QBIQ CORP

v.

AMPARO ECHARTE

Before: WALSH, TRAWICK, and SANTOVENIA, JJ.

PER CURIAM.

Following a bench trial on claims and counterclaims related to an unfulfilled home renovation contract, the trial court entered judgment for the Filing # 112801391 E-Filed 09/02/2020 03:58:28 PM [*2] [*2] defendants/counter-plaintiffs QBIQ Corp. and Pablo Palacios (collectively, “QBIQ”) and against the Plaintiff, homeowner Amparo Echarte. The trial court found that Ms. Echarte, the homeowner, unilaterally breached a renovation contract with QBIQ and Mr. Palacios. After Ms. Echarte cancelled the contract, QBIQ retained a portion of the deposit. In retaliation, Ms. Echarte made numerous false written complaints to multiple entities about QBIQ and Mr. Palacios. QBIC brought a multi-count counterclaim to Ms. Echarte’s breach of contract claim, including claims (1) for injunction, (2) for damages for filing a false police report with Miami-Dade Police Department, (3) for her unilateral breach of contract, and (4) for defamation by publishing false and defamatory statements about QBIQ. The counterclaim was factually based upon the Homeowner’s complaints submitted to the Better Business Bureau, Home Advisor, Adornus, the Miami-Dade County licensing agency, the Florida Department of Business and Professional Regulation (DBPR) and a criminal complaint alleging grand theft made to the Miami-Dade Police Department. QBIQ alleged in its counterclaim that Ms. Echarte falsely alleged that QBIQ and Mr. Palacios changed the contractual terms, stole her deposit, failed to communicate with her, and failed to do the work. Following a bench trial, the trial judge found that Ms. Echarte unilaterally cancelled the contract and thereby refused to allow QBIQ to fulfill their contractual [*3] [*3] duties. The court entered judgment for QBIQ on the Homeowner’s breach of contract claim and Judgment for QBIQ on its counterclaim for breach of contract in the amount of $4,561.57. The Homeowner, Ms. Echarte, has not appealed this judgment.

On QBIQ’s remaining counterclaims for injunctive relief, filing a false police report, and for defamation, the trial court found for the Counter-Defendant, Ms. Echarte.

QBIQ raises three issues on appeal.

First, QBIQ argues that because the trial court found that Ms. Echarte’s statements about QBIQ were defamatory, it was error not to enter judgment in QBIQ’s favor on its defamation claim. QBIQ argues that the trial court erred in finding that Ms. Echarte’s defamatory statements were protected by a qualified privilege, because Ms. Echarte did not plead, raise or argue her qualified privilege as a defense. Even if she had, her defamatory statements were made absent a showing of good faith, barring her assertion of a qualified privilege. Second, QBIQ claims the trial court departed from its neutrality in excluding its evidence offered to prove its claim for filing a false police report. Third, QBIQ argues that the trial court erred in denying an injunction to prohibit Ms. Echarte’s present and future false or defamatory statements.

[*4] [*4]

Defamation

Ms. Echarte made numerous statements to third parties about her experience with QBIQ. On QBIQ’s count for defamation, the trial court considered only three statements. Ms. Echarte told the Better Business Bureau that QBIQ immediately cashed her deposit, that all her communications with QBIQ’s principal, Mr. Palacios, went unanswered, that no work was ever done, and that Mr. Palacios stole her check. The trial court found these statements to be false. In a review on Homeadvisor.com, Ms. Echarte stated that QBIQ took her money, ran off and never did the work. The trial court found that these false statements tended to injure QBIQ in its business, reputation or occupation and that the statements falsely accused QBIQ of theft, which is criminal conduct. Ms. Echarte told the DBPR that QBIQ did no work. The trial court found this statement to be misleading because Ms. Echarte unilaterally cancelled the contract and did not allow QBIQ to work. Ms. Echarte told the DBPR that she was unable to communicate with Mr. Palacios. The trial court found that this statement was false. The trial court found “Ms. Echarte wove a web of blatant, self-serving lies in her complaint to the DBPR.” The trial court further found that her statement that QBIQ refused to return any of her money was untrue.

Defamation requires proof of the following five elements: “(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity [*5] [*5] on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). The trial court’s findings supported the tort of defamation. “Words are defamatory when they ‘tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure one in one's business or profession.’” American Airlines, Inc. v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (quoting Seropian v. Forman, 652 So. 2d 490, 495 (Fla. 4th DCA 1995)), citing Adams v. News–Journal Corp., 84 So. 2d 549 (Fla.1955). However, the trial court rejected the defamation claim on the ground that Ms. Echarte’s statements were entitled to a qualified privilege.

The standard of review to determine whether allegedly defamatory statements are covered under a privilege is de novo. Resha v. Tucker, 670 So. 2d 56, 59 (Fla. 1996); Cassell v. India, 964 So. 2d 190 (Fla. 4th DCA 2007). QBIQ argues that the trial court erred in its sua sponte finding that a qualified privilege shielded Ms. Echarte from liability for her defamatory statements. Ms. Echarte never raised a qualified privilege in a responsive pleading, nor did she argue that her statements were protected by her privilege at trial. Although not required to file responsive pleadings under Small Claims Rule 7.090, and at no point in the litigation below did Ms. Echarte plead, raise or argue that she was protected by a qualified privilege. [*6] [*6] QBIQ is correct that it was not required to anticipate an affirmative defense not pled and not argued at trial. "Qualified privilege is an affirmative defense, and the burden of proving it rests with the defendant.” Kieffer v. Atheists of Fla., Inc., 269 So. 3d 656, 660 (Fla. 2d DCA 2019), citing Healy v. Suntrust Serv. Corp., 569 So. 2d 458, 460 (Fla. 5th DCA 1990). As Ms. Echarte never raised nor argued this defense, it was error to conclude that Ms. Echarte’s defamatory statements were protected by a qualified privilege. Further, even if Ms. Echarte had raised the defense, she failed to establish entitlement to the privilege as a matter of law. For a defamatory statement to be protected by a qualified privilege, the declarant must establish the following elements: “(1) good faith; (2) an interest in the subject by the speaker or a subject in which the speaker has a duty to speak; (3) a corresponding interest or duty in the listener or reader; (4) a proper occasion; and (5) publication in a proper manner.” Thomas v. Tampa Bay Downs, Inc., 761 So. 2d 401, 404 (Fla. 2d DCA 2000), citing Nodar, 462 So. 2d at 809. Ms. Echarte failed to offer proof that she acted in good faith. To determine whether a statement was made in good faith, the statement must be made “with a good motive, and not for the purpose of harming the subject of the defamation.” Lewis v. Evans, 406 So. 2d 489, 492 (Fla. 2d DCA 1981).

Here, the trial judge’s findings refute any claim that she acted in good faith. [*7] [*7] Ms. Echarte falsely told the Better Business Bureau that QBIQ immediately cashed her check, that she was never able to reach QBIQ and that all her communications went unanswered. The trial court found that Ms. Echarte “wove a web of blatant, self-serving lies in her complaint to the DBPR.” The evidence at trial was uncontroverted that QBIQ did not cash her check and a string of emails flowing back and forth between the parties evincing this fact was introduced at trial. The trial court found that these statements were “undeniably false.” Thus, there was no evidentiary basis to support the conclusion that Ms. Echarte acted in good faith.

Likewise, the posting on Homeadvisor.com – the only statements made which were tied in any way to evidence of damages – was false and misleading. Ms. Echarte wrote that Mr. Palacios “took money … and ran off never did the work.” As the trial court found, Ms. Echarte unilaterally cancelled the contract and would not allow QBIQ to complete the job. Not only was her statement blatantly false, she accused Palacios of committing a crime. Like the statements to the BBB and the DBPR, the trial court’s findings preclude any finding that Ms. Echarte acted in good faith. Therefore, she was not protected by a qualified privilege.

Absent any good faith, and because she did not raise the defense of qualified privilege, it was error to deny judgment based on the privilege, and we therefore reverse and remand for the trial judge to enter judgment for QBIQ on the defamation count. On remand, the trial court shall review the trial transcripts and [*8] [*8] determine the amount of damages, if any, in connection with the defamation count. Filing a False Police Report The trial court found that QBIQ failed to introduce sufficient evidence to establish its claim against Ms. Echarte for filing a false police report. QBIQ failed to satisfy its burden because the trial court excluded the police report on the ground that QBIQ failed to establish the document’s authenticity. QBIQ argues that the trial court raised the issue of authenticity sua sponte and Ms. Echarte was prompted to challenge the document’s authenticity. We find that the trial judge appropriately construed Ms. Echarte’s objections at trial as objections to authenticity and affirm the judgment for Ms. Echarte on the claim of filing a false police report. Injunction QBIQ argues that because Ms. Echarte’s statements on homeadvisor.com were defamatory, it follows that it was error to deny QBIQ an injunction requiring her to remove her defamatory speech. We disagree.

In Chevaldina v. R.K./FL Mgt., Inc., 133 So. 3d 1086 (Fla. 3d Dist. App. 2014), the court held that generally, injunctive relief is not available to prohibit defamatory speech: Injunctive relief is not available to prohibit the making of defamatory or libelous statements. See, e.g., Vrasic v. Leibel, 106 So. 3d 485, 486 (Fla. 4th DCA 2013). A temporary injunction directed to speech is a classic example of prior restraint on speech triggering First [*9] [*9] Amendment concerns. Id. Id. at 1090. An exception to this general rule lies where “defamatory words are made in the furtherance of the commission of another intentional tort.” Id., citing Murtagh v. Hurley, 40 So. 3d 62 (Fla. 2d DCA 2010); Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371 (Fla. 4th DCA 1987). The declarant in Chevaldina, like Ms. Echarte, made defamatory and misleading statements on the internet with the intent to damage the subject’s business. The court reversed an injunction directed at suppressing this defamatory speech because it violated the rule against prior restraint. Even though the subject of the statements in Chavaldina – a former commercial landlord – brought forth evidence about the impact of the defamatory speech and its effect upon his reputation, this evidence was not sufficient to proscribe speech by injunction. Here, there is no independent tort alleged by QBIQ. QBIQ did not file a claim for tortious interference with business relationships. It could not do so, because, as in Chevaldina, QBIQ brought forth no direct evidence that identifiable prospective customers did not hire QBIQ because of Ms. Echarte’s postings on homeadvisor.com. QBIQ’s evidence (during the damages phase of trial) consisted of a comparison between current profit after the postings and its prior profit. QBIQ’s proof of damages is insufficient to establish the narrow exception to the prohibition of prior restraint. We therefore affirm the [*10] [*10] trial court’s denial of injunctive relief.

We reverse the judgment for the counter-defendant on defamation and remand for the trial judge to review the record, determine an appropriate amount of damages, if any, for defamation, and enter judgment for QBIQ on its defamation claim. We otherwise affirm the judgment below.

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NOT REPRESENTED BY COUNSEL

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