In a lawsuit in Miami-Dade Circuit Court, Denise de Kalafe, a South
American singing star known for her romantic ballads, claimed the Kiwanis
Club of Little Havana defamed her by calling her a sympathizer of Fidel
Castro, and interfered with her contract by barring her from a stage at
the 1989 festival.
A jury agreed in 1996 after a highly contentious trial in which her
lawyers drew analogies between the conduct of Castro's government and the
Little Havana Kiwanians. The appeals court said the trial judge didn't
allow evidence critical to the Kiwanis defense, and permitted de Kalafe's
lawyers to go too far.
The appeals judges ordered a new trial.
``That's great news,'' Manuel Gonzalez, the Kiwanis president, said of
the reversal Wednesday. ``The whole matter was a contractual matter and
the case got out of hand when they started talking about politics. I guess
they saw the light.''
Kiwanis lawyers Elliot Scherker and Pedro Martinez-Fraga said it
appeared the court supported all of the issues raised on appeal. Moreover,
the lawyers noted, de Kalafe herself could not remember any Kiwanian who
had called her a Castro supporter.
``I remember asking her: `Did you hear a single [Kiwanis] member call
you a communist sympathizer?' '' Martinez-Fraga recalled. ``Answer,
`No.' ''
De Kalafe could not be reached for comment. Miami attorney G. William
Bissett, who represented the singer before the three-judge District Court
of Appeal panel, declined comment through a secretary. Attorneys Sidney
Goldberg and Marvin Weinstein, co-counsels at trial, could not be reached
for comment.
In the appeals decision, Judges Gerald Cope Jr., David Gersten and
Robert Shevin wrote that the ``cumulative effect'' of ``erroneous''
instructions by the trial judge hurt the Kiwanians' defense against the
defamation claim.
The judge, Milton A. Friedman, died in January.
The court of appeal wrote that Friedman improperly excluded from
evidence a Kiwanis letter and memo to Procter & Gamble, sponsor of a
festival entertainment site, that reflected the club's desire to veto
entertainers.
Kiwanis, a nonprofit organization, has hosted the Little Havana
festival since the 1970s. Corporate sponsors typically contract with
entertainers to perform on stages along Southwest Eighth Street. But the
club reserves the right to screen those scheduled to appear.
In de Kalafe's case, Procter & Gamble contracted with Telemundo of
Florida to co-sponsor a stage. Telemundo hired de Kalafe. In early
February 1989, a Kiwanis representative, Rafael Licea, reviewed the
Telemundo performer list, saw that it contained her name, and informed a
producer that the singer would not be allowed to appear ``because it would
pose a security risk.'' In their opinion, the court of appeal judges
underlined the words, ``security risk.''
Licea noted that the Kiwanis had declined to invite de Kalafe to the
1985 festival because she had performed at the Varadero Music Festival in
Cuba in 1981.
Barred anew in 1989 along with three other performers, de Kalafe
complained about her exclusion in a press release, and conducted a press
conference where she denounced Castro and addressed what she believed to
be comments that she was sympathizer.
Kiwanis representative Leslie Pantin Jr. responded to reporters
afterward.
At trial, though, the singer did not recall any disparaging words from
the club.
Nonetheless, the jury awarded de Kalafe $2.1 million to be paid by the
organization. But the jurors exonerated Pantin, who was also a defendant.
Other Kiwanians had been dropped from the case.
In explaining why the verdict could not stand, the court of appeal
noted that the Kiwanians' argued that they never interfered with de
Kalafe's contract because their veto power over performers was always
present in sponsor contracts. In the deal with Procter & Gamble, the
element was dropped by mistake, and later restored by memo.
Friedman, however, excluded the memo from evidence, then three times
instructed the jury that a written agreement cannot be changed except
through another written agreement.
``The court's error was compounded by failing to permit the jury to
consider whether the agreement was modified,'' the judges went on. ``The
court's repeated erroneous instructions to the jury were tantamount to
directing a verdict in de Kalafe's favor.''
The court of appeal then took aim at the jury, which found the Kiwanis
club itself to be liable for defamation, but not Pantin.
``Kiwanis, as an organization, cannot be vicariously liable for
defamation if its officers or representatives are not liable for
defamation,'' the judges wrote.
And they warned de Kalafe's lawyers against repeating ``objectionable''
comments during Weinstein's closing arguments -- statements that heated
emotions in the courtroom.
Among the statements picked out by the court: ``People of Cuba
. . . haven't been too lucky with politics, with Batista and now
Castro. The last thing in the world is that we should bring the type of
politics here that causes the problems to begin with.''
That statement and others, which drew analogies between the Kiwanians'
exclusion of de Kalafe to political methods in Cuba, improperly appealed
to the jury's ``community conscience,'' the court of appeal said.
On retrial, such statements should be avoided, the judges cautioned,
because they could ``gravely'' impair ``a calm and dispassionate
consideration of the evidence and the merits by the jury.''
Singer's Calle Ocho lawsuit to be retried
Copyright © 1998 The Miami Herald