HomeMy Public PortalAboutCase No. 05-2016-CA-031159Filing # 43166248 E -Filed 06/23/2016 04:37:36 PM
DENISE DEMARTINI,
Plaintiff,
V.
TOWN OF GULF STREAM, WANTMAN
GROUP, INC., RICHMAN GREEK, P.A.,
GERALD F. RICHMAN, and ROBERT A.
SWEETAPPLE,
Defendants.
THE STATE OF FLORIDA
To each Sheriff of the State:
IN THE CIRCUIT COURT OF THE 18TH
JUDICIAL CIRCUIT, IN AND FOR
BREVARD COUNTY, FLORIDA
CASE NO. 05-2016-CA-031159-XXXX-XX
SUMMONS
YOU ARE COMMANDED to serve this summons and a copy of the complaint in this
law suit on defendant:
Town of Gulf Stream
100 Sea Road
Gulf Stream, FL 33483
Each defendant is required to serve written defenses to the complaint or petition on Daniel
DeSouza, Plaintiffs attorney, whose address is 101 NE Third Avenue, Suite 1500, Fort
Lauderdale, FL 33301, within twenty (20) days after service of this summons on that defendant,
exclusive of the day of service, and to file the original of the defenses with the clerk of this court
either before service on plaintiff's attorney or immediately thereafter. If a defendant fails to do
so, a default will be entered against the defendant for the relief demanded in the complaint or
petition.
DATED on JUNE 24 12016 DESOUZA LAW, P.A.
Attorney for the Plaintiff
101 NE Third Avenue
Suite 1500
Fort Lauderdale, FL 33301
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Clerk of the Court
4815-2149-0995, v. 1
Telephone: (954) 603-1340
DDesouzaAdesouzalaw.com
2
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • PORT LAUDERDALE, EL 33301
TELEPHONE (954) 603-1340
Filing # 43166248 E -Filed 06/23/2016 04:37:36 PM
IN THE CIRCUIT COURT OF THE 18TH
JUDICIAL CIRCUIT, IN AND FOR
BREVARD COUNTY, FLORIDA
DENISE DEMARTINI, CASE NO.
Plaintiff,
V.
TOWN OF GULF STREAM, WANTMAN
GROUP, INC., RICHMAN GREER, P.A.,
GERALD F. RICHMAN, and ROBERT A.
SWEETAPPLE,
Defendants.
COMPLAINT
Plaintiff Denise DeMartini ("Plaintiff') sues Defendants Town of Gulf Stream ("Gulf
Stream"), Wantman Group, Inc. ("Wantman"), Richman Greer, P.A. ("Richman Greer'), Gerald
F. Richman ("Mr. Richman'), and Robert A. Sweetapple ("Mr. SweetapRle") (collectively, the
"Defendants"), and alleges as follows:
PARTIES. JURISDICTION. AND VENUE
I. This Court has subject matter jurisdiction over this case in that it is an action at
law where the amount in controversy exceeds the sum of $15,000.00, exclusive of interest, costs,
and attorneys' fees.
2. Plaintiff is an individual who resides in Brevard County, Florida.
3. Gulf Stream is a municipality organized and existing under the laws of the State
of Florida.
4. Wantman is a Florida for profit corporation with its principal place of business
located in Palm Beach County, Florida.
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
5. Richman Greer is a Florida for profit professional corporation with its principal
place of business located in Miami -Dade County, Florida.
6. Mr. Richman is an individual who, upon information and belief, currently resides
in Palm Beach County, Florida.
7. Mr. Sweetapple is an individual who, upon information and belief, currently
resides in Palm Beach County, Florida.
8. This Court has jurisdiction over Defendants because they (a) are residents of this
State; (b) operate a business in this State; (c) caused injury to Plaintiff in this State; (d) own real
property in this State; and (e) committed tortious acts in this State.
9. Venue of this action is proper in this Court pursuant to Fla. Stat. §§ 47.011 and
47.051 because the causes of action asserted herein accrued in this county.
BACKGROUND
I. Plaintiffs Employment With CRO Realty, Inc.
10. From 1984 until approximately 1995 and thereafter from approximately 2003
until June 13, 2015, Plaintiff was employed by CRO Realty, Inc. as an administrator/paralegal.
CRO Realty, Inc. is a Pennsylvania corporation whose President/Chairman is Martin E. O'Boyle.
11. Although Plaintiff's employment duties necessarily evolved during this 23 -year
period, the most relevant time period for purposes of this Complaint was from January 1, 2014
until the June 13, 2015 termination of Plaintiffs employment with CRO Realty, Inc.
12. During this period of time, Plaintiff generally functioned as an office
manager/administrator — she managed office personnel, assisted in the accounting department,
assisted with property management functions, and also served as a paralegal (Plaintiff earned a
Certificate of Paralegal Studies from Nova University in 1989).
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DESOUZA LAW, P.A.
101 NE TFIIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
13. In February 2014, The O'Boyle Law Firm, P.C., Inc. was registered with
Florida's Division of Corporations as a foreign for profit corporation with its principal place of
business at the same location as CRO Realty, Inc.
14. At the time, Florida's Division of Corporations listed Jonathan R. O'Boyle
(Martin E. O'Boyle's son) as a director/President of The O'Boyle Law Firm, P.C.
15. As part of her employment duties, Plaintiff was asked to provide consulting
services to this newly -established law firm. These duties included helping to setup an
accounting system, helping to hire an office manager, helping to establish internal systems, and
to provide paralegal assistance as needed.
16. Plaintiff was not paid additionally for these services but performed them
nonetheless as she was asked to do so by her employer (CRO Realty, Inc.).
I1. Martin E. O'Boyle's Lawsuits Against Gulf Stream
17. Martin E. O'Boyle (CRO Realty, Inc.'s President/Chairman and Plaintiffs
ultimate supervisor until June 13, 2015) is a resident of Gulf Stream and a self -described
supporter of Florida's public records laws.
18. From approximately 2013 through the present date, Martin E. O'Boyle has filed
approximately 29 lawsuits against Gulf Stream for alleged violations of Florida's public records
laws and several lawsuits for alleged violations of his Constitutional rights.
19. In July 2013, Martin E. O'Boyle settled several of these lawsuits with Gulf
Stream through a non -confidential settlement agreement in which Gulf Stream agreed to pay him
$180,000.00 and issued him an apology letter.
20. Although Plaintiff worked for one of Mr. O'Boyle's companies (CRO Realty,
Inc.) during this period of time, she was not involved in the above-described lawsuits and/or the
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
underlying public records requests leading to such lawsuits.
21. To the extent Mr. O'Boyle and Gulf Stream had legal issues between each other,
Plaintiff had no involvement in these disputes other than as an office administrator responsible
for the general oversight of the CRO Realty, Inc. office or lending assistance as a paralegal
where needed.
22. During this period of time, Plaintiff did not file any lawsuits against any of the
Defendants, did not receive any compensation as a result of any lawsuits against any of the
Defendants, did not author any demand letters to any of the Defendants, and did not participate
in any strategic decision-making with respect to any such lawsuits.
III. Gulf Stream Hires Mr. Sweetapple as Special Counsel
23. On June 2, 2014, Gulf Stream's mayor (Scott Morgan) announced in a letter to
town residents that Gulf Stream had hired Mr. Sweetapple, an attorney with the law firm
Sweetapple Broeker & Varkas PL, to take a "firm stance" in defending various public records
lawsuits filed by Mr. O'Boyle and another town resident, Chris O'Hare.
24. Plaintiffs name is not mentioned anywhere in Mr. Morgan's June 2, 2014 letter.
25. Although he was purportedly hired to defend Mr. O'Boyle and Mr. O'Hare's
lawsuits, Mr. Sweetapple's idea of taking a `firm stance' involved casting a much wider net.
26. Almost immediately after being retained, Mr. Sweetapple began boasting to
anyone that would listen that Plaintiff — and approximately a dozen others including Mr.
O'Boyle, his son Jonathan, and others that worked for Mr. O'Boyle and/or The O'Boyle Law
Firm — were conspiring together, were guilty of extortion, and were guilty of violating the federal
Racketeer Influenced and Corrupt Organizations Act ("RICO').
27. Mr. Sweetapple made these statements over several months from April 2014 to
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
January 2015 (and most likely beyond that) to several individuals including, but not limited to:
(1) Joel Chandler (an individual well-known for his public records advocacy in the State of
Florida) and (2) Mark Hanna (an attorney who represented Mr. O'Hare in several public records
lawsuits).
28. Upon information and belief, Mr. Sweetapple has made the same
accusations/statements directly to various law enforcement agencies including, but not limited to,
the Florida Department of Law Enforcement and one/or more Florida state attorney offices in an
effort to have criminal charges brought against Plaintiff and various others.
IV. Gulf Stream/Mr. Sweetapple File a Bevy of State Court Third Party Claims Against
Plaintiff
29. In addition to falsely accusing Plaintiff of committing various crimes, Gulf
Stream's "firm stance" against Mr. O'Boyle and Mr. O'Hare also involved the filing of multiple
counterclaims for declaratory and/or injunctive relief in public records lawsuits brought by Mr.
O'Boyle or Mr. O'Hare.
30. Gulf Stream did not, however, stop with Mr. O'Boyle and/or Mr. O'Hare. Rather,
Gulf Stream (through its attorney, Mr. Sweetapple), filed at least eight counterclaims in which it
named Plaintiff (and approximately a dozen others) as third party defendants.
31. These counterclaims/third party complaints were generally filed between January
2015 and April 2015 and each set forth the same allegations of a vast conspiracy existing
between Mr. O'Boyle, Mr. O'Hare, Plaintiff, and a dozen others to inundate Gulf Stream with
public records requests and profit from lawsuits resulting from Gulf Stream's inability to timely
respond to the deluge.
32. None of the lawsuits in which Gulf Stream asserts these counter/third party claims
against Plaintiff were filed by Plaintiff — she is not a plaintiff in these lawsuits, she did not sign
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
the governing complaints in these actions, she did not submit the public records requests at issue,
and she is not due any compensation upon success of any of these lawsuits. In short, Plaintiff
has no involvement or stake in the outcome of these lawsuits other than being named as a third
party defendant ad nauseam by Gulf Stream (through its attorney, Mr. Sweetapple).
33. Notably, while Gulf Stream names Plaintiff as a third party defendant in at least
eight of these counterclaims, it has only endeavored to have one such counterclaim actually
served on Plaintiff (in Case No. 50 -2014 -CA -004474, now Case No. 2016 -CA -005437).
34. Gulf Stream has long since missed the 120 day deadline in Florida Rule of Civil
Procedure 1.0700) to serve the remaining counterclaims on Plaintiff and does not appear to have
taken any substantive action to advance its claims in these lawsuits.
35. Rather, Gulf Stream appears content to have named Plaintiff as a defendant
simply for the sake of having existing, publicly -available claims against Plaintiff with no
intention of ever actually pursuing these claims to their logical conclusion.
V. The RICO Lawsuit
36. On February 12, 2015, Gulf Stream and Wantman (as plaintiffs) filed a putative
class action complaint (the "RICO Complaint") in the United States District Court for the
Southern District of Florida (Case No. 9:15-cv-80182) against Plaintiff, Mr. O'Boyle, and
approximately a dozen others.
37. The RICO Complaint was filed on behalf of Gulf Stream and Wantman by their
attorneys at Richman Greer. The RICO Complaint is not verified by either Gulf Stream or
Wantman, but is instead signed by Mr. Richman (a shareholder with the Richman Greer law
firm).
38. The RICO Complaint asserts a single claim against Plaintiff (and the other named
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
defendants) for violation of the federal RICO statute.
39. The RICO Complaint generally alleges that Plaintiff managed the operations of
The O'Boyle Law Firm, attended law firm meetings, and managed the law firm's finances.
40. The RICO Complaint further alleges, in somewhat preposterous fashion, that
Plaintiff (together with Mr. O'Boyle, his son, and William Ring, a business/attorney associate of
Mr. O'Boyle) was one of the four masterminds that developed/orchestrated the extortionate
scheme alleged therein (notwithstanding that Plaintiffs employment responsibilities, which were
easily verifiable, were as an office administrator at the time).
41. Following the filing of the RICO Complaint, each of the defendants (including
Plaintiff) named therein filed motions to dismiss (and/or notices of joinder in such motions) the
RICO Complaint.
42. These motions to dismiss asserted that the RICO Complaint should be dismissed
pursuant to Federal Rule of Civil Procedure 12(b)(6) in that, assuming everything alleged in the
RICO Complaint was true, the allegations were substantively deficient to sustain a RICO claim
against any of the defendants.
43. In so doing, the defendants (including Plaintiff) did not challenge the RICO
Complaint on some technical deficiency (such as improper venue and/or lack of personal
jurisdiction), but rather on the substantive allegations therein.
44. On June 30, 2015, Judge Kenneth A. Marra entered an Opinion and Order
dismissing the RICO Complaint with prejudice.
45. In so doing, Judge Mara definitively and unequivocally stated:
Accepting all of the facts set forth in the Complaint as true, the
Court finds that it would be futile for Plaintiffs to try to amend
their Complaint. The Complaint fails not due to a lack of finesse in
pleading; rather, it fails because on the most fundamental level, the
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
entire factual underpinning of Plaintiffs' case cannot, under any
circumstances, constitute a RICO violation.
46. Following dismissal of the RICO Complaint, Gulf Stream and Wantman (through
their legal counsel at Richman Greer) promptly filed a notice of appeal to the United States Court
of Appeals for the Eleventh Circuit.
47. On June 21, 2016, the United States Court of Appeals for the Eleventh Circuit
affirmed the dismissal of the RICO Complaint, specifically stating that "the allegations [of the
RICO Complaint] do not support a RICO claim under our precedent."
VI. Mr. Richman Slanders Plaintiff During Pendency of RICO Lawsuit
48. After filing the RICO Complaint, Mr. Richman gave multiple statements to the
media (which were then published and/or broadcast to thousands of readers/viewers) that
Plaintiff (together with the other named defendants in the RICO complaint) had committed
various crimes, including but limited to violation of the RICO statute and extortion.
49. Indeed, Mr. Richman plainly stated to at least one media outlet that Plaintiff (and
the other defendants') alleged conduct was "extortion plain and simple."
50. Upon information and belief, Mr. Richman also made the same
accusations/statements directly to various law enforcement agencies including, but not limited to,
the Florida Department of Law Enforcement and one/or more Florida state attorney offices in an
effort to have criminal charges brought against Plaintiff and the other defendants named in the
RICO Complaint.
VII. Plaintiff Loses Employment Opportunities as a Result of the RICO Lawsuit and
Defendants' Conduct
51. From February 12, 2015 through June 13, 2015, Plaintiff remained employed by
CRO Realty, Inc. During this time, Plaintiff worked alongside many of the other defendants
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
named in the RICO Complaint and often shared in their frustration/feelings of uneasiness as a
result of being named as a defendant in the RICO Complaint.
52. After dealing for months with her own fears regarding the outcome of the RICO
lawsuit and seeing similar fear on the face of her colleagues, Plaintiff and CRO Realty, Inc.
agreed to the termination of Plaintiff's employment and Plaintiff thereafter decided to seek new
employment after approximately 23 years with the same company. Plaintiff's decision was not
an easy one and was, in part, due to the extreme stress she was under as a defendant in the RICO
lawsuit.
53. Following her termination of employment, Plaintiff decided she wanted to seek
employment in the public sector.
54. On June 17, 2015, Plaintiff applied to an open position as a Communications
Officer with the Brevard Sheriff's Office. The position can best be described as that of an
emergency dispatcher, responsible for answering emergency and non -emergency service phones,
dispatching appropriate emergency services and servicing/maintaining related equipment.
55. Over the next month, Plaintiff submitted a written application, completed/passed a
typing test, and completed/passed a drug screening test.
56. On July 16, 2015, Plaintiff appeared before the Oral Review Board for an
interview with three representatives of the Brevard Sheriffs Office. Following the interview,
Plaintiff was told by one of the three representatives that "you have the job" and that Plaintiff
was hired pending the results of a polygraph test, psych exam, and background check.
57. Plaintiff subsequently completed/passed a polygraph test and completed/passed a
psychological evaluation. Thus, her formal hiring by the Brevard Sheriffs Office was
contingent only on her passing the aforementioned background check.
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
58. On or about August 25, 2015, Plaintiff was notified by the Brevard Sheriff's
Office that her background check had been discontinued and that Plaintiff would not be offered a
position of employment. The investigator assigned to Plaintiff's file explained to Plaintiff that,
as a result of the lawsuits filed by Gulf Stream and/or Wantman against Plaintiff (several of
which Plaintiff did not even know had been filed at the time as Gulf Stream never endeavored to
serve process on Plaintiff), Brevard Sheriffs Office could not hire Plaintiff.
59. This news was disheartening to Plaintiff. She had spent several months applying
to a public service position only to be told at the last minute that she could not be hired as a
result of being named as a RICO defendant and a third party defendant in a bevy of state court
counterclaims.
60. Plaintiff subsequently attempted to gain employment at other law
enforcement/state agencies, but faced a similar problem in that the applications for such jobs
included questions regarding pending lawsuits and whether Plaintiff had ever been rejected for
employment by another law enforcement/state agency.
61. Discouraged by her own attempts to find employment, Plaintiff spoke to a job
recruiter in an effort to discover potentially -available employment. Plaintiff was informed,
however, that it would be exceedingly difficult for Plaintiff to secure employment as a result of
the plethora of publicly -available information on the various Gulf Stream/Wantman lawsuits
against Plaintiff.
62. For approximately seven months, Plaintiff attempted to secure employment — any
employment— in which Plaintiff could stay afloat and receive health insurance/other benefits that
were much needed by Plaintiff and her family.
63. Finally, in January 2016, unable to secure other employment, Plaintiff accepted a
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
job from her brother, for approximately $14 per hour, and which offered no health
insurance/other benefits. The job was, unfortunately, the only one available to Plaintiff as a
result of Defendants' smear campaign and lumping Plaintiff together with those they truly had
legal issues with.
COUNT I — MALICIOUS PROSECUTION
(Gulf Stream, Wantman, Richman Greer, and Mr. Richman)
64. Plaintiff re -alleges and incorporates paragraphs 1 through 63 as set forth above.
65. On February 12, 2015, Mr. Richman and Richman Greer signed and filed the
RICO Complaint (which was not verified by their clients) on behalf of Gulf Stream and
Wantman.
66. The RICO Complaint named Plaintiff (among others) as a defendant.
67. The RICO Complaint was substantively dismissed with prejudice by Judge Marra,
who plainly stated that "the entire factual underpinning of Plaintiffs' case cannot, under any
circumstances, constitute a RICO violation."
68. The dismissal of the RICO Complaint was subsequently affirmed by the United
States Court of Appeals for the Eleventh Circuit.
69. The RICO lawsuit thus ended in favor of Plaintiff.
70. There is no question that the RICO lawsuit was instigated with malice. Indeed, in
voting to approve the filing of the RICO lawsuit, Gulf Stream mayor Scott Morgan stated:
I think as it has been discussed today, we can either take the
approach of defending these individual cases as they come in, and
bleed to death by a thousand cuts, or we can takes steps necessary
to stop those cases by advancing this case ... And by putting a stop
to it with this RICO action, we then put a stop to the individual
lawsuits on the public records requests. I'm confident that would
be the result of this case.
71. Another Gulf Stream town commissioner followed up this statement by
it
DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
I
exclaiming:
i
I agree, because I don't see an end just defending one by one. I
think we have to take it all as a group and go forward because just
defending is not doing anything.
72. These statements are, of course, referring to the public records lawsuits filed by
Mr. O'Boyle and Mr. O'Hare — not to any lawsuit filed by or records request submitted by
Plaintiff (as there were none).
73. There is no doubt that the RICO Complaint was intended to chill the filing of
records lawsuits by Mr. O'Boyle and Mr. O'Hare, but to do this Gulf Stream and Wantman
needed only to file the RICO Complaint against Mr. O'Boyle and Mr. O'Hare — not against
Plaintiff and a dozen others.
74. Rather, it appears clear that a conscious decision was made — by Gulf Stream,
Wantman, Richman Greer, and Mr. Richman to sue any and everyone associated with Mr.
O'Boyle and Mr. O'Hare on a personal and/or professional level.
75. This decision was made despite having no evidence and no reasonable belief that
Plaintiff had any involvement or participation in the extortionate scheme alleged in the RICO
Complaint.
76. Plaintiffs inclusion as a defendant in the RICO Complaint can best be described
as the result of ill will and animosity - Gulf Stream, Wantman, Richman Greer, and Mr. Richman
never believed that Plaintiff actually committed RICO violations, but wanted to use the specter
of being a defendant in such a lawsuit to cause Plaintiff to flip' on the other defendants and
provide favorable testimony for Gulf Stream and Wantman.
77. In short, Gulf Stream, Wantman, Richman Greer, and Mr. Richman were
perfectly ok with ruining Plaintiffs life and eaming ability on the oft chance that Plaintiff might
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
assist them in their claims against those they truly had legal issues with (Mr. O'Boyle and Mr.
O'Hare). The decision to include Plaintiff in the RICO Complaint was not only intentional and
done with malice — it was also despicable.
78. As a result of Gulf Stream, Wantman, Richman Greer, and Mr. Richman's
malicious prosecution and pursuit of RICO claims against Plaintiff, Plaintiff has suffered
substantial damages, the full amount of which will be established at trial of this matter.
WHEREFORE, Plaintiff demands judgment against Gulf Stream, Wantman, Richman
Greer, and Mr. Richman for compensatory damages, prejudgment interest, and such other relief
as the Court deems just and proper.
COUNT 11— SLANDER PER SE
(Mr. Sweetapple)
79. Plaintiff re -alleges and incorporates paragraphs 1 through 63 as set forth above.
80. As described herein, Mr. Sweetapple has, on numerous occasions from April 2014
through January 2015, falsely stated to third parties and/or law enforcement agencies that
Plaintiff is a criminal, has committed racketeering violations, has violated the federal RICO
statute, and is guilty of extortion.
81. Mr. Sweetapple did not present these statements as if they were merely his
opinion — rather, Mr. Sweetapple, as an attorney experienced in both state and federal matters,
conveyed these statements as fact. He did not state it was his opinion that Plaintiff had
committed several felonies or that he would ultimately prove such in a court of law — rather, he
left no room for doubt in emphatically stating that Plaintiff (and the other defendants named in
the RICO Complaint) had committed these crimes.
82. In truth, at the time these statements were made, Mr. Sweetapple had not
assembled any evidence which would support his accusations that Plaintiff violated the civil or
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DESOUZA LAW, P.A.
101 NE "ITIIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
criminal provisions of the federal or Florida RICO statutes. Mr. Sweetapple, an attorney with
substantial experience in federal and state matters, knew at the time that he made these
statements that they were wholly unsupported by the evidence, and therefore were made with
reckless disregard for the truth.
83. The above-described false and malicious statements were made with the purpose
of causing harm to Plaintiff's reputation.
84. The falsity of the above-described statements cannot be disputed. The United
States District Court for the Southern District of Florida and the United States Court of Appeals
for the Eleventh Circuit have already conclusively determined that none of the conduct
Defendants have alleged rise to the level of extortion, racketeering, mail fraud, and/or wire fraud.
85. As a result of Mr. Sweetapple's false and malicious statements, Plaintiff has
sustained substantial damages, the full amount of which will be established at trial of this matter.
WHEREFORE, Plaintiff demands judgment against Mr. Sweetapple for compensatory
damages, prejudgment interest, and such other relief as the Court deems just and proper.
COUNT III — SLANDER PER SE
(Mr. Richman)
86. Plaintiff re -alleges and incorporates paragraphs I through 63 as set forth above.
87. As described herein, Mr. Richman has, on numerous occasions since filing the
RICO Complaint, falsely stated to third parties and/or law enforcement agencies that Plaintiff is
a criminal, has committed racketeering violations, has violated the federal RICO statute, and is
guilty of extortion.
88. Mr. Richman did not present these statements as if they were merely his opinion —
rather, Mr. Richman, as an attorney experienced in both state and federal matters, conveyed these
statements as fact. He did not state it was his opinion that Plaintiff had committed several
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I01 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
felonies or that he would ultimately prove such in a court of law — rather, he left no room for
doubt in emphatically stating that Plaintiff (and the other defendants named in the RICO
Complaint) had committed these crimes.
89. In truth, at the time these statements were made, Mr. Richman had not assembled
any evidence which would support his accusations that Plaintiff violated the civil or criminal
provisions of the federal or Florida RICO statutes. Mr. Richman, an attorney with substantial
experience in federal and state matters, knew at the time that he made these statements that they
were wholly unsupported by the evidence, and therefore were made with reckless disregard for
the truth.
90. The above-described false and malicious statements were made with the purpose
of causing harm to Plaintiff's reputation.
91. The falsity of the above-described statements cannot be disputed. The United
States District Court for the Southern District of Florida and the United States Court of Appeals
for the Eleventh Circuit have already conclusively determined that none of the conduct
Defendants have alleged rise to the level of extortion, racketeering, mail fraud, and/or wire fraud.
92. As a result of Mr. Sweetapple's false and malicious statements, Plaintiff has
sustained substantial damages, the full amount of which will be established at trial of this matter.
WHEREFORE, Plaintiff demands judgment against Mr. Richman for compensatory
damages, prejudgment interest, and such other relief as the Court deems just and proper.
Demand For Jury Trial
Plaintiff demands a trial by jury on all issues so triable.
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Dated: June 23, 2016 DESOUZA LAW, P.A.
101 NE Third Avenue
Suite 1500
Fort Lauderdale, FL 33301
Telephone: (954) 603-1340
DDesouza(a-,desouzalaw.com
4814-8649-1955, v. 1
By: /s/ Daniel DeSouza, Esq.
Daniel DeSouza, Esq.
Florida Bar No.: 19291
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DESOUZA LAW, P.A.
101 NE THIRD AVENUE, SUITE 1500 • FORT LAUDERDALE, FL 33301
TELEPHONE (954) 603-1340
Filing # 43968087 E -Filed 07/14/2016 04:41:30 PM
DENISE DE MARTINI,
Plaintiff,
v
IN THE CIRCUIT COURT OF THE
18TH JUDICIAL CIRCUIT IN AND FOR
BREVARD COUNTY, FLORIDA
CASE NO. 05 -2016 -CA -031159 -XXX -XX
TOWN OF GULF STREAM, WANTMAN
GROUP, INC., RICHMAN GREER, P.A.,
GERALD F. RICHMAN, and ROBERT A.
S WEETAPPLE,
Defendants.
DEFENDANT, TOWN OF GULF STREAM'S, AMENDED MOTION TO DISMISS
The Defendant, TOWN OF GULF STREAM ("Town"), by and through its undersigned
attorneys and pursuant to Rule 1.140(b)(1), (3), and (6) of the Florida Rules of Civil Procedure,
requests entry of an order dismissing the June 23, 2016, Complaint filed by the Plaintiff, DENISE
DE MARTINI, based upon the selection of an improper venue, the failure to allege the issuance of
statutory notice, and the application of immunity, and states as follows:
I. MOTION TO DISMISS
1. The Plaintiff has asserted a claim against the Town in this Court for alleged
"malicious prosecution." See Complaint, p. 13 at ¶ 78.
2. The claim against the Town is subject to dismissal on procedural and substantive
grounds.
3. Procedurally, the Town is a Florida municipal corporation with its principal
headquarters in Palm Beach County, Florida. The Town's home venue privilege under Carlisle v.
De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
Game & Fresh Water Fish Commission, 354 So. 2d 362, 363 (Fla. 1977), confirms that venue in
Brevard County is improper. The Complaint is also procedurally defective because it fails to allege
that the Plaintiff provided notice to the Town as required by section 768.28(6), Florida Statues.
4. Substantively, any claim for malicious prosecution is invalid undersection 768.28(9),
Florida Statutes, which confirms that the Town is protected by immunity.
5. As a result, the claim against the Town in Count I must be dismissed with prejudice.
Il. LEGAL ANALYSIS
A. Venue is Improper
6. In Florida, venue in civil actions brought against the state or one of its agencies or
subdivisions properly lies in the county where the state, agency, or subdivision, maintains its
principal headquarters because such a rule "promotes orderly and uniform handling of state
litigation and helps to minimize expenditure of public funds and manpower." Carlisle. 354 So. 2d
at 363-64. In this case, the Town's headquarters are located in Palm Beach County. As a result,
venue in Brevard County is improper.
7. While the Complaint alleges that the cause of action arose in Brevard County, see
Complaint at ¶9, that allegation is insufficient to create venue. Instead, according to section
768.28(1), Florida Statutes, the Plaintiff's claim against the Town must be initiated in Palm Beach
County:
Any [tort] action may be brought in the county where the property in
litigation is located or, if the affected agency or subdivision has an
office in such county for the transaction of its customary business,
where the cause of action accrued.
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De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
§ 768.28(1), Fla. Stat. (2016)(emphasis added); State Department of Transportation v. Jackson, 716
So. 2d 841, 842 (Fla. 1 st DCA 1998)("... venue is proper either in the county where the state agency
maintains its headquarters, Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362
(Fla.1977); or in the county where the cause of action accrued,row vided that the agency maintains
,an office in [that] county for the transaction of its customary business.' § 768.28(l), Fla. Stat.
(1995).")(emphasis added).
8. The home venue privilege promotes the "orderly and uniform handling of state
litigation and the prevention of conflicting rulings from different jurisdictions requires that the
litigation be brought at the state agency headquarters." See Carlile, 354 So. 2d at 364. Here, the
Complaint alleges no special facts which allow the Court to ignore the Town's home venue
privilege. As a result, the Complaint should be dismissed and transferred to Palm Beach County.
B. Absence of Statutory Notice
9. Pursuant to section 768.28(6)(b), Florida Statutes, notice to the Town and a written
denial by the Town must be established before a lawsuit may be filed: "... the requirements of notice
to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to
maintaining an action ... ." § 768.28(6)(b) Fla. Stat. (2016)(emphasis added); see also Levine v.
Dade County School Board, 442 So.2d 210,213 (Fla. 1983)("Under section 768.28(6), not only must
the notice be given before a suit may be maintained, but also the complaint must contain an
allegation of such notice.")(emphasis added); Morhaim v. State. Dep't. ofTransn., 737 So.2d 1234,
1236-37 (Fla. 3d DCA 1999)("Section 768.28(6)(a) precludes any action from being instituted on
a claim against the state or one of its agencies or subdivisions unless the claimant has presented a
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De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
written claim both to the appropriate agency and the DOI within 3 years after the claim accrues and
the DOI or the appropriate agency denies the claim in writing.")(footnote omitted; emphasis added).
10. The Complaint fails to allege compliance with the statutory notice provisions
contained in section 768.28(6)(a), Florida Statutes. The absence of such allegations renders the
Compliant deficient for failure to state a cause of action under Rule 1.140(b)(6). See Levine, 442
So. 2d 210, 213 (Fla. 1983)("Under section 768.28(6), not only must notice be given before a suit
may be maintained, but also the complaint must contain an allegation of such notice."); Raffone v.
Fort Lauderdale Police Department, 920 So. 2d 644 (Fla. 4th DCA 2005)("Compliance with that
subsection of the statute is clearly a condition precedent to maintaining a suit. Consequently, the
performance of the condition should be alle ed in the complaint in accordance with Florida Rule
of Civil Procedure 1. 1 20(c).")(emphasis added), quoting Commercial Carrier Corp. v. Indian River
CtL, 371 So.2d 1010, 1022-23 (Fla. 1979)(internal quotations omitted).
C. Application of Immunity
11. To state a cause of action for malicious prosecution, the plaintiff must allege six
separate elements:
(1) an original criminal or civil proceeding against the present
plaintiff was commenced or continued; (2) the present defendant was
the legal cause of the original proceeding against the present plaintiff
as the defendant in the original proceeding; (3) the termination of the
original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff, (4) there was an absence
of probable cause for the original proceeding; (5) there was malice
on the part of the present defendant; and (6) the plaintiff suffered
damage as a result of the original proceeding.
Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1355 (Fla. I 994)(emphasis added).
ma
De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
12. The Plaintiff's claim founders on element No. 5 -- the need to plead and prove that
the Town acted with "malice." Under Florida law, sovereign immunity protects the Town from a
claim for malicious prosecution because a showing of malice is an element of the claim. See Fla.
Dep't of Envtl. Prot. v. Green, 951 So. 2d 918, 920 (Fla. 4th DCA 2007)("Because `malice' is a
necessary element of malicious prosecution and section 768.28(9)(a) immunizes the State and its
agencies from `malicious' acts of its employees while they are acting within the scope of their
employment, Green is barred from bringing a malicious prosecution claim against FDEP."); Irani
v. City of Hallandale, 756 So. 2d 110, 110 (Fla. 4th DCA 1999)("We write only to note the trial
court correctly dismissed Irani's malicious prosecution count as barred by section 768.28(9),
Florida Statutes (1997).")(emphasis added); City of Coconut Creek v. Fowler, 474 So.2d 820, 822
(Fla. 4th DCA 1985)("This case must also be reversed under the authority of Section 768.28(9),
Florida Statutes (1979). The statute now affirmatively disallows suits against municipalities for the
malicious acts of their employees."); Johnson v. State. Department of Health & Rehabilitative
Services, 695 So.2d 927, 930 (Fla. 2d DCA 1997)("With respect to the malicious prosecution claims
in count VI against the City and HRS, the trial court properly dismissed those claims. (emphasis
added).
13. An easy -to -read (and should -have -been -read by Plaintiffs counsel) analysis of the
statutory text and its impact was conducted almost 30 years ago in Sebring Utilities Comm'n v.
Sicher, 509 So. 2d 968 (Fla. 2d DCA 1987):
Section 768.28(9)(a) provides that the `state or its subdivisions shall
not be liable in tort for the acts or omissions of an officer, employee,
or agent committed ... with malicious purpose.' See District School
Board of Lake County v. Talmadge, 381 So.2d 698 (Fla. 1980). See
also Rupp v. Bryant, 417 So.2d 658 (Fla. 1982). Malice is not only an
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De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
essential element of malicious prosecution; it is the gist of such a
cause of action. Wilson v. ONeal, 118 So.2d 101 (Fla. 1st DCA
1960). Section 768.28(9), therefore, bars an action against 'state
agencies or subdivisions' based upon malicious prosecution.
Hambley v. State. Department of Natural Resources, 459 So.2d 408
(Fla. 1 st DCA 1984).
Id. at 970 (emphasis added).
14. While the Plaintiff seeks to argue that her tort claim is asserted against the Town
"directly" (and not indirectly through a Town employee or Town agent), this argument is flawed.
First, any purported effort to assert a "direct" claim against the Town cannot be reconciled with the
limited waiver of sovereign immunity set forth in section 768.28(1), Florida Statutes. Immunity is
the rule; the exception for such broad immunity applies only when the alleged tort is committed by
a governmental employee or agent:
In accordance with s. 13, Art. X of the State Constitution, the state,
for itself and for its agencies or subdivisions, hereby waives
sovereign immunity for liability for torts, but only to the extent
specified in this act. Actions at law against the state or any of its
agencies or subdivisions to recover damages in tort for money
damages against the state or its agencies or subdivisions for injury or
loss of property, personal injury, or death caused by the negligent or
wrongful act or omission of any emnlovee of the agency or
subdivision while acting within the scope of the employee's office
or employment under circumstances in which the state or such
agency or subdivision, if a private person, would be liable to the
claimant, in accordance with the general laws of this state, may be
prosecuted subject to the limitations specified in this act.
See § 768.28(1), Fla. Stat. (2016). As a result, the Plaintiff's theory is inconsistent with the limited
waiver of immunity recognized under Florida law in the first instance.
15. The claim is also at odds with Florida law in the general area of governmental
immunity. For example, in McNayr v. Kelly, 184 So. 2d 428 (Fla. 1966), the Florida Supreme Court
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De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
confirmed the wide range of governmental activities to which immunity always applies, including
all forms of defamation and malicious conduct:
However false or malicious or badiv motivated the accusation
may be, no action will lie therefor in this State. Nor is it questioned
that such absolute immunity in this State extends to county and
municipal officials in legislative or quasi -legislative activities as well
as to members of the State Legislature and activities connected with
State legislation. It is also pertinent to note that in this strange area
where the courts seem to have originated the idea of absolute
immunity instead of the legislatures, Florida has followed the weight
of authority in dealing with questions arising under the broad
principle whenever it has been presented to it.
We think that there should be no distinction between the judicial,
legislative and the executive branches of government so far as
absolute privilege is concerned. If a distinction is to be made, as we
have heretofore stated, it should be made by the legislative branch of
government.
Id. at 430-431, 432 (emphasis added). Against this backdrop of contrary cases, contrary statutory
provisions, and contrary history, the Plaintiff asserts an argument with no supporting case law. Not
one case approves of a malicious prosecution claim asserted "directly" against a municipal
corporation.
16. The Town would suggest that if the Plaintiff seeks to invent a new claim against the
sovereign, that effort should be presented to an appellate court. In the interim, the Town requests that
the Court apply the various cases cited above -- including motion -to -dismiss cases like Irani v. Citv
of Hallandale, 756 So. 2d at 110, and Johnson v. State. Department of Health & Rehabilitative
Services, 695 So.2d at 930 -- and dismiss the Plaintiff's claim against the Town with prejudice.
WHEREFORE, the Defendant, TOWN OF GULF STREAM, requests entry of an Order
dismissing the Town from the Complaint with prejudice and providing such other and further relief
as the Court deems just and proper.
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De Martini v. Town of Gulf Stream
Case No. 05 -2016 -CA -031159
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing was
SERVED and FILED via FL E -Portal to Daniel DeSouza, Esq., Counsel for Plaintiff, DESOUZA
LAW, P.A., 1515 N. University Drive, Suite 209, Coral Springs, FL 33071
(ddesouza@desouzalaw.com) and to Joshua A. Goldstein, Esq., Counsel for Sweetapple, COLE,
SCOTT & KISSANE, P.A., 1645 Palm Beach Lakes Boulevard, Second Floor, West Palm Beach,
Florida 33401 (Joshua.Goldstein@csklegal.com) on this 14th day of July 2016.
JEFFREY OC AN
Florida Bar No. 902098
Attorneys for Town of Gulf Stream
JOHNSON, ANSELMO, MURDOCH,
BURKE, PIPER & HOCHMAN, P.A.
2455 E. Sunrise Blvd., Suite 1000
Fort Lauderdale, FL 33304
Tel: 954-463-0100
Fax: 954463-2444
Hochman@iamba.com
Ericksen@iambg.com
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