WPB RESIDENTS FOR INTEGRITY IN GOVERNMENT, INC., CORNERSTONE SOLUTIONS FLORIDA, LLC, and PRADEEP ASNANI a/k/a RICK ASNANI, Petitioners,
SHARON "SHANON" MATERIO, Respondent.
final until disposition of timely filed motion for rehearing.
Consolidated petitions for writ of certiorari to the
Fifteenth Judicial Circuit, Palm Beach County; Jeffrey Dana
Gillen, Judge; L.T. Case No. 50-2018-CA-012422.
Leonard Feuer of Leonard Feuer, P.A., West Palm Beach, for
petitioner, WPB Residents For Integrity In Government, Inc.
William N. Shepherd, Seth J. Welner and Jeff Schacknow of
Holland & Knight LLP, West Palm Beach, for petitioners,
Cornerstone Solutions Florida, LLC, and Pradeep Asnani a/k/a
W. Janssen, III, John M. Siracusa and Mark G. Keegan of
Janssen, Siracusa & Keegan PLLC, West Palm Beach, for
A. Shepherd of GrayRobinson, P.A., Miami, for Amicus Curiae,
Americans for Prosperity and the Public Participation
Project, and First Amendment Foundation.
losing an election for city commission, a former candidate
filed a lawsuit against political opponents for defamation
and conspiracy to defame.
the election, these opponents sent a direct mail piece to
targeted voters in West Palm Beach claiming that the
candidate knew how to "work the system" because she
claimed homestead exemptions in both Palm Beach and St. Lucie
Counties and received a federally-funded grant intended for
low income homeowners in St. Lucie County.
opponents, who are the petitioners in this court, moved for
summary judgment and to dismiss the suit on the merits,
arguing that their political speech was protected under
Florida's Anti-SLAPP statute, section 768.295, Florida
Statutes (2018). The circuit court denied their motions,
ruling that the mailer was not protected speech under the
have sought review by a petition for writ of certiorari.
dismiss the petition because petitioners have failed to
demonstrate one of the jurisdictional prerequisites for
certiorari jurisdiction- irreparable harm. Based on binding
Florida Supreme Court precedent, we certify conflict with
Gundel v. AV Homes, Inc., 264 So.3d 304 (Fla. 2d DCA
the current state of the law, the appropriate remedy would be
for the Supreme Court to amend Florida Rule of Appellate
Procedure 9.130 to allow for nonfinal appeals of orders
denying summary judgment or dismissal of a claim brought
under section 768.295. The express legislative intent of
subsection 768.295(4) is to secure a speedy decision at
"the earliest possible time" on a summary judgment
or motion to dismiss.
"Shanon" Materio was the incumbent candidate
running for West Palm Beach City Commission in March of 2018.
Her opponent hired Pradeep "Rick" Asnani, president
of Cornerstone Solutions Florida, LLC. Asnani worked with WPB
Residents for Integrity in Government, Inc., an
electioneering communications organization (the
"ECO"), to create a two-sided postcard (the
mailer was a "paid electioneering communication,"
defined by statute as a:
communication that is publicly distributed by a television
station, radio station, cable television system, satellite
system, newspaper, magazine, direct mail, or telephone and
1. Refers to or depicts a clearly identified candidate for
office without expressly advocating the election or defeat of
a candidate but that is susceptible of no reasonable
interpretation other than an appeal to vote for or against a
2. Is made within 30 days before a primary or special primary
election or 60 days before any other election for the office
sought by the candidate; and
3. Is targeted to the relevant electorate in the geographic
area the candidate would represent if elected.
§ 106.011(8)(a), Fla. Stat. (2018).
mailer implied that Materio had illegally claimed a second
homestead exemption on a home in Port St. Lucie, and that she
received a federally-funded grant intended for low income
residents of Port St. Lucie. The mailer is reproduced below:
mailer was sent to voters within 30 days before the election,
and Materio thereafter lost her bid for reelection.
sued Cornerstone, Asnani, and the ECO alleging four causes of
Count I - Defamation per se against the ECO;
Count II - Defamation per se against Cornerstone;
Count III - Defamation against Asnani; and
Count IV - Conspiracy to Defame against all Defendants.
defendants moved to dismiss the complaint and for summary
judgment, arguing that the statements made in the mailer were
true, that there was no actual malice, and that Materio's
causes of action were prohibited by Florida's Anti-SLAPP
statute, which protects the exercise of the right of
"free speech in connection with public issues."
§ 768.295(1), Fla. Stat.
hearing, the circuit court denied the defendants'
motions. The court ruled that the Anti-SLAPP statute was
"in derogation of the common law and an impediment to
the constitutional guarantee of access to the courts."
Because the statute was in derogation of the common law, the
court determined that it "must be strictly and narrowly
construed." The court then noted that the Anti-SLAPP
statute "contains a list of communication types or
mechanisms for which it does provide protection," and
that electioneering communications were "not any one of
the types of communications set forth in the statute."
Applying the doctrine expressio unius est exclusio
alterius, the court concluded that the legislature
intentionally omitted "electioneering
communications" from the statute's list of protected
well settled that
[a] non-final order for which no appeal is provided by rule
9.130 may be reviewable by petition for a writ of certiorari,
but only in very limited circumstances. The petitioning party
must demonstrate that the contested order constitutes (1) a
departure from the essential requirements of the law, (2)
resulting in material injury ...