LOUIS G. NAVELLIER, APPELLANT,
v.
GERALD KENT SHORTZ AND STEVEN SHORTZ, APPELLEES
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Florida appellate court affirmed summary judgment in a defamation case where the plaintiff failed to establish a disputed material fact. The defendant (appellee) was sued for allegedly writing a defamatory statement on a postcard, but deposition testimony proved the defendant's son wrote it without the defendant's knowledge or direction, and the plaintiff offered no sworn evidence to contradict this.
Summary judgment was properly entered because the sworn deposition testimony established that the appellee did not write the postcard statement and did not know his son had written it, thus negating the material factual issue alleged in the complaint, and the appellant failed to offer any sworn statements or admissible documents to create a genuine dispute.
[1] Summary judgment is appropriate where the non-moving party fails to present evidence creating a genuine issue of material fact.
[2] A plaintiff alleging defamation must demonstrate that the defendant published or caused to be published a defamatory statement.
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Join FLexlaw to unlock all legal intelligence“the party moved against by summary judgment ... must come forward with facts contradicting those submitted by the movant and demonstrating a real issue between the parties”
Establishes the burden on the non-moving party in summary judgment to present conflicting evidence
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Join FLexlaw to unlock all legal intelligenceAppellant Navellier conducted investment seminars. A postcard advertising the seminar was mailed to his place of business with "Return to Sender: He's…
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We affirm the final summary judgment entered on a complaint for defamation. The appellants had claimed that the appel-lee, or the appellee’s son at his direction, had written on a postcard advertising an *288investment seminar being conducted by the appellant: “Return to Sender: He’s a crook.” The postcard was then sent through the mail and delivered to appellant’s place of business where his employees would have seen it.
Even prior to the institution of the suit (which was filed just short of the expiration of the two-year statute of limitations1 ), the appellee had testified in a deposition taken in an unrelated lawsuit that he had not written the statement and he did not recognize the writing as that of his son. More than four years later, the appellant took the son’s deposition. The son admitted to writing the statement because he had lost money while using the appellant as an investment advisor. The son was not directed to write the statement by the appellee, and he never told the appellee that he had written on the card. The appellee moved for summary judgment, attaching the deposition transcripts. The appellant filed various documents, none of which were properly verified, and filed no opposing affidavits. The trial court granted summary judgment.
We conclude that summary judgment was appropriately entered where the appellant failed to show that a disputed issue of material fact remained. The sworn deposition testimony showed that the appel-lee did not write the language on the postcard—his son did. Nor did he know that his son had done so, thus negating the material issue of fact alleged in the complaint that the appellee had published or caused to be published a defamatory statement. The burden then shifted to the appellant to offer some conflicting evidence. The appellant offered no sworn statements or admissible documents to counter the appellee’s evidence. “[T]he party moved against by summary judgment ... must come forward with facts contradicting those submitted by the mov-ant and demonstrating a real issue between the parties.” Hardcastle v. Mobley, 143 So.2d 715, 717 (Fla. 3d DCA 1962) (emphasis added), abrogated on other grounds, Silva v. Hernandez, 612 So.2d 1377 (Fla.1993); see also Page v. Staley, 226 So.2d 129, 131 (Fla. 4th DCA 1969) (approving summary judgment where defendant sued for slander flatly denied under oath making defamatory statements, and plaintiff had no personal knowledge of the acts of slander, as the “[m]ovant is not required to exclude every other inference from possible other evidence that may be available”).
We affirm on the remaining issues without further discussion.
Affirmed.
WARNER, GROSS, JJ., and SINGHAL, RAAG, Associate Judge, concur.
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Stewart Agency, Inc. v. Arrigo Enters., Inc., 266 So. 3d 207 (Fla. 4th DCA 2019)
Authorities Cited
- Page v. Staley, 226 So. 2d 129 (Fla. 4th DCA 1969)
- Hardcastle v. Mobley, 143 So. 2d 715 (Fla. 3d DCA 1962)
- Jose v. Silva, 612 So. 2d 1377 (Fla. 1993)