final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Lisa S. Small, Judge;
L.T. Case No. 50-2017-CA-001198.
Trent Steele of Steele Law, Hobe Sound, for appellant.
Douglas M. McIntosh and Aleida M. Mielke of McIntosh, Sawran
& Cartaya, P.A., Fort Lauderdale, and Michael I. Kean of
Loren & Kean Law, Palm Beach Gardens, for appellees.
narrow issue in this case is whether an attorney's cease
and desist letter to an opposing party is
"published" for the purpose of a defamation action
when the attorney sends a copy of the letter to his client.
We affirm the order granting the motion to dismiss with
prejudice because sending the letter to the client did not
amount to a "publication" under the law of
are attorneys who were retained by the board of directors of
a condominium association to deal with appellant, Rand Hoch,
a unit owner at the condominium who was unhappy about certain
decisions made by the board. The attorneys sent Hoch a cease
and desist letter and sent a copy to their
"client." Hoch took offense at the content of the
letter and sued the attorneys for defamation. The circuit
court dismissed the case for failure to state a cause of
action, ruling that the complaint "fail[ed] to allege
publication to a third party." The court wrote:
The Court finds that publication of the letter to [the
plaintiff] and the firm's client as reflected in the
December 20, 2016 letter and as plead in the Amended
Complaint, is not publication to a third party as a matter of
law. . . . The Court is persuaded by the case law submitted
by the Defendants, particularly American Airlines v.
Geddes, 960 So.2d 830 (Fla. 3d DCA 2007).
is defined as "the unprivileged publication of false
statements which naturally and proximately result in injury
to another." Wolfson v. Kirk, 273 So.2d 774,
776 (Fla. 4th DCA 1973). "Publication of defamatory
matter is communication of the statement to a third
person." Granda-Centeno v. Lara, 489 So.2d 142,
143 (Fla. 3d DCA 1986). "There may be publication to any
third person." W. Prosser & W. Keeton, The Law of
Torts § 113, at 798 (5th ed. 1984); see also Tyler
v. Garris, 292 So.2d 427, 429 (Fla. 4th DCA 1974) (the
only requirement is that "the defamatory matter must
have been communicated to some third person in order for same
to be actionable.").
said, Florida courts have recognized that certain
communications, even though apparently made to "third
persons," are not "published" for the purpose
of stating a defamation cause of action. To reach this
conclusion, courts have employed the legal fiction that the
party hearing or seeing the purported defamation is so
closely connected with the potential defamation plaintiff or
defendant that they merge into a single entity, so there is
no publication to a "third person" necessary to the
cause of action.
Florida courts have found no publication where a corporation
is sued for defamation and the defamatory statement was made
by one managerial employee of the corporation to another.
"When the entity alleged to have committed the
defamation is a corporation, the courts have held that
statements made to corporate executive or managerial
employees of that entity are, in effect, being made to the
corporation itself, and thus lack the essential element of
publication." Am. Airlines, Inc. v. Geddes, 960
So.2d 830, 833 (Fla. 3d DCA 2007). In Geddes, the
jury found that American Airlines had defamed an employee
while investigating misconduct. The third district reversed
the verdict, holding:
All communication between American executive/managerial
employees are considered to be the corporation talking to
itself, and, could not be the basis for any defamation claim
because they lacked the essential element of publication to a
Id. at 834.
Florida courts have found no publication when a defamatory
statement about a plaintiff corporation is made to a
managerial employee of the corporation. In Advantage
Pers. Agency, Inc. v. Hicks & Grayson, Inc., 447
So.2d 330, 331 (Fla. 3d DCA 1984), a corporation could not
maintain a cause of action for defamation where the