Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOSEPH M. BAIRD, ) ) Petitioner, ) ) v. ) Case No. 2D20-2550 ) MASON CLASSICAL ACADEMY, INC., ) ) Respondent. ) ___________________________________) Opinion filed April 9, 2021. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Caroline Tesche Arkin, Judge. Kelsey L. Hazzard and Todd B. Allen of Lindsay & Allen, PLLC, Naples, for Petitioner. Steven L. Brannock of Brannock, Humphries & Berman, Tampa; and Robert L. Rocke, Raul Valles, and Ian A. Parry of Rocke, McLean & Sbar, P.A., Tampa, for Respondent. KHOUZAM, Chief Judge. Joseph M. Baird seeks a writ of certiorari quashing an order denying his motion filed pursuant to Florida's Anti-SLAPP statute to dismiss the lawsuit brought against him by Mason Classical Academy, Inc. (MCA). We deny the petition. FACTUAL BACKGROUND AND PROCEEDINGS BELOW MCA operates a charter school in Collier County. Mr. Baird enrolled his children at MCA and, for a time in 2016, served on MCA's board of directors as its treasurer. In early 2018, Mr. Baird's children withdrew from MCA in favor of homeschooling. Although the parties dispute various details, suffice it to say that the relationship between Mr. Baird and MCA soured after the withdrawal. In June 2018, Mr. Baird submitted a complaint to the Florida Department of Education Office of the Inspector General alleging a variety of illegal activity and improper conduct by MCA and its board, including fraud, Sunshine Law violations, verbal abuse of students and parents, and lack of financial oversight. Mr. Baird's complaint asserted that he had personally witnessed the illegal and suspicious behavior over the years but was not "able to speak freely without fear of retaliation" until after his children had been withdrawn. Mr. Baird selected the "Yes" response where the complaint form asked: "Have you notified anyone else or any other agency of the allegation(s)?" and asserted that some of his concerns were corroborated by "similar stories from many parents, students and teachers." Upon receiving the complaint, the Department of Education determined that it lacked jurisdiction and referred the complaint to the Collier County School District. The District in turn assigned counsel to investigate the allegations and prepare a report. Mr. Baird assisted with the investigation beginning in 2018, although MCA alleges it was not "officially informed" of the investigation until April 2019, shortly before the report was -2- issued.1 The report ultimately substantiated some of Mr. Baird's allegations, rejected others, and identified yet other issues of "serious concern" that Mr. Baird had not raised. While the District's investigation was ongoing, in November 2018, Mr. Baird posted on social media a twenty-four-page document titled, "What's Wrong with MCA? What happens when charter schools are given unlimited power and no accountability." It alleged a variety of conduct by MCA that was either illegal or unsavory, including falsifying documents, destroying public records, holding illegal meetings, and having conflicts of interest. In the post, Mr. Baird disclosed his complaint to the Department, which he asserted contained allegations that "could result in felony charges," and expressly invited individuals to "come forward" to help build the case of misconduct by MCA and its individual board members. Mr. Baird later reposted the document in June 2019, "for anyone who may have missed it the first time around back in November." Also in November 2018, Mr. Baird contacted Hillsdale College, a private Michigan school with which MCA had a contractual relationship. Mr. Baird emailed a Hillsdale representative the document he had posted to social media, which he called "a comprehensive report detailing all of the allegations regarding [MCA] that I have reported to" the District's investigator, and stated his belief that "some of the allegations could result in felony charges." Hillsdale College later terminated its contractual relationship with MCA, citing the District's investigation report. Later, in June 2019, Mr. Baird also posted on social media a twenty-one- 1The limited record before this court suggests that MCA was aware of the investigation during 2018, albeit perhaps "unofficially." -3- page document titled "Rebuttal to Shawn Arnold's 12/5/2018 comments in the Naples Daily News," asserting that MCA's attorney had made "false and defamatory" statements "in an effort to discredit" Mr. Baird and his "allegations of dishonesty among the MCA board members and administration." Mr. Baird asserted he had written the document previously but "kept it private" for use in his defense "in the event of a defamation lawsuit." He asserted he was now releasing it "in order to show the depth of dishonesty that I have experienced at MCA." Like his November post, this one also alleged illegal and improper conduct by MCA and its board members. Mr. Baird also reached out privately to another MCA employee in June 2019 "beg[ging]" him to come forward with additional allegations against MCA. According to the employee, Mr. Baird's communication threatened that if he did not "support [Mr. Baird's] false story," then MCA would close and the employee's children would have to find a lower quality education elsewhere. The employee declined Mr. Baird's invitation and forwarded his email to a member of MCA's board. Ultimately, MCA and the District mediated their dispute regarding the findings and recommendations of the investigation report. However, between the date when they reached a putative agreement and the date the agreement was approved, Mr. Baird again contacted the District, shared the documents he had posted on social media, and "implore[d]" the District to reject the mediated agreement, which he called "nothing short of a total capitulation" to MCA. He asserted: "If you approve this mediation agreement, you are allowing a group of individuals who is willing to destroy public records, falsify documents, and lie about it to remain in control of a taxpayer funded organization." The agreement was subsequently approved. -4- Thereafter, MCA filed a complaint against Mr. Baird, raising two counts of tortious interference. One count addressed MCA's contract with the District, and the other addressed its contract with Hillsdale College. Mr. Baird answered, then filed a "Verified Motion for Dismissal Pursuant to § 768.295, Fla. Stat." Mr. Baird's motion asserted that MCA's suit was a Strategic Lawsuit Against Public Participation which violated Florida's Anti-SLAPP statute because "MCA's causes of action for tortious interference are based exclusively upon allegations that Baird exercised his constitutional rights." Although Mr. Baird acknowledged that MCA sought to hold him liable not only for his speech to governmental entities such as the Department and the District but also for his speech "with parents of MCA students and Hillsdale College," he contended that because the subject matter of the communications addressed "matters of significant public concern and press coverage," the lawsuit violated the Anti-SLAPP statute. MCA filed a response opposing Mr. Baird's motion to dismiss, which included evidentiary submissions challenging Mr. Baird's claim of protection. After a hearing, the trial court denied the motion. The court treated the motion both as a motion to dismiss and a motion for summary judgment. It ruled both that (1) Mr. Baird had not established a prima facie case of protection and (2) even if he had, MCA had met its burden to demonstrate that its claims were not "primarily" based on the exercise of First Amendment rights and were not "without merit." Mr. Baird then filed a petition for writ of certiorari, asking this court to quash that order. ANALYSIS Mr. Baird contends that in denying his motion, the trial court departed from -5- the essential requirements of law. Among other challenges, he asserts that his speech was privileged as a matter of law, thereby precluding MCA from rebutting his claim of protection. MCA responds that, regardless of the trial court's substantive decision, certiorari review is precluded because the trial court followed the correct statutory procedure. In the alternative, MCA contends that even if certiorari jurisdiction lies, the trial court correctly denied Mr. Baird's motion. We agree with Mr. Baird that certiorari is the appropriate mechanism for review of the order denying his motion to dismiss pursuant to the Anti-SLAPP statute. But we deny the petition because we agree with MCA that Mr. Baird has not established that the trial court departed from the essential requirements of the law. "Before a court may grant certiorari relief . . . 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.' " Fountainbleau, LLC v. Hire Us, Inc., 273 So. 3d 1152, 1155 (Fla. 2d DCA 2019) (quoting Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011)). Elements (2) and (3) are jurisdictional. Id. "[C]ertiorari review is appropriate where an 'order implicates a violation of the parties' constitutional rights which cannot be remedied on plenary review.' " Gundel v. AV Homes, Inc., 264 So. 3d 304, 310 (Fla. 2d DCA 2019) (quoting Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So. 2d 1162, 1163 (Fla. 3d DCA 1999)). "That there exists a mechanism for correcting the error via postjudgment appeal is not determinative of this court's jurisdiction; 'rather, the remedy must alleviate the harm that results from the error.' " Fountainbleau, 273 So. 3d at 1155 (quoting Gundel, 264 So. -6- 3d at 311). As we explained in Gundel "[i]n the context of the Anti-SLAPP statute, the harm that results from the court's improper denial of a motion to dismiss . . . is precisely the harm that the Anti-SLAPP statute seeks to prevent—unnecessary litigation." Id. at 311 (citing ch. 2000-174, § 1, Laws of Fla.). In that regard, the Anti-SLAPP statute is akin to statutes providing immunity from suit: the protection granted is from the litigation itself, which right cannot be adequately remedied after the litigation concludes by merely vacating the resulting judgment. Id. Consequently, "if certiorari review is not available, the 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.' " Id. (quoting Keck v. Eminisor, 104 So. 3d 359, 365-66 (Fla. 2012)). Here, Mr. Baird expressly invoked a statutory right to protection from this lawsuit, alleging it violated the Anti-SLAPP statute. Thus, we have jurisdiction to consider his timely certiorari petition challenging the order denying relief. See id. at 310 (concluding that "the jurisdictional prongs of the certiorari standard have been met" in petitioner's challenge to order denying Anti-SLAPP relief). However, we cannot say the trial court departed from the essential requirements of the law. As we explained in Gundel, the Anti-SLAPP statute sets forth a burden- shifting mechanism. The "initial burden [is] on the SLAPP defendant to set forth a prima facie case that the Anti-SLAPP statute applies." Id. at 314. Upon doing so, the burden shifts "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.' " Id. -7- Mr. Baird concedes that "[t]he statutory procedure was followed." But he contends that the trial court erred both by determining that he had not made a prima facie claim of protection and by ruling in the alternative that MCA had adequately rebutted his claim. For purposes of analysis, we will assume, without deciding, that Mr. Baird established a prima facie case of protection under the statute. But even so, the trial court did not depart from the essential requirements of the law in concluding that MCA met its corresponding burden in response. Mr. Baird asserts that his communications were privileged as a matter of law under Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984), in which the Florida Supreme Court discussed standards and privileges applicable to defamation claims in the context of statements made by a parent at a public school board meeting. There, a public school teacher sued the parent of one of her students for a statement the parent had "made at a meeting of the governing board of the Broward County school district, specifically a portion of the school board meeting specially set aside for receiving the comments of members of the public." Id. at 805. Although the parties had had numerous prior interactions, only the one statement at the school board meeting was alleged to be defamatory. Id. at 805, 812. The supreme court concluded that the evidence of malice was legally insufficient to overcome the applicable privilege and remanded for a directed verdict to be entered for the defendant. Id. at 811-12. Mr. Baird contends that like the plaintiff in Nodar, MCA's evidence is insufficient as a matter of law to overcome the privilege that attached to his "statements made to public educational authorities concerning school affairs." But, as Mr. Baird acknowledged in his motion for dismissal, MCA's lawsuit is not limited to challenging -8- only Mr. Baird's statements to public educational authorities. To the contrary, MCA alleges that Mr. Baird conducted a multifaceted campaign over a course of months, both in public and in private, to interfere with MCA's contractual relationships. Although the Nodar defendant's speech to the school officials might be analogous in certain respects to Mr. Baird's communications to the Department of Education and the District, Nodar did not involve any facts comparable to Mr. Baird's other statements to nongovernmental entities now at issue, such as his social media posts, his communications with private Hillsdale College, and his private communications with others. Thus, while some of the principles discussed in Nodar may yet apply in this litigation, that decision simply does not compel dismissal at this time. In this context, we cannot say that the trial court departed from the essential requirements of the law in determining that MCA met its burden under the Anti-SLAPP statute to rebut Mr. Baird's claim of protection. We accordingly deny the petition. Denied. LaROSE and STARGEL, JJ., Concur. -9-