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Hurchalla v. Lake Point Phase I, LLC

Florida Court of Appeals, Fourth District

June 19, 2019

LAKE POINT PHASE I, LLC, and LAKE POINT PHASE II, LLC, Florida Limited Liability Companies, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          Consolidated appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; William L. Roby, Judge; L.T. Case No. 43-2013-CA-001321.

          Richard J. Ovelmen, Rachel A. Oostendorp, Alix I. Cohen and Dorothy Kafka of Carlton Fields Jorden Burt, P.A., Miami, Virginia P. Sherlock and Howard K. Heims of Littman, Sherlock & Heims, P.A., Stuart, Talbot D'Alemberte of D'Alemberte & Palmer, PLLC, Tallahassee, and Jamie S. Gorelick, David W. Ogden, David Lehn and Justin Baxenberg of Wilmer Cutler Pickering Hale and Dorr, LLP, Washington, DC, for appellant.

          Michael J. Labbee, Ethan J. Loeb and Jon P. Tasso of Smolker, Bartlett, Loeb, Hinds & Thompson, P.A., Tampa, for appellees Lake Point Phase I, LLC, and Lake Point Phase II, LLC.

          Richard Grosso of Richard Grosso, P.A., Davie, for Amici Curiae Dr. Penelope Canan and George W. Pring.

          Richard Grosso of Richard Grosso, P.A., Davie, for Amici Curiae, Florida Wildlife Federation, Friends of the Everglades, and the Pegasus Foundation.

          Jack Schramm Cox, Hobe Sound, for Amicus Curiae The Guardians of Martin County, Inc.

          Paul M. Crochet of Weber, Crabb & Wein, P.A., St. Petersburg, for Amici Curiae First Amendment Foundation, The League of Women Voters of Florida, Florida Press Association, Florida Society of News Editors, Natural Resources Defense Council, Sierra Club, American Civil Liberties Union Foundation of Florida, Fane Lozman, and The Brechner Center.

          Conner, J.

         Maggy Hurchalla ("Hurchalla") appeals the final judgment entered after a jury found in favor of Lake Point Phase I, LLC and Lake Point Phase II, LLC (collectively, "Lake Point"), on its claim of tortious interference. Prior to trial, the South Florida Water Management District ("the District") and Martin County ("the County") were co-defendants, but the claims against them were settled. Hurchalla argues the trial court erred by: (1) improperly instructing the jury on her defense of First Amendment privilege to petition the government; (2) entering the judgment against her when the evidence was insufficient to defeat her First Amendment privilege; (3) improperly instructing the jury on her defense of common law privilege to make statements to a governmental entity for mutual and public interest; (4) entering the judgment against her when the evidence was insufficient to defeat her common law privilege; (5) denying her motion for judgment notwithstanding the verdict (contending insufficient evidence of breach, causation, and damages); (6) giving an adverse inference jury instruction; and (7) ordering her to pay attorneys' fees as a sanction. We affirm on the issues regarding the First Amendment and common law privileges and explain our analysis. We affirm as to the other issues raised without discussion.

         As to the jury instructions regarding the privilege defenses, we determine there was no reversible error. As to the evidentiary arguments, we determine that the jury was presented with sufficient evidence to conclude the privileges were negated by malice on the part of Hurchalla.


         This appeal involves a 2, 266-acre tract of land in Martin County ("the Property"). The previous owners of the Property planned to develop a subdivision of twenty-acre "ranchettes," for which the County issued a development order ("the Development Order") for a large segment of the Property. The Development Order allowed the owners to mine limestone from the Property. When the real estate market started to decline in 2008, the previous owners looked to sell the Property. They contacted the District about buying the Property. The Property was of value to the District because of its unique location at the intersection of three different water basins and its potential for storing, cleansing, and then conveying water to different areas. However, the District was not able to acquire the funding to purchase the Property in a timely manner. Since Lake Point had been a contractor building on the Property for the previous owners, it "realized that there was a very economical limestone on the [P]roperty" that the company could use for its heavy highway construction business, so it purchased the Property.

         Lake Point approached the District with a concept for a public-private partnership to construct a stormwater treatment project ("the Project") on the Property. After the District oversaw an in-depth due diligence investigation, Lake Point and the District entered into an agreement titled "Acquisition and Development Agreement for Public Works Project" ("the ADA") in November 2008. The ADA addressed the Project in two phases, Phase I and Phase II, based on the fact that a portion of the Property was under the Development Order. As to the Phase I parcel, mining would continue under the Development Order. As to the Phase II parcel, which was not under the Development Order, it was contemplated that Lake Point would conduct mining to create stormwater treatment facilities, but as to that parcel, mining permits would be obtained from both the Florida Department of Environmental Protection ("FDEP") and the Army Corps of Engineers ("the Corps"). The Project envisioned that excavation of limestone would create the stormwater management lakes that could be used by the District for water storage and conveyance purposes. The agreement required Lake Point to donate the Property to the District in phases over a 20-year period, as Lake Point mined limestone from the property. Because the Development Order was an encumbrance on the Property, the ADA provided that Lake Point would have the Development Order vacated as to the portions of the Phase I parcel donated to the District.

         Since the County was a necessary player in accomplishing the Project, the District and the County entered into an interlocal agreement ("the Interlocal Agreement") for the Project in May 2009. The Interlocal Agreement expressly acknowledged the Project's numerous "water related benefits." Mirroring the ADA, the Interlocal Agreement required that the Development Order (authorizing mining) had to be vacated as to any portion of the Phase I parcel donated to the District. The County expressly agreed that it would take no action to otherwise create any encumbrances on the Property. The agreement also provided that until portions of the Property were donated to the District, the Development Order would remain in full force and effect.

         The Interlocal Agreement also allowed Lake Point to mine limestone on the Phase II portion of the Property, if it obtained permits from both the FDEP and the Corps. Once Lake Point obtained those permits, additional permission from the County to mine the Phase II parcel was not required because the Project qualified as an exempt public stormwater project. The Interlocal Agreement also provided that Lake Point would pay the County an annual monetary contribution based on the amount of limestone mined.

         Over the next several years, Lake Point worked to implement the Project. Lake Point commissioned additional engineering reports to ensure the Project's success. It applied for and obtained the necessary mining permits from the FDEP and the Corps. During this time, the County monitored the Project and never identified any problems with the Project.

         Hurchalla served as a Martin County Commissioner from 1974 to 1994. She has received numerous awards for her long commitment to environmental issues and had served on state and regional environmental boards and committees. When the County entered into the Interlocal Agreement in 2009, Hurchalla knew of the Project and expressed a few concerns, but took no action in protest.

         In September 2012, local media published an article about a plan by Lake Point to convert the Project into one that would supply water to the City of West Palm Beach for consumptive use. The article alarmed Hurchalla. Prompted by the news article, by late 2012 Hurchalla became vehemently opposed to the Project. This was in the same time frame as the 2012 general election, which saw a change to the composition of the Board of the Martin County Commission ("BOCC") with the election of Hurchalla's good friend Anne Scott, joining another close friend, Sarah Heard on the BOCC. Hurchalla began expressing her disagreement with the Project in a series of emails sent to these close friends on the BOCC using their private email accounts; messages were also sent to the BOCC email address of Commissioner Ed Fielding. These emails encouraged the commissioners to copy and paste Hurchalla's ...

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