182 So. 3d 881
Fla. Dist. Ct. App.2016Background
- Plaintiff-appellee Ann-Marie Giustibelli, an attorney, sued former client Copia Blake (and Blake’s associate Peter Birzon) for libel, breach of contract, and attorney’s fees after they posted negative internet reviews about her representation in a divorce.
- Blake and Birzon admitted posting the reviews; the posts alleged Giustibelli lied about fees and falsified a contract and described poor, unethical representation.
- Evidence at trial showed Blake had agreed to the written retainer ($300/hour) and that Giustibelli did not charge four times the quoted amount; the falsification allegations were unsupported.
- The trial court entered judgment for Giustibelli and awarded punitive damages of $350,000.
- On appeal Blake (and initially Birzon) argued the online reviews were protected opinion under the First Amendment and not actionable; Birzon later withdrew his appeal after settlement, but the court proceeded as to Blake.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the internet reviews were protected opinion or actionable false statements of fact | Giustibelli argued the reviews contained false factual allegations (lying about fees, falsifying contract) that harmed her professional reputation | Blake/Birzon argued their posts were opinions entitled to First Amendment protection | Court held the posts included false factual assertions (e.g., falsified contract, overcharging) and were not pure opinion, so not protected; libel action allowed |
| Whether libel per se survives post-Gertz and applies here | Giustibelli relied on traditional libel-per-se doctrine to show presumed harm to reputation and profession | Blake argued Gertz eliminated libel per se and requires fault/damages standards applicable to media cases | Court explained Gertz limits media-defamation presumptions but libel per se remains recognized in Florida outside media contexts; presumption of damages can apply here |
| Whether punitive damages were appropriate for defamatory internet posts | Giustibelli sought punitive damages for willful, malicious defamatory conduct | Blake/Birzon contested liability and protections for online speech | Court affirmed judgment (including punitive award) based on finding false, malicious statements; punitive award upheld on appeal (no separate detailed analysis in opinion) |
| Whether the appeal should be dismissed after settlement by one appellant | Giustibelli argued appeal should proceed against remaining appellant Blake | Birzon moved to withdraw after settlement; Blake did not join withdrawal | Court retained and resolved appeal as to Blake; affirmed judgment |
Key Cases Cited
- Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245 (Fla. 4th DCA 2011) (appellate discretion to retain jurisdiction after voluntary dismissal when public importance and judicial labor exist)
- State v. Schopp, 653 So. 2d 1016 (Fla. 1995) (standards for retaining jurisdiction post-dismissal)
- Gertz v. Robert Welch, Inc., 418 U.S. 323 (U.S. 1974) (states may define fault standards for defamation of private individuals; media-defamation limits on presumed malice/damages)
- LRX, Inc. v. Horizon Assoc. Joint Venture, 842 So. 2d 881 (Fla. 4th DCA 2003) (false factual assertions defeat pure-opinion defense)
- Morse v. Ripken, 707 So. 2d 921 (Fla. 4th DCA 1998) (pure opinion not actionable; false statements of fact have no constitutional value)
- Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282 (Fla. 1985) (post-Gertz discussion of media-defamation and proof of fault/damages)
- Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d 710 (Fla. 4th DCA 2010) (discussing presumption of damages in defamation per se cases)