EFTA00696239.pdf

Haddad, Tonja 10/10/2014 For Educational Use Only James v. Leigh, 145 So.3d 1006 (2014) 39 Fla. L. Weekly D1914 judicial proceedings are absolutely privileged, 145 &Lad 1006 and no cause of action for damages will lie, District Court of Appeal of Florida, regardless of how false or malicious the First District. statements may be, so long as the statements are relevant to the subject of inquiry. Nicholas A. JAMES, Petitioner, v. Daniel K. LEIGH and Kenny Leigh, P.A., Cases that cite this headnote Respondents. No. 1D14- 799. I Sept. 5, 2014. 121 Pretrial Procedure oeParticular defenses Synopsis Background: Husband's former law partner and law firm Although immunity from suit is generally raised brought defamation action against husband, arising out of as an affirmative defense in an answer or other statements made in husband's motion to set aside a responsive pleading, it may be raised in a marital settlement agreement and his supporting brief. motion to dismiss if its applicability is The trial court denied husband's motion to dismiss the demonstrated on the face of the complaint or action as barred by the absolute litigation privilege. exhibits. Husband filed petition for writ of certiorari. Cases that cite this headnote Holdings: The District Court of Appeal, Swanson, J., held that: ill allegedly defamatory statements had some relation to 131 Certiorari the divorce proceeding and, thus, were absolutely i-Finality of determination privileged, and When the trial court denies a motion to dismiss t11 non-disparagement agreement that husband entered on immunity grounds, certiorari review of the into with law partner and law firm was not a waiver of the non-final order is proper because absolute absolute litigation privilege. immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless if the Petition granted. lower court denied dismissal in error. Van Nortwick, J., filed specially concurring opinion. Cases that cite this headnote West Headnotes (6) 19 Libel and Slander oiFComplaints, affidavits, or motions ltl Libel and Slander 6.-Judicial Proceedings Allegedly defamatory statements about husband's former law partner and law firm that Defamatory statements made in the course of were made in husband's motion to set aside a WestlawNext' © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA00696239  Haddad, Tonja 10110(2014 For Educational Use Only James v. Leigh, 145 So.3d 1006 (2014) 39 Fla. L Weekly D1914 marital settlement agreement and his supporting brief had some relation to the divorce proceeding and, thus, were privileged pursuant to the absolute litigation privilege, regardless of Attorneys and Law Firms the alleged falsity or maliciousness of the statements; statements attempted to explain why *1007 Steven E. Brust and Jonathon D. Pressley of Smith, husband entered into the marital settlement Gambrell & Russell, LLP, Jacksonville, for Petitioner. agreement based on the mistaken belief that law partner would be disciplined for misconduct, P. Campbell Ford and Alison A. Blake of Ford, Miller & allowing husband to maintain his income by Wainer, P.A., Jacksonville Beach, for Respondents. assuming control of law firm or starting new Opinion firm and taking his existing clients. SWANSON, J. Cases that cite this headnote In this certiorari proceeding, petitioner seeks review of a nonfinal order denying his motion to dismiss respondents' claims for defamation and breach of a non-disparagement Libel and Slander agreement as barred under the absolute litigation 4-Complaints, affidavits, or motions privilege. Because we conclude the applicability of the privilege was demonstrated on the face of the complaint Non-disparagement agreement that husband and the exhibits attached to the complaint, we grant the entered into with his former law partner and law petition. firm was not a waiver of the absolute litigation privilege, so as to expose husband to liability for Respondents, petitioner's former law partner and law allegedly defamatory statements about law firm, filed a complaint against petitioner for defamation partner and law firm made in husband's motion and breach of a non-disparagement agreement arising to set aside a marital settlement agreement and from statements published by petitioner in petitioner's his supporting brief; litigation privilege was a divorce proceeding. The statements in question were firmly established right of immunity designed to made in an "Objection to Entry of Final Judgement [sic] protect the public that could not be waived. and Motion to Set Aside Marital Settlement Agreement" and "Husband's Brief," both of which were attached to the complaint as exhibits, and included accusations of Cases that cite this headnote misconduct against petitioner's former partner. Essentially, petitioner sought to set aside the marital settlement agreement with his former wife because it was entered based on the belief that petitioner's law partner would be disciplined for misconduct, allowing petitioner 161 Libel and Slander to maintain his income by assuming control of the firm or -4Judicial Proceedings starting a new firm and taking his existing clients with him. Instead, petitioner was fired, disciplinary The absolute litigation privilege for allegedly proceedings against petitioner's former law partner were defamatory statements is a firmly established dismissed, and petitioner had to start his own firm from right of immunity designed to protect the public scratch, making only a fraction of his prior income. by ensuring the free and full disclosure of facts in the conduct of judicial proceedings. Petitioner filed a motion to dismiss the claims for defamation and breach of the non-disparagement agreement on the ground the alleged defamatory Cases that cite this headnote statements made in petitioner's divorce proceeding were protected by the absolute litigation privilege. After WestlawNext © 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00696240  Haddad, Tonja 10/10/2014 For Educational Use Only James v. Leigh, 145 So.3d 1006 (2014) 39 Fla. L. Weekly D1914 holding a hearing, the trial court denied petitioner's So.3d 1205, 1219 (Fla.2013); Levin, 639 So.2d at 608; motion to dismiss on the ground the applicability of the Fridovich, 598 So.2d at 66-67; R.H. Ciccone Props., Inc. privilege was not clear from the face of the complaint. v. JP Morgan Chase Bank, N.A., 141 So.3d 590 (Fla. 4th This petition for writ of certiorari followed. DCA 2014). Although immunity is generally raised as an affirmative defense in an answer or other responsive III 121 I3) "The law in Florida has long been that defamatory pleading, it may be raised in a motion to dismiss if its statements made in the course of judicial proceedings are applicability is demonstrated on the face of the complaint absolutely privileged, and no cause of action for damages or exhibits. Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. will lie, regardless of how false or malicious the 5th DCA 2004). When the trial court denies a motion to statements may be, so long as the statements are relevant dismiss on immunity grounds, certiorari review of the to the subject of inquiry." Fridovich v. Fridovich, 598 non-final order is proper because absolute immunity So.2d 65, 66 (Fla.1992). Our supreme court has protects a party from having to defend a lawsuit at all and explained: waiting until final appeal would render such immunity meaningless if the lower court denied dismissal in error. This absolute immunity resulted Fla. State Univ. Bd. of Trs. v. Monk, 68 So.3d 316, 318 from the balancing of two (Fla. Ist DCA 2011). competing interests: the right of an individual to enjoy a reputation IQ We conclude that respondents' complaint and the unimpaired by defamatory attacks attached exhibits demonstrate the statements made in versus the right of the public petitioner's "Objection to Entry of Final Judgement [sic] interest to a free and full disclosure and Motion to Set Aside Marital Settlement Agreement" of facts in the conduct of judicial and his supporting "Husband's Brief' had some relation proceedings. In determining that to petitioner's divorce proceeding because they attempted the public interest of disclosure to explain why petitioner entered into the marital outweighs an individual's right to settlement agreement based on the mistaken belief that an unimpaired reputation, courts petitioner's law partner would be disciplined for have noted that participants *1008 misconduct, allowing petitioner to maintain his income by in judicial proceedings must be free assuming control of the firm or starting a new firm and from the fear of later civil liability taking his existing clients with him. See Hope, 649 So.2d as to anything said or written at 901 (holding that statements that a postal employee during litigation so as not to chill "collaborated in the death of the young black male" and the actions of the participants in the was "an accessory to murder in that he actually destroyed immediate claim. Although the the murder weapon" were entitled to immunity because immunity afforded to defamatory the statements "related to" the union grievance statements may indeed bar recovery proceeding regarding racial tensions in the workplace). As for bona fide injuries, the chilling a result, the statements made by petitioner during the effect on free testimony would course of judicial proceedings to inform the court of his seriously hamper the adversary reasons for his objection and motion were absolutely system if absolute immunity were privileged. See Dadic v. Schneider, 722 So.2d 921, 923 not provided. (Fla. 4th DCA 1998) (holding that statements made by counsel in his motion to withdraw from representation of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, his clients were absolutely privileged because counsel P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994) made the statements during the course of judicial (citations omitted). In recognition of the necessity for the proceedings to inform the court of the reasons for the free flow of information, courts have not imposed a strict motion). The falsity or maliciousness of these statements relevancy test in determining whether a statement made is irrelevant to the application of the privilege. Ross v. during the course of a judicial proceeding is entitled to Blank, 958 So.2d 437, 441 (Fla. 4th DCA 2007). immunity so long as the statement "has some relation to the proceeding." Hope v. Nat'l Alliance of Postal & Fed. We reject respondents' contention that petitioner Emps., Jacksonville Local No. 320, 649 So.2d 897, 901 waived the absolute litigation privilege by entering into (Fla. 1st DCA 1995). Accord DelMonico v. Traynor, 116 the non-disparagement agreement. Our supreme court has WestlawNext' © 2014 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00696241  Haddad, Tonja 10/10/2014 For Educational Use Only James v. Leigh, 145 So.3d 1006 (2014) 39 Fla. L. Weekly D1914 held that "an individual *1009 cannot waive a right 598 So.2d 65, 66 (Fla.1992); R.N. Ciccone Props., Inc. v. designed to protect both the individual and the public." JP Morgan Chase Bank, N.A., 141 So.3d 590 (Fla. 4th Chames v. DeMayo, 972 So.2d 850, 860 (Fla.2007). Since DCA 2014). the absolute litigation privilege is a firmly established right of immunity designed to protect the public by The Florida "bears some relation" test adheres to the ensuring the free and full disclosure of facts in the Restatement's "some relation" test. Restatement (Second) conduct of judicial proceedings, we conclude the parties' of Torts § 586 (1977). In determining whether a lawyer's non-disparagement agreement could not be construed as a statement has "some relation" to a judicial proceeding, all waiver of the privilege. Accordingly, we grant the that is required "is a minimal possibility of pertinence or petition, quash the trial court's order, and remand for simplest rationality." Mosesson v. Jacob D. Fuchsberg further proceedings consistent with this opinion. Law Firm, 257 A.D.2d 381, 683 N.Y.S.2d 88, 89 (1999). Here, the petitioner's pleadings all relate directly to the PETITION GRANTED. divorce proceeding, and all of the statements in the pleadings are at least minimally related to the divorce proceeding. Notwithstanding the leniency of the "some relation" CLARK, l., concurs; VAN NORTWICK, J., specially requirement, of course, some communications can be so concurs with opinion. tenuously linked to a judicial proceeding that they cannot reasonably be said to relate. For example, if the VAN NORTWICK, l., specially concurring. petitioner's pleadings had falsely accused the respondents of being members of Al—Qaida, such statements would I concur fully with the majority opinion. The litigation have no relation to the divorce proceeding and would not privilege clearly applies to the statements in the pleadings be protected by the privilege. filed by petitioner in his divorce proceeding. I write separately to expand the discussion of the standard Gilbert v. People, I Denio 41 (N.Y.Sup.Ct.1845), a applicable here. vintage New York case, provides an agricultural example of statements bearing no relation to the judicial Below and on appeal, the respondent admits that certain proceedings. The lawyer in Gilbert represented the of the alleged defamatory statements made by petitioner plaintiff in a trespass action in which several of the were related to his request for a reduction in his support plaintiff's sheep were harmed. Id. at 42. The lawyer obligations due to his decreased income. Respondents submitted a declaration in the proceeding stating that assert, however, that the petitioner's pleadings must be *1010 the defendant "was 'reported to be fond of sheep, examined sentence-by-sentence to determine if each bucks, and ewes, and of wool, mutton and lambs,' " was " statement is relevant to the divorce proceeding and is, 'in the habit of biting sheep,' "and, if found liable, should therefor, covered by the privilege. The respondents are "be hanged or shot." When sued for libel, the lawyer seeking to apply a standard that would establish a closer asserted the litigation privilege as a defense. The court relationship between the alleged defamatory statements rejected the claim of privilege and found the lawyer's and the judicial proceeding in which they are made than statements "in no respect relevant or material" to the the case law establishes. Courts have not imposed a strict underlying action. Id. at 42-43; see generally, Douglas R. relevancy test in determining whether a statement made Richmond, The Lawyer's Litigation Privilege, 31 Am. J. during the course of a judicial proceeding is entitled to Trial Advoc. 281, 317-19 (2007). immunity so long as it "has some relation to the proceeding." Hope v. Nat'l Alliance of Postal & Fed. Emps., Jacksonville Local No. 320, 649 So.2d 897, 901 (Fla. 1st DCA 1995); accord DelMonico v. Traynor, 116 Parallel Citations So.3d 1205, 1219 (Fla.2013); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. 39 Fla. L. Weekly D1914 Co., 639 So.2d 606 (Fla.1994); Fridovich v. Fridovich, End of Document C 2014 Thomson Reuters. No claim to original U.S. Government Works. WestlawNexi © 2014 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00696242  Haddad, Tonja 10/10/2014 For Educational Use Only James v. Leigh, 145 So.3d 1006 (2014) 39 Fla. L. Weekly D1914 WestlawNexi © 2014 Thomson Reuters. 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