Centennial Bank v. ServisFirst Bank Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CENTENNIAL BANK,

Plaintiff,

v. Case No: 8:16-cv-88-CEH-CPT

SERVISFIRST BANK INC.,

GREGORY W. BRYANT, GWYNN

DAVEY, PATRICK MURRIN and

JONATHAN ZUNZ,

Defendants.

___________________________________/

ORDER

This matter comes before the Court on Third-Party/Counter-Defendant John

W. Allison’s Dispositive Motion for Final Summary Judgment [Doc. 450] in which

Plaintiff/Counter-Defendant Centennial Bank joined [Doc. 541], Gregory W.

Bryant’s Opposition [Doc. 492], John W. Allison’s Reply [Doc. 511], and the Joint

Statement of Agreed Material Facts [Doc. 501]. In his motion, Mr. Allison presents

several arguments as to why the Court should enter judgment as a matter of law on

Mr. Bryant’s counterclaim against him for defamation. The Court heard arguments on

November 13, 2020 [Doc. 744]. Having reviewed the evidence presented and

considered the arguments of counsel, the Court will GRANT Third-Party/Counter-

Defendant John W. Allison’s and Plaintiff/Counter-Defendant Centennial Bank’s

Dispositive Motion for Final Summary Judgment.

I. BACKGROUND AND FACTS1

Undisputed Material Facts

On June 17, 2015, Home BancShares, Inc. and its wholly-owned entity

Centennial Bank entered into an Agreement and Plan of Merger with Florida Business

BancGroup, Inc. and its wholly-owned entity Bay Cities Bank. [Doc. 501 ¶ ¶ 2, 14].

At the time, Mr. Bryant served as the President/CEO of Bay Cities. [Doc. 263 at p. 61

¶ 7, Doc. 37 ¶ 3]. By an agreement bearing the same date, Mr. Bryant also agreed to

employment with Centennial. [Doc. 199-2 at pp. 69-76]. A press release was issued

that same day and news of the merger was published by the Tampa Bay Business

Journal (“the Journal”). [Doc. 450-11; Doc. 450-7 at pp. 25-34]. On October 1, 2015,

Centennial acquired Bay Cities. [Doc. 391 ¶ 8].

On December 31, 2015, Mr. Bryant emailed his letter of resignation as Regional

President for the Tampa Bay region to Centennial’s President and CEO, Tracy French.

[Doc. 501 ¶ 21; Doc. 450-2 at p. 57]. Mr. Bryant also emailed resignation letters from

Patrick J. Murrin who served as Chief Lending Officer for the Tampa Bay Division;

Gwynn Davey who served as Market President for Hillsborough County; and

Jonathan Zunz who served as a Commercial Loan Officer II. [Doc. 501 ¶ 21; Doc. 38

¶ 3; Doc. 450-a at p. 74; Doc. 40 ¶ 3]. On January 4, 2016, the Journal ran a story that

1 The Court has determined the facts, which are undisputed unless otherwise noted, based on

the parties’ submissions, including affidavits/declarations, depositions, responses to requests

for admission, and the Joint Statement of Agreed Material Facts.

“[t]wo months after Centennial Bank bought Bay Cities Bank, the former president

and CEO of Bay Cities has left.” [Doc. 450-7 at p. 53].

Centennial’s founder and chairman John Allison found out “fairly quickly” that

Bryant and the others might have been leaving for ServisFirst Bank and made a call

about this to ServisFirst’s CEO Thomas Broughton “pretty early in January.” [Doc.

450-2 at p. 44: l. 6 – p. 45: l. 15]. The two “were friends.” Id. at p. 38: l. 11-12; Doc.

450-4 at pp. 14, Tr. 228: l. 1 -12. During the call, Mr. Allison asked Mr. Broughton if

he had hired Mr. Bryant and why he had done so. [Doc. 450-2 at p. 38: l. 1 – l. 10;

450-4 at p. 14, Tr. 22: l. 12 – l. 23]. Mr. Allison also stated that he would have

eventually fired Mr. Bryant because Tampa Bay was Centennial’s worst performing

region. [Doc. 35-1; Doc. 450-2 at p. 38: l. 13 – l.14; Doc. 450-4 at p. 14, Tr. 228: l. 11

– l. 15].

Shortly after, Mr. Bryant, Mr. Davey, and Mr. Murrin were each sent copies of

their agreements with Centennial, reminded of their non-compete and non-solicitation

obligations, and admonished not to breach the non-solicitation and non-compete

provisions. [Doc. 501 ¶ 22]. Mr. Zunz and Mr. Broughton were also advised to refrain

from any acts which would violate the obligations of the non-compete or non-

solicitation provisions in Mr. Bryant’s, Mr. Davey’s, or Mr. Murrin’s agreements with

Centennial. Id. ¶¶ 23, 24. On January 14, 2016, Centennial filed suit against ServisFirst

and Mr. Bryant, alleging among other things that its former employees had engaged

in a pattern of actionable misconduct by leaving their senior positions in an

orchestrated manner in order to directly compete with Centennial as new employees

of ServisFirst. [Doc. 1 ¶ 7]. The Journal ran a news story about the lawsuit that same

day. [Doc. 4507 at pp. 59-60]. The following day Centennial moved for an order

temporarily and permanently enjoining ServisFirst, Mr. Bryant, Mr. Davey, Mr.

Murrin, and Mr. Zunz from engaging in their “actionable misconduct” pending the

Court’s adjudication of the claims asserted in the complaint. [Doc. 4 at p. 1]. The

Journal also published a story about “the newest bank in Tampa Bay,” ServisFirst.

[Doc. 450-7 at p. 62]. The story was accompanied by a picture of Mr. Bryant, who was

identified as “former president and CEO of Bay Cities Bank and former Tampa

division president – briefly – for Centennial Bank after Centennial bought Bay Cities.”2

Id.

On January 21, 2016, Home Bancshares had a scheduled earnings call with

investors to discuss its fourth quarter 2015 performance. [Doc. 501 ¶ 25]. During that

meeting, Mr. Allison made the following statement:

Asset quality remained good except for, as always, when

we buy new a new bank. We bought Tampa, and we’ve got

to go in and clean that up - clean that mess up as always.

We’ve got about $23 million worth of non- performing and

past due loans are about 5% and it really was the only one

that ticked up, but it pulled our totals up just a little bit, but

we’ll get through that before too long as we always do. $23

million is something that we can deal with. The good news

is the CEO and the CLO are no longer with us.

2 The Journal had previously reported on January 11, 2016, that Mr. Bryant had joined

ServisFirst and had set up a loan production office in Lutz, Paso County—because of his one-

year employment agreement with Centennial—and hoped to have branches in Hillsborough

County upon expiration of his noncompete restrictions. [[450-7 at p. 57].

Id. Details of the call were published by the Journal on January 26, 2016, in a story

titled “ServisFirst celebrates, Centennial bashes well-known Tampa banker.” [Doc.

450-7 at pp. 64-65].

Procedural history

On November 14, 2016, Centennial filed a second amended complaint adding

Ms. Davey, Mr. Murrin, and Mr. Zunz as defendants. [Doc. 199]. Mr. Bryant

answered that complaint on November 29, 2017 and filed a counterclaim against

Centennial and Mr. Allision for defamation. [Doc. 263 at pp. 61-65]. The counterclaim

specifically identified Mr. Allision’s statements to Mr. Broughton during the January

7, 2016, telephone call and his statements during the corporate earnings call on

January 21, 2016 and alleged that these statements—made on Centennial’s behalf—

damaged him. Id. ¶¶ 14, 15, 22. Additionally, Mr. Bryant alleged that these statements

may have been knowingly and deliberately false based on verified allegations in the

amended complaint that he was a talented banker who built Bay Cities Bank into a

“robust” institution for which Centennial agreed to pay a record amount of money. Id.

¶¶ 17-21.

After months of discovery and motion practice, Mr. Allison moved for

summary judgment on the counterclaim for defamation. [Doc. 450]. First, Mr. Allison

contends that because Mr. Bryant is a “public figure” he must show that the statements

were made with actual malice and he cannot do so. Id. at pp. 29-37. In fact, Mr. Allison

posits that the statements are not actionable because they constitute rhetorical

hyperbole or opinion. Id. at pp. 33-36. Mr. Allison further contends that summary

judgment is warranted even if the Court determines that Mr. Bryant is not a public

figure as there is no evidence that he was negligent in making his statements about

Bryant; he relied on information provided to him by reliable sources. Id. at pp. 37-38.

Moreover, Mr. Allision contends that Mr. Bryant has no evidence of injury, as he

suffered no demotion, loss of pay or loss of authority, and was promoted at ServisFirst

Bank. Id. at p. 38. Mr. Allison further argues that a qualified privilege, under common

law, extends to his speech and the showing of express malice required to overcome

this privilege has not been shown. Id. at pp. 39-41. Mr. Allison also argues that

dismissal is required pursuant to Florida Statutes § 770.01 because Mr. Bryant did not

provide him with notice five days prior to filing suit of the specific words alleged to be

false and defamatory as the statute requires. Id. at pp. 41-42. Lastly, he argues that

summary judgment is required on the punitive damage claim as both constitutional

actual malice and common law express malice are required to sustain any recovery of

punitive damages in a defamation action and Mr. Bryant can show neither. Id. at p 42.

In his response, Mr. Bryant has called into question the contradiction between

Mr. Allison’s two statements and the allegations in the Verified Amended Complaint

“which depicted [Mr.] Bryant as a talented banker whose departure crippled

Centennial and destroyed the purpose of the Bay Cities acquisition.” [Doc. 492 at pp.

6-7. First, he argues that he is neither a public figure for all purpose nor for a limited

purpose, such that he is only required to establish that Mr. Allison was negligent in

making the statements at issue. Id. at pp. 7-13. But, he contends that genuine issues of

fact preclude summary judgment on the issue of Mr. Allison’s negligence. Id. at pp.

18. On the one hand, he explains that Mr. Allison purports to have evidence that in

making the statements he relied on information provided to him by Kevin Hester, the

bank’s chief lending officer. Id. On the other hand, he states that if it turns out that Mr.

Hester’s information was false, Mr. Allison would have jumped the gun in making his

statements and would have been at least negligent. Id. At the same time, he contends

that even though proof of actual malice isn’t required, there are contradictions between

Mr. Allison’s statements and the allegations in the complaint and interrogatory

responses, which entwine his counterclaim with Centennial’s claims, and are sufficient

to defeat summary judgment. Id. at pp. 13-17. Mr. Bryant further contends that the

common law privilege does not apply and that the protections afforded by the Florida

Statutes only extend to members of the media. Id. at pp. 19-21.

Mr. Allison filed a reply, explaining that all the material facts are not in dispute,

and again defending each of his grounds for summary judgment. [Doc. 511]. There,

he described Mr. Bryant as “a civic leader in Tampa Bay . . . for more than 30 years”

who “reigned over an institution that provided extensive financing to businesses large

and small, amassing for itself assets of more than $500 million;” “regularly accessed

the media;” and “used his post to become a statewide figure, playing a prominent role

in influencing state and federal legislative and regulatory decisions,” which rendered

him a pervasive public figure in his community. Id. at pp. 10-11. According to Mr.

Allison, Mr. Bryant also meets the requirements to qualify as a limited purpose public

figure or a vortex public figure at the center of a public controversy. Id. at p. 11-12.

Among other things, Mr. Allison argues that Mr. Bryant cannot make the threshold

showing that the statements were substantially false, and that Mr. Allison made the

statements with actual malice. Id. at pp. 13-16.

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, show there is no

genuine issue as to any material fact and that the moving party is entitled to judgment

as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). Issues of fact are “genuine only if a reasonable jury, considering the evidence

present, could find for the nonmoving party,” and a fact is “material” if it may affect

the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the

court must consider all the evidence in the light most favorable to the nonmoving

party. Celotex, 477 U.S. at 323.

The moving party bears the initial burden of stating the basis for its motion and

identifying those portions of the record demonstrating the absence of genuine issues of

material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show

the court that there is “an absence of evidence to support the nonmoving party’s case.”

Celotex, 477 U.S. at 325. When the moving party has discharged its burden, the

nonmoving party must then designate specific facts showing that there is a genuine

issue of material fact. Id. at 324. However, a party cannot defeat summary judgment

by relying upon conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x

852, 858 (11th Cir. 2006). Likewise, “[a] ‘mere existence of a scintilla of evidence’

cannot suffice to create a genuine issue of material fact.” Johnson v. New Destiny

Christian Ctr. Church, Inc., No. 19-11070, 2020 WL 5289881, at *3 (11th Cir. Sept. 4,

2020) (quoting Anderson, 477 U.S. at 252).

III. DISCUSSION

Under Florida law, defamation has these five elements: “(1) publication; (2)

falsity; (3) the statement was made with knowledge or reckless disregard as to the

falsity on a matter concerning a public official, or at least negligently on a matter

concerning a private person; (4) actual damages; and (5) the statement must be

defamatory.” Turner v. Wells, 879 F.3d 1254, 1262 (11th Cir. 2018) (citing Jews For

Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106 (Fla. 2008)). Mr. Bryant has raised issues as

to the falsity of the statements, the presence of malice or negligence, as well as the

existence of an injury. [Doc. 450 at pp. 26-38].

a. Falsity

“A false statement of fact is the sine qua non for recovery in a defamation

action.” Hallmark Builders, Inc. v. Gaylord Broad. Co., 733 F.2d 1461, 1464 (11th Cir.

1984) (citing Byrd v. Hustler Magazine, Inc., 433 So.2d 593, 595 (Fla.App.1983)); see also

Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1308 (11th Cir. 2001) (“[A]

statement must be false to be libelous.”). Without falsity, a claim for defamation

cannot lie. For example, in Dunn v. Air Line Pilots Ass'n, 193 F.3d 1185, 1188 (11th Cir.

1999), the appellate court held that that the district court for the Southern District of

Florida had correctly granted summary judgment against the pilots on their libel

claims—against the Air Line Pilots Association—for failure to show falsity in listing

them as “scabs.” In so holding, the court reasoned that considering the undisputed

facts, a reasonable reader of defendant’s list of “The Scabs of Eastern of the Strike of

'89” would interpret it as a list of those pilots who crossed the union's picket lines and

worked during the 1989 work stoppage, and because the pilots admitted that they had

crossed picket lines to work during that 1989 work stoppage, defendant’s listing of

them as “scabs” was factually true. Id. at 1194.

Addressing this element of defamation, the Eleventh Circuit recently stated:

True statements, statements that are not readily capable of

being proven false, and statements of pure opinion are

protected from defamation actions by the First

Amendment. Keller v. Miami Herald Publ'g Co., 778 F.2d 711,

714–15, 717 (11th Cir. 1985) (applying Florida law); Blake

v. Giustibelli, 182 So.3d 881, 884 n.1 (Fla. Dist. Ct. App.

2016) (“Statements of pure opinion are not

actionable.”); Anson v. Paxson Commc'ns Corp., 736 So.2d

1209, 1211 (Fla. Dist. Ct. App. 1999); Miami Child's World,

Inc. v. Sunbeam Television Corp., 669 So.2d 336, 336 (Fla.

Dist. Ct. App. 1996).

Under Florida law, a defendant publishes a “pure opinion”

when the defendant makes a comment or opinion based on

facts which are set forth in the publication or which are

otherwise known or available to the reader or listener as a

member of the public. From v. Tallahassee Democrat, Inc., 400

So.2d 52, 57 (Fla. Dist. Ct. App. 1981). Mixed expression

of opinion occurs when an opinion or comment is made

which is based upon facts regarding the plaintiff or his

conduct that have not been stated in the publication or

assumed to exist by the parties to the

communication. Id.; Stembridge v. Mintz, 652 So.2d 444, 446

(Fla. Dist. Ct. App. 1995).

Whether the statement is one of fact or opinion and whether

a statement of fact is susceptible to defamatory

interpretation are questions of law for the court. Keller, 778

F.2d at 715; Fortson v. Colangelo, 434 F.Supp.2d 1369, 1379

(S.D. Fla. 2006); From, 400 So.2d at 56-57. When making

this assessment, a court should construe statements in their

totality, with attention given to any cautionary terms used

by the publisher in qualifying the statement. Keller, 778 F.2d

at 717. It is also the court's function to determine “whether

an expression of opinion is capable of bearing a defamatory

meaning because it may reasonably be understood to imply

the assertion of undisclosed facts that justify the expressed

opinion about the plaintiff or his conduct.” Stembridge, 652

So.2d at 446 (quoting Restatement (Second) of Torts § 566,

comment c).

Turner, 879 F.3d at 1262-63. See Hamze v. Cummings, 652 F. App'x 876, 881 (11th Cir.

2016) (“Jenne's June 2007 statements to the media are not actionable because they

were either statements of opinion or true statements. Jenne's expression of his opinion

that Hamze's crime was ‘a brutal, senseless, roadrage killing’ that showed a ‘disregard

for human life[]’ . . . cannot support a claim for defamation. And, as alleged in the

complaint, Jenne's statement that he intended to charge Hamze with first degree

murder was substantially true.”). “[A] speaker cannot invoke a ‘pure opinion’ defense,

[however,] if the facts underlying the opinion are false or inaccurately presented.” Deeb

v. Saati, 778 F. App'x 683, 687–88 (11th Cir. 2019).

To illustrate what qualifies as a pure opinion, the Supreme Court in Milkovich v.

Lorain Journal Co., 497 U.S. 1, 18-19 (1990), explained that the statement, “In my

opinion Mayor Jones is a liar” would be actionable because the speaker “implies a

knowledge of facts which lead to the conclusion that Jones told an untruth.” However,

the Court noted that the statement “ ‘In my opinion Mayor Jones shows his abysmal

ignorance by accepting the teachings of Marx and Lenin,’ would not be

actionable.” Id. at 20. The Court reasoned that “a statement of opinion relating to

matters of public concern which does not contain a provably false factual connotation

will receive full constitutional protection.” Id. (with reference to Philadelphia

Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)).

In Turner, the Eleventh Circuit considered several statements made in an

investigative report prepared by a law firm hired to investigate allegations of bullying

within the Miami Dolphins professional football organization. 879 F.3d at 1259, 1263.

One of the statements was that on at least one occasion plaintiff had participated in

“homophobic taunting” of a particular player. Id. at 1264. The court found that the

statement was an opinion as it was the defendants' subjective assessment of the

plaintiff’s conduct—as outlined in the investigative report—and was not readily

capable of being proven true or false. Id. The court also found that statements in the

report that plaintiff “should have realized that it was inappropriate to send [certain]

text messages to an emotionally troubled player” and that this “demonstrated poor

judgment on [plaintiff’s] part” were also not actionable as they were pure opinions. Id.

at 1266. See also Keller, 778 F.2d at 717-718 (holding that a newspaper cartoon's

suggestion that plaintiff acted objectionably by taking advantage of patients at

Krestview Nursing Home constituted a statement of pure opinion as “[t]he facts upon

which the statement was based were contained in the cartoon: the condition of the

nursing home and the large amount of money the ‘Boss’ had made” and “the facts . .

. had been well publicized so that . . . readers were aware of the series of events upon

which the cartoonist based his opinion.”).

The Court agrees with Mr. Allison that his statement to Mr. Broughton, that he

would have fired Mr. Bryant eventually because Tampa Bay was Centennial’s worst

performing region is a statement of pure opinion. Again, “[a] ‘pure opinion’ is ‘a

comment or opinion based on facts which are set forth in the publication or which are

otherwise known or available to the reader or listener as a member of the public.’ ”.

Deeb, 778 F. App'x at 687 (quoting Turner, 879 F.3d at 1262). The comment that Mr.

Bryant would have been fired eventually is based on facts presented in the statement

that Tampa Bay had the worst performance. The statement did not leave anything to

implication. Milkovich, 497 U.S. at 18-19. Mr. Bryant has presented no evidence that

the facts underlying the opinion are false or inaccurately presented.3 Therefore, as a

matter of law, a claim cannot lie as to Mr. Allison’s statement to Mr. Broughton.

“[S]tatements of pure opinion are protected from defamation actions by the First

Amendment.” Turner, 879 F.3d at 1262 (citing Keller, 778 F.2d at 714–15, 717).

Likewise, Mr. Allison’s statement, during the corporate earnings call, that Mr.

Bryant’s departure from Centennial is “good news” and that Centennial had to clean

up a mess when it acquired Bay Cities, including $23 million in non-performing loans

3 In fact, as Mr. Allison notes in the reply, Mr. Bryant does not contest that Tampa was

Centennial’s worst performing bank or that Mr. Allison would have fired him. [Doc. 511 at

p. 16].

and past due loans of 5 percent,4 also constitutes pure opinion. This is because the

opinion that it was “good news” that Mr. Bryant was no longer with Centennial was

accompanied by the factual statements as to the value of non-performing loans and

percentage of past due loans acquired following the merger. Mr. Allision provided a

factual reason for his opinion and there is no implication that there are any undisclosed

facts, which serve as the basis for that opinion. As is the case with the other statement,

Mr. Bryant does not claim that the facts underlying the opinion are false or

inaccurately presented.5 Hence, judgment as a matter of law is warranted as to the lack

of falsity of these statements. Because Mr. Bryant cannot establish falsity, the Court

need not consider the remaining elements of defamation and the counterclaim fails as

a matter of law. However, the Court will consider the issue of Mr. Bryant’s status as

a public figure.

b. Malice regarding a public figure

The absence of malice provides another independent basis for summary judgment

in this case. It has long been established that “[i]f the injured party is a public figure or

official and the defamatory material involves issues of legitimate public concern, the

4 In contending that Mr. Bryant has sued on three statements, Mr. Allison presents these

allegations as two defamatory statements. [Doc. 450 at p. 27, Doc. 511 at p. 15]. However,

the Court construes these allegations, both raised in the same paragraph of the counterclaim,

as one defamatory statement. See generally Mahoney v. Owens, 818 F. App'x 894, 898 (11th Cir.

2020) (“[I]n making the necessary preliminary determination of what claims the plaintiff has

actually raised ... we are bound by the contents of the plaintiff's pleadings, even

on summary judgment.”) (quoting Bochese v. Town of Ponce Inlet, 405 F.3d 964, 976 (11th Cir.

2005)).

5 Mr. Allison points out that Mr. Bryant does not contest the assertion that he left Centennial

holding $23 million in non-performing or past due loans. Id.

plaintiff must prove that the defendant acted with actual malice to establish liability.”6

Silvester v. Am. Broad. Companies, Inc., 839 F.2d 1491, 1493 (11th Cir. 1988) (collecting

cases). Proof of actual malice is required in such situations “[b]ecause of the expressive

freedom guaranteed by the First Amendment.” Berisha v. Lawson, 973 F.3d 1304, 1310

(11th Cir. 2020). To show actual malice, a plaintiff must show that the “defendant[]

published the defamatory material with a ‘high degree of awareness of ... [its] probable

falsity.’ ” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 216, 13

L.Ed.2d 125 (1964)).

i. Mr. Bryant is a public figure

“Determining whether an individual is a public figure—and thus subject to the

actual malice analysis—is a question of law for the court to decide.” Michel v. NYP

Holdings, Inc., 816 F.3d 686, 702 (11th Cir. 2016). “An individual may qualify as a

public figure either generally—that is one with such fame and notoriety that he will be

a public figure in any case—or for only ‘limited’ purposes, where the individual has

thrust himself into a particular public controversy.” Berisha, 973 F.3d at 1310

(citing Turner v. Wells, 879 F.3d 1254, 1272 (11th Cir. 2018)). “We apply a two-part

test to determine whether someone is a limited public figure: ‘First, [we] must

determine whether the individual played a central role in the controversy. Second, [we]

6 To the contrary, a private figure need only establish negligence to recover for defamation.

Miami Herald Pub. Co. v. Ane, 458 So. 2d 239, 242 (Fla. 1984); Rubin v. U.S. News & World

Report, Inc., 271 F.3d 1305, 1306 (11th Cir. 2001) (stating same); see also Straw v. Chase Revel,

Inc., 813 F.2d 356, 361–62 (11th Cir. 1987) (“[A]lthough a private figure can recover

compensatory damages upon a showing of simple fault or negligence, to recover punitive

damages the aggrieved party must meet the New York Times standard of actual malice.”).

must determine whether the alleged defamation was germane to the individual's role

in the controversy.’ ” Id. (quoting Turner, 879 F.3d at 1272); see also Little v. Breland, 93

F.3d 755, 757 (11th Cir. 1996) (stating that “to determine if the plaintiff is a limited

purpose public figure . . . we must ‘(1) isolate the public controversy, (2) examine the

plaintiff's involvement in the controversy, and (3) determine whether the alleged

defamation [was] germane to the plaintiff's participation in the controversy’ ”)

(quoting Silvester v. Am. Broad. Cos., 839 F.2d 1491, 1494 (11th Cir. 1988)).

The Eleventh Circuit has explained that:

Two “fundamental” criteria help draw the line between

public and private figures: (1) “public figures usually have

greater access to the media which gives them a more

realistic opportunity to counteract false statements than

private individuals normally enjoy”; and, more

importantly, (2) public figures typically “voluntarily expose

themselves to increased risk of injury from defamatory

falsehoods.”

Id. (quoting Silvester, 839 F.2d at 1494). “For the most part those who attain this status

[of public figure] have assumed roles of especial prominence in the affairs of society.”

Hutchinson v. Proxmire, 443 U.S. 111, 134, 99 S. Ct. 2675, 2687–88, 61 L. Ed. 2d 411

(1979). They usually “invite attention and comment.” Id. at 134.

The record before the Court shows that over the years—from as early as the

year 2000—Mr. Bryant has been quoted and pictured in the Journal in relation to the

affairs of Bay Cities during his time at the helm of that bank and in relation to the

banking industry. [Doc. 450-6 at pp. 5, 8-9, 11-12, 13-14, 15-17, 18-19, 20-21, 29-30,

31-32, 33-35, 37, 39-41, 43-44, 46, 47-49, 50-51, 53-54, 79]. He was also featured in a

number of articles in that publication regarding Centennial’s acquisition of Bay Cities.

[Doc. 450-7 at pp. 25-26, 27, 28, 29, 32-33, 34, 42]. Shortly after he informed

Centennial of his resignation, the Journal ran a story about it. Id. at pp. 53. The Journal

also reported that he joined ServisFirst after he resigned, and that Centennial had filed

a lawsuit against both Mr. Bryant and his new employer. Id. at pp. 57, 59-60, 62, 64-

65.

The undisputed evidence easily qualifies Mr. Bryant as a public figure for the

limited purpose of the banking profession and the merger between Centennial and Bay

Cities under Mr. Bryant’s leadership and Mr. Bryant’s departure to ServisFirst shortly

after. He is undoubtedly the central figure in the controversy, which according to the

complaint is the “orchestrated relocation of Bryant, Murrin, Davey, and Zunz . . .

from Centennial to ServisFirst, shortly after Centennial’s acquisition of the Departed

Officers’ former employer, Bay Cities Bank.” [Doc. 199 ¶ 10].

To determine whether the first part of the test is satisfied, the Court considered

the press surrounding the sale of Bay Cities to Centennial. Forty-three banks were

initially approached to buy Bay Cities and eight of those banks submitted initial bids.

[Doc. 501 ¶¶ 6, 7, 9]. It was Centennial that emerged as the ultimate buyer, executing

the agreement to merge on June 17, 2015. Id. ¶ 14. According to a story in the Journal

the following day, “[t]he $101.6 million purchase price . . . is the second-highest price

paid for a bank in Florida since 2007, and the highest price paid for a bank that's under

$1 billion in assets.” [Doc. 450-7 at p. 25]. The Journal further reported that “[a]ll of

Bay Cities top executives plan to stay with Centennial, including Bryant, who will

oversee banking activities in greater Tampa Bay.” Id. at p. 26. In his “exclusive

interview” with the Journal for the story, Mr. Bryant remarked that Centennial was

“paying a big price for [Bay Cities]” and that “[y]ou just don't pay a big premium for

someone and then fundamentally change what they do and what they're about and the

people." Id. In fact, the Journal specifically reported in subsequent stories that “all of

the bank's top executives plan to stay with Centennial, and customer-facing employees

won't be affected by the deal, although some back-office workers may be impacted.”

Id. at pp. 28, 30.

On December 31, 2015, Mr. Bryant emailed his letter of resignation to

Centennial’s president and he also attached the resignations of Mr. Murrin, Ms.

Davey, and Mr. Zunz. [Doc. 501 ¶ 21]. The news was reported a few days later in the

Journal, which described Mr. Bryant as “a key player in negotiating Bay Cities' $104

million sale to Centennial.” [Doc. 450 at p. 53]. The following week, the Journal

reported that Mr. Bryant had “joined ServisFirst Bank as CEO for Tampa Bay” and

that Centennial had filed a lawsuit related to this. Id. a pp. 57, 59. The evidence before

the Court shows continued coverage by the Journal regarding the developments

following the merger between the two banks and a focus on Mr. Bryant’s role, as the

“key player,” in these events. He has provided no evidence to the contrary.

Moreover, the statements made by Mr. Allison were certainly germane to Mr.

Bryant’s involvement in the controversy, thus satisfying the second part of the test as

to whether one qualifies as a public person for a limited purpose. The first statement,

that Mr. Allison would have eventually fired Mr. Bryant because Tampa Bay was

Centennial’s worst performing region, goes directly to Mr. Bryant’s departure from

Centennial. It is the departure from Centennial that has given rise to this lawsuit and

by his statement, Mr. Allison certainly offered comment related to Mr. Bryant’s

continued occupation with the bank had he not left for ServisFirst. Likewise, the

statements during the earnings call that “[t]he good news is the CEO[, Mr. Bryant,]

and the CLO are no longer with us” because Centennial had to go in and “clean that

mess up” and there was about $23 million worth of non- performing and about 5%

past due loans, also relate directly to Mr. Bryant’s exit from the bank as regional

president and the reason Mr. Allison believes this was “good news.”

As Mr. Allison contends, Mr. Bryant’s role and conduct has invited attention,

comment, and criticism. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974);

Silvester, 839 F.2d at 1494. Based on his involvement in the merger of the banks and

his role in providing comments to the Journal on this and other issues in banking in

the Tampa Bay area, the Court finds that Mr. Bryant is clearly a public figure for a

limited purpose, his participation in the banking industry. As such, for liability to exist

there must be a showing that Mr. Allison acted with malice.7 Silvester, 839 F.2d at

1493.

ii. No proof of actual malice

7 While the Court need not address whether Mr. Bryant also qualifies as a public figure for all

purposes, the evidence presented does not reflect that Mr. Bryant has the “persuasive power

and influence” that is characteristic of one who is a public figure for all purposes. Hutchinson,

443 U.S. at 134. Additionally, the Court need not consider whether common law protections

or those provided by the Florida Statutes apply.

Because Mr. Bryant is a public figure, proof of actual malice—by clear and

convincing evidence—is required. Berisha, 973 F.3d at 1310, 1312. To show actual

malice, a plaintiff must show that the “defendant[] published the defamatory material

with a ‘high degree of awareness of ... [its] probable falsity.’ ” Id. at 1312 (quoting

Garrison, 379 U.S. at 74). “It is a subjective test, which asks whether the publisher ‘in

fact entertained serious doubts as to the truth of his publication.’ ” Id. (quoting Silvester,

839 F.2d at 1498). Mr. Allison argues that even if Mr. Bryant could offer evidence as

to the falsity of the statements, the Court could not also conclude that a reasonable

jury could find with convincing clarity that when he made his statements to Broughton

and to the investors, he knew that his statements about Mr. Bryant were false or that

he recklessly disregarded the truth. [Doc. 450 at pp. 36-37]. Mr. Allison explains that

when he made the statements Centennial had only just begun to uncover facts relating

to self-dealing that Mr. Bryant had engaged in and actively concealed. Id. at pp. 12-14,

19-20, 33-37. Mr. Allison also argues—in the section on negligence—that he relied on

information available from his reliable team of bank officers when he made the

statement to Mr. Broughton and when he spoke during the earnings conference call.

Id. at pp. 37-38.

Mr. Bryant contends that Mr. Allison displayed extreme personal animosity and

express malice towards him. [Doc. 492 at pp. 4-6, 15]. In fact, he claims that Mr.

Allision concluded that he deserved to pay. Id. at p. 15. Allegedly, Mr. Allison was

upset because: (i) Centennial paid more for Bay Cities than Allison wanted to pay; (ii)

Hovde8 negotiated stock for Bryant (which Bryant abandoned before it vested); and

(iii) after the merger closed, Bryant decided he did not want to work for Centennial

“forever.” Id. at p. 6. Mr. Bryant also notes that Mr. Allision’s statements conflicted

with the claims in the verified complaint, which depicted him as a talented banker

whose departure crippled Centennial and destroyed the purpose of the acquisition. Id.

at pp. 6-7.

The evidence before the Court does not reflect an issue of fact as to whether Mr.

Allision made the statements at issue with a “high degree of awareness of ... [their]

probable falsity.” Berisha, 973 F.3d at 1310 (internal quotes omitted). As Mr. Allision

notes, in his reply, “Bryant does not contest that Tampa was Centennial’s worst

performing bank under Bryant or that Allison would have fired him.” [Doc. 511 at p.

16]. This is telling. Moreover, and importantly, it is unrefuted that regardless of

whatever animosity Mr. Allison harbored towards Mr. Bryant, he relied on

information from his team of bank officers when the statements were made.9 Id. at pp.

37-38. That Mr. Bryant was described in a verified complaint as “a mature and

experienced community banker” whose “departure inhibits growth” is by no means

indicative of whether there were nonperforming loans at the bank, whether they had

also then discovered information as to his self-dealing, and even whether they would

have still kept him on. Bryant fails to establish actual malice. Accordingly, no genuine

8 Hovde Group, LLC had been hired to market Bay Cities for sale. [Doc. 492 at p. 4 n.3].

9 Mr. Allision’s behavior towards Mr. Bryant during the deposition is not sufficient to

establish actual malice at the time the alleged defamatory statements were made, about three

years earlier.

issues of material fact exist as to whether Mr. Allison acted with actual malice when

making the statements about Mr. Bryant, a limited public figure.

IV. CONCLUSION

In sum, Mr. Allision’s statements are not actionable as they constitute pure

opinion. In making the statements at issue, Mr. Allison presented an opinion along

with facts supporting that opinion. Therefore, as a matter of law, Mr. Bryant cannot

show the falsity of the statements. Mr. Bryant also has not created an issue of fact as

to the existence of malice, which he must do as a limited public figure, a designation

warranted by his key role in the acquisition of Bay Cities by Centennial and the series

of events that unfolded afterwards, as reported in the media. Because no genuine

issues of material fact exist, Third-Party/Counter-Defendant John W. Allison is

entitled to judgment in his favor.

Accordingly, it is hereby ORDERED:

1. Third-Party/Counter-Defendant John W. Allison’s Dispositive Motion

for Final Summary Judgment [Doc. 450], in which Plaintiff/ Counter-

Defendant Centennial Bank joined [Doc. 451], is GRANTED.

2. A judgment in favor of Third-Party/Counter-Defendant John W. Allison

and Plaintiff/Counter-Defendant Centennial Bank, and against

Defendant/Third-Party Plaintiff, Gregory W. Bryant, as to the Third-

Party Counterclaim will be entered at the conclusion of this litigation.

DONE AND ORDERED at Tampa, Florida on March 10, 2020.

OC Ae Mies: Jarde Nor Ts pl el □□

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of record and unrepresented parties, if any

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