Pensacola Motor Sales, Inc. v. Daphne Auto., LLC

• Decision Date: 06 December 2013
• Docket Number: 1110857.,1110840
• Citation: 155 So.3d 930
• Parties: PENSACOLA MOTOR SALES, INC., d/b/a Bob Tyler Toyota v. DAPHNE AUTOMOTIVE, LLC, d/b/a Eastern Shore Toyota, and Shawn Esfahani. Fred Keener v. Daphne Automotive, LLC, d/b/a Eastern Shore Toyota, and Shawn Esfahani.
• Court: Alabama Supreme Court

155 So.3d 930

PENSACOLA MOTOR SALES, INC., d/b/a Bob Tyler Toyota

v.DAPHNE AUTOMOTIVE, LLC, d/b/a Eastern Shore Toyota, and Shawn Esfahani.

Fred Keener

v.Daphne Automotive, LLC, d/b/a Eastern Shore Toyota, and Shawn Esfahani.

1110840

1110857.

Supreme Court of Alabama.

Dec. 6, 2013.

John Martin Galese and Jeffrey L. Ingram of Galese & Ingram, P.C., Birmingham, for appellantPensacola Motor Sales, Inc., d/b/a Bob Tyler Toyota.

Jeffrey L. Luther and L. Robert Shreve of Luther, Collier, Hodges & Cash, LLP, Mobile, for appellantFred Keener.

David A. McDonald and Vincent F. Kilborn III of Kilborn, Roebuck & McDonald, Mobile, for appellees.

Opinion

SHAW, Justice.

In these consolidated appeals, Pensacola Motor Sales, Inc., d/b/a Bob Tyler Toyota(“BTT”), one of two named defendants below, appeals in case no. 1110840from a judgment entered on a jury verdict in favor of Daphne Automotive, LLC, d/b/a Eastern Shore Toyota (“EST”), and Shawn Esfahani, the plaintiffs below, on the plaintiffs' claims seeking damages for slander.In case no. 1110857, Fred Keener, an employee of BTT and a codefendant, similarly appeals from the judgment against him and in favor of EST and Esfahani.

Facts and Procedural History

In December 2007, Esfahani, who was born in Iran but who is a United States citizen, opened EST, an automobile dealership selling Toyota vehicles, in Daphne.Esfahani serves as both owner and manager of EST.EST is a direct competitor of BTT, which has, since 1997, operated a Toyota-brand automobile dealership in Pensacola, Florida.Bob Tyler, president and sole owner of BTT, had competed with Esfahani for a new Toyota dealership that was to be opened in Baldwin County.The record suggests a history of “bad blood” between Esfahani and Tyler in that in 2010they were also involved in federal litigation related to alleged “cybersquatting” by EST based on EST's online advertising practices; EST successfully defended against BTT's claims.

Esfahani ultimately learned of slanderous statements made about him and/or EST by employees of BTT, including, in an apparent effort to discourage potential customers from purchasing from EST, BTT's agents' purportedly informing customers that Esfahani and/or EST “are engaged in illegal activity, are terrorists, or otherwise support terrorist organizations.”More specifically, BTT and its employees purportedly referred to EST as “Middle Eastern Shore [Toyota]” or “Taliban Toyota.”

In January 2010, EST and Esfahani sued BTT and Keener in the Mobile Circuit Court, seeking damages based on claims of slander per se, slander per quod, and intentional interference with business relationships.As a result of the alleged slanderous remarks by the defendants or their agents, Esfahani and EST alleged that they“ha[d] been deprived of public confidence that they had prior to said acts ... and [their] business reputation has been damaged and the business has lost profits and has otherwise been devalued.”

The matter ultimately proceeded to a jury trial, during which, according to the trial court, the evidence demonstrated the following:

“The evidence at trial showed repeated instances of defamation by the Defendants.Pastor Michael Bonham testified that BTT salesman Joe Carp^[ [^1] repeatedly told Bonham and his wife, Barbara Bonham, that ... Esfahani ... was from Iraq, was ‘funneling money back over there to his family to help fund terrorists,’ and that Esfahani was ‘hoping to try to get [Carp's brother who was serving in the military over there] in harm's way.’ ...

“Mrs. Bonham test drove two vehicles with ... Carp.During both test drives, Carp made comments ‘over and over, about ... well, at least I'm not a terrorist [a]nd he would say something about Middle Eastern Shore Toyota [and, again,] at least I'm not a terrorist.’... Between test drives, Carp reiterated: ‘You do understand that the owner over there is from Iraq and that he indeed is shipping money back over there to help pay for terrorists?’... Throughout the Bonhams' visit to BTT, Carp repeatedly asserted that Esfahani and [EST] were terrorists or otherwise funded terrorism.

“As the Bonhams were leaving the dealership, Carp introduced them to DefendantFred Keener, BTT's new car sales manager.Keener unsuccessfully tried to close a deal with the Bonhams.When they could not come to terms on price, Keener advised the Bonhams: ‘You do know that the owner from over there at [EST] is from Iraq and that we refer to that ... as Little Iraq and ... the owner over there is sending money back to his family over in Iraq to fund terrorists.’... Both Bonhams also testified that Keener attempted to dissuade them from even visiting EST by questioning their patriotism: ‘You're a patriotic American, aren't you?... well, you need to think about that then’and ‘you just need to keep all that in mind’; and, ‘remember your American patriotism ...’ ...

“Despite the efforts of Keener and Carp, the Bonhams did visit EST, but not before debating the propriety of shopping at EST.Pastor Bonham testified the Bonhams had significant misgivings about EST.Once at EST, however, the Bonhams' fears were allayed, and they decided to buy a car.While Ms. Bonham was signing the paperwork, Carp called the Bonhams' cell phone to re-engage in purchase negotiations.When Pastor Bonham informed him the Bonhams had decided to buy a car from [EST], Carp responded: ‘I can't believe you're funding terrorists through that organization like that.You know he's from Iraq and you know he's sending money over to his family and you're trying to kill my brother.’ ...

“Pastor Bonham reported this conversation with Carp to EST management.After [Esfahani and EST] had received a number of reports that BTT salesmen were making slanderous statements about them (most notably, but not solely, from the Bonhams), [Esfahani and EST] sent BTT a cease and desist letter on July 31, 2009.[Esfahani and EST] specifically cited Carp's conduct and demanded a retraction.By letter dated August 24, 2009, BTT'S attorney responded to [Esfahani and EST's] letter stating BTT had ‘made a determination that one of the employees might have made an inappropriate remark and swiftly disciplined the employee.’BTT's ‘swift discipline’ turned out to be warning Carp that he would be fired the next time he slandered EST.

“... Esfahani testified he filed this lawsuit in January 2010 because [BTT and Keener] continued making slanderous statements even after the July 31, 2009, cease and desist letter.Testimony from another witness, Ms. Linda Hurst, suggests BTT may have actually increased its assault against [Esfahani and EST].Ms. Hurst testified that in March or April 2010she and her husband shopped [at] BTT....When the Hursts informed their salesman that they intended to shop other dealers, including EST, the salesman responded: ‘You don't want to go over there.That guy is a terrorist and he supports terrorists.He sends all of his money to terrorists.’... This unknown BTT salesman was neither Carp nor Keener....

“Patricia Gibson worked at BTT for about eight months in 2007–2008....She testified that BTT salespeople regularly referred to EST as ‘Taliban Toyota’ and told customers indicating an interest in buying a vehicle from EST that [Esfahani and EST] were terrorists ‘supporting the Taliban.’... The BTT sales team also made these statements in sales meetings.And, if a salesman could not close a deal with a customer, he was instructed to tell the customer that ‘Esfahani was supporting the Taliban and they shouldn't send their money over there....’... These types of defamatory statements were ‘a common practice’ among salesmen and sales managers and were made by Keener ‘like on a daily basis....'

“Josh Wilson, a veteran BTT salesman (since 2006) testified by deposition that he frequently heard BTT salesmen refer to [Esfahani and EST] as ‘Taliban Toyota’ and that this term was used throughout BTT by Keener—on the sales floor, in the sales meeting area, and at the sales managers' station in the sales tower.Wilson also heard Keener refer to [Esfahani and EST] as ‘Middle Eastern Shore Toyota’ and ‘terrorists,’ and he testified that Keener used this kind of language to get salesmen to discourage customers from ever even visiting EST.Shortly after [Esfahani and EST] presented Wilson's testimony at trial, BTT fired Wilson.

“[Esfahani and EST] also adduced testimony from Bob Tyler(BTT's sole owner) and Verne Hilt(BTT's general manager) that Keener (or the sales manager on duty at the time), was required to talk to every customer before he or she left the dealership....Hilt also testified that Keener was responsible for ‘train [ing] the salespeople on what to say when talking to a customer.’... And, Bob Tyler admitted BTT's practice of ‘loading the salesman's lips,’ i.e., telling the salesmen what to say to customers. ...The clear implication of this evidence is that every customer who visited BTT's dealership since 2008 until at least March 2010 has heard, either directly from Keener or from a salesman whose ‘lips were loaded’ by Keener, that [Esfahani and EST] support terrorism and are actively involved in promoting attacks against the United States and its citizens.”

In addition, Esfahani and EST offered testimony from an economist who specializes in the automobile industry, Dr. Ernest H. Manuel, Jr., Ph.D., who, by means of a “lost profits analysis,” opined that, as a result of the slanderous comments by the defendants, EST had suffered damage in the form of lost sales totaling approximately $7.1 million.Esfahani testified that, in his estimation, not only was Manuel's estimate of EST's losses conservative, but he had also personally been damaged by BTT's and Keener's conduct in excess of that amount.

At the conclusion of the four-day trial, the jury found for Esfahani and EST against both BTT and Keener on the remaining slander claims.²Specifically, as to his slander per se charge against both BTT and Keener, the jury...