Gawker Media, LLC v. Bollea

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

GAWKER MEDIA, LLC; NICK DENTON; )
and A.J. DAULERIO, )
)
Petitioners, )
)
v. ) Case No. 2D15-2857
)
TERRY GENE BOLLEA, professionally )
known as HULK HOGAN, )
)
Respondent. )
__________________________________ )

Opinion filed July 2, 2015.

Petition for Writ of Mandamus to the Circuit
Court for Pinellas County; Pamela A.M.
Campbell, Judge.

Gregg D. Thomas and Rachel E. Fugate of
Thomas & LoCicero PL, Tampa; and Seth
D. Berlin and Alia L. Smith of Levine
Sullivan Koch & Schultz, LLP, Washington,
District of Columbia, for Petitioners.

David M. Caldevilla of de la Parte & Gilbert,
P.A., Tampa; Kenneth G. Turkel and
Christina K. Ramirez of Bajo Cuva Cohen &
Turkel, P.A., Tampa; and Charles J. Harder
and Douglas E. Mirell of Harder Mirell &
Abrams LLP, Los Angeles, California, for
Respondent.

NORTHCUTT, Judge.
 This controversy sprang from a seed planted sometime in 2006, when

Terry Bollea, a celebrated former professional wrestler known publicly as "Hulk Hogan,"

had sex with Heather Clem, then married to Bollea's friend Todd Clem, a "shock jock"

radio personality whose nom de scène is "Bubba the Love Sponge." The encounter

was videotaped, with audio, allegedly without Bollea's knowledge. Six years later, in

October 2012, a celebrity news and gossip website named Gawker.com posted an

excerpt of the videotape to the Internet. Litigation ensued.

After a brief initial foray into federal court, in December 2012 Bollea filed

suit in Florida's Sixth Circuit seeking injunctive relief and damages from Heather Clem,

sundry entities and individuals affiliated with the Gawker site, and others. The circuit

court case is ongoing, and it has darkened our door more than once.1 Before us today

is a mandamus proceeding in which the Gawker defendants contend that the circuit

court's June 19, 2015, order setting trial for the week of July 6 deviates from Florida

Rule of Civil Procedure 1.440. Indeed the order violates the rule, and we grant the

petition.

To place the issue in proper context, it must be noted that one of the initial

Gawker defendants was a Budapest-based company named Blogwire Hungary

Szellemi Alkotást Hasznosító, KFT. Blogwire contested the attempted exercise of

Florida long-arm jurisdiction over it, and it appealed the circuit court's order denying its

1
Blogwire Hung. Szellemi Alkotst Hasznost, KFT v. Bollea, 162 So. 3d
1116 (Fla. 2d DCA 2015); Gawker Media, LLC v. Bollea, 160 So. 3d 424 (Fla. 2d DCA
2014); Bollea v. Clem, 151 So. 3d 1241 (Fla. 2d DCA 2014); Gawker Media, LLC v.
Bollea 129 So. 3d 1196 (Fla. 2d DCA 2014).

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motion to dismiss on that ground. Consequently, and significantly, long after the other

defendants either had been dismissed from the case or had filed answers and

affirmative defenses to Bollea's complaint, Blogwire had not done so. On April 17,

2015, this court reversed and remanded for further proceedings on Blogwire's motion to

dismiss. Blogwire Hung. Szellemi Alkotst Hasznost, KFT v. Bollea, 162 So. 3d 1116

(Fla. 2d DCA 2015).

While Blogwire's appeal was pending in the fall of 2014, Bollea grew eager

to place at least part of the action at issue. He moved the circuit court to sever the

claims against Blogwire from the balance of the case and to set the claims against the

other defendants for trial. Over the Gawker defendants' strenuous objections, the court

granted the motion. By order dated November 4, 2014, the court severed the claims as

mentioned, and it tentatively scheduled trial against all defendants other than Blogwire

for July 2015. At a hearing the next month, the court finalized the trial date as July 6,

memorializing the same in a written order setting trial entered February 18, 2015. The

Gawker defendants challenged both rulings by petitions for writ of certiorari, contending

that severing defendants is not permitted and that, because Blogwire had not answered

the complaint, the case was not at issue and could not be set for trial. We consolidated

the petitions and, on May 7, 2015, we quashed both orders.2 Gawker Media, LLC v.

Bollea, Case Nos. 2D14-5591, 2D15-1259, consolidated.

2
Our May 7, 2015, order simply informed the parties of our ruling and
advised that an opinion explaining our reasoning would follow. However, subsequent
events, which we will describe, may have mooted that proceeding.

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 The instant proceeding was occasioned by what happened in the following

weeks. Bollea was determined to maintain the July 6 trial date, if possible. In a May 19,

2015, letter to the judge and again at a May 29 motions hearing, his counsel asked the

court to keep the July 6 date reserved, theorizing that if Bollea voluntarily dismissed

Blogwire from the case, the issues raised in the certiorari proceeding would vanish and

his suit could proceed to trial against the other defendants as planned. At the May 29

hearing the court agreed to keep the July 6 trial date open. It also orally granted

Bollea's pending motion to file an amended complaint seeking punitive damages.

As foretold, on June 18, the day before a scheduled case management

conference, Bollea filed a notice of voluntary dismissal with prejudice as to Blogwire and

filed his amended complaint seeking punitive damages by interlineation in the prayer for

relief. He also filed a "notice that action is still at issue," asking the circuit court to reset

the case for trial beginning on the previously scheduled date, July 6.

The next day, June 19, the circuit court entered a written order reflecting

its earlier oral ruling that Bollea could amend his complaint to seek punitive damages.

The order also stated that "[n]o further pleading by Defendants in response to plaintiff's

Amended Complaint, as amended by interlineation, is required, and Gawker Defendants

are deemed to have denied Mr. Bollea's claim for punitive damages."

In the meantime, on the morning of June 19, the Gawker defendants had

filed a written objection to Bollea's notice that the case was at issue, pointing out among

other things that under rule 1.440 a case is not at issue until twenty days have elapsed

after the pleadings are closed. At the case management conference that day, the

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Gawker defendants emphatically opposed setting the case for trial. But the circuit court,

persuaded by Bollea's side that it could disregard the opponents' objections as

innocuous technicalities, entered a written order setting trial for July 6. Three days later,

on June 22, the Gawker defendants filed the instant proceeding in this court.3

Although we easily understand why Bollea and the circuit court went to

lengths to preserve the July 6 trial date, their efforts were futile from the outset—by the

time the court entered its June 19 order scheduling the trial for July 6, the window for

doing so had been closed for weeks. Rule 1.440(a) provides that an action is deemed

at issue "after any motions directed to the last pleading served have been disposed of

or, if no such motions are served, 20 days after service of the last pleading."

Thereafter, under subsection (b) a party must serve a notice that the action is at issue

and ready to be scheduled for trial. Per subsection (c), the court must then enter an

order setting trial no fewer than thirty days hence. The rule thus prescribes a minimum

interval of fifty days between service of the last pleading and commencement of trial.

Fifty days prior to July 6 was May 17, which was a Sunday. Therefore, to

permit a trial on July 6, the last pleading in the case must have been served no later

than Friday, May 15; Bollea's notice that the action was at issue must have been filed

3
The Gawker defendants initially pursued relief by filing a motion in the
earlier certiorari case. They asked us to enforce our May 7, 2015, ruling by quashing
the June 19 order setting trial or, "[t]o the extent that a motion to enforce [the] prior order
is the improper remedy to seek in this instance, . . . to convert their motion to the
appropriate form in which to permit consideration of their application." By separate
order we have treated the Gawker defendants' motion as a petition for writ of
mandamus and Bollea's response to the motion as a response to that mandamus
petition.

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no sooner than June 4 or later than June 6; and the court's order setting trial must have

been entered no later than June 6.

None of that happened, of course. As of May 15, the case simply was not

at issue. This court had quashed both the order severing the claims against Blogwire

from the rest of the case and the February order setting the action against the other

defendants for trial. Blogwire had yet to answer Bollea's complaint; its motion to dismiss

for lack of personal jurisdiction was pending and awaiting further proceedings pursuant

to this court's disposition of Blogwire's appeal the previous month. Finally, as of May 15

the question whether Bollea would be permitted to amend his pleadings to seek punitive

damages was unsettled, and it would not be decided until the motions hearing on May

29.

Bollea attempted to eliminate the Blogwire hindrance by dismissing it from

the suit on June 18. But according to rule 1.440, this was far too late for purposes of a

July 6 trial date. (In fact, it was already too late when Bollea's counsel first raised the

possibility of dismissing Blogwire in his May 19 letter to the judge.) And in any event,

Bollea filed his amended complaint seeking punitive damages from the other

defendants on June 18, as well. Even in Blogwire's absence, then, under rule 1.440 the

case against the remaining defendants would not be at issue until twenty days later, on

July 8. Even if the circuit court acted on that very day, it could not set a trial date earlier

than August 7.

This was not altered by the court's declaration that the defendants were

excused from responding to Bollea's new punitive damages claim. Rule 1.440(b)

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provides that "[t]he party entitled to serve motions directed to the last pleading may

waive the right to do so by filing a notice for trial at any time after the last pleading is

served." In other words, the rule grants that party, not the court, discretion to dispense

with the prescribed twenty-day interlude before the action is at issue. Regardless, even

if Bollea's and the court's machinations had placed the action at issue on June 19, at

that point the court could set trial no earlier than July 19.

The June 19 order setting trial for July 6 plainly violated rule 1.440. For

many years, the appellate courts of this state have emphasized that the rule's

specifications are mandatory and they have admonished trial courts to strictly adhere to

them. Teelucksingh v. Teelucksingh, 21 So. 3d 37 (Fla. 2d DCA 2009); Broussard v.

Broussard, 506 So. 2d 463 (Fla. 2d DCA 1987); R.J. Reynolds Tobacco Co. v.

Anderson, 90 So. 3d 289 (Fla. 2d DCA 2012) (table decision) (text of order available at

2012 WL 2428282); Tucker v. Bank of N.Y. Mellon, 39 Fla. L. Weekly D789 (Fla. 3d

DCA Apr. 16, 2014); Lurtz v. Bank of N.Y. Mellon, 162 So. 3d 11 (Fla. 4th DCA 2014);

BAC Home Loans Servicing L.P. v. Parrish, 146 So. 3d 526 (Fla. 1st DCA 2014);

Genuine Parts Co. v. Parsons, 917 So. 2d 419 (Fla. 4th DCA 2006); Precision

Constructors, Inc. v. Valtec Constr. Corp., 825 So. 2d 1062 (Fla. 3d DCA 2002); Dep't of

Revenue v. Marcovitch, 765 So. 2d 944 (Fla. 5th DCA 2000); Cardozo v. Cardozo, 705

So. 2d 145 (Fla. 4th DCA 1998); S.W.T. v. C.A.P., 595 So. 2d 1084 (Fla. 4th DCA

1992); Rivera v. Rivera, 562 So. 2d 833 (Fla. 1st DCA 1990); Lauxmont Farms, Inc. v.

Flavin, 514 So. 2d 1133 (Fla. 5th DCA 1987); Bennett v. Cont'l Chems., Inc., 492 So. 2d

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724 (Fla. 1st DCA 1986); Fireman's Fund Ins. Co. v. Weissing, 448 So. 2d 630 (Fla. 4th

DCA 1984); Foremost Ins. Co. v. Barkett, 441 So. 2d 179 (Fla. 4th DCA 1983).

Indeed, a trial court's obligation to hew strictly to the rule's terms is so well

established that it may be enforced by a writ of mandamus compelling the court to strike

a noncompliant notice for trial or to remove a case from the trial docket. Anderson, 90

So. 3d at 289, 2012 WL 2428282 at *1; Parsons, 917 So. 2d at 421; Weissing, 448 So.

2d at 631; Barkett, 441 So. 2d at 180.

Still, notwithstanding the compulsory nature of rule 1.440, in some

instances appellate courts have held that a party waived its objection to an order setting

trial contrary to the rule. For example, in Parrish v. Dougherty, 505 So. 2d 646 (Fla. 1st

DCA 1987), the appellant's attorney appeared at the trial and participated without

objecting to the manner in which it had been set. In Correa v. U.S. Bank National Ass'n,

118 So. 3d 952 (Fla. 2d DCA 2013), the appellant agreed to a rescheduled trial date,

participated in the trial, and made no objection to any deviation from rule 1.440. In both

instances, the appellants were deemed to have waived their assertions of error based

on the rule. For two reasons, however, such cases have no bearing here. First, of

course, is that the Gawker defendants began insisting on compliance with rule 1.440

and objecting to the July trial date in the fall of 2014, and they consistently have done so

ever since.

The second reason that the waiver cases are inapplicable to this

proceeding is more nuanced but nonetheless significant: whereas this is a mandamus

proceeding, those cases were plenary appeals from final judgments. The two types of

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proceedings serve very different purposes, entailing very different requirements. In an

appeal from a final judgment the lower court's rulings are reviewed for reversible legal

error. Generally speaking, a judgment may be reversed only for an error that has been

preserved by timely objection in the lower court and that has prejudiced the complaining

party in a way that likely affected the result. Goldschmidt v. Holman, 571 So. 2d 422

(Fla. 1990) (stating no judgment may be reversed unless a court finds error resulting in

a miscarriage of justice); see also § 59.041, Fla. Stat. (2015) (same); Aills v. Boemi, 29

So. 3d 1105 (Fla. 2010) (holding that, except in cases of fundamental error, an

appellate court cannot consider any ground for objection not presented to the trial

court). Thus, the appellant's failure to make a timely objection waives the issue on

appeal, as happened in Parrish and Correa.

Mandamus is a different animal altogether. Its purpose is not to review a

lower court ruling for prejudicial error; rather, it is meant to enforce the respondent's

unqualified obligation to perform a clear legal duty. State ex rel. Buckwalter v. City of

Lakeland, 150 So. 508 (Fla. 1933). If the petitioner is entitled to demand performance

of the duty, he or she need not preserve the issue beyond making the demand. Further,

it is unnecessary for the petitioner to suffer prejudice as a result of the respondent's

dereliction. All that must be shown is that (1) the respondent is duty-bound to act under

the law, and (2) the respondent has failed or refused to do so. Pleus v. Crist, 14 So. 3d

941 (Fla. 2009). A third and final element is that the petitioner must have no adequate

legal remedy for the respondent's failure to carry out its duty. Id.; Sturdivant v.

Blanchard, 422 So. 2d 1028 (Fla. 1st DCA 1982).

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 By this point in our discussion it is obvious that the first two elements have

been satisfied here. The third element is present, as well. It is true that the Gawker

defendants have available to them the legal remedy of pursuing an appeal from any

future final judgment, in which they could complain of the errant order scheduling the

trial. But owing to the mentioned differences between a mandamus proceeding and an

appeal, the appellate remedy is not an adequate one. As we have established, a party

is absolutely entitled to strict conformance with the terms of rule 1.440, including its

mandated fifty-day hiatus between the service of the last pleading and the trial date.

Whereas a writ of mandamus can preserve and effectuate this right in full, an appeal

following entry of final judgment is inherently incapable of doing so because the

appellant already will have been forced to trial in violation of the rule.

To be sure, a number of the authorities we have cited as exemplifying

strict enforcement of rule 1.440 have been appeals from final judgments as opposed to

pretrial writ proceedings. But those appeals simply could not have afforded relief

commensurate with that available by writ of mandamus. An appellate reversal and

remand for a new trial many months after the appellant was forced into the first trial in

violation of rule 1.440 is a far and lesser cry from a writ of mandamus enforcing the rule

prior to the offending trial date.

An appeal from a final judgment is an inadequate remedy for yet another

significant reason. To the extent that in an appeal the court must be concerned with

whether an infringement of the appellant's rights has been preserved for review and has

prejudiced the appellant, and insofar as the court otherwise must apply appellate

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decisional rules that are inapplicable to mandamus proceedings, the appellant's rights

have been diminished by the court's inability to unqualifiedly enforce them.

Again, in some of the cases cited previously the appellate courts granted

relief without apparent concern for these limiting principles of appellate review. But,

certainly, such magnanimity on the part of an appeal court panel cannot be predicted or

depended upon, as the appellants learned in HSBC Bank USA, N.A. v. Serban, 148 So.

3d 1287 (Fla. 1st DCA 2014) (holding that a violation of rule 1.440 caused no harm),

and Labor Ready Southeast, Inc. v. Australian Warehouses Condominium Ass'n, 962

So. 2d 1053 (Fla. 4th DCA 2007) (holding that under the circumstances of the case the

appellant was not prejudiced by violation of rule 1.440). See also Mourning v. Ballast

Nedam Constr., Inc., 964 So. 2d 889 (Fla. 4th DCA 2007) (to same effect). In those

cases the appellate courts, applying decisional rules governing appeals, declined to

enforce the trial courts' clear legal duty to strictly comply with rule 1.440. Thus, they

illustrate the inadequacy of an appeal from a final judgment as a remedy for a trial

court's failure to perform its duties under the rule. Moreover, because appellate rules of

decision are inapplicable to mandamus proceedings, the holdings in Serban, Labor

Ready, and others of their ilk are not germane here.

The same is true of the few cases in which deviations from rule 1.440

have been challenged by petitions for writ of certiorari. The decisional rules governing

certiorari are even more restrictive than those at play in appeals. Citizens Prop. Ins.

Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351 (Fla. 2012) (stating that a departure

from the essential requirements of law necessary for the issuance of writ of certiorari

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must be "something more than just a legal error"); Haines City Cmty. Dev. v. Heggs,

658 So. 2d 523, 527 (Fla. 1995) (noting that a departure from the essential

requirements of law must extend "far beyond legal error") (quoting Jones v. State, 477

So. 2d 566, 569 (Fla. 1985) (Boyd, C.J., concurring specially))). Even so, in Globe Life

& Accident Insurance Co. v. Preferred Risk Mutual Insurance Co., 539 So. 2d 1192 (Fla.

1st DCA 1989), the court held that an order setting the case for trial in the absence of a

notice that the case was at issue violated the essential requirements of law and resulted

in a miscarriage of justice, warranting a writ of certiorari.

But in a more recent certiorari case involving a departure from rule 1.440,

the Third District declined to issue the writ, observing that the petitioner was required to

demonstrate more than a simple legal error. Sundale, Ltd. v. Williams Paving Co., 913

So. 2d 740 (Fla. 3d DCA 2005). Rather, the court wrote, the petitioner had to establish

why it had no adequate remedy on appeal from a final judgment. The court observed

that "[petitioner] has not even attempted to allege how an appeal cannot remedy this

legal error." Id. at 740.

Sundale is problematic for two reasons. First, as we have shown, the

notion that an appeal from a final judgment is adequate to remedy a violation of rule

1.440 is plainly incorrect. Second, Sundale misstated the certiorari test in a slight but

important way. Contrary to Sundale's suggestion, 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. See, e.g., J.C. v. Dep't of Children &

Family Servs., 83 So. 3d 883, 887 (Fla. 2d DCA 2012) (observing that to obtain a writ of

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certiorari the petitioner must demonstrate that the trial court departed from the essential

requirements of law and that the trial court's order "caused irreparable harm that cannot

be remedied on postjudgment appeal"). In many certiorari cases, this difference may be

an abstraction without much practical impact. But the distinction is hugely important in a

mandamus proceeding, which focuses only on the duty owed and failed by the

respondent and is wholly unconcerned with whether the petitioner has been injured by

the respondent's dereliction.

Notwithstanding our view that Sundale was incorrectly decided and that,

as a certiorari proceeding, it is immaterial to this case, we likely should address its

unfortunate influence on two previous decisions by this court. In 2011, we issued what

was in effect a citation per curiam decision denying a petition for writ of mandamus in

reliance on Sundale. Dolan v. Bank of Am., 63 So. 3d 761 (Fla. 2d DCA 2011) (table

decision) (text of order available at 2011 WL 2565556). The result in that case might

well have been correct. But as we have explained, Sundale, a certiorari case, should

have played no part in the disposition of that mandamus proceeding.

More troubling is our decision two years later in Jay Properties Beach

Condo LLC v. Wells Fargo Bank, N.A., 146 So. 3d 34 (Fla. 2d DCA 2013) (table

decision) (text of order available at 2013 WL 6905332). There, we denied an

emergency petition for writ of certiorari apparently on the ground that "[a] claim that the

trial court erred by scheduling the case for trial is reviewable on appeal and not by

petition for writ of certiorari," citing Sundale. As we have seen, that is simply untrue.

Ironically, sandwiched between those two mistaken cases was our 2012

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decision in Anderson, 90 So. 3d 289, 2012 WL 2428282 *1. In that mandamus case we

quashed an order denying the petitioner's motion for continuance of trial and ordered

further proceedings in compliance with rule 1.440. Unsurprisingly, Sundale was not

mentioned in that order.

We discuss these dispositions because Bollea emphasizes Jay Properties

in the response he filed in this case. He maintains that it is controlling here, and that we

cannot grant the Gawker defendants the relief they seek without departing from our own

precedent. But the fact is that we are not bound by the results or reasoning in any of

those cases. The reason is that Dolan, Jay Properties, and Anderson all were

unpublished dispositions. The disposition orders are discoverable online, but they were

not meant to be printed in the official reporter of this court's decisions. Indeed, in the

printed reporter they appear merely as entries among the table decisions; the

associated "opinions" are not reproduced. As such, they have no precedential value.

See Citizens Prop. Ins. Corp. v. Ashe, 50 So. 3d 645, 651 n.3 (Fla. 1st DCA 2010).

They do not enunciate the law of this district, and they are of no consequence to our

decision today.

We grant the petition for writ of mandamus. The circuit court shall

straightaway rescind its June 19, 2015, order setting this action for trial and remove the

action from the July 6, 2015, trial docket. This direction is effective immediately, and it

shall remain in force notwithstanding the filing of a motion for rehearing, if any.

CASANUEVA and CRENSHAW, JJ., Concur.

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