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Attorneys must pay for meritless appeal in libel case

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NEWS MEDIA UPDATE   ·   FLORIDA   ·   Libel   ·   Sep. 18, 2006

NEWS MEDIA UPDATE   ·   FLORIDA   ·   Libel   ·   Sep. 18, 2006


Attorneys must pay for meritless appeal in libel case

  • A pair of Florida attorneys faces sanctions for bringing a frivolous appeal in a libel lawsuit and for using insulting language to make their case.

Sep. 18, 2006  ·   Attorneys for a Florida woman who sued two television stations for libel must pay the opposing side’s attorney fees for filing a frivolous appeal and making “offensive remarks” in their court filings and oral argument, a state appeals court ruled Wednesday.

In the order affirming a lower court’s ruling in favor of the television stations, judges for the Florida District Court of Appeal in Jacksonville wrote that Thomas C. Powell and Roy E. Dezern, attorneys for Eliza Thomas, “persisted in using inappropriate phrases and presenting meritless legal arguments” in their written appellate brief and oral argument.

Thomas sued First Coast News last year after two television stations ran stories about her husband, Scott, who was on life support after being injured in September 2004. Thomas’ mother-in-law sought temporary guardianship of Scott and during those hearings, it was revealed that Thomas had discussed online the possibility of removing her husband’s feeding tube.

The lower court concluded that because of these Internet discussions, the story was a public controversy and that Thomas was a limited purpose public figure under Florida law. To successfully sue for libel, public figures must meet a higher standard of proof — “actual malice,” which is knowledge of falsity or reckless disregard for the truth — than private citizens, who simply must show the media was negligent in airing the story.

As opposed to a standard public figure, such as a politician or celebrity, certain people are considered limited purpose public figures when they are closely associated with a newsworthy event. Those people must meet the higher libel standards only for news stories associated with that event.

Because Thomas failed to show that the stations ran the story with actual malice, she could not recover for libel, the court ruled.

Thomas’s lawyers appealed, and in their court brief used phrases such as “Twilight Zone doctors” (ostensibly referring to a defendant), “miscellaneous Internet screwballs” and “judicial murder” to refer to the facts of the case. Powell and Dezern even referred to one of their opponent’s points as “baloney,” and wrote that the trial court’s ruling “disparages honest journalism by legitimizing an Internet lynch mob and elevating porno queens to the level of supreme court judges.”

As for the substance of the brief, the court said that all of Powell and Dezern’s points “completely lack[ed] merit.” The court called their legal arguments “frivolous” and cited the first point of Powell and Dezern’s appeal — “Whether, as a matter of law, different dates on the calendar represent different days” — as an example.

When a panel of judges questioned Powell and Dezern about the language, they “had no explanation and made no apologies, stating only that ‘the language in [the] first draft is a lot worse,'” according to the opinion. The court said that the attorneys relied “on such accusatory language presumably because no law supports [their] arguments.”

The appellate court sent the case back to the lower court to decide the amount of fees.

“We’re pleased that the court of appeal agreed with trial judge that the libel claim has no merit,” said Barbara Wall, vice president and associate general counsel at Gannett River States Publishing Corp., the company that owns First Coast News. “We also hope the decision will make libel attorneys choose their plaintiffs and their words more carefully.”

(Thomas v. Patton; Media Counsel: George Gabel, Holland & Knight, Jacksonville, Fla.)ES

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