# San Juan Products, Inc. v. River Pools & Spas, Inc.

> District Court, M.D. Florida · February 14, 2023

URL: https://www.frixlaw.com/law-library/cases/10112068

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 14, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SAN JUAN PRODUCTS, INC. and
AMERICAN ENVIRONMENTAL
CONTAINER CORP.,

Plaintiffs,

v. Case No. 8:21-cv-2469-TPB-JSS

RIVER POOLS & SPAS, INC., et al.,

Defendants.
_____________________________________/

ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This matter is before the Court on “Defendant Thursday Pools LLC’s Motion
for Summary Judgment (Docs. 170; 179; 243), filed on January 3, 2023, and
“Defendant River Pools & Spas, Inc.’s Motion for Summary Judgment” (Doc. 200),
filed on January 11, 2023. Defendant River Pools Franchising, LLC joined in both
motions. (Doc. 204). Responses and replies were filed. (Docs. 206; 221; 227; 239;
254). Upon review of the motions, responses, replies, court file, and the record, the
Court finds as follows:
Background
Plaintiff San Juan Products, Inc. markets and distributes fiberglass
swimming pools and spas that are manufactured by Plaintiff American
Environmental Container Corp. These two corporate entities are controlled by Kirk
Sullivan. Defendants River Pools & Spas, Inc. and River Pools Franchising, LLC
directly compete with San Juan in the fiberglass pool and spa industry, and they
distribute products manufactured by Defendant Thursday Pools. Four individuals –
Bill Khamis, Ed Vondell, Jason Hughes, and Marcus Sheridan – have previously or
currently control some, or all, of the three corporate entities. The exact role and

involvement of each of these individuals in the three corporate entities named as
Defendants in this case is unclear.
In any event, this dispute arises from the publication of two articles allegedly
authored and distributed by Defendants. The publications are titled “A Complete
Review of San Juan Pools: Models, Shapes, Colors, Costs, and More” and “San Juan
Pools v. River Pools: Which Fiberglass Pool Manufacturer is Best for You.” Both

articles appeared on an internet website with the address of
https://www.riverppoolsandspas.com. The articles, which are relatively short and
conversational in tone, include between 10 and 12 pages of text regularly broken up
by various large pictures. It is undisputed that these two articles appeared on a
business website or blog controlled by at least one of Defendants for 23 and 26 days
respectively in October 2021, and they were taken down after Plaintiffs filed suit.
In addition to appearing on Defendants’ website, Plaintiffs allege the articles were

disseminated by various means to customers and pool distributors, but the scope
and extent of this additional distribution is disputed.
Plaintiffs generally allege these publications were part of a “campaign of
dirty tricks” and a concerted effort by Defendants to gain an improper competitive
advantage over Plaintiffs and others in the fiberglass pool and spa industry.
Plaintiffs argue that although the publications may appear unbiased and neutral at
first glance, each publication is “overwhelmingly negative” in tone and substance, as
Defendants present their competitors in “the worst possible light.” Plaintiffs
further assert that the publications use Plaintiffs’ trademarks in unauthorized ways

to mislead and deceive potential customers.
On October 21, 2021, Plaintiffs filed a complaint against three corporate
entities and numerous individual defendants, asserting various federal and state
claims. (Doc. 1). The individual defendants were later dismissed from the case, and
a new corporate defendant was added. Due to issues associated with identifying the
proper defendants, Plaintiffs were later granted leave to file an amended complaint,

which was filed on January 6, 2023. (Doc. 182). In the second amended complaint,
Plaintiffs assert the following eight claims: Defamation (Count 1), Defamation Per
Se (Count 2), Trade Libel (Count 3), Disparagement of Property (Count 4), Tortious
Interference with Prospective Economic Advantage (Count 5), Trademark
Infringement (Count 6), Federal False Advertisement and Unfair Competition
(Count 7), and Florida Misleading Advertising (Count 8). (Doc. 219). The second
amended complaint did not substantially diverge from the earlier complaint, so the

pending defense motions for summary judgment remain ripe for review.
Legal Standard
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A properly supported motion for summary
judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of
material fact will preclude summary judgment. Id.
The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d
1256, 1260 (11th Cir. 2004). When the moving party has discharged its burden, the
nonmoving party must then designate specific facts showing the existence of
genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or
evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of
Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).
Analysis
Individual Party Responsibility
According to Defendants, none of them has any possible legal responsibility
for anything alleged in Plaintiffs’ second amended complaint, even if the Plaintiffs’
allegations are proven true. To be clear, Defendants essentially make three distinct

arguments: (1) Plaintiffs’ allegations are not factually supported; (2) even if
Plaintiffs’ allegations were proven, the law does not provide a basis for recovery;
and (3) even if the facts and the law support recovery, no named Defendant has any
legal responsibility for anything that might be proven to have occurred.
During at least two of the pretrial hearings in this case, the Court specifically
asked counsel for Defendants to clarify which Defendant bears responsibility should
Plaintiffs’ allegations be proven, but Defendants were unable, or unwilling, to do so.
As such, fact issues remain as to which, if any, of Defendants bears legal
responsibility should Plaintiffs’ allegations be proven. All Defendants will proceed

to trial on all claims, with the exception of those claims eliminated through
summary judgment as indicated below. Similarly, any argument made by any
Defendant that summary judgment should be granted in its favor to eliminate one
of the two plaintiff entities from this case is denied.1
Pre-Suit Notice
Defendants repeatedly argue that judgment should be granted in their favor

due to Plaintiffs’ failure to comply with the pre-suit notice requirements contained
in § 770.01, F.S. In support of this argument, they even cite a case they contend is
“shockingly on point.”2 Defendants’ argument is not well-taken and, frankly, under
the facts presented here, borders on frivolous. In Mazur v. Ospina-Baraya, 275 So.
3d 812, 815 (Fla. 2d DCA 2019), the court clearly held that “Florida courts have
consistently interpreted section 770.01 to apply only to news media, i.e., the press.”
As such, the pre-suit requirement provided in § 770.01, F.S. applies only to “media

defendants.” See Comins v. Vanvoorhis, 135 So. 3d 545, 549 (Fla. 5th DCA 2014).

1 The jury will no doubt quickly learn that this case is essentially a dispute between Kirk
Sullivan on one hand, and Bill Khamis, Ed Vondell, Jason Hughes, and Marcus Sheridan
on the other. In light of this reality, the Court has repeatedly urged the parties to simplify
things and avoid burdening the jury with a case including eight causes of action, brought by
two separate corporate plaintiffs, against three separate corporate defendants, with all of
the resulting, and unnecessary, confusion, complexity, documents, witness testimony and
time.
2 See “Defendant, River Pools & Spas, Inc. Reply To Plaintiffs’ Opposition To Defendant’s
Motion For Summary Judgment.” (Doc. 254 at p. 2).
The phrase “media defendants” is intended to distinguish “parties who are not
engaged in the dissemination of news and information through the news and
broadcast media from those who are so engaged.” Americare Healthscan, Inc., 763

So. 2d 1173, 1175 (Fla. 4th DCA 2000). The fact that § 770.01, F.S. only applies to
media defendants is well-settled in Florida law. Ross v. Gore, 48 So. 2d 412 (Fla.
1950); Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So. 2d 1376
(Fla. 4th DCA 1997).
Some Florida courts have recognized a narrow exception for so-called “blogs,”
which are a modern functional equivalent of traditional news media. These kinds of

blogs – ones that are engaged in the dissemination of news and information – may
qualify as “media defendants.” Contrary to Defendants’ arguments, that exception
is not even remotely applicable here.
In Comins, a case cited by Defendants, the court held that a blog run by a
University of Florida doctoral candidate in sociology, titled “Public Intellectual,”
which was founded to “publicly comment on issues of public concern in an
intellectual manner,” was within the scope of § 770.21, F.S. As the court explained,

the notice requirement in § 770.21, F.S. was applicable because the blog “operated
to further the free dissemination of information or disinterested and neutral
commentary or editorializing as to matters of public interest.” Id. at 557.
Here, the blog in question was allegedly set up by one or more Defendants, all
of which were for-profit businesses, to post information on the internet about direct
competitors in the hopes of increasing Defendants’ sales. It was a sales and
marketing blog – nothing more and nothing less. Defendants’ argument that their
blog was similar to the “Public Intellectual” blog run by the University of Florida
graduate student in Comins is wholly lacking in merit. In fact, it is not even

remotely similar. Unlike the blog in Comins, Defendants’ blog was clearly not
“operated to further the free dissemination of information or disinterested and
neutral commentary or editorializing as to matters of public interest.” Rather,
Defendants’ blog was operated by them as a business venture solely to help their
pool businesses make more money. To suggest that Defendants’ blog was in any
way commenting or editorializing as to matters of general public interest is

ridiculous.
Defendants also cite Alvi Armani Med., Inc. v. Hennessey, 629 F. Supp. 2d
1302 (S.D. Fla. 2008), Sirer v. Aksoy, No. 21-cv-22280-BLOOM-Otazo-Reyes, 2021
WL 4952610 (S.D. Fla. Oct. 25, 2021), and Buckley v. Moore, No. 20-CIV-61023-
RAR, 2021 WL 3173185 (S.D. Fla. July 26, 2021). Those cases are distinguishable
on their facts. Importantly, none of those cases involved the scenario presented
here – a blog published by a direct business competitor as part of its marketing

strategy. Under the facts presented here, § 770.21, F.S. is not applicable, and all
arguments based on this statute in support of summary judgment are rejected.
Defamation
Plaintiffs have brought four separate claims for defamation: Defamation
(Count 1), Defamation Per Se (Count 2), Trade Libel (Count 3), and Disparagement
of Property (Count 4).
The law of slander and defamation is so ancient it contains numerous
illogical twists and refinements stemming from ecclesiastical law, as
well as the common law. Currently it is overlaid with statutory and
constitutional requirements and limitations. It is
confusing, unclear illogical, and somewhat in conflict. Courts and
judges frequently disagree with one another as to whether an
actionable defamation has been established, as a matter of law.
Scobie v. Taylor, No. 13-60457-Civ, 2013 WL 3776270, at *3 (S.D. Fla. July 17,
2013) (quoting Scott v. Busch, 907 So. 2d 662, 667 (Fla. 4th DCA 2005)). Moreover,
due to the never-ending uncertainties associated with the law in this area, the
Florida Standard Jury Instructions on defamation were withdrawn in November
2021, and new standard instructions have not been published.3
At least this much is certain: “Defamation under Florida law has 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)).
“A statement is defamatory if it ‘tends to harm the reputation of another by
lowering him or her in the estimation of the community or, more broadly stated, one
that exposes a plaintiff to hatred, ridicule, or contempt or injures his business or
reputation or occupation.’” Sloan v. Shatner, No. 8:17-cv-332-T-27AAS, 2018 WL
3769968, at *4 (M.D. Fla. June 22, 2018) (quoting Rapp, 997 So. 2d at 1109).

3 See Florida Civil Jury Instructions, Section 405, Defamation, available at
https://www.floridabar.org/rules/florida-standard-jury-instructions/civil-jury-
instructions/civil-instructions/#405 (last accessed February 14, 2023).
In defamation actions, “[t]rue statements, statements that are not readily
capable of being proven false, and statements of pure opinion are protected . . . by
the First Amendment.” Id. (citations omitted). Whether a statement constitutes

fact or opinion, and whether a statement of fact is susceptible to defamatory
interpretation, are questions of law to be determined by the court. Id. When
evaluating the statements, the court should consider the statements in their
totality. Id. (citing Keller v. Miami Herald Publ’g Co., 778 F.2d 711, 715 (11th Cir.
1985)).
“[A] false statement about another is a required element of defamation.”

Kieffer v. Atheists of Fla., Inc., 269 So. 3d 656, 659 (Fla. 2d DCA 2019) (citing Cape
Publ’n, Inc. v. Reakes, 840 So. 2d 277, 279-80 (Fla. 5th DCA 2003)). “According to
the U.S. Supreme Court and Florida case law, falsity only exist if the publication is
substantially and materially false, not just if it is technically false.” Smith v. Cuban
Am. Nat. Found., 731 So. 2d 702, 707 (Fla. 3d DCA 1999). “Under the substantial
truth doctrine, a statement does not have to be perfectly accurate if the ‘gist’ or the
‘sting’ of the statement is true.” Id. at 706 (citations omitted). When determining

whether a statement is substantially true, the court must read the statement in the
full context of its publication. Kieffer, 269 So. 3d at 659. “Where a communication
is ambiguous and reasonably susceptible of a defamatory meaning, it is for the trier
of fact to determine whether the communication was understood in the defamatory
sense.” Id. (quoting Perry v. Cosgrove, 464 So. 2d 664, 666 (Fla. 2d DCA 1985)).
With these guiding principles in mind, the Court turns to evaluating the five
statements identified in the second amended complaint.
Statement 1: San Juan’s Pools Look “Weird”
Plaintiffs identify two statements that they contend are defamatory, either

alone or taken together, because a reasonable reader would believe that Plaintiffs’
pools are “weird” and may hurt the resale value of a home.
“San Juan’s biggest differentiator is the sheer number
(and distinctive nature) of its ‘weird’ pools, which can’t be
properly classified as aa rectangular or traditional pool.
We’re counting Roman end pools as ‘rectangular’ so when
we say ‘weird,’ we’re talking about models like the iPool,
which has a sharp 45-degree angle on one side that gives
it a geometry-class look. These unusual pool shapes
might be perfect of your aesthetic sense, but they may
make it somewhat harder to sell your home in the future
if most potential buyers don’t share the same sense of
novelty.”

“As we previously covered in our San Juan Pools deep
dive article, this is a manufacturer with a wide range of
fiberglass spool sizes and shapes -- more than any other
major manufacturer we’ve come across. We counted at
least 75 different fiberglass pool models on San Juan’s
website, from a cocktail-pool-sized mini model to a hefty
40-foot-long shell with a roughly eight-foot deep end. In
between these extremes, San Juan also offers a large
amount of ‘unique’ pool shapes which you’d typically only
get from a concrete pool build…. River Pools has a smaller
range of unique pool models. We focus our efforts on full-
size rectangular and freeform pools that are broadly
appealing and easy to enjoy for families and parties of all
sizes….”

Considering the overall context and tone of the statements and articles, the
Court finds that these statements are not actionable as defamation. These
statements constitute Defendant’s subjective assessment of the pool shapes and how
that may impact the potential resell value of a home. Perhaps most importantly,
the statements are not readily capable of being proven true or false. See Turner,
879 F.3d at 1264 (citing Michel v. NYP Holdings, Inc., 816 F.3d 686, 697 (11th Cir.
2016)). In addition, the statements notably contain several cautionary statements

that inform a reasonable reader the conclusions are simply opinions. See id. (citing
Keller, 778 F.2d at 717). The motions for summary judgment are granted as to this
ground.
Statement 2: San Juan Provides No “Comprehensive” Installation Guide
Plaintiffs identify three statements that they contend are defamatory, either
alone or taken together, because a reasonable reader would believe that Plaintiffs

do not “provide any instructions” for pool installation for review, and because of
this, Plaintiffs’ pool and spa products are more likely to be improperly installed and
experience problems.
“San Juan’s installation process is covered briefly in a
series of YouTube videos posted on its site, but there’s no
comprehensive guide to the installation process you could
review as a potential pool buyer.”

“The most unique pool model in the world won’t make you
happy if it breaks and causes headaches because your
local installer didn’t put it in the ground properly.”

“San Juan Pools boasts a larger network of dealers and
installers than any other fiberglass pool manufacturer
we’ve researched. However, what we haven’t been able to
find is any single, comprehensive overview of San Juan’s
installation policies and processes, so we can’t share much
information on the company’s installation methods.”

Upon review, the Court finds that these statements are not actionable as
defamation because they are substantially true. In a deposition, Kirk Sullivan, the
owner of San Juan, himself admitted that the installation guide did not cover all the
details of installation. At worst, the statements constitute Defendants’ subjective
opinion of the comprehensiveness of the installation guide. The motions for

summary judgment are granted as to this ground.
Statement 3: San Juan Does Not Honor Warranties
Plaintiffs identify two statements that they contend are defamatory, either
alone or taken together, because a reasonable reader would believe that Plaintiffs
do not honor their warranties.
If you buy a house with a San Juan pool already installed,
you won’t be able to claim the warranty if the pool shell
breaks, even if it was only installed a year ago.

This is one of the longer warranty periods available for
fiberglass pools, but it also has one critical restriction –
since the warranty is non-transferable, you may not be
able to claim warranty coverage if you buy a home with a
San Juan pool already installed.

Specifically, Plaintiffs argue these statements would cause a reasonable reader to
conclude that (1) Plaintiffs will deny a warranty claim that would otherwise be
within the warranty period if the claim is made by a subsequent purchaser of a
home and not the original purchaser of the pool, and (2) Plaintiffs have in fact
denied a warranty claim based on the claimant being a subsequent purchaser.
It must be noted that the warranty, on its face, states that it is non-
transferrable. Thus, even if Plaintiffs contend, upon their own information and
belief, that they have never denied a claim on this basis, the statements are
nonetheless non-actionable since they are substantially true and based on the
verbiage of the warranty itself. The motions for summary judgment are granted as
to this ground.
Statement 4: San Juan’s Price Estimates are Unrealistic, and Obtaining
Reasonable Estimates Requires Some Time

Plaintiffs identify one statement that they contend is defamatory because a
reasonable reader would believe that “Plaintiffs are not transparent with their
prices, and engage in fraudulent ‘bait and switch’ sales tactics . . .”
San Juan … doesn’t provide up to date prices in an easily
accessible format on its site. The best estimate we found,
for a range of $25,000 to $45,000, is quite frankly not
realistic for any but the smallest models in San Juan’s
catalog, especially not in 2021 when most installers
(under any brand) have months-long backlogs and
struggle to find enough parts and materials to manage
their existing order volume. You’ll most likely have to
spend some time talking to a San Juan sales rep or local
dealer to get a reasonable estimate on your pool project.

Plaintiffs allege that pages of their catalog are dedicated to price estimation, which
includes a detailed and explicit description of different costs beyond the fiberglass
pool shell, and that the intended implication of Defendants’ statement is to convey
that Plaintiffs will initially provide prospective customers with knowingly
inaccurate price estimates to cause them to invest time and energy into their pool
project only to discover later that the price quotes are far lower than the actual
price, insinuating false advertising and unfair business practices.
This statement concerning San Juan’s pricing does not appear to be pure
opinion, and Plaintiffs contend and point to record evidence to show that this
statement is false. Because there is at least one plausible defamatory
interpretation (that San Juan provides inaccurate price estimates), a jury must
determine whether the communication was defamatory. See Kieffer, 269 So. 3d at
659.

Viewing the evidence in light most favorable to Plaintiffs, a reasonable jury
could find that the statements are not substantially true but instead substantially
false. That being said, the Court notes that the statements themselves – here,
concerning opaque pricing – appear to be fairly innocuous, as do the other
statements at issue in this case. In addition, the articles were online available on
Defendants’ websites for a relatively short period of time – less than one month –

and were ultimately removed.
Ultimately, a jury might view these statements and find that they are not
truly defamatory. But because the statements here are subject to a possibly
defamatory interpretation, the Court leaves this issue for the jury’s determination.
The motions for summary judgment are denied as to this ground.
Statement 5: San Juan Does Not Offer Any Pools Over 40 Feet in Length
Plaintiffs identify two statements that they contend are defamatory when

taken alone or together because a reasonable reader would conclude that Plaintiffs
are “not capable of manufacturing, and do not offer for sale, pool products over 40
feet in length.”
San Juan’s largest standalone model: 16’ x 40’ (Pacific)…

San Juan offers… 12 models between 35 and 40 feet
long… The two pools mentioned earlier – the Sedona and
the Pacific – are San Juan’s smallest and largest
rectangular pool, respectively. Its largest freeform pool is
the Oasis, a 16-by-40 foot model with a hefty deep end
that gives it a total volume of nearly 18,000 gallons.

San Juan’s largest standalone FG model pool: 16’ x 40’
(Pacific)… Largest standalone model: 16’ x 40’ (Pacific….
To a hefty 40-foot-long shell with a roughly eight-foot
deep end….

These statements concerning the length of pools offered by San Juan do not
appear to be subjective opinion. Rather, they are presented and appear to be
statements of objective fact. Plaintiffs contend and point to record evidence showing
that these statements are demonstrably false, and Defendants themselves even
concede the falsity of the statements. Because there is at least one plausible
defamatory interpretation (that San Juan is not capable of constructing pools larger
than 40 feet in length), a jury must determine whether the communication was
defamatory. See id. Viewing the evidence in light most favorable to Plaintiffs, a
reasonable jury could find that the statements are not substantially true but
instead substantially false. Because the statements are subject to a possibly
defamatory interpretation, the motions for summary judgment are denied as to this
ground.
Public Figure or Limited Public Figure
Defendants argue that Plaintiffs cannot establish the third element of the
defamation claims – that Defendants acted with knowledge or reckless disregard as
to the falsity on a matter concerning a public figure, or at least negligently on a
matter concerning a private person. Defendants contend that Plaintiffs are either
public figures or limited public figures, so they must prove actual malice by clear
and convincing evidence.
“Public figure status ‘is a question of law to be determined by the court.’”
Jacoby v. Cable News Network, Inc., 537 F. Supp. 3d 1303, 1309 (M.D. Fla. 2021),

aff’d, No. 21-12030, 2021 WL 5858569 (11th Cir. Dec. 10, 2021) (citing Mile Marker,
Inc. v. Petersen Publ’g, L.L.C., 811 So. 2d 841, 845 (Fla. 4th DCA 2002)). “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.” Maletta
v. Woodle, No. 2:20-cv-1004-JES-MRM, 2022 WL 2818108, at *3 (M.D. Fla. July 19,
2022) (quotation omitted).
The Court finds that Plaintiffs do not qualify as public figures but considers
whether they may qualify as limited public figures. When analyzing whether an
individual or entity is a limited public figure, or a private plaintiff, the court must
first determine whether there is a public controversy – that is, “whether a

reasonable person would have expected persons beyond the immediate participants
in the dispute to feel the impact of its resolution.” Mile Marker, 811 So. 2d at 845.
“After defining a public controversy, the court must then determine whether the
plaintiff played a sufficiently central role in the instant controversy to be considered
a public figure for purposes of that controversy.” Id. at 846 (citations omitted).
Based on the record, the Court finds that there is disputed evidence as to
whether Plaintiffs are limited public figures. Certainly, Plaintiffs have thrust
themselves into some public role by virtue of being global market leaders in the pool
industry. However, the Court is not persuaded that the undisputed evidence shows

that the blogs arise from a public controversy or Plaintiffs’ involvement therein. See
Arnold v. Taco Properties, Inc., 427 So. 2d 216, 218 (Fla. 1st DCA 1983) (“Under the
limited public figure concept, only statements relating to the controversy giving rise
to the public figure status receive the protection of the actual malice standard.”).
The motions for summary judgment are denied on this ground.
Defamation Per Se

Plaintiffs claim that the five statements discussed above, either individually
or taken as a whole, constitute defamation per se. “A statement is ‘actionable per se,
if, when considered alone without innuendo, it: (1) charges that a person has
committed an infamous crime; (2) charges a person with having an infectious
disease; (3) tends to subject one to hatred, distrust, ridicule, contempt, or disgrace;
or (4) tends to injure one in his trade or profession.’” Shatner, 2018 WL 3769968, at
*6 (quoting Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953)). In addition, “the

statement must be false.” Id. (citing Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d
710, 728 (Fla. 4th DCA 2010)). Slander or libel per se statements do not require any
additional explanation or context to establish the defamatory nature of the
statement. Scobie, 2013 WL 3776270, at *2-3. Instead, “consideration is given only
to the ‘four corners’ of the publication and the language used should be interpreted
as the ‘common mind’ would normally understand it.’” Id. (quoting Ortega Trujillo
v. Banco Central Del Ecuador, 17 F. Supp. 2d 1334, 1339 (S.D. Fla. 1998)).
Here, Plaintiffs argue that the statements have injured them in their trade or
profession. To injure one in his trade or profession, the statement must, without

innuendo, strike at “professional competence and fitness to engage in a given
profession.” Leavitt v. Cole, 291 F. Supp. 2d 1338, 1346 (M.D. Fla. 2003); see also
Scobie, 2013 WL 3776270, at *2-3; Murray v. Pronto Installations, Inc., No. 8:20-cv-
824-T-24AEP, 2020 WL 6728812, at *6 (M.D. Fla. Nov. 16, 2020). The false
statement must do more than merely harm the person or entity in its trade or
business – the statements must impute fraud, want of integrity, or actual

misconduct. See 19 Fla. Jur 2d Defamation and Privacy §§ 34-38; Am. Jur. 2d, Libel
and Slander § 205; Continental Nut Co. v. Robert L. Berner Co., 345 F.2d 395, 397-
98 (7th Cir. 1965) (“To allow a corporate corporation to recover on [libel per se],
there must be a showing that it has been accused of fraud, mismanagement, or
financial instability.”). Some examples of statements that have constituted
defamation per se include explicit statements accusing a person or entity of
committing specific crimes punishable by law, such as insurance fraud, see StopLoss

Specialists, LLC v. VeriClaim, Inc., 340 F. Supp. 3d 1334, 1351 (N.D. Ga. Sept. 26,
2018), or statements that a hospital performed and charged for unnecessary tests
and medications and made profits by leaving patients in intensive care for a longer
period of time whenever possible, see Florida Med. Ctr., Inc. v. New York Post Co.,
568 So. 2d 454, 459 (Fla. 4th DCA 1990).
Considering the statements at issue here as the “common mind” would,
without innuendo, and in the context presented, none of the statements identified
rises to the level of defamation per se. Nor do all of the statements taken together
in context constitute defamation per se. The statements do not charge fraud or

misconduct, striking at Plaintiffs’ competence in the trade or profession. More
importantly, although the statements might, under some set of facts, conceivably
cause injury to Plaintiffs’ businesses, the statements are not injurious in and of
themselves without innuendo. The motions for summary judgment are granted as
to this ground.
Florida’s Single Action Rule --
Tortious Interference with Prospective Economic Advantage, Defamation,
Trade Libel, and Disparagement of Property

Generally, a plaintiff is the master of its complaint and is entitled to select
the claims and legal theories of recovery it prefers. Danley v. Allen, 540 F.3d 1298,
1306 (11th Cir. 2008) (quoting United States v. Jones, 125 F.3d 1418, 1428 (11th
Cir. 1997)). Florida courts generally permit cases to proceed to trial on alternative
theories of liability. See, e.g., Haynes v. Blackshear, 311 So. 3d 163, 171 (Fla. 2d
DCA 2020); Baione v. Owens–Illinois, Inc., 599 So. 2d 1377, 1378 (Fla. 2d DCA
1992). But in actions involving defamation, Florida courts employ what is known as
the single publication or single action rule.
“The single publication/single action rule ... does not permit multiple actions
when they arise from the same publication upon which a failed defamation claim is
based.” Callaway Land & Cattle Co. v. Banyon Lakes C. Corp., 831 So. 2d 204, 208
(Fla. 4th DCA 2002). In this context, “[w]hen claims are based on analogous
underlying facts and the causes of action are intended to compensate for the same
alleged harm, a plaintiff may not proceed on multiple counts for what is essentially
the same defamatory publication or event.” Klayman v. Judicial Watch, Inc., 22 F.

Supp. 3d 1240, 1256 (S.D. Fla. 2014), aff'd, No. 14-13855 (11th Cir. Feb. 17, 2015).
“The rule is designed to prevent plaintiffs from circumventing a valid defense to
defamation by recasting essentially the same facts into several causes of action all
meant to compensate for the same harm.” Callaway Land & Cattle Co., 831 So. 2d
at 208 (quotation omitted).
Based on this rule, Florida courts regularly preclude tortious interference

claims that factually overlap defamation claims. For example, in Tobinick v.
Novella, No. 9:14-cv-80781, 2015 WL 328236 (S.D. Fla Jan. 23, 2015), which
involved facts similar to this case, the plaintiffs asserted claims based on the
defendant’s publication of two articles on an internet website and filed a complaint
alleging five separate counts: violations of the Lanham Act, 15 U.S.C. § 1125(a);
unfair competition under 28 U.S.C. § 1338(b),trade libel, libel per se, and tortious
interference. The Tobinick court found that the plaintiffs’ tortious interference

claim involved the same allegedly false and/or defamatory statements made in the
two articles published by the defendant. Therefore, the tortious interference claim
was dismissed based on the single action rule.
Similarly, in Hill v. Allianz Life Ins. Co. of N. Am., No: 6:14-cv-950-Orl-
41KRS, 2016 WL 872936 (M.D. Fla. 2016), the court found that “Plaintiff's tortious
interference claim is based on the same publication and underlying facts as his
failed defamation claim. Plaintiff not only relies on the same conduct and alleged
publication to support his claim, but his tortious interference claim explicitly
incorporates the factual allegations of his defamation claim.” As such, summary

judgment was granted in the defendant’s favor on a tortious interference claim
based on the single publication/single action rule.
However, it should be noted that tortious interference claims are not
precluded by the single publication/single action rule where they include conduct
that is factually different from the defamation claim. Geller v. Von Hagens, No.
8:10-cv-1688-EAK-AEP, 2011 WL 2434217, at *4 (M.D. Fla. June 13, 2011) (denying

summary judgment on a tortious interference claim where the plaintiff's claim was
based on conduct separate from the defamation claim); Kamau v. Slate, No.
4:11CV522–RH/CAS, 2012 WL 5390001, at *7 (N.D. Fla. Oct.1, 2012), report and
recommendation adopted, 2012 WL 5389836 (N.D. Fla. Nov. 5, 2012) (tortious
interference claim dismissed based on single publication/single action rule, but
plaintiffs given leave to file amended complaint with tortious interference claim
asserting conduct separate from defamation claim).

Here, the tortious interference claim does not include conduct factually
different from the defamation claims. Rather, in paragraph 86 of their second
amended complaint (Doc. 219), Plaintiffs specifically incorporate by reference all of
their defamation claims into their tortious interference claim. Paragraph 88 of
Plaintiffs’ second amended complaint alleges:
All of the herein described facts and circumstances demonstrate that
Plaintiffs had a preexisting business relationship between themselves and
dealers and installers of Plaintiffs’ products, that Defendants had knowledge
of Plaintiffs’ relationship with its dealers and installers (See Exhibit A at 5
(“San Juan claims ‘the largest network of fiberglass pool dealers in the
country,’ which seems to be true based on our research”)), that Defendants’
intentional and unjustified interference with that relationship via the
publication of the Defamatory Publication caused dealers and installers to
become concerned about the sustained marketability of Plaintiffs’ products to
prospective final owners and end users of fiberglass pool and spa products,
and to indicate to Plaintiffs that the confusion in the marketplace among
prospective final owners and end users of fiberglass pool and spas products
has resulted from the defamatory publications. Consequently, the publication
of the defamatory publications has resulted in a breach of the trusting
relationship dealers and installers have in Plaintiffs, with dealers and
installers questioning whether they should continue to endorse the quality of
Plaintiffs’ products and business reputation to customers, and to continue to
purchase or distribute Plaintiffs’ products. Thus, in view of the existence of
the defamatory statements, Plaintiffs has suffered damage as a result of this
breach of its relationships with its dealers and installers. (emphasis added).

Plaintiffs’ tortious interference claim, like the claim in Hill, is based on the same
publication and underlying facts as the defamation claim. Similar to Hill, where
the plaintiff suffered an adverse finding on summary judgment, Plaintiffs here rely
on the same conduct and alleged publication to support their tortious interference
claim, and that claim explicitly incorporates the factual allegations of the
defamation claim. Summary judgment must be granted here on Plaintiffs’ tortious
interference claim pursuant to the single publication/single action rule.
In addition to barring Plaintiffs’ tortious interference claim, the single
publication/single action rule also limits Plaintiffs to proceeding on just one of their
three remaining defamation legal theories. Buckley, 2021 WL 3173185, at *7-8.
Bongino v. Daily Beast Co., LLC, 477 F. Supp. 3d 1310, 1321 (S.D. Fla.
2020) (dismissing plaintiff's claim for commercial disparagement because it
stemmed from the same article as his defamation claim). As the master of their
complaint, Plaintiffs are entitled to elect which of the three remaining defamation
legal theories on which they will proceed to trial, but they may not proceed to trial
on all three such claims.4

Trademark Infringement
Defendants argue that summary judgment should be granted on Plaintiffs’
trademark infringement claims because the record evidence does not show that the
use of San Juan’s trademark in the blogs confused customers. Although Defendants
argue that use of the San Juan trademark was appropriate for comparative
advertising purposes and no possible confusion existed, it is not quite that simple.

The Eleventh Circuit has explained that a competitor’s use of a manufacturer’s
trademarks within its own website may be a violation of the Lanham Act,
depending upon the factual circumstances. See North American Medical Corp. v.
Axiom Worldwide, Inc., 522 F.3d 1211, 1218-24 (11th Cir. 2008).
In the second amended complaint, Plaintiffs assert that Defendants used
embedded hyperlinks in the blogs that appeared as if they would direct customers
to the San Juan website but instead directed customers to different pages on the

River Pools website. Alex Planes, the author of the articles, testified that one of the
goals of the articles was to cause people searching for San Juan to instead be
directed to a River Pools website, including through the use of hyperlinks of the

4 As previously noted, Plaintiffs’ defamation per se claims have been eliminated from this
case by summary judgment. It is not clear what the difference is, if any, between the three
remaining defamation claims. All appear to have the same elements and the same
available damages. Thus, as a practical matter, it does not appear to matter which of the
three remaining defamation claims Plaintiffs choose to proceed to trial on.
“San Juan” name. Mr. Planes also testified that the goal of using hyperlinks when
referring to San Juan was for search engine optimization and to improve ranking of
the articles.

There appear to be at least two different avenues of confusion at play. Source
confusion exists where a consumer is confused about whose site he has reached or
somehow thinks that the plaintiff sponsors the defendant’s website. See, e.g., North
American Medical Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1221 (11th Cir.
2008). Initial interest confusion exists when the competitor uses the trademark to
divert people looking for the plaintiff’s website, thereby improperly benefitting from

the good will that the plaintiff has developed in its mark. See id. In any event,
there appears to be a genuine issue of fact concerning the likelihood of confusion
that precludes summary judgment. The motion is denied as to this ground.
Florida Misleading Advertising
§ 817.41, F.S.

Defendants’ only argument for summary judgment on this claim is based on
Florida’s single action rule. However, summary judgment is unavailable here based
on the single action rule because this claim, unlike the tortious interference claim,
includes factual allegations that go well beyond simply recasting the defamation
claims as a violation of § 817.41, F.S. See Second Amended Complaint, ¶ 117 (Doc.
219). Summary judgment is denied as to this claim.
Damages
Defendants argue they are entitled to summary judgment on all counts,
except for defamation per se, based upon an alleged lack of evidence of damages
arising from the publication of the articles. Plaintiffs have pointed to record
evidence to show damage, notably in the form of reputational harm. The weight of
this evidence will be evaluated by a jury. The motion for summary judgment is
denied as to this ground.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) The motions for summary judgment (Docs. 170; 200) are GRANTED
IN PART and DENIED IN PART, as set forth herein.
DONE and ORDERED in Chambers, in Tampa, Florida, this 14th day of
February, 2023.

FY 2A
bh
-TOMBARBER i (assi‘“‘i;étés™
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10112068. Public record. Not legal advice.