NORMAN GUNDEL v. AV HOMES, INC. AND AVATAR PROPERTIES, INC. , 264 So. 3d 304 ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
NORMAN GUNDEL; WILLIAM MANN; and )
BRENDA N. TAYLOR, individually and on )
behalf of all similarly situated persons, )
)
Petitioners, )
)
v. ) Case No. 2D18-899
)
AV HOMES, INC. and AVATAR )
PROPERTIES, INC., )
)
Respondents. )
)
Opinion filed February 1, 2019.
Petition for Writ of Certiorari to the Circuit
Court for Polk County; Andrea Teves Smith,
Judge.
Kristin A. Norse and Stuart C. Markman of
Kynes, Markman & Felman, P.A., Tampa;
and Kenneth G. Turkel and Shane B. Vogt
of Bajo Cuva Cohen & Turkel, P.A., Tampa,
for Petitioners.
Daniel J. Fleming and Christian M. Leger of
Gray Robinson, P.A., Tampa, for
Respondents.
BLACK, Judge.
Norman Gundel, William Mann, and Brenda N. Taylor (the Residents)
seek a writ of certiorari quashing the trial court's order denying their motion to dismiss
the counterclaim filed by Avatar Properties, Inc., in the Residents' class action lawsuit
against Avatar Properties and its parent company, AV Homes, Inc. The Residents
assert that by failing to adhere to the language of sections 720.304 and 768.295, Florida
Statutes (2017), and by not dismissing the counterclaim as a Strategic Lawsuit Against
Public Participation (SLAPP) suit the court departed from the essential requirements of
law. We grant the petition and quash the order denying the Residents' motion to
dismiss.
I. Background
The Residents filed a class action complaint against AV Homes and
Avatar Properties alleging violations of Florida's Homeowners' Association Act, §§
720.301-720.407, and Florida's Deceptive and Unfair Trade Practices Act, §§ 501.201-
501.213, Fla. Stat. (2017), and seeking declaratory relief, injunctive relief, and
damages. A brief discussion of the claims in the Residents' complaint and Avatar
Properties' counterclaim is necessary to provide context to our decision.
Avatar Properties is the developer of Solivita, the community in which the
Residents own homes. In their complaint, the Residents claimed that Avatar Properties
and AV Homes violated the law when they created both the Solivita Community
Association and the Club Plan, each of which require Solivita homeowners to pay fees.1
1Membership in both the Solivita Community Association and the Club
Plan are mandatory for Solivita homeowners. The association fee is an assessment.
The Club Plan governs the "Club amenities" and establishes the "Club dues" or Club
fees, which include both expenses, similar to common-area upkeep expenses, and
"Club membership fees." The Club amenities are exclusively owned by the "Club
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The Residents claim that the imposition of both of these fees is not legal and that
certain marketing for the community was deceptive. In creating Solivita, Avatar
Properties also established two community development districts (CDDs) to fund
infrastructure within the community through additional assessments on homeowners.
The Residents' lawsuit arose after Avatar Properties proposed to sell the
Club amenities, as established by the Club Plan, to the CDDs at a cost of $73.7 million.
The purchase would be financed through the issuance of bonds, to be repaid by Solivita
homeowners including the Residents. The Residents expressed concerns about the
proposed sale and publicly commented on the propriety of the $73.7 million suggested
purchase price and bond validation proceedings.2 They posted on Internet blogs, spoke
at Solivita CDD meetings, distributed handouts at CDD meetings, commented at other
local meetings at which Solivita homeowners were present, and circulated a petition to
have the Club amenities appraised. The Residents obtained an appraisal setting the
fair market value of the Club amenities at $19.25 million. The Residents also posted on
the Internet information about the Bond Validation Case, the mechanism by which the
CDDs would be granted the bonds to purchase the amenities. The posts included links
to the court filings and summaries of the allegations.
After a failed motion to dismiss the Residents' lawsuit, Avatar Properties
filed its answer and a counterclaim. The counterclaim raised three counts which the
Owner," Avatar Properties, and as alleged by the Residents, the Club membership fees
are collected "without deduction of expenses or charges in respect of the Club" as profit
to Avatar Properties.
2The
bond litigation (Bond Validation Case) remains pending below but
has not been consolidated with the action at issue here.
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Residents allege seek to hold the Residents liable for damages based on
constitutionally protected conduct: engaging in free speech, defending and prosecuting
lawsuits, and engaging in discourse with governmental entities, the CDDs. Count I of
the counterclaim alleged that the Residents breached the purchase and sale
agreements "by actively and vocally contesting the validity and enforceability of: (1) the
mandatory nature of the membership in the Club; (2) the Club Dues and Membership
Fees; and (3) [Avatar Properties'] right to sell the Club [amenities] at its sole discretion."
Count II alleged that the Residents breached the affirmative covenant running with the
land—the requirements of membership in the Club Plan—"by contesting the validity of
the Club Plan, [Avatar Properties'] right to collect Club Dues, and [Avatar Properties']
right to sell the Club [amenities]." Count III of the counterclaim sought a declaratory
judgment finding "that the Club [amenities] (and the fees associated therewith) are not
subject to [chapter 720]." Count IV claimed tortious interference with contractual
relations, alleging that the Residents "unjustifiably interfered with [Avatar Properties']
agreement with the CDDs by contesting the enforceability of the Club Plan." Each
count realleged the paragraphs outlining the Residents' conduct: (1) engaging in "extra-
judicial conduct aimed at frustrating" the sale of the Club amenities to the CDDs,
including posting "misleading information" on the Solivita blog, "handing out fliers to
residents that included inaccurate information[,] and contesting [Avatar Properties'] right
to collect Club [d]ues"; (2) attending meetings of local clubs/classes for homeowners
and contesting the sale of the Club amenities to the CDDs for the requested price; (3)
asking residents "to sign petitions contesting [Avatar Properties'] right to sell the Club
[amenities]"; and (4) "by virtue of this [lawsuit]" continuing to frustrate Avatar Properties'
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"contractual interests." Avatar Properties claimed damages of "increased attorneys'
fees in the Bond Validation Case, as well as the delay, frustration, and potential loss of
the planned sale to the CDDs," and it argued that the Residents "unjustifiably interfered
with [Avatar Properties'] agreement with the CDDs." The purchase agreement between
Avatar Properties and the CDDs, dated December 1, 2016, was included in the
attachments to the counterclaim.
In their answer, the Residents admitted that they posted information on
the Solivita blog and that they "distributed handouts at CDD public meetings"; they
admitted to attending classes for residents held by a local club and speaking about the
proposed sale of the Club amenities to the CDDs; they admitted that they sought and
obtained signatures on a petition for a fair market value appraisal of the Club amenities;
and they admitted that Avatar Properties "is trying to sue [the Residents] for filing the
above styled class action." The Residents also admitted that they "vocally contested
the validity of certain aspects of the Club Plan and the proposed sale of the Club
[amenities], as asserted in the official court records in the Bond Validation Case." The
Residents filed the affidavit of Mr. Gundel, one of the Residents. Mr. Gundel averred
that he made comments and distributed handouts about the proposed purchase of the
Club amenities at public CDD meetings "in late 2015 or 2016"; that he posted on the
Solivita blog about the Bond Validation Case; that he attended a February 10, 2017,
CDD meeting and distributed information about the proposed purchase; that he
attended a March 15, 2017, CDD meeting and presented the appraisal petition; and that
he attended an April 19, 2017, CDD meeting and presented the appraisal report and
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another handout. He further averred that after the class action lawsuit was filed, he
attended three more meetings of the CDD and spoke about the proposed purchase.
II. The Anti-SLAPP motion
Simultaneously with their answer, the Residents also filed a "Motion to
Dismiss, For Judgment on the Pleadings or For Summary Judgment on Counterclaim
and For Award of Attorneys' Fees and Costs Under Florida's Anti-SLAPP Statutes."
The motion alleged that Avatar Properties' counterclaim "openly violates Florida's Anti-
SLAPP Statutes because it seeks damages from the [Residents] because they
assembled, engaged in free speech, and sought redress before their government,"
citing sections 768.295 and 720.304.3
The Anti-SLAPP statute provides, in pertinent part:
A person or governmental entity in this state may not file or
cause to be filed, through its employees or agents, any
lawsuit, cause of action, claim, cross-claim, or counterclaim
against another person or entity without merit and primarily
because such person or entity has exercised the
constitutional right of free speech in connection with a public
issue, or right to peacefully assemble, to instruct
representatives of government, or to petition for redress of
grievances before the various governmental entities of this
state, as protected by the First Amendment to the United
States Constitution and s. 5, Art. I of the State Constitution.
§ 768.295(3). The Anti-SLAPP statute defines "[f]ree speech in connection with public
issues" as
any written or oral statement that is protected under
applicable law and is made before a governmental entity in
connection with an issue under consideration or review by a
3For purposes of this opinion, we will refer to section 768.295 as Florida's
Anti-SLAPP statute. Both chapter 718 and chapter 720 also contain anti-SLAPP
provisions, respectively related to condominium unit owners and parcel owners. §§
718.1224, 720.304(4), Fla. Stat. (2017).
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governmental entity, or is made in or in connection with a
play, movie, television program, radio broadcast, audiovisual
work, book, magazine article, musical work, news report, or
other similar work.
§ 768.295(2)(a). "Governmental entity" is defined as "the state, including the executive,
legislative, and the judicial branches of government and the independent
establishments of the state, counties, municipalities, corporations primarily acting as
instrumentalities of the state, counties, or municipalities, districts, authorities, boards,
commissions, or any agencies thereof." § 768.295(2)(b).
The Residents' motion quotes the Anti-SLAPP statute and the operative
paragraphs from the counterclaim, and it cites Mr. Gundel's affidavit. The Residents
argued that "simply allowing SLAPPs to proceed violates the very constitutional rights
Florida's Anti-SLAPP Statutes were implemented to protect" and that the trial court was
tasked with determining two issues: (1) whether the counterclaim was brought
"primarily" because the SLAPP defendants engaged in a protected activity, and (2)
whether the counterclaim is "without merit." As to the first issue, the Residents argued
that the counterclaim was based solely on protected activities relating to either the Bond
Validation Lawsuit or the class action. As to the second issue, the Residents outlined in
detail why Avatar Properties' claims were meritless. The Residents sought an
expeditious hearing of the motion and dismissal of the counterclaim or judgment in favor
of the Residents.
In response, Avatar Properties argued that the Residents expressly
waived any constitutional protections afforded to them when they contractually agreed
to the Club Plan. In essence, Avatar Properties argued that the contract paragraphs
which the Residents claim are legally invalid are the paragraphs which form Avatar
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Properties' defense. Avatar Properties did not argue that material facts remained in
dispute.
Following a hearing, the trial court entered its order denying the Residents
relief. The court treated the Residents' motion only as a motion to dismiss, stating that
the Residents could not "substitute a motion to dismiss for either a motion for summary
judgment or a motion for judgment on the pleadings." As a result, the court did not
consider the motion as a motion for summary judgment or motion for judgment on the
pleadings. Based only on the allegations of Avatar Properties' counterclaim, the court
found that the Residents failed to show that their conduct fell within the protections of
the Anti-SLAPP statute and that the Residents failed to establish that their conduct was
made "in connection with" an existing judicial proceeding.
III. Analysis
A. Certiorari jurisdiction
"Before a court may grant certiorari relief from the denial of a motion to
dismiss, the petitioner must establish the following three elements: '(1) a departure from
the essential requirements of the law, (2) resulting in material injury for the remainder of
the case (3) that cannot be corrected on postjudgment appeal.' " Williams v. Oken, 62
So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889
So. 2d 812, 822 (Fla. 2004)). The latter two elements are jurisdictional. Id.Certiorari review has been limited "as a matter of policy to avoid
piecemeal review of pretrial orders." Id. at 1134. "However, in numerous cases, Florida
courts have permitted certiorari review to determine whether [a party] was afforded the
proper process through procedural compliance with the statutory requirements." Id.;
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see also Globe Newspaper Co. v. King, 658 So. 2d 518, 519 (Fla. 1995) ("[A]ppellate
courts do have certiorari jurisdiction to review whether a trial judge has conformed with
the procedural requirements of section 768.72[, Florida Statutes (1993)] . . . .").
Moreover, certiorari review is appropriate where an "order implicates a violation of the
parties' constitutional rights which cannot be remedied on plenary review." Rodriguez
ex rel. Posso-Rodriguez v. Feinstein, 734 So. 2d 1162, 1163 (Fla. 3d DCA 1999); see
also SP Healthcare Holdings, LLC v. Surgery Ctr. Holdings, LLC, 110 So. 3d 87, 91
(Fla. 2d DCA 2013) (citing Rodriguez for this standard).
Here, the Residents contend that "the legislature has made it a matter of
Florida public policy to recognize and dismiss SLAPP suits expeditiously because the
very filing and continuation of" SLAPP suits has the chilling effect on constitutional rights
that the Anti-SLAPP statute was enacted to prevent and that, therefore, the jurisdictional
prongs of the certiorari standard have been met. We agree.
The legislature enacted the Anti-SLAPP statute in 2000. In creating
section 768.295, the legislature specifically found that
"Strategic Lawsuits Against Public Participation" or
"SLAPPs," are typically dismissed as unconstitutional, but
often not before the defendants are put to great expense,
harassment, and interruption of their duties, and . . . these
lawsuits are an abuse of the judicial process and are used to
censor, intimidate, or punish citizens, businesses, and
organizations for involving themselves in public affairs . . . .
Ch. 2000-174, § 1, Laws of Fla. The legislature further found that "it is essential in our
democracy that the constitutional rights of citizens to participate fully in the process of
government be uniformly, consistently, and comprehensively protected and
encouraged" and that "the threat of financial liability, litigation costs, . . . and other
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personal losses from groundless lawsuits seriously affects . . . individual rights," which
courts have recognized as harming individuals' fundamental rights. Id.
The statutory language and its stated purpose, in addition to case law
governing similar statutes, supports our conclusion that the jurisdictional prongs of the
certiorari standard have been met. Section 768.295(3) creates a right not to be subject
to meritless suits filed "primarily because [the defendant] has exercised the
constitutional right of free speech in connection with a public issue, or right to peacefully
assemble, to instruct representatives of government, or to petition for redress of
grievances before the various governmental entities of this state." Cf. Globe
Newspaper, 658 So. 2d at 519 ("We read section 768.72 to create a substantive legal
right not to be subject to a punitive damages claim . . . until the trial court makes a
determination that there is a reasonable evidentiary basis for recovery of punitive
damages.").
To the extent that Avatar Properties argues that the Residents have not
established that this court may exercise certiorari jurisdiction because "an alleged error
arising from a motion to dismiss is remediable on appeal regardless of whether the
motion is granted or denied," Avatar Properties misconstrues the certiorari standard. As
this court has stated, "certiorari may be precluded not by the availability of a mechanism
for correcting the error itself; rather, the remedy must alleviate the harm that results
from the error." Gawker Media, LLC v. Bollea, 170 So. 3d 125, 132 (Fla. 2d DCA 2015).
In the context of the Anti-SLAPP statute, the harm that results from the
court's improper denial of a motion to dismiss or in its failure to rule on pending motions
for summary judgment and judgment on the pleadings is precisely the harm that the
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Anti-SLAPP statute seeks to prevent—unnecessary litigation. See ch. 2000-174, § 1;
cf. Williams, 62 So. 3d at 1133-34 ("The certiorari exception for the chapter 766 presuit
requirements is premised on the purpose of the Medical Malpractice Reform Act—to
avoid meritless claims and to encourage settlement for meritorious claims." (footnote
omitted)); Globe Newspaper, 658 So. 2d at 520 ("[A] plenary appeal cannot restore a
defendant's statutory right under section 768.72 to be free of punitive damages
allegations in a complaint until there is a reasonable showing by evidence in the record
or proffered by the claimant."); Fla. Hosp. Med. Servs., LLC v. Newsholme, 255 So. 3d
348, 350 (Fla. 4th DCA 2018) ("Certiorari jurisdiction lies to review whether a trial court
has complied with the procedural requirements of section 768.72(1)." (citing Tilton v.
Wrobel, 198 So. 3d 909, 910 (Fla. 4th DCA 2016))). In that way, the Anti-SLAPP
statute bears some similarity to statutes providing for immunity from suit where the
statutory protection cannot be adequately restored once it is lost through litigation and
trial. See James v. Leigh, 145 So. 3d 1006, 1008 (Fla. 1st DCA 2014) ("When the trial
court denies a motion to dismiss on immunity grounds, certiorari review of the non-final
order is proper because absolute immunity protects a party from having to defend a
lawsuit at all and waiting until final appeal would render such immunity meaningless if
the lower court denied dismissal in error." (citing Fla. State Univ. Bd. of Trs. v. Monk, 68
So. 3d 316, 318 (Fla. 1st DCA 2011))); see also LoBiondo v. Schwartz, 970 A.2d 1007,
1020 (N.J. 2009) (discussing the two categories of anti-SLAPP statutes and citing
Florida's as within the category that "include[s] a legislative declaration that a public
participant who has exercised his or her free speech right, sometimes in statutorily
defined manner, enjoys immunity"). That is, if certiorari review is not available, the
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substantive right created by the Anti-SLAPP statute "is illusory and the very policy that
animates the decision to" prevent SLAPP suits is frustrated such that the "statutory
protection becomes essentially meaningless for the individual defendant." See Keck v.
Eminisor, 104 So. 3d 359, 365-66 (Fla. 2012) (quoting Tucker v. Resha, 648 So. 2d
1187, 1190 (Fla. 1994)).4
B. Departure
1. Procedural mechanisms for resolution
The Residents contend that the trial court departed from the essential
requirements of law by failing to adhere to the procedures set forth in the Anti-SLAPP
4We have found only two Florida state cases discussing SLAPP suits: Two
Islands Development Corp. v. Clarke, 239 So. 3d 115 (Fla. 3d DCA 2018), and Florida
Fern Growers Ass'n v. Concerned Citizens of Putnam County, 616 So. 2d 562 (Fla. 5th
DCA 1993). Neither case discusses whether certiorari relief is warranted in the context
of SLAPP suits. Two Islands does, however, affirm the dismissal with prejudice of three
counts of a lawsuit against homeowners who protested the development of land and
"interfer[ed] in and prevent[ed] a settlement" of an ongoing action involving the vested
rights of property owners, holding—without elaboration—that the trial court properly
dismissed those counts "upon a determination that those counts were barred by
Florida's anti-SLAPP statute, section 720.304, Florida Statutes (2015)." 239 So. 3d at
121, 126 n.10. Florida Fern Growers, in addressing the argument that a particular
lawsuit was a SLAPP suit, stated, "[a] SLAPP suit has been described as 'one filed by
developers, unhappy with the public protest over a proposed development, filed against
leading critics in order to silence criticism of the proposed development.' " 616 So. 2d at
570 (quoting Westfield Partners, Ltd. v. Hogan, 740 F.Supp. 523, 525 (N.D. Ill. 1990)).
We note, too, that "[l]itigants' right to interlocutory appeal of anti-SLAPP motion
decisions has been acknowledged in state courts in California, Georgia, Maine,
Massachusetts, New Mexico, and Pennsylvania, and federal courts have allowed
immediate appeal of holdings under the anti-SLAPP statutes of California, Louisiana,
and Georgia." Carson Hilary Barylak, Note, Reducing Uncertainty in Anti-SLAPP
Protection, 71 Ohio St. L.J. 845, 879-80 (2010) (footnotes omitted). The Maine
Supreme Court has stated that it permits "interlocutory appeals from denials of special
motions to dismiss brought pursuant to the anti-SLAPP statute because a failure to
grant review of these decisions at this stage would impose additional litigation costs on
defendants, the very harm the statute seeks to avoid, and would result in a loss of
defendants' substantial rights." Schelling v. Lindell, 942 A.2d 1226, 1229-30 (Me.
2008).
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statute. They argue that the statute expressly permits resolution of SLAPP claims
through a motion for summary judgment and that the court's failure to consider their
motion as both a motion to dismiss and a motion for summary judgment constitutes a
departure.
The Anti-SLAPP statute provides that
[a] person or entity sued by a governmental entity or another
person in violation of this section has a right to an
expeditious resolution of a claim that the suit is in violation of
this section. A person or entity may move the court for an
order dismissing the action or granting final judgment in
favor of that person or entity. The person or entity may file a
motion for summary judgment, together with supplemental
affidavits, seeking a determination that the claimant's or
governmental entity's lawsuit has been brought in violation of
this section. The claimant or governmental entity shall
thereafter file a response and any supplemental affidavits.
As soon as practicable, the court shall set a hearing on the
motion, which shall be held at the earliest possible time after
the filing of the claimant's or governmental entity's response.
§ 768.295(4).5 The Anti-SLAPP statute plainly authorizes the filing of a motion to
dismiss or motion for summary judgment. While it does not elaborate on a motion
seeking dismissal, the statute expressly provides that once a motion for summary
judgment, "together with supplemental affidavits," has been filed, the claimant (Avatar
Properties) "shall thereafter file a response and any supplemental affidavits." Id. The
statute then establishes the duty of the court to, "[a]s soon as practicable, . . . set a
hearing on the motion, which shall be held at the earliest possible time after" the
claimant files its response. Id. Therefore, the statute sets forth the procedural
5The language of sections 720.304(4)(c) and 768.295(4) are identical in
terms of the procedure to be used by the parties and the trial court, as applicable to this
case.
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mechanisms by which a SLAPP defendant may invoke its substantive right—a motion
seeking dismissal or summary judgment—as well as the requirement to hear such
motions expeditiously.6
And although it is true that motions for dismissal and motions for summary
judgment serve separate purposes, "are not interchangeable, and one may not be
substituted for another," contrary to the trial court's determination not to hear the motion
for summary judgment filed by the Residents with their motion to dismiss, motions filed
in the alternative are permitted. See U.S. Bank Nat'l Ass'n on Behalf of Holders of the
Home Equity Asset Tr. 2002-4 Home Equity Pass-Through Certificates, Series 2002-4
v. Doepker, 223 So. 3d 1083, 1084 (Fla. 2d DCA 2017) (citing Holland v. Anheuser
Busch, Inc., 643 So. 2d 621, 622-23 (Fla. 2d DCA 1994)). That one motion cannot
substitute for the other does not allow the court to decline to rule on an otherwise
facially and substantively sufficient motion.
As relevant here, Florida Rule of Civil Procedure 1.510 governs summary
judgment and provides that "[a] party against whom a claim [or] counterclaim . . . is
asserted or a declaratory judgment is sought may move for a summary judgment in that
party's favor as to all or any part thereof at any time with or without supporting
affidavits." Fla. R. Civ. P. 1.510(b). It further provides that "[t]he judgment sought must
be rendered immediately if the pleadings and summary judgment evidence on file show
that there is no genuine issue as to any material fact and that the moving party is
6We note that while the statute does not state that a SLAPP defendant
may file a motion for judgment on the pleadings, as it does a motion for summary
judgment, it provides that a defendant "may move the court for an order . . . granting
final judgment." § 768.295(4).
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entitled to judgment as a matter of law." Fla. R. Civ. P. 1.510(c). The content of the
document and its attachments must support the relief requested, thereby allowing the
court to rule upon the motion based upon its respective purpose and standard. Cf.
HSBC Bank USA, Nat'l Ass'n for Deutsche Alt-A Sec. Mortg. Loan Tr., Series 2007-OA5
v. Nelson, 246 So. 3d 486, 489 (Fla. 2d DCA 2018) ("[T]he character of a motion will
depend upon its grounds or contents, and not on its title." (quoting Jones v. Denmark,
259 So. 2d 198, 200 n.1 (Fla. 3d DCA 1972))). The Residents' motion for summary
judgment was supported by the contemporaneously filed affidavit of Mr. Gundel and
sought judgment in favor of the Residents; Avatar Properties did not raise any material
facts in dispute in its response to the motion, and it did not file any affidavits in
opposition. That the Residents' motion was filed as a motion to dismiss, motion for
summary judgment, and motion for judgment on the pleadings does not relieve the trial
court of its statutory obligations to consider the motion under each standard where the
motion was facially sufficient and in compliance with the rules of civil procedure and to
set a hearing "[a]s soon as practicable" and "at the earliest possible time."
Because the statute allows for the filing of either or both a motion to
dismiss and a motion for summary judgment, and because the motions may be filed
within one document under an alternative heading, the trial court departed from the
essential requirements of the law in declining to consider the Residents' motion as a
motion for summary judgment. The motion should be heard on the evidence and
pleadings on record as of the date of the hearing on the motion to dismiss.
2. Dismissal
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The Residents also contend that the trial court departed from the essential
requirements of law in denying the motion to dismiss based on its application of an
"inapt" dismissal standard, that applied to motions to dismiss for failure to state a cause
of action. See, e.g., Blue Supply Corp. v. Novos Electro Mech., Inc., 990 So. 2d 1157,
1159 (Fla. 3d DCA 2008). The Residents argue that the motion to dismiss was not
based on Avatar Properties' failure to state a cause of action because the Anti-SLAPP
statute focuses not on whether a cause of action has been sufficiently alleged but on
whether the activity that is alleged to have given rise to the cause of action is protected
activity; they contend that the trial court's failure to consider Mr. Gundel's affidavit and
Avatar Properties' failure to file any conflicting evidence constitutes a departure. The
Residents' argument suggests that a motion to dismiss based on the Anti-SLAPP
statute requires the trial court to do more than accept as true the factual allegations in
the four corners of the complaint and draw all reasonable inferences therefrom in favor
of the claimant. We agree.
As discussed above, the Anti-SLAPP statute authorizes the filing of a
motion seeking dismissal and a motion seeking summary judgment. Whereas the
statute sets forth the procedures for considering a motion for summary judgment, the
statute is silent as to the burden or procedure for considering a motion to dismiss. The
language of the statute does, however, attach the action to the claimant rather than the
SLAPP defendant: "[a] person or governmental entity in this state may not file," thus
prohibiting the claimant from taking action, rather than "a person or entity may not be
sued by a governmental entity or another person." § 768.295(3). The statutory
language supports requiring the claimant to meet a burden.
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Placing the initial burden on the SLAPP defendant to set forth a prima
facie case that the Anti-SLAPP statute applies and then shifting the burden to the
claimant to demonstrate that the claims are not "primarily" based on First Amendment
rights in connection with a public issue and not "without merit" serves the purpose of the
statute and conforms with the procedures employed in considering other statutorily-
based motions to dismiss. See, e.g., Volkswagen Aktiengesellschaft v. Jones, 227 So.
3d 150, 155 (Fla. 2d DCA 2017) (discussing the shifting burden for motions to dismiss
based on lack of personal jurisdiction); Becker v. Clark, 722 So. 2d 232, 233 (Fla. 2d
DCA 1998) (discussing the shifting burden for motions to dismiss based on qualified
immunity). In considering motions to dismiss as to its anti-SLAPP statute, the Maine
Supreme Court has stated that "the defendant carries the initial burden to show that the
suit was based on some activity that would qualify as an exercise of the defendant's
First Amendment right to petition the government" such that the anti-SLAPP statute
applies and then "the burden falls on the plaintiff to demonstrate that the defendant's
activity" is actionable. Schelling v. Lindell, 942 A.2d 1226, 1229 (Me. 2008) (quoting
Title 14 M.R.S. § 556). The trial court here found that the Residents (1) "failed to show
that [their] alleged conduct . . . constitute[d] protected statements before government
entities" based on the "[in]sufficient context" in Avatar Properties' counterclaim and (2)
"failed to show that their alleged conduct was made 'in connection with' or 'in the course
of' an existing judicial proceeding" based on the conduct being "limitedly described [and]
lack[ing] sufficient context and temporality" in Avatar Properties' counterclaim. The
effect of placing the burden exclusively on the SLAPP defendant based only on the
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claimant's allegations allows the claimant to avoid dismissal by being intentionally
vague, thus thwarting the purpose of the statute.
Here, the vagueness of Avatar Properties' allegations as to the dates of
specific conduct and as to the conduct itself prevents the trial court from determining
from the face of the counterclaim that the Residents' actions constitute "free speech in
connection with public issues" or instruction of representatives of government. Thus,
while it may be clear from the face of the counterclaim that Avatar Properties has based
some part of its claims on the filing of the class action and on the Residents' opposition
to the Bond Validation Case, the trial court could not determine that Avatar Properties'
claims were primarily based on protected activities, as the Anti-SLAPP statute requires.
The Residents' motion and supporting affidavit attempt to provide the facts necessary to
support dismissal. The trial court must expeditiously address the merits of the
Residents' motion under the appropriate standard. See § 768.295(4).
IV. Conclusion
The petition for writ of certiorari is granted. The order denying the
Residents' "Motion to Dismiss, For Judgment on the Pleadings or For Summary
Judgment on Counterclaim and For Award of Attorneys' Fees and Costs Under Florida's
Anti-SLAPP Statutes" is quashed for the reasons stated herein.
Petition granted; order quashed.
MORRIS and LUCAS, JJ., Concur.
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