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Robert E. Tardif, Jr., As Trustee For Jason Yerk v. People For the Ethical Treatment of Animals

November 4, 2011

ROBERT E. TARDIF, JR., AS TRUSTEE FOR JASON YERK, PLAINTIFF,
v.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, A VIRGINIA NOT-FOR-PROFIT CORPORATION, DEFENDANT.



OPINION AND ORDER

This matter comes before the Court on the parties' cross motions for summary judgment. Defendant filed its Dispositive Motion for Summary Judgment (Doc. #135) on June 19, 2011 and plaintiff filed his Partial Motion for Summary Judgment (Doc. #139) on June 20, 2011. Both parties filed their respective responses (Docs. ##145, 146) on July 5, 2011. The Court heard oral argument on some of the issues at the final pretrial conference on October 24, 2011.

I. Summary Judgment Standard

Summary judgment is appropriate only when the Court is satisfied that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if there is sufficient evidence such that a reasonable jury could return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it may affect the outcome of the suit under governing law. Id. However, "the mere existence of some factual dispute will not defeat summary judgment unless the factual dispute is material to an issue affecting the outcome o f the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). I n r u l i n g o n a m o t i o n f o r summary judgment, the Court is required to consider the evidence in the light most favorable to the nonmoving party. Johnson v. Booker T. Washington Broad. Servs., Inc., 234 F.3d 501, 507 (11th Cir. 2000); Jaques v. Kendrick, 43 F.3d 628, 630 (11th Cir. 1995). The Court does not weigh conflicting evidence or make credibility determinations. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d at 1225.

II. Complaint

Plaintiff's eight-count Complaint (Doc. #1) in essence asserts that People for the Ethical Treatment of Animals (defendant or PETA) made an oral promise of confidentiality to Jason Yerk (Yerk) in exchange for information; that Yerk provided the information in reliance upon the promise of confidentiality, but PETA breached the confidentiality promise by disclosing information to his employer, the Lee County Sheriff's Office (LCSO); as a result of PETA's disclosure, Yerk was forced to resign from his employment; and because of the forced resignation PETA is liable for the resulting employment-related damages. At the final status conference, counsel for plaintiff clarified the terms of the alleged confidentiality agreement. Counsel stated that PETA and Yerk agreed that Yerk would reveal his knowledge of animal abuse to PETA and, in exchange, PETA would not reveal Yerk's identity as the source of that information; disclosure of the substance of the animal abuse reported by Yerk and disclosure of Yerk's identity as a witness to the abuse were not precluded by the confidentiality agreement. Only Yerk's identity as the source of the information was to be confidential.

With this refinement, the Complaint alleges the following causes of action: Count I alleges a breach of fiduciary duty, asserting that PETA and Yerk had a fiduciary relationship in which Yerk confided information to PETA in exchange for PETA's promise of confidentiality, that PETA's disclosure to the LCSO of Yerk's identity as a source of information breached that fiduciary relationship, and the breach caused damages. Count II alleges constructive fraud, asserting that PETA and Yerk had the fiduciary relationship described above, that PETA abused this confidential relationship by disclosing Yerk's identity as a source of information and the abuse caused damages. Count III alleges fraudulent misrepresentation, asserting that PETA misrepresented to Yerk that his identity as a source of information would be kept confidential, that PETA should have known the confidentiality statement was false, that Yerk relied upon the misrepresentation, and that damages resulted to Yerk. Count IV alleges breach of oral contract, asserting that PETA and Yerk entered into an oral contract in which Yerk agreed to provide information to PETA in exchange for PETA's promise that it would not disclose to the LCSO that Yerk was a source of information, that PETA breached this contract, and that damages resulted. Count V alleges negligent misrepresentation, asserting that PETA misrepresented to Yerk that his identity as a source of information would be kept confidential, that PETA should have known the confidentiality statement was false, that PETA intended Yerk to rely upon the statement and Yerk reasonably and justifiably did so, and that damages resulted. Count VI alleges negligence, asserting that PETA voluntarily assumed a duty to not reveal Yerk's identity as a source of information to the LCSO, that PETA breached the duty by revealing Yerk's identity, and that as a proximate cause Yerk sustained damages. Count VIII*fn1 alleges tortious interference with an advantageous business relationship, asserting that Yerk and the LCSO had an advantageous business relationship under which Yerk had the right to receive compensation in return for services, that PETA knew of this business relationship, and that PETA's disclosure of Yerk's identity as a source of information was an intentional and unjustified interference with the business relationship which resulted in damages. The damages asserted as to all counts include lost wages and benefits, lost future earning capacity, and mental anguish and suffering.

III. Plaintiff's Motion for Partial Summary Judgment (Doc. #139)

As permitted by Fed. R. Civ. P. 56(a), plaintiff moves for summary judgment on "parts" of his claims. Plaintiff seeks summary judgment that "PETA entered into a confidentiality agreement with Jason Yerk whereby PETA, in exchange for information Yerk had regarding suspected animal abuse being committed by Deputy Jelly, agreed to maintain Yerk's identity completely anonymous as a witness that had contacted PETA to report suspected animal abuse" (Doc. #139, p. 23); that PETA intentionally breached the confidentiality agreement by disclosing Yerk's identity to his employer, and that PETA knew Yerk would be subject to reprisals. (Id. at 23-24).

In October 2008, Guillermo Quintana (Quintana), a former deputy for the LCSO, reported to PETA that Lee County Sheriff's Deputy Travis Jelly (Deputy Jelly) was engaging in animal abuse of his canine partner. (Doc. #146-5, p. 64.) Quintana provided Deputy Jason Yerk's (plaintiff or Yerk) contact information to PETA as a corroborating witness. Yerk worked with Deputy Jelly at the LCSO at the time. (Id., p. 82.) This much seems undisputed in the record.

From plaintiff's perspective, it is undisputed that on October 21, 2008, he entered into an oral agreement with PETA through Christina Wheeless (Wheeless) in which he agreed to provide information to PETA regarding animal abuse committed by Deputy Jelly in exchange for PETA's promise to maintain his identity as a source of information confidential. After entering this agreement, Yerk described for Wheeless the abuse he had witnessed Deputy Jelly committing to his K-9 dog. Thereafter, Kristen Dejournett (Dejournett), the PETA caseworker assigned to this case, disclosed not only the substance of the alleged animal abuse witnessed by Yerk but also revealed that Yerk was one of the sources who reported the abuse to PETA.

"An oral contract, such as the one in this case, is subject to the basic requirements of contract law such as offer, acceptance, consideration and sufficient specification of essential terms." St. Joe Corp. v. McIver, 875 So. 2d 375, 381 (Fla. 2004). Fact issues have been raised by PETA as to the existence of such an agreement, its precise terms if it exists, and the authorization of Wheeless to enter into an agreement binding PETA. The evidence on these matters is conflicting, and because the evidence on plaintiff's summary judgment motion must be viewed in the light most favorable to PETA, summary judgment is precluded. Therefore, plaintiff's motion for partial summary judgment must be denied.

IV. PETA's Motion for Summary Judgment (Doc. #135)

PETA seeks summary judgment as to all counts for various reasons. As to this motion, any disputed evidence must be viewed in favor of plaintiff. Therefore, for purposes of PETA's motion, the Court construes the facts to have established that on October 21, 2009, PETA entered into a confidentiality agreement with Yerk whereby PETA agreed to maintain as confidential Yerk's identity as a source of information who reported suspected animal abuse. With this established for summary judgment purposes, the basics of what followed seem to be undisputed.

On November 4, 2008, PETA sent a letter to the LCSO which stated that it had received complaints alleging that Deputy Jelly had on multiple occasions abused his K-9 partner. (Doc. #139-7.) The letter also stated that the callers feared reprisal and had asked to remain anonymous, however the letter listed a series of witnesses to the alleged abuse and requested that the LCSO conduct an investigation. The letter identified Yerk as one of the witnesses to the abuse, but not as one of the callers who reported it. (Id.) Yerk does not assert that this disclosure violated his confidentiality agreement with PETA.

On November 13, 2008, Lieutenant Kathy Rairden (Lt. Rairden) of the LCSO initiated an internal affairs investigation of Deputy Jelly. (Doc. #136-2, p. 19.) In connection with that investigation, Lt. Rairden contacted Dejournett, the PETA investigator assigned to the case. Lt. Rairden requested that DeJournett reveal the callers' identities, and told her that the name of an active duty deputy could not be confidential. In response, Dejournett orally identified Yerk as one of the callers. (Doc. #146-9, pp. 144-145.) This, Yerk asserts, was in violation of his confidentiality agreement with PETA.

Later, Dejournett indicated to Lt. Rairden that identifying Yerk was a mistake, and that PETA had a confidentiality agreement with the caller. (Doc. #146-11, p. 22.) Lt. Rairden then requested notes of the calls to PETA. Initially, Dejournett provided Lt. Rairden with redacted notes and explained in an email that the identity of the caller was confidential. (Doc. #139-3.)

On November 18, 2009, Lt. Rairden responded by email and stated that "once the deputies make a statement to you as an employee of the Sheriff's Office the confidentiality should not extend to them." (Doc. #139-4.) Dejournett responded that PETA's "confidentiality agreement extends to everyone, whether they be a citizen, law enforcement officer, whistle-blower, etc." (Doc. #139-5.) Later that day, however, Dejournett stated in an email that she had consulted with her supervisors and agreed to provide Lt. Rairden with the un-redacted notes. These notes identified Yerk as one of the callers. (Doc. #136-1, p. 18.)

On or about November 19, 2008, Lt. Rairden interviewed several K-9 officers, including Yerk, in connection with the investigation of Deputy Jelly. Yerk gave Lt. Rairden information regarding the animal abuse he observed. During the interview, Lt. Rairden asked Yerk whether he had spoken to anyone outside the LCSO about the incidents involving Deputy Jelly, and specifically whether he had spoken to PETA. (Doc. #136-2, p. 65.) Yerk responded "no" to both questions. (Id.)

On November 20, 2008, Lt. Rairden conducted a follow-up interview of Yerk. In the follow-up interview, Yerk admitted speaking to PETA. Lt. Rairden then initiated an internal affairs investigation into Yerk's untruthfulness. (Doc. #163-3, p. 7.)

On November 26, 2008, Lieutenant Jeffrey Trusal (Lt. Trusal) was scheduled to conduct an interview of Yerk. Yerk appeared and was represented by counsel. After reviewing the file, Lt. Trusal advised Yerk of the complaint against him. Yerk discussed the matter with his attorney and decided to resign.*fn2 Yerk submitted his resignation letter that day. (Doc. #163-3, p. 1.) Although Yerk was no longer employed with the LCSO, on December 11, 2008, Lt. Trusal issued his determination that the charge of untruthfulness against Yerk was substantiated. (Doc. #163-3, pp. 3-6.)

A. Estoppel Based on Untruthfulness

PETA first argues that plaintiff is estopped from maintaining any civil action because of Yerk's own wrongful and illegal conduct, i.e., perjury to Lt. Rairden in violation of Fla. Stat. §§ 837.02, 837.012 and 837.05. (Doc. #135, pp. 8-10.) PETA relies on Kaminer v. Eckerd Corp., Inc., 966 So. 2d 452 (Fla. 4th DCA 2007). In Kaminer, a young man died from his voluntary ingestion of Oxycontin. Id. at 453. He had obtained the Oxycontin from his fraternity brother, who in turn had obtained the drug from his roommate, a pharmacy technician. The young man's estate sued the pharmacy for failure to safeguard the drug. The court applied the common law rule that a party cannot maintain an action based on the party's own illegal conduct, and granted summary judgment for the pharmacy. Id. at 454-55.

The Court finds that Kaminer is inapplicable to the present case. Yerk's untruthfulness does not constitute "illegal" conduct under any of the statutes cited by defendant. Florida Statutes § 837.02 makes it illegal to make a false statement, under oath, in any official proceeding in regard to any material matter. Section 837.012 makes it illegal to make a false statement, under oath, not in an official proceeding in regard to a material matter. Both statutory sections require that the false statement relate to a matter material to the underlying case. Whether Yerk spoke to PETA was not "material" to the underlying case -- Deputy Jelly's alleged abuse of his K-9 partner. See State v. Diaz, 785 So. 2d 744, 745-46 (2001)(To constitute perjury "it is insufficient that the statements are untrue or incorrect; the statements must have a bearing on a determination in the underlying case.").*fn3 Finally, § 837.05 makes it illegal to give false information to any law enforcement officer concerning the alleged commission of any crime. Whether Yerk spoke to PETA does not "concern the commission" of Deputy Jelly's alleged crime. Therefore, § 837.05 simply does not apply. Additionally, while it may be "frustrating and annoying" to an officer, a person is not compelled to answer an officer's questions during the course of an investigation. R.S. v. State, 531 So. 2d 1026, 1026-27 (Fla. 1st DCA 1988); Sommer v. State, 465 So. 2d 1339, 1343 (Fla. 5th DCA 1985)("Police officers and other citizens, too, can ask questions of anyone on the street. Anyone questioned can refuse to answer."). Based upon the foregoing, and under the facts of this case as viewed in the light most favorable to plaintiff, plaintiff is not estopped from maintaining this action.

B. Contract As Violation of Public Policy

Plaintiff brings one contract claim and six*fn4 tort claims arising from the same operative facts. The Court first discusses whether the breach of contract claim is barred as a matter of ...


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