Perry v. Cosgrove
| Decision Date | 06 March 1985 |
| Docket Number | No. 84-796,84-796 |
| Parties | 10 Fla. L. Weekly 608, 11 Media L. Rep. 1931 John L. PERRY, Appellant, v. Richard W. COSGROVE and Clearwater Newspapers, Inc., Appellees. |
| Court | Florida District Court of Appeals |
Gary Robert Preston and Dennis P. Thompson of Richards, Nodine, Gilkey, Fite, Meyer & Thompson, P.A., Clearwater, for appellant.
George A. Vaka, Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellees.
John L. Perry, appellant, appeals from an order dismissing with prejudice three counts of his amended complaint for failure to state a cause of action. We reverse on all three counts.
Perry, former editor of the Clearwater Sun Newspaper, sued the appellees, Richard W. Cosgrove, president and publisher of the newspaper, and Clearwater Newspapers, Inc., the owner. His complaint contained six counts. This appeal involves the three counts alleging libel, fraud, and breach of contract. The suit arose after Cosgrove fired Perry and another newspaper reported that the dismissal occurred following a dispute over a "no-food" office policy. Two days after the story was published, Cosgrove wrote a letter to a concerned reader stating that the article was inaccurate and that the termination was based on factors other than the dispute. Perry's libel claim was founded on this letter. His fraud claim was based upon Cosgrove's alleged misrepresentation that Perry's position with the Sun was permanent. His breach of contract claim was based upon Cosgrove's alleged unfulfilled promise to increase Perry's salary.
Initially, we note that for purposes of a motion to dismiss for failure to state a cause of action, the movant admits as true all material facts well-pleaded and all reasonable inferences arising from those facts. Orlando Sports Stadium, Inc. v. State, 262 So.2d 881 (Fla.1972); Simon v. Tampa Electric Co., 202 So.2d 209 (Fla. 2d DCA 1967). To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. Fla.R.Civ.P. 1.110(b). We hold that the amended complaint set forth sufficient facts to state a cause of action on all three counts.
First, Perry alleged that the letter written by Cosgrove constitutes libel per se. Although the appellees are members of the media, they are not "media defendants," for the purposes of the elements of a cause of action for libel per se. The letter written by Cosgrove was not published in the Sun, but was mailed to one of its readers. 1 The letter stated in part as follows:
Mr. Perry's termination was based on several factors and not the incident mentioned in the Times story. Rather than embarass Mr. Perry any further on the matter, we decided not to issue a statement.
Generally, a publication is libelous per se if, when considered alone without innuendo, it tends to subject a person to hatred, distrust, ridicule, contempt, or disgrace, or tends to injure him in his trade or profession, Richard v. Gray, 62 So.2d 597 (Fla.1953), or if it imputes to another conduct, characteristics, or a condition incompatible with the proper exercise of his lawful business, trade, profession, or office. Barry College v. Hull, 353 So.2d 575 (Fla. 3d DCA 1977). Neither the court nor the jury may go beyond the four corners of the publication in determining whether there is libel per se. Barry College; Wolfson v. Kirk, 273 So.2d 774 (Fla. 4th DCA 1973). The language of the document should not be interpreted by extremes, but should be construed as the common mind would naturally understand it. McCormick v. Miami Herald Publishing Co., 139 So.2d 197 (Fla. 2d DCA 1962).
The letter indicated that the appellees did not wish to embarrass Perry any further by issuing a statement concerning the factors leading up to his dismissal. Although the term "embarrass" may have been intended to convey and perhaps did convey only an innocuous meaning, a person of common mind might have construed it to mean that Perry had conducted himself in a shameful manner, or in a manner inconsistent with the proper exercise of his profession. Where a communication is ambiguous and reasonably susceptible of a defamatory meaning, it is for the trier of fact to decide whether the communication was understood in the defamatory sense. Wolfson. Accordingly, the motion to dismiss count I should have been denied.
Next, Perry alleged a tort action for fraud on the ground that Cosgrove misled him to believe that his job with the Sun was permanent. The essential elements of common-law fraud are as follows: (1) a false statement of fact; (2) known by the defendant to be false at the time it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage to the plaintiff. Vance v. Indian Hammock Hunt and Riding Club, Ltd., 403 So.2d 1367 (Fla. 4th DCA 1981).
The complaint states that Cosgrove told Perry he was "here to stay" and that "we take care of our permanent executives." The complaint avers...
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In re Standard Jury Instructions—Contract & Business Cases
...It therefore set forth sufficient facts which taken as true, would state a cause of action for breach of contract.” Perry v. Cosgrove, 464 So.2d 664, 667 (Fla. 2d DCA 1985). 4. As long as an essential ingredient is not missing from an agreement, courts have been reluctant to hold contracts ......
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