          Case: 15-12914   Date Filed: 09/26/2016   Page: 1 of 11


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                       Nos. 15-12914 & 15-13023
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 3:13-cv-01109-JBT



LAREESA BERMAN,

                                             Plaintiff - Appellant,

versus

THOMAS A. KAFKA,

                                             Defendant - Appellee.

                      ________________________

               Appeals from the United States District Court
                    for the Middle District of Florida
                      ________________________

                           (September 26, 2016)



Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Plaintiff Lareesa Berman, through counsel, appeals the district court’s denial

of Plaintiff’s motion for a new trial. Plaintiff sought a new trial after the jury

returned a verdict in favor of Defendant Thomas Kafka in Plaintiff’s pro se civil

action for defamation. Plaintiff also appeals the district court’s award of attorneys’

fees and costs to Defendant. No reversible error has been shown; we affirm.

      This case arises out of statements made by Defendant to the Florida

Department of Economic Opportunity (“DEO”) in which Defendant indicated that

Plaintiff was involved in embezzling money from Defendant’s company.

Plaintiff’s husband, Chris Berman, was employed by Defendant’s company and

applied for unemployment benefits after his employment was terminated.

Defendant challenged the application and later appealed the DEO’s award of

unemployment benefits to Plaintiff’s husband. During the course of the appeal, in

emails sent to DEO employees, Defendant made these two statements: (1) “I asked

Connie not to lose sight of the fact that you initially ruled in our favor and that we

proved that Chris Berman and his wife embezzled money from our company;” and

(2) “Part of the money was embezzled by his wife.”

      Plaintiff brought this civil action against Defendant for libel per se, seeking

compensatory and punitive damages. Following a three-day jury trial, the jury


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returned a verdict in favor of Defendant: finding that the alleged defamatory

statements were “substantially true and made with good motives.”

      Plaintiff filed a motion for a new trial, pursuant to Fed. R. Civ. P. 59(a)(1).

The district court denied Plaintiff’s motion. The district court then granted

Defendant’s motion for attorneys’ fees and costs. Plaintiff filed a motion for

reconsideration of the district court’s award, which the district court denied. This

appeal followed.



                            I.     Motion for New Trial



      We review a district court’s denial of a motion for new trial for abuse of

discretion. Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir.

2001). “Deference to the district court is particularly appropriate where a new trial

is denied and the jury’s verdict is left undisturbed.” Id. at 1247-48 (quotations

omitted).



   a. Weight of the Evidence



      On appeal, Plaintiff first contends that a new trial is warranted because the

jury verdict was contrary to the great weight of the evidence. Because Plaintiff


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failed to move for a directed verdict at trial, however, “our inquiry is limited to

whether there was any evidence to support the jury’s verdict, irrespective of its

sufficiency.” Hercaire Int’l, Inc. v. Arg., 821 F.2d 559, 562 (11th Cir. 1987)

(emphasis in original).

      Here, the jury’s finding that Defendant’s statements were substantially true

is supported by evidence in the record. At trial, Defendant introduced two checks

written out to “Chris Berman c/o Trifecta Gaming USA, Inc.” Instead of

depositing the checks into Defendant’s business account as intended, Plaintiff’s

husband endorsed the checks over to Plaintiff; her signature also appears on the

back of the checks. Never were the funds deposited in Defendant’s business

account. This evidence supports a finding that Plaintiff was involved with her

husband in a scheme to embezzle money from Defendant and, thus, supports the

jury’s finding that Defendant’s statements were substantially true. To satisfy his

burden of proving a “substantial truth” affirmative defense, Defendant need only

show that the “‘gist’ or the ‘sting’ of the statement is true.” Smith v. Cuban Am.

Nat’l Found., 731 So. 2d 702, 706 (Fla. Dist. Ct. App. 1999). Defendant need not

prove, beyond a reasonable doubt, that Plaintiff was in fact guilty of




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embezzlement. 1 The district court abused no discretion in denying Plaintiff’s

motion for a new trial on this ground.



    b. Jury Instructions



       Plaintiff next contends that the district court erred in denying her a new trial

based on the district court’s improper jury instructions. Because Plaintiff failed to

object timely to the jury instructions at trial, we review her arguments only for

plain error. See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th

Cir. 1999). To establish plain error, Plaintiff must show both that “the challenged

instruction was an incorrect statement of the law” and that the error “was probably

responsible for an incorrect verdict.” Id.

       The district court committed no error -- plain or otherwise -- in instructing

the jury on Plaintiff’s burden of proof. 2 Jury Instruction 5 stated correctly that

Plaintiff bore the burden of proving her claim by a preponderance of the evidence.


1
  Plaintiff also contends that a new trial is warranted because Defendant failed to prove that the
defamatory statements were made with “good motive.” Because Plaintiff failed to raise this
argument in her motion for a new trial in the district court, it is waived. See Albra v. Advan,
Inc., 490 F.3d 826, 828 n.1 (11th Cir. 2007).
2
  From the record, whether -- as Plaintiff contends -- Plaintiff objected to the district court’s jury
instruction about her burden of proof is unclear. We need not decide that issue, however,
because the district court’s jury instruction was an accurate statement of the law and constituted
no error. Plaintiff’s argument thus fails under either a de novo or a plain error standard of
review.
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Because the district court also instructed the jury properly about Defendant’s

burden of proving the elements of his affirmative defense, and about the parties’

stipulation that Defendant did make the defamatory statements, Plaintiff has failed

to show that the complained-of jury instruction misled the jury or that it likely

resulted in an incorrect verdict.

      The district court also committed no plain error in instructing the jury on the

affirmative defense of “substantial truth and good motives” under Florida law.

Defendant pleaded the affirmative defenses of “truth” and “good motive” in his

answer and later clarified -- in response to Plaintiff’s motion to strike, and in

Defendant’s trial brief -- that he was relying on Florida’s “substantial truth

doctrine.” Plaintiff -- well before trial -- was thus put on sufficient notice of

Defendant’s affirmative defense. Where “a plaintiff receives notice of an

affirmative defense by some means other than pleadings, the defendant’s failure to

comply with [Fed. R. Civ. P.] 8(c) does not cause the plaintiff any prejudice,” and

the trial court commits no error by considering the affirmative defense on the

merits. Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir. 1989)

(district court committed no error in considering an affirmative defense first raised

in a motion for summary judgment filed one month before trial).

      “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.” Smith, 731


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So. 2d at 706. Here, the “gist” or “sting” of Defendant’s statements was that

Plaintiff and her husband were involved in embezzling (that is, taking Defendant’s)

money from Defendant’s company. Because Defendant was not required to prove

that Plaintiff was, in fact, guilty beyond a reasonable doubt of the crime of

embezzlement in the technical sense, the district court committed no plain error in

failing to instruct the jury on the elements of the criminal offense of

“embezzlement.”

      The district court also committed no plain error in not instructing the jury on

the definition of the term “good motive.” The term “good motive” is capable of

being understood by a layperson without a definition. Moreover, nothing

evidences that the district court’s failure to define the term “good motive” altered

the outcome of Plaintiff’s case.



   c. Evidentiary Rulings



      Plaintiff next contends that a new trial is warranted based on the district

court’s improper evidentiary rulings. “The district court has broad discretion to

determine the admissibility of evidence, and we will not disturb the court’s

judgment absent a clear abuse of discretion.” Tran v. Toyota Motor Corp., 420

F.3d 1310, 1315 (11th Cir. 2005). A district court abuses its discretion when it


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“applies the wrong law, follows the wrong procedure, basis its decision on clearly

erroneous facts, or commits a clear error in judgment.” Id.

      Plaintiff first objects to the district court’s exclusion of Defendant’s

corporate tax returns, which Plaintiff contends would have shown that Defendant’s

company reported no revenue or losses during 2006 and 2007. Plaintiff contends

this evidence would have supported a finding that neither Plaintiff nor her husband

could have embezzled money from Defendant’s company. The district court

sustained Defendant’s objections based on relevancy and jury confusion. We

agree that the proposed tax returns had very little -- if any -- relevance to the issue

of whether Defendant’s defamatory statements were substantially true. Because

whatever minimal probative value the tax returns may have had was substantially

outweighed by the high likelihood of confusing the issues and of misleading the

jury, the evidence was properly excluded under Fed. R. Evid. 403.

      Although Plaintiff contends on appeal that the district court erred in

admitting into evidence copies (as opposed to originals) of the allegedly embezzled

checks, Plaintiff herself introduced duplicate copies of the same checks into

evidence. On this record, we see no abuse of discretion.

      The district court also abused no discretion in admitting copies (as opposed

to originals) of Defendant’s payroll checks. Although Plaintiff objected that the

checks had not been certified by the bank, she raised no “genuine question” about


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the authenticity of the original documents. The duplicate copies were thus

admissible under Fed. R. Evid. 1003.



   d. Defense Counsel’s Improper Comments



      We are unpersuaded by Plaintiff’s argument that the district court abused its

discretion in denying her motion for a new trial based on defense counsel’s alleged

improper comments during opening and closing argument. The district court has

wide discretion to regulate the scope of counsel’s arguments. Goldsmith v. Bagby

Elevator Co., 513 F.3d 1261, 1282 (11th Cir. 2008). “Statements made in oral

arguments must be plainly unwarranted and clearly injurious to constitute

reversible error.” Peterson v. Willie, 81 F.3d 1033, 1036 (11th Cir. 1996). “When

no objections [to counsel’s arguments] are raised, we review the arguments for

plain error, but a finding of plain error is seldom justified in reviewing argument of

counsel in a civil case.” Oxford Furniture Cos. v. Drexel Heritage Furnishings,

Inc., 984 F.2d 1118, 1128 (11th Cir. 1993).

      Plaintiff contends that defense counsel made improper comments that were

unsupported by the evidence and that expressed counsel’s personal opinion about

Plaintiff’s motive for filing suit and about the credibility of Plaintiff’s husband.

Having reviewed the record, we conclude that the comments to which Plaintiff


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now objects -- none of which were objected at trial -- did not rise to the level of

plain error. See id. The district court abused no discretion in denying Plaintiff’s

motion for a new trial on these grounds.



                           II.    Attorneys’ Fees & Costs



      Plaintiff appeals the district court’s award of attorneys’ fees and costs to

Defendant, pursuant to Fla. Stat. § 768.79. Briefly stated, Plaintiff contends that

Fla. Stat. § 768.79 is inapplicable to her case because Plaintiff sought both

monetary and non-monetary relief (the latter in the form of a letter of apology).

      Plaintiff first raised this argument in her motion for reconsideration of the

district court’s order awarding Defendant attorneys’ fees and costs. The district

court rejected Plaintiff’s argument on two independent grounds. First, the district

court concluded that Plaintiff’s argument was raised improperly in her motion for

reconsideration. Second, the district court rejected Plaintiff’s argument on the

merits.

      On appeal, Plaintiff addresses only the merits of her argument about the

applicability of section 768.79; she raises no challenge to the district court’s

independent ground for rejecting her argument as untimely raised. Plaintiff has

thus abandoned this argument. See Carmichael v. Kellogg, Brown & Root Serv.,


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572 F.3d 1271, 1293 (11th Cir. 2009). The district court committed no error in

determining that Plaintiff’s argument was improperly raised. “A motion for

reconsideration cannot be used to . . . raise argument or present evidence that could

have been raised prior to the entry of judgment.” Wilchombe v. TeeVee Toons,

Inc., 555 F.3d 949, 957 (11th Cir. 2009).

      AFFIRMED.




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