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Clarke v. Phelan

United States District Court, S.D. Florida

February 22, 2018

Dara Clarke, Plaintiff,
v.
Charles Phelan, and others, Defendants.

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          Robert N. Scola, Jr. United States District Judge

         This matter is before the Court upon the motion for summary judgment filed by the Defendants Charles Phelan, Gary Cohen, Daniel Lebensohn, BH3 Realty, LLC, Last Lot Corp., NI Holdings, LLC, Nomur Holdings, LLC, Privé Developers, LLC, Two Islands Development Corp., and the Successor Trustee of Trust No. 75-LT-21 (collectively, the “Developer Defendants”) (ECF No. 126). After careful consideration of the motion, all opposing and supporting submissions, and the applicable case law, the Court grants the motion (ECF No. 126).

         1. Introduction

         At the heart of this case lies a bitter dispute over property rights among individual homeowners, including the Plaintiff Dara Clarke and her husband David Clarke, the City of Aventura (“City”), and the Developer Defendants, which, for purposes of this case, ultimately resulted in the arrests of the Plaintiff and her husband. The Plaintiff and her husband, as well as a number of other homeowners, have clashed with the Developer Defendants and the City over the construction of a sidewalk along a portion of land that the homeowners contend belongs to them, and on which the Developer Defendants maintain they had a right to build pursuant to an easement, and as a requirement by the City related to the development of high rise condominiums near their homes. The underlying dispute over property rights is not at issue before this Court. However, as a result of the dispute, and the resulting arrests, the Plaintiff filed suit asserting claims pursuant to 42 U.S.C. section 1983 against the police officer Defendants for excessive force (Count 1), for which the Court denied summary judgment and against the City (Counts 2 and 3), for which the Court granted summary judgment in favor of the City; and against the Developer Defendants for malicious prosecution (Count 4), negligent reporting to the police (Count 5), and defamation (Count 6 and Count 7 against Lebensohn).

         The Developer Defendants seek summary judgment on all the Plaintiff's claims against them.

         2. Relevant Facts

         The facts regarding the Clarkes' arrests and the Plaintiff's interactions with the police officer Defendants are set forth in detail in the Court's order on the City and Officers' motion for summary judgment (ECF No. 186). For purposes of the present motion, there are several additional relevant facts, which are undisputed. When Clarke returned to her home on the evening of February 26, 2015 at approximately 5:30 p.m., she encountered the construction crew still working on installing the sidewalk, after the hours during which construction work is permitted in the development. (ECF No. 125 at ¶ 62 (“Defs.' SOMF”); ECF No. 148 at ¶ 184 (“Pl.'s SOMF”).) She called the police, and Officer Terry Scott responded, and spoke to both her and Phelan. (Defs.' SOMF at ¶¶ 62-63; Pl.'s SOMF at ¶ 184.) Phelan informed Officer Scott that the work remaining included brushing down the concrete and finishing clean up, and Officer Scott told Clarke that the workers would soon finish and asked her to please allow them to do so. (Defs.' SOMF at ¶¶ 64-65.) The workers finished at around 6:30 p.m. (Id. at ¶ 66.) Phelan remained at the worksite, and Clarke left in her Porsche sports utility vehicle (“SUV”) to pick up her husband. (Id. at ¶¶ 67-68.) While he was waiting, Phelan called Cohen, and while they were talking, Clarke and her husband, who was driving the SUV, returned to the property and proceeded to drive over the newly-poured concrete. (Id. at ¶¶ 67-68, 70, 72; Pl.'s SOMF at ¶¶ 186-187.) Although the parties do not dispute that David Clarke drove over the offending structure, they disagree as to whether the Plaintiff remained inside or exited the SUV while he did so. (Defs.' SOMF at ¶¶ 73, 83-84; Pl.'s SOMF at ¶ 187.) At the time, Phelan was still on the phone with Cohen, who based upon Phelan's exclamations that Clarke was running over the sidewalk, hung up and called 9-1-1. (Defs.' SOMF at ¶ 74.) Cohen assumed, based upon the Plaintiff's conduct earlier in the day, that she was the one driving over the sidewalks, which is what he told the emergency dispatcher. (Id. at ¶ 75.) However, Phelan, who Cohen consulted during the call with the dispatcher, specified that it was David Clarke who ran over the sidewalk. (Id. at ¶ 78.) Cohen, who coincidentally also lives in the Island Estates development, gave his address for the dispatcher to send the police. (Id. at ¶ 76.)

         Before the Officers arrived on scene, Clarke and her husband drove to the development marina for Clarke to retrieve their other vehicle, a BMW, which was parked there. (Id. at ¶ 87; Pl.'s SOMF at ¶ 189.) Phelan followed them there. (Defs.' SOMF at ¶ 88; Pl.'s SOMF at ¶ 189.) Clarke exited the SUV and got into the BMW, whereupon David Clarke drove away in the SUV, and Clarke, who had observed Phelan return to her property, also returned to the property and called the police on the way. (Defs.' SOMF at ¶¶ 87-89; Pl.'s SOMF at ¶¶ 189-90.)

         The parties dispute whether Phelan asked the Officers to arrest Clarke when they responded; however, it is undisputed that Phelan did not tell the Officers that Clarke herself had driven over the sidewalk, and ultimately, that Sergeant Scott decided to arrest Clarke for disturbing the peace and resisting arrest. (Defs.' SOMF at ¶¶ 97, 109.) Phelan provided an approximate cost of $3, 000.00 to repair the curb installation. (Id. at ¶ 98.) The criminal mischief charge was added later, following further police investigation determining that Clarke had driven over the concrete. (Id. at ¶ 111.) Shortly after Clarke's arrest, Defendant Lebensohn shared information regarding her arrest, including her mugshot, with the Defendant Privé's marketing and public relations firm, Boardroom Communications, Inc. (“Boardroom”), to publicize. (Id. at ¶¶ 124-27.) Boardroom's efforts resulted in the publication of three articles on Clarke's arrest, which were also referenced on Aventura Bytes blog posts. (Id. at ¶¶ 128-33.) There were also several follow-up articles and subsequent media coverage. (Id. at ¶¶ 135-42.)

         Following the Clarkes' release from jail, their cases fell under review of the Felony Screening Unit of the State Attorney's Office. (Id. at ¶ 143.) It is undisputed that the assigned assistant state attorney (“ASA”) did not rely on Phelan or Cohen's estimates of the amount of damages, and that after conducting his review, the ASA determined that the true issue at the heart of the situation was to whom the property properly belongs. (Id. at ¶¶ 147, 150.) As a result, the ASA decided not to pursue formal charges against Clarke or her husband because the ultimate property rights had not been determined. (Id. at ¶ 152.)

         3. Legal Standard

         Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show 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. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56. “An issue of fact is ‘material' if, under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004). “An issue of fact is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Id. at 1260.

         All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).

         Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323-24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Id. at 249; Morrison v. Amway Corp., 323 F.3d 920, ...


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