Objecting to a real estate project in Florida carries a risk of liability

M. Chait Blog Post: Objecting to a real estate project in Florida carries a risk of liabilityBy refusing to hear an appeal of a decision by a Florida appellate court, the US Supreme Court effectively sided with a developer who won a multi-million judgment against someone who tried to undermine the developer’s project.

The case concerned an environmental activist challenging a development project in Martin County, where she had previously served as a county commissioner. Although the project was spearheaded by a private developer, the County and South Florida Water Management District were involved and were beneficiaries under various agreements related to the project. The former commissioner emailed current county commissioners, expressing concerns about the project and eventually started emailing them suggestions for how to stop the project.

The County eventually changed its approach to the project, resulting in delay. The developer sued the County, District, and former county commissioner. As it relates to the former commissioner, the developer alleged that she had an undertaken a specific effort to undermine the project. While the County and District settled, the jury returned a $4.4 million verdict against the former commissioner for tortious interference with the project.

On appeal in Florida’s 4th District Court of Appeal, the former commissioner argued, among other things, that her comments were protected by the First Amendment and Florida law. The appellate court rejected that argument, finding that at least some of the former commissioner’s comments showed “actual malice,” which can defeat First Amendment protection. The court also found that the former commissioner’s comments were not protected under Florida law because they evidenced “express malice.” The requirements of proving actual malice and express malice, and the differences between them, are beyond the scope of this blog.

The former commissioner appealed to the Florida Supreme Court, which declined to hear an appeal of the decision of the District Court of Appeal. Now the US Supreme Court has turned down the case as well, letting the decision stand. The critical conclusion is that one who objects to a developer’s project could run the risk of liability.

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