Opinion
Case No. 5D07-3542.
Opinion filed April 9, 2009.
Appeal from the Circuit Court for Orange County, James E. Glatt, Jr., Acting Circuit Judge.
Nicholas A. Shannin, of Page, Eichenblatt, Et Al., Orlando, for Appellant.
Victor Kline, Myrna Maysonet of Greenspoon, Marder, P.A., Orlando and Richard W. Epstein, of Greenspoon Marder, P.A., Fort Lauderdale, for Appellee.
The appellant, Luz Angela Lackner, was an at-will employee at Central Florida Investments, Inc. (CFI), who was engaged in leasing units to customers deciding whether to purchase a timeshare. Such employees are entitled to a small portion of any commission generated by a sale in which they participated with the sales agent. In one such sale, the extent of Lackner's participation was disputed. CFI felt she was unjustified in claiming any portion of the commission and terminated her for "dishonesty." This fact was promulgated among various CFI employees, and Lackner brought a defamation action.
It was Lackner's position that she was entitled to the fees and, therefore, the communication by several CFI employees to other employees that she was fired for dishonestly constituted a publication of slander by CFI. Clearly, there was a factual dispute as to Lackner's entitlement to part of the commission, although the weight of the evidence (a jury consideration) may well have been against her on that issue.
At the conclusion of plaintiff's evidence, the trial court directed a verdict against Lackner's slander action on the basis that she had failed to prove publication of any defamatory matter. The court stated: "There is no testimony from [anyone] that they heard the statement [that Lackner was dishonest], that they believed the statement, that they were affected by the statement such that damages can be said to flow and be the natural [result] of that statement."
The primary issue, then, is whether CFI published the defamatory statement to a third party, i.e., to one other than a managerial employee. See Am. Airlines, Inc. v. Geddes, 960 So. 2d 830, 834 (Fla. 3d DCA 2007); S. Bell Tel. Tel. Co. v. Barnes, 443 So. 2d 1085, 1086 (Fla. 3d DCA 1984). In the instant case, it is clear that one Victor Sanchez, to whom the information was apparently imparted, was such an employee. Standing alone, the communication of the accusation to him should have precluded the directed verdict. The trial court apparently failed to draw any distinction between communications among employees, assuming that all were privileged. This is not the law of Florida. Statements made by employees to other employees fall within the ambit of qualified privilege, but that privilege vanishes if the statement is made with malice or to too wide an audience. See, e.g., Glynn v. City of Kissimmee, 383 So. 2d 774, 776 (Fla. 5th DCA 1980); Drennan v. Westinghouse Elec. Corp., 328 So. 2d 52 (Fla. 1st DCA 1976).
As a fall-back position, CFI argues Lackner failed to establish that any damages resulted from the accusation of her dishonesty. This "tipsy coachman" argument cannot salvage the defendant's judgment for the reason that even in the absence of actual damages, a defamatory allegation in respect to a person's profession is actionable per se.Scott v. Busch, 907 So. 2d 662, 667 (Fla. 5th DCA 2005);Glynn, 383 So. 2d at 775-76. In this case, the evidence raises the issue of punitive damages.
See Vandergriff v. Vandergriff, 456 So. 2d 464, 466 (Fla. 1984);Holland v. Holland, 458 So. 2d 81, 85 n. 3 (Fla. 5th DCA 1984) (Cowart, J., dissenting).
We should also comment on the trial court's unique, and we believe erroneous, ruling pursuant to a motion in limine that Lackner was precluded from introducing evidence in her case-in-chief relevant to CFI's affirmative defenses and could only do so in rebuttal. We are unaware of any authority in support of this unique restriction and none has been cited to us. We believe the issues as framed by the pleadings can be addressed in the plaintiff's case-in-chief.
REVERSED and REMANDED for new trial.
MONACO and EVANDER, JJ., concur.