SHARP, W., J.
Scott, an attorney, represented the plaintiff below, Marie Melton-Treworgy, in a slander case, which was resolved by a final judgment of dismissal for failure to state a cause of action. Scott appeals from a subsequent final judgment rendered in that cause, which assessed him $1,275.20 for costs and attorney fees, pursuant to section 57.105, Florida Statutes. Treworgy was assessed an identical amount, but she took no appeal from the judgment.
In its order dismissing Treworgy's second amended complaint, the trial court
The trial court concluded that the defamation claim was "devoid of even arguable substance," and thus attorney fees would be awarded pursuant to section 57.105. We disagree that the second amended complaint failed to state a cause of action and accordingly reverse the award of attorney fees against Scott.
This suit had its genesis in a dispute between neighbors who are residents of Flagler Beach. Treworgy runs a type of bed and breakfast business by renting rooms in her home, which fronts on Oceanshore Boulevard, as well as rooms in a second residence which fronts on South Central Avenue, in the City. The defendant below, Randy Bush, and her husband own and reside in a home adjacent to Treworgy, which fronts on Oceanshore Boulevard. They had used part of the property that fronts on South Central, before Treworgy purchased it, to provide access to their home to South Central Avenue. However, Treworgy closed off their access.
As a result, bad feelings developed between the parties. According to the plaintiff's allegations, the Bushes tried to block and oppose Treworgy's obtaining building permits and variances for improvements to her properties, including an undeveloped piece she later purchased fronting Oceanshore Boulevard. The Bushes were unsuccessful.
In 2002, Randy decided to run for a seat on the City Commission of Flagler Beach. At a question and answer session attended by over 100 voters, including Treworgy, when Randy was answering questions from the audience, her husband asked her what she would do, if elected, to stop the approval of construction projects in the City that violate the City's ordinances and harm the residential properties around them.
The second amended complaint alleged:
The second amended complaint further alleged that several members of the audience turned and looked angrily at the Plaintiff, and understood that the Defendant was speaking about the Plaintiff. Several people who attended the meeting and those who had not but who had heard about the Defendant's accusations, questioned Treworgy about obtaining illegal permits and suggested they questioned her honesty and integrity. In addition, the second amended complaint alleged that Randy's statement was false, and that she made the statement knowing it was false, with improper motives and malice, and that as a result the Defendant suffered general damages: upset, shock, emotional and physical distress, shame, humiliation, and embarrassment, and that this caused her not to participate in City meetings, or work on local committees and local projects.
Scott filed an initial complaint in this case on March 5, 2002, which faced no motion to dismiss. He filed an amended complaint on March 22, 2002. It is substantially similar to the second amended complaint discussed above. It was dismissed for failure to state a cause of action
Thereafter, Scott filed a motion to extend the time to file a second amended complaint for 15 days, which was apparently never acted on. He asserted that he needed more time to research the law of defamation. His second amended complaint was filed beyond the 30 days. However, that was not the basis relied upon by the court for dismissal of the second amended complaint.
An appellate court reviews an award of attorney fees pursuant to section 57.105 on an abuse of discretion standard.
Section 57.105 currently provides:
There may be cases in which failure to state a cause of action in an amended complaint and second amended complaint (which is often permitted by a court prior to dismissal with prejudice)
Given this state of the law of defamation, two or more attempts to state a cause of action in defamation is certainly not unexpected. "Pleading obstacles should be recognized as the residue of a by-gone age in which defamation was a disfavored action." Harper, James and Gray, 2 The Law of Torts 2d § 5.10, at 96 (1986). But in this case, we think Scott successfully pled a cause of action against Bush. This is a question of law for the court to determine.
In this case, the second amended complaint set out sufficient facts to establish that an actionable slander of Treworgy took place at a public meeting and that the audience understood it was Treworgy who was slandered.
The trial court ruled that the allegedly defamatory statement was not pled with sufficient particularity. However, when the defamation is by an oral statement, as opposed to a written one, particularity has never been required. A pleader need only state the essence of what the alleged defamer said.
The trial court also viewed this alleged statement as nondefamatory because it could mean that it was not Treworgy who did anything illegal — it was the City officials who acted illegally in issuing her a building permit. However, as appellant points out, this statement could equally infer that Treworgy did something illegal, like bribery or extortion, to obtain the building permit. In a situation such as this, where the alleged defamation can be understood one of two ways only one of which is defamatory to the plaintiff, it is normally a decision for the fact-finder to determine what a reasonable person hearing the statement would likely have understood it to mean, based on the circumstances and audience involved.
A statement that a person has committed a crime or done something illegal is one of the classic slander per se categories — that is, the pleader need not allege specific damages to state a cause of action.
The trial court also dismissed this second amended complaint because it concluded that Randy's statement that
The determination of which category the alleged statement fits in, pure opinion or mixed, is normally a decision for the trial court, reviewable de novo by an appellate court.
REVERSED and REMANDED.
PETERSON and MONACO, JJ., concur.
Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA 1982).