Schreidell v. Shoter

500 So. 2d 228, 11 Fla. L. Weekly 2516
CourtDistrict Court of Appeal of Florida
DecidedDecember 2, 1986
Docket86-378
StatusPublished
Cited by33 cases

This text of 500 So. 2d 228 (Schreidell v. Shoter) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schreidell v. Shoter, 500 So. 2d 228, 11 Fla. L. Weekly 2516 (Fla. Ct. App. 1986).

Opinion

500 So.2d 228 (1986)

Sidney SCHREIDELL, Peter J. Finnegan and Brite Electric Division of Ju-My-Da Corporation, a Florida Corporation, Appellants,
v.
Rabbi Bernard P. SHOTER, and Delores Shoter, His Wife, Appellees.

No. 86-378.

District Court of Appeal of Florida, Third District.

December 2, 1986.
Rehearing Denied January 29, 1987.

*229 Walton, Lantaff, Schroeder & Carson and Sally R. Doerner and Douglas Stein, Miami, for appellants.

Joyce M. Siemon, Richard J. Burton, North Miami Beach, for appellees.

Before HENDRY and NESBITT and DANIEL S. PEARSON, JJ.

HENDRY, Judge.

This cause is before the court for review of a final judgment awarding damages to plaintiffs and taxing costs against defendants. For reasons more fully developed below, we reverse and remand for further proceedings.

Rabbi Shoter and his wife filed suit in Dade County Circuit Court against Sidney Schreidell, Schreidell's partner, Peter Finnegan, and their company, Brite Electric Division of Ju-My-Da Corporation (Brite Electric), seeking damages for the alleged defamation of the rabbi. The complaint alleged that Mr. Schreidell, a member of the board of directors of the synagogue, made certain remarks to other board members during a discussion concerning renewal of the employment contract of Rabbi Shoter.

In late 1983, when Rabbi Shoter's contract was nearing its end, the executive board of Temple Beth Ahm decided to bring the issue of negotiating his contract before the full board of directors. At its October, 1983 meeting, the board voted to negotiate a new contract with him. In January, 1984, the rabbi was given a contract upon which he and the temple's negotiating committee had agreed, and the document was then brought to the full board for possible amendment at its January, 1984 meeting. It is undisputed that only board members were present at this meeting. It was during this meeting that Mr. Schreidell allegedly made the comments that led to this action.

Essentially, Schreidell's remarks, as extracted from the record, were that Mr. Finnegan had received a telephone call from an electrical union representative. This representative stated that he had been contacted by a judge or judges who warned him that Mr. Schreidell's business would suffer if he did not cease his opposition to the rabbi's retention. None of the plaintiffs' witnesses who related their accounts of Mr. Schreidell's comments at the meeting gave the same version of the incident. One witness recalled that Schreidell specifically referred to the rabbi's committing extortion and implicated a judge by name. Several other witnesses denied hearing any particular judge identified, and only one other witness recalled hearing the term "extortion."

During his testimony, Mr. Schreidell denied making the remarks as related by the witnesses. Instead, he stated that, with the permission of the temple's president, he had "relay[ed] some incidents that had taken place." Mr. Schreidell testified he said that:

In October my partner received a phone call from his business from the union [representative], Archie Fernandez, who told them he received a phone call from a judge who said I hadn't paid my dues to *230 the temple, and because the temple wanted to get paid, I was harassing the Rabbi and that it would be a good idea for me to leave the Rabbi alone or business could suffer.

Mr. Schreidell denied identifying a judge by name. Co-defendant Finnegan, who actually took the call, also testified that the union representative stated that "these are very powerful people and they can cause you a lot of problems." Finnegan specifically denied either hearing or stating to Mr. Schreidell a threat that his company could suffer a loss of Jewish business, nor did he recall the mention of anyone's name.

At the end of the January board meeting, the rabbi's contract was tabled without being voted on. In late January, Mr. Schreidell repeated his comments at an executive board meeting of the temple. The employment contract was not adopted at the February board meeting. Rabbi Shoter's contract expired in July, 1984, at which time his employment at Temple Beth Ahm ended.

In their answer, the defendants raised the affirmative defense of a qualified privilege protecting the remarks. The trial judge ruled as a matter of law that a qualified privilege did not exist upon these facts. The court further declined to submit the issue of actual malice to the jury. The court refused to instruct the jury on the Florida law concerning the qualified privilege defense. Instead, the only instruction the jury received on the substantive elements of defamation stated:

Spoken words falsely imputing criminal offenses to another are actionable, per se. Malice is presumed, as a matter of law, for the publication of words which are actionable in themselves or per se.

The court also instructed the jury:

If you find that Mr. Schreidell, in fact, accused Rabbi Shoter of extortion, and that the accusation was false, then you can award Rabbi Shoter punitive damages.

At the conclusion of the trial, the jury returned a verdict for the plaintiffs. It awarded Rabbi Shoter $158,300 in compensatory and $87,500 in punitive damages, and gave Mrs. Shoter $41,700 for her derivative claim.[1] The defendants filed a motion for a new trial which was denied, and this appeal followed.

The appellants raise three points on appeal. First, they contend that the trial judge erred in ruling as a matter of law that a qualified privilege did not exist and in refusing to submit that affirmative defense to the jury.

The Florida Supreme Court in Coogler v. Rhodes, 38 Fla. 240, 248, 21 So. 109, 112 (1897) (citing Townshend on Slander & Libel § 209 (4th ed.)), first enunciated the concept of a qualified privilege:

Where a person is so situated that it becomes right, in the interests of society, that he should tell to a third person certain facts, then, if he bona fide, and without malice, does tell them, it is a privileged communication.

Thus, a statement is qualifiedly privileged if made by one who has a duty or interest in the subject matter to one who has a corresponding duty or interest. Teare v. United Association of Journeymen & Apprentices of the Plumbers & Pipe Fitters Industry Local 295, 98 So.2d 79 (Fla. 1957); see also Loeb v. Geronemus, 66 So.2d 241 (Fla. 1953); Water & Sewer Utility Construction, Inc. v. Mandarin Utilities, Inc., 440 So.2d 428 (Fla. 1st DCA 1983); Lundquist v. Alewine, 397 So.2d 1148 (Fla. 5th DCA 1981). Moreover, where a qualified privilege exists, plaintiffs must prove express malice or malice in fact in order to recover. Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906). Actual malice, or malice in fact, constitutes an abuse of a qualified privilege leaving the defendant liable. Axelrod v. Califano, 357 So.2d 1048 (Fla. 4th DCA 1978); see also Lewis v. *231 Evans, 406 So.2d 489 (Fla. 2d DCA 1981) (inspector could defeat contractor's claim of qualified privilege by proving malice in fact, that is, by presenting evidence from which jury could reasonably infer that contractor was motivated by ill will and desire to harm inspector). Therefore, under Florida law, when a statement is qualifiedly privileged and made without malice, there exists no cause of action for defamation. Water & Sewer Utility Construction v. Mandarin Utilities,

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Bluebook (online)
500 So. 2d 228, 11 Fla. L. Weekly 2516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schreidell-v-shoter-fladistctapp-1986.