win.

One judge just asked me about the required 770.01 retraction notice, if I sent one specifically to the editor. No, but there were formal notices to the newspaper itself and a separate one to the registered agent of the LLC that owns the paper. He seemed to agree with me that the notice to the newspaper is imputed to the editor. There were also emails right to the editor, in the record, but no questions on that. The court knew the record, so I am sure they will consider that.

The newspaper cited a case where the author of a newspaper column got sued and it was tossed because she didn't get a 770 retraction demand notice. But she was a freelance writer, just doing a weekly column and was never at the newspaper office. She was also the state attorney. The judge nodded approvingly as I distinguished the cases.

The rest of it was about facts in the record that would allow me to sue the editor personally, i.e. what he did and didn't do. The judges spent lots of time asking the newspaper attorney about this. The chief judge also made the comment that I was pro se and it was only the first amended complaint, so why shouldn't they reverse and remand to give me a chance to amend the complaint to allege the personal negligence of the editor? The appeals courts have remanded dismissed complaints even after there were 3,4,5 and even 6 amended complaints already. I was on my first.

One judge, while I was up, said that I still had the case against the newspaper. I held my tounge.

The newspaper attorney told the court that the newspaper had won a summary judgment. They said that was not relevant or before the court. They seemed a little pissed. I think she shot herself in the foot. She mentioned I still have an ongoing case against the three individual defendants responsible for writing the letter.

The court understands the horrible level of the defamation and knowing that the newspaper is out (at least for now) might give them more of a reason to reverse and remand so I can proceed against the editor personally.

Who knows, but I have a shot. What is clear is that the panel took this case very seriously, it is a case of first impression, and is going to be a significant published case.

The newspaper's attorney really got drilled. Of course she has been doing this for 25 years and handled herself well, though she had no control at all over her 10 minutes. It was one question after another.

The judge that asked the 770 also picked up on one point in my complaint and questioned her on it. That was that the editor held onto the letter I am suing over for 4 days in order to publish it in the Sunday paper which had the most circulation. The editor also didn't do any investigation or give me any chance for a rebuttal or response. The letter was highly defamatory. It was in furtherance of a political campaign. Of course now that I have done a deposition including video of the editor, I have more ammunition to use in an amended complaint.

Now I just wait on that. Of course next month I have two days for motion hearings with the remaining 3 defendants including one with live testimony which will be fun. I have already done interrogs and depos and have them in a bunch of critical lies.

[cmre3456]

In Oregon we never got to appear before the appellate court. They worked off the record and the appellate briefs only. They also blew it off and let a summary judgment stand despite us clearly listing the obvious jury questions in the complaint and the brief, and I had a good attorney. I wasn't going to appeal what to me was an important case by myself.

This was my attorney's first loss before the appellate court and he was stunned. How do they get summary judgment when every one of the causes of action are well written with all elements, evidence attached, and all are jury questions? The appellate brief focused on pointing out jury questions?

Good luck. I hope you get at least something remanded.