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Florida Court of Appeal, Fourth District

November 2, 2011

REALAUCTION.COM, LLC and Lloyd E. McClendon, III, Appellants,

Page 1057

Katherine E. Giddings and Nancy M. Wallace of Akerman Senterfitt, Tallahassee, and John P. Seiler of Law Offices of Seiler, Sautter, Zaden, Rimes & Weihe, Wilton Manors, for appellants.

Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, and George F. Faines, Pittsburgh, PA, for appellee.

MARX, KRISTA, Associate Judge., LLC, and Lloyd E. McClendon, III, President of Realauction, appeal the final judgment in favor of Grant Street Group, Inc., in a suit filed by Grant Street alleging defamation and tortious interference with Grant Street's business relationship with Broward County. Realauction and McClendon argue that their post-verdict motion for directed verdict should have been granted as to a 2006 tortious interference claim. We agree and reverse. Our resolution of this issue renders moot the additional argument advanced by Realauction regarding damages. We find no merit in the issues raised by Grant Street's cross-appeal and affirm the trial court's decision to grant a directed verdict on all other claims.

Grant Street develops software applications and provides internet auction and tax collection services to government and financial institutions. In February of 2005, Broward County began negotiations with Grant Street for an annual contract for services. In furtherance of the negotiations, an April 22, 2005 meeting was scheduled between Grant Street and the County.

Page 1058

Realauction is a competitor of Grant Street in providing online tax sale auction services. On April 20, 2005, Realauction's President, Lloyd McClendon, III, sent an email to Broward County Commissioner Lois Wexler. The email alleged in pertinent part:

Grant Street is involved in multiple law suits and is currently being sued by some of the major institutional buyers because of their business practices during last year's sale, I understand the State Attorneys [sic] General Office has also started an inquiry into Grant Street's pricing and possible conflict of interest.

On April 22, 2005, Grant Street received notice from the County's Director of Revenue Collection, Judith Fink, that the County was terminating the negotiations.

Six months later, the County issued a Request for Proposals (RFP) for online services to be provided for 2006. After the RFP process, Grant Street was selected and contract negotiations resulted in a proposed contract with the County. The 2006 contract also failed to come to fruition. As a result, Grant Street asserted that Realauction's email tortiously interfered with its business relationship with the County in both 2005 and 2006.

As stated above, the trial court granted Realauction's post-verdict motion on all counts but let stand the tortious interference count for the 2006 business relationship. Realauction argues that Grant Street failed to prove this count as well. Grant Street is correct that this court does not sit as a " second trier of fact" and that an appellate court may override a jury verdict only if there is " no competent substantial evidence" to support that verdict. Ruskin v. Ryan, 859 So.2d 1218, 1219-20 (Fla. 4th DCA 2003) (quoting MMH Venture v. Masterpiece Prods., Inc., 559 So.2d 314, 316 (Fla. 3d DCA 1990)). Further, the evidence must be evaluated " in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in [the] plaintiff's favor." Am. Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla. 5th DCA 1981). In reviewing this case with this standard firmly in mind, we first discuss the 2005 tortious interference claim because the facts are inextricably intertwined with our conclusion on the 2006 claim.

To prove tortious interference, Grant Street had to prove the following elements: 1) the existence of a business relationship not necessarily evidenced by an enforceable contract under which the plaintiff has rights; 2) the defendant's knowledge of the relationship; 3) an intentional and unjustified interference with the relationship by the defendant; and 4) damage to the plaintiff as a result of the interference. Salit v. Ruden, McClosky, Smith, Schuster & Russell, P.A., 742 So.2d 381, 385 (Fla. 4th DCA 1999). A business relationship is evidenced by " an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered." Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla.1994). Therefore, Grant Street was required to put on evidence that, in all probability, the County would have entered into the contract for services but for Realauction's email. See St. Johns River Water Mgmt. Dist. v. Fernberg Geological Servs., Inc., 784 So.2d 500, 505 (Fla. 5th DCA 2001); see also ISS Cleaning Servs. Group, Inc. v. Cosby, 745 So.2d 460, 462 (Fla. 4th DCA 1999) (reversing denial of directed verdict where there was not competent substantial evidence of an agreement " which in all probability would have been completed had the alleged interference not occurred." ).

Page 1059

Grant Street failed to make this requisite prima facie showing. The testimony of the two County staff members who made the decision to terminate negotiations in April 2005 directly contradicts Grant Street's claim. Judith Fink and her supervisor, Broward County Chief Financial Officer Phil Allen, testified that ...

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