Rety v. Green

• Citation: 546 So.2d 410,14 Fla. L. Weekly 1829
• Decision Date: 14 February 1989
• Docket Number: 86-1861,Nos. 86-1860,s. 86-1860
• Parties: 14 Fla. L. Weekly 1829, 14 Fla. L. Weekly 449 Denis RETY, Appellant/Cross Appellee, v. Arthur GREEN and Southern Commodity Corporation, Appellees/Cross Appellants.
• Court: Court of Appeal of Florida (US)

Page 410

546 So.2d 410

14 Fla. L. Weekly 1829, 14 Fla. L. Weekly 449

Denis RETY, Appellant/Cross Appellee, v. Arthur GREEN and Southern Commodity Corporation, Appellees/Cross Appellants.

Nos. 86-1860, 86-1861.

District Court of Appeal of Florida,

Third District.

Feb. 14, 1989.

On Rehearing Aug. 1, 1989.

Kelly, Black, Black, Byrne & Beasley and Hugo Black, Jr. and Lauri Waldman Ross, Lisa Bennett, Miami, Chonin & Sher, Coral Gables, Shafran & Martin, for appellant/cross appellee.

Daniels & Hicks and Mark Hicks and Ralph O. Anderson, Miami, and Joseph C. Brock, New York City, Kimbrell & Hamann; Cooper, Wolfe & Bolotin and Marc Cooper, Miami, for appellees/cross appellants.

Before SCHWARTZ, C.J. ^* , and HUBBART and BASKIN, JJ.

HUBBART, Judge.

This is an appeal by the plaintiff Denis Rety from two post-trial orders entered in a defamation action after the jury had returned a verdict in his favor. The post-trial orders appealed from are: (1) a remittitur or new trial order on the issue of damages, and (2) a new trial order on all issues entered after the plaintiff refused the remittitur. This is also a cross appeal by the defendants Arthur Green and Southern Commodity Corporation from certain adverse trial court rulings made in the cause. For the reasons which follow, we (a) affirm the remittitur or new trial order, save for the reduction of the punitive damages award which is reversed in part, (b) reverse the new trial order in its entirety, (c) affirm the trial court rulings under review on the cross appeal, and (d) remand the cause to the trial court with directions.

I

The relevant facts of the case are these. On the evening of September 18, 1982, the defendant Arthur Green was dining out at a first-class French restaurant, La Belle Epoque, located in Bay Harbor Islands, Dade County, Florida. The plaintiff Denis Rety owned and operated this restaurant through a corporation in which he held all the corporate stock. ¹ During the evening, the defendant Green became aware of an incident at a nearby table at the restaurant involving some acquaintances of his. This incident, in turn, led to a series of incredible events in the days and months that followed which were to change forever the

lives of both the plaintiff Rety and the defendant Green. Indeed, a Thomas Hardy novel might very well be constructed out of these bizarre events, as they show how perverse and tragic life can sometimes be when people are swept away by the madness of their emotions.

A

The precipitating incident at the La Belle Epoque restaurant was innocuous enough. Green's acquaintance complained to the restaurant waiter and later to the plaintiff Rety about an allegedly tough veal chop; Rety told the acquaintance that although there was nothing wrong with the veal chop, the latter was welcome to order another dish in view of this dissatisfaction. The defendant Green did not overhear any of this conversation and was aware only that his acquaintance appeared upset over something. The next day, however, Green learned from his acquaintance what had happened the previous evening. Although not personally involved in the incident, Green took it upon himself to send a handwritten note to the restaurant complaining about the above affair as if he had actually witnessed it--which, in fact, he had not. Moreover, he totally distorted the incident by portraying it as an "argument" in which the restaurant management had refused any satisfaction to the patron--which, in fact, was also not true. He ended the note by deprecating the restaurant as catering "to the condo crowd with their desire for medium-priced food, and medium-priced quality."

The plaintiff Rety was greatly angered when he received the above note and telephoned Green personally to express his extreme displeasure. After identifying himself, Rety denied that there had been any such "argument" at his restaurant and stated that he did not need Green to tell him how to run his business. The conversation thereupon turned into a heated argument, the details of which were disputed at trial. According to Rety's version, which the jury accepted, Green called Rety a "Crazy Frenchman," to which Rety replied, "I don't know what you are, a crazy German, crazy Italian, crazy Jew, but I am sure you are more crazy than I am"; Green then began to scream at Rety, at which time Rety hung up the telephone. Green's version of the exchange--which the jury rejected, presumably because he gave various contradictory and widely different accounts of the same conversation to several other people--was that Rety threatened him and his children, cursed at him, and called him various anti-Semitic names. The telephone conversation lasted no more than two minutes.

B

After this fateful conversation, Green became greatly angered and sent another handwritten note to Rety in which he accused Rety of making anti-Semitic remarks during the above conversation. He called Rety a "very foulmouthed individual" and said, "I am letting all my friends and neighbors in Bay Harbor know your feelings about Jews. Since you hate them, there is no reason why they should patronize your establishment." Soon thereafter, Green dictated a letter to Rety on the stationery of his corporation, the defendant Southern Commodity Corporation, which he signed as president of the corporation; this letter became the basis of the instant defamation suit. After accusing Rety of making vile anti-Semitic slurs during the above telephone conversation, Green stated that he was going to do everything in his power to financially destroy Rety's restaurant and to run Rety out of town. ²

Green authorized release of the above letter after counsel for the defendant Southern Commodity Corporation had reviewed and approved it. The letter was, in turn, forwarded by carbon copy to various prominent leaders in the Jewish political and social community in the Bay Harbor Islands area. ³ Green also sent blind copies of his letter to various friends and relatives and had "maybe 50 conversations" with people concerning his "problem with Rety." The incident was even discussed with President Ronald Reagan at a meeting Green attended at the White House in November of 1982.

In the months that followed, Green's letter received wide circulation and publicity throughout the Bay Harbor Islands community and elsewhere. Original recipients of the letter forwarded their copies to others. ⁴ Stacks of the letter were present and available for distribution at the Miami Beach Chamber of Commerce. The letter was discussed at town hall in Bay Harbor Islands, at the local chapter of the Anti-Defamation League (which received numerous inquiries concerning same), and at many community organizations and social groups. ⁵ The letter was also circulated to prominent South Florida condominiums and apartment buildings. ⁶ It was even read to a bus load of American tourists in Israel on a Greater Miami Jewish Federation sponsored

trip in October 1982. Ironically, however, the letter was never mailed to Rety himself, although it was addressed to him; instead, three weeks after its original publication, Rety, quite by accident, received a copy of the letter from his landlady who had come upon one of the many copies in circulation at the time.

C

This widespread publication and republication of Green's letter had a devastating impact on Rety, both financially and emotionally. This was not surprising in view of the fact that Bay Harbor Islands was, and still is, a predominantly Jewish community; Rety's restaurant catered to a largely Jewish clientele; and Green himself was a well-known and respected member of the Bay Harbor Islands Jewish community.

In early October 1982, Rety and his family began receiving telephone threats (including death threats) at La Belle Epoque. At first, there were just a few calls, but they rapidly increased to the point that the phone was constantly ringing. Callers cursed and called Rety an "anti-Semite," threatened to blow up his restaurant, and warned that his family should not walk the streets.

Rety also received "hate" mail from various local and other sources. The South Florida Hotel and Motel Association, to which many Miami Beach hotels belong, initiated a letter-writing campaign about the incident; Michael Klein, one of its members, wrote Rety, as part of that campaign, that "[i]t is individuals like you that add to the misery in the world today." Incidents similar to this were repeated many times over. ⁷

Rety further was ostracized from the local business community. The Gold Coast Chamber of Commerce [representing Surfside, Bal Harbour, Bay Harbor Islands, Sunny Isles, Golden Beach and North Bay Village] had been holding all of its monthly luncheon meetings at La Belle Epoque. After Green's letter circulated, the Chamber's executive board voted 16-0 to change to another restaurant because "based on what was going on, it was inappropriate to have meetings there." In an unprecedented move, the Board of Governors of the Miami Beach Chamber of Commerce voted to expel Denis Rety and La Belle Epoque from membership on November 16, 1982. Initiating this vote was Stephen Cypen, acting on the information he had received from Green. Cypen's motion was seconded by attorney Gerald Schwartz, another prominent Jewish community member, who was present on the tour bus in Israel when Green's letter was read.

Rety gave several press interviews in an attempt to stem the tide of community outrage against him, but to no avail. Cancellation of business, as well as individual reservations at La Belle Epoque came pouring in as the Jewish community boycotted Rety. More than sixty regular customers never returned to the restaurant again. A similar impact was also felt at the Continental Gourmet, Rety's second restaurant in Hollywood, Florida. Green admitted that he knew in advance that people would take this kind of action as a result of his charges as "it would be a natural...