Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
vs.
TERRY GENE BOLLEA professionally
known as HULK HOGAN,
Plaintiff/Appellee.
___________________________________/
filed Emergency Motion for Stay of Execution Pending Appeal, filed July 25,
2016, updated and amplified to reflect subsequent developments. This provisional
motion therefore seeks to preserve the status quo long enough for this Court to be
able to rule on Defendants forthcoming motion before the relief sought becomes
moot. Absent an immediate stay, plaintiffs will begin seizing Movants assets,
forcing them into bankruptcy. In addition to its appellate jurisdiction, this Court
has the authority to exercise its all writs jurisdiction pursuant the Florida
Constitution, Article V, Section 4(b)(3).
I.
vehicle they have to avoid imminent execution of the judgment entered below. By
way of pertinent background, on June 7, 2016, the trial court entered judgment in
this case for $140.1 million and for injunctive relief, including permanently
enjoining Defendants speech. Prior Tabs 18-19. 1 The judgment was entered
against these Defendants/Appellants, as well as Gawker Media. Both the jurys
verdict and the injunction conflict with this Courts prior ruling that the video
excerpts at issue address a matter of public concern and are protected speech.
Gawker Media, LLC v. Bollea, 129 So. 3d 1196, 1201-03 (Fla. 2d DCA 2014).
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Two days later, on June 9, 2016, all three defendants moved for a stay of
execution of the judgment pending appeal. Prior Tab 21. In that motion, they
submitted evidence that they could not post a bond for a $140.1 million judgment,
but these individual Defendants agreed to pledge virtually all of their assets to
Plaintiff. Id. at 6-9; see also Fla. R. App. P. 9.310(a). They also explained that a
stay was warranted in light of both (a) this Courts prior ruling and (b) the right
under the First Amendment to have this Court conduct an independent appellate
review.
At a hearing on June 10, 2016, the trial court announced its intention to
impose a number of additional, onerous conditions on any stay, all requested by
Plaintiff/Appellee. Prior Tab 26 at 52:7-53:14. Those conditions would have
amounted to an effective denial of a stay because they would have provided as
security to Plaintiff virtually everything he would have gotten by executing his
judgment, including complete control over Defendants operations and finances,
during the appeal. Id. at 41:25-42:15, 43:2-19, 46:3-18, 51:2-13, 52:7-53:14; see
also Prior Tab 27 (Plaintiffs proposed order). The trial court also denied
Defendants request for a seven-day stay of those conditions to allow this Court to
review the issue, as well as requests for successively shorter stays, including as
short as two hours. Prior Tab 26 at 54:3-55:9.
Early that afternoon and before the trial court entered an order, Gawker filed
a petition for bankruptcy under Chapter 11 of the federal bankruptcy code in the
Southern District of New York. To Defendants knowledge, this case is the first
time in American history that a trial court judgment for defamation or invasion of
privacy has forced a national news organization into immediate bankruptcy. As a
result of the automatic stay imposed by Section 362 of the bankruptcy code, all
proceedings with respect to Defendant Gawker are now automatically stayed.
Following a temporary stay with respect to Denton and Daulerio entered by
the Bankruptcy Court, they immediately returned to this Court to seek a stay of
execution pending appeal, which Bollea opposed. Their lengthy Motion for Stay
of Execution Pending Appeal explained that a stay was warranted in these
circumstances under the Federal and Florida Constitutions, and other applicable
law, that prohibits forcing a defendant into bankruptcy before a judgment
challenging speech can be reviewed.
Simultaneously, Bollea filed a motion in the trial court claiming that Denton
and Daulerio had misrepresented certain facts and seeking, as a result, an order
vacating the trial courts earlier stay-with-conditions, imposing no stay going
forward (or requiring an impossible-to-satisfy bond of more than $50 million per
Defendant), and seeking sanctions, contempt and attorneys fees. Denton and
Daulerio filed an opposition explaining that there were no misrepresentations, that
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securing that judgment with all of the assets he could expect to collect if the
judgment is upheld.
Bolleas order, by contrast, recited a series of legal principles unrelated to
stays, as well as a series of factual findings that are simply not supported by the
record and, as indicated above, that had already been raised and rejected by the
Bankruptcy Court. Tab D.
The trial court entered Bolleas order without meaningful modification,
accepting his claim that these Defendants made material misrepresentations to him
and the lower court. Tab E. The court came to this conclusion and made these
findings without conducting a hearing. Instead, it simply adopted Bolleas
proposed findings as its own. Those findings were based on Bolleas own
misstatements to the trial court and his effort to twist the record of what happened
before that court and in Gawkers federal bankruptcy proceeding. As Denton and
Daulerio explained in detail in their Opposition to Bolleas Motion to Vacate,
Bolleas charges are wholly without merit. See Tab A at 3-14. Suffice it to say,
there is no evidence that Denton and Daulerio intended to mislead the court below.
Rather, the record confirms that, as they told the court, they had limited resources
and could not obtain a bond, but were offering to post as security essentially all of
their assets so they could pursue their appeal on the merits. That was true at the
time of the initial hearing below, and remains true today.
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In its order, the trial court, in language adopted verbatim from Bolleas
proposed order, see Tab D at 7 22, recited that that In their opposition, Mr.
Denton and Mr. Daulerio have not offered any other security or conditions. Rather,
they stand by their pledge of stock without any conditions at all. Tab E at 6 13.
That is flat out wrong. As explained above, Gawkers proposed order, Tab C,
which ran to seven pages, incorporated detailed provisions for security, including
not only a detailed a mechanism for pledging stock enforceable by the Court, but
also non-dissipation provisions, domestication of the judgment against both
Denton and Daulerio, security should Denton sell his condominium, and
completion of the detailed financial information sheets attached to the judgment.
Finally, Denton and Daulerio filed a written motion asking the trial judge for
a brief stay of her order to allow them to seek review in this Court. Bollea opposed
that motion, and the trial court denied the requested brief stay. Tab E at 7 3. As
a result, Defendants are filing this provisional motion because it is the only
remaining avenue that can potentially provide them immediate, temporary relief
prior to Plaintiffs effectuating a seizure of all of their assets and forcing them into
bankruptcy. Absent immediate action by this Court execution will begin.
II.
appellate proceeding, courts have traditionally considered two factors: the moving
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partys likelihood of success on the merits, and the likelihood of harm should a
stay not be granted. Perez v. Perez, 769 So. 2d 389, 391 n.4 (Fla. 3d DCA 1999)
(citing State ex rel. Price v. McCord, 380 So. 2d 1037 (Fla. 1980)). In this
particular case, those factors should also be informed by the fact that, as explained
in greater detail in the previously-filed Motion to Stay Execution, unlike in typical
appeals the First Amendment guarantees these Defendants a right to independent
appellate review of this judgment. See, e.g., Snyder v. Phelps, 562 U.S. 443, 460
(2011); Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S.
557, 567 (1995); see also Miami Herald Publg Co. v. Ane, 458 So. 2d 239, 242
(Fla. 1984) (recognizing First Amendment independent review requirement).
Indeed, the First Amendment requires a stay where refusing one would deprive a
speaker of such review, see Henry v. First Natl Bank of Clarksdale, 595 F.2d 291
(5th Cir. 1979) (protecting NAACP from execution of judgment during pendency
of appeal to preserve its First Amendment rights); Snyder v. Phelps, 580 F.3d 206,
216 n.6 (4th Cir. 2009) (noting substantial reduction in security required of
Westboro Baptist Church and individual defendants during pendency of appeal to
permit review of First Amendment issues). Defendants First Amendment right to
independent appellate review would have little force if the only practical means to
exercise that right would be for them to declare personal bankruptcy, which is what
would necessarily ensue if they cannot obtain a stay of execution. 2
Moreover, Defendants have a high likelihood of success on the merits for
multiple reasons, beginning with the fact that the judgment below is based solely
on speech that this Court has already deemed to be protected by the First
Amendment. Specifically, this Court previously found that the video excerpts at
issue pertained to a matter of legitimate public concern, an issue which is
dispositive of all of Plaintiffs claims. See Bollea, 129 So. 3d at 1201-03. The trial
courts view that it was free to disregard all of this Courts reasoning on that
question was plainly erroneous, so this case never should have gone to trial at all.
See Prior Motion to Stay Execution, filed July 25, 2016, at 30-33. In any event, the
soundness of this Courts previous ruling is reinforced by the trial record. See id.
at 33-39.
2
The Due Process Clause separately requires a stay where the judgment is
extraordinary, as is indisputably the case here, see Evitts v. Lucey, 469 U.S. 387,
405 (1985) (holding that it violates due process for a state to provide a right of
appeal yet deprive a defendant of a fair opportunity to obtain an adjudication on
the merits of his appeal); Texaco Inc. v. Pennzoil Co., 784 F.2d 1133, 1154 (2d
Cir. 1986) (It is self-evident that an appeal would be futile if, by the time the
appellate court considered his case, the appeal had by application of a bonding law
been robbed of any effectiveness.), revd on jurisdictional grounds, 481 U.S. 1
(1987). The Florida Constitution separately requires a stay of a judgment such as
this to secure Denton and Daulerio a meaningful right to appeal, see McFadden v.
State, 177 So. 3d 562, 566 (Fla. 2015) (Appeals to . . . the District Courts of
Appeal are constitutionally guaranteed rights in this State.) (citation omitted);
Amendments to the Fla. R. App. P., 696 So. 2d 1103, 1104 (Fla. 1996) (recognizing
same).
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filing for bankruptcy. It would be even more regrettable if two of its journalists
were forced to do the same before their First Amendment rights can be considered
by this Court. The public has a strong interest in not having speakers deterred
from speaking out of fear of being forced into bankruptcy. See, e.g., New York
Times Co. v. Sullivan, 376 U.S. 254, 278 (1964) (Whether or not a newspaper can
survive a succession of such judgments, the pall of fear and timidity imposed upon
those who would give voice to public criticism is an atmosphere in which the First
Amendment freedoms cannot survive.).
An immediate, provisional stay will preserve the status quo in order to give
this Court sufficient time to consider Defendants emergency motion for a stay.
CONCLUSION
For the foregoing reasons, Defendants/Appellants Denton and Daulerio
respectfully request that this Court issue an immediate, provisional stay of
execution of the judgment pending adjudication of their Emergency Motion to Stay
Pending Appeal.
July 29, 2016
Respectfully submitted,
THOMAS & LOCICERO PL
By:
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 29th day of July 2016, I caused a true and
correct copy of the foregoing to be served via the Florida Courts E-Filing Portal
on the following counsel of record:
Kenneth G. Turkel, Esq.
kturkel@BajoCuva.com
Shane B. Vogt, Esq.
shane.vogt@BajoCuva.com
Bajo Cuva Cohen & Turkel, P.A.
100 N. Tampa Street, Suite 1900
Tampa, FL 33602
Tel: (813) 443-2199
Fax: (813) 443-2193
Kristin A. Norse
Stuart C. Markman
Kynes, Markman &
Fleman, P.A.
Post Office Box 3396
Tampa, FL 33601-3396
knorse@kmf-law.com
smarkman@kmf-law.com
Tel: (813) 229-1118
Fax: (813) 221-6750
David M. Caldevilla
dcaldevilla@dgfirm.com
de la Parte & Gilbert, P.A.
Post Office Box 2350
Tampa, FL 33601-2350
Tel: (813)229-2775
Attorneys for Plaintiff/Appellee
/s/ Gregg D. Thomas
Attorney
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