50 So.3d 4 (Fla.App. 4 Dist. 2010), 4D08-4035, DelMonico v. Traynor

Docket Nº:4D08-4035.
Citation:50 So.3d 4, 35 Fla. L. Weekly D 1331
Opinion Judge:LEVINE, J.
Party Name:Daniel DELMONICO, an individual and MYD Marine Distributor, Inc., a Florida corporation, Appellants, v. Arthur Rodgers TRAYNOR, Jr., an individual, and Akerman, Senterfitt & Eidson, P.A., a Florida professional association, Appellees.
Attorney:Holiday Hunt Russell of The Law Offices of Holiday Hunt Russell, Chartered, Fort Lauderdale, and Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, for appellants. Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and William M. Martin of ...
Judge Panel:DAMOORGIAN, J., concurs. WARNER, J., dissents with opinion. WARNER, J., dissenting.
Case Date:June 16, 2010
Court:Florida Court of Appeals, Fourth District
 
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50 So.3d 4 (Fla.App. 4 Dist. 2010)

35 Fla. L. Weekly D 1331

Daniel DELMONICO, an individual and MYD Marine Distributor, Inc., a Florida corporation, Appellants,

v.

Arthur Rodgers TRAYNOR, Jr., an individual, and Akerman, Senterfitt & Eidson, P.A., a Florida professional association, Appellees.

No. 4D08-4035.

Florida Court of Appeal, Fourth District.

June 16, 2010

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Holiday Hunt Russell of The Law Offices of Holiday Hunt Russell, Chartered, Fort Lauderdale, and Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, for appellants.

Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and William M. Martin of Peterson Bernard, Fort Lauderdale, for appellees.

LEVINE, J.

The issue presented is whether the trial court was correct in granting summary

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judgment on appellants' claim of defamation and tortious interference based on the litigation privilege. We find that the trial court correctly granted summary judgment, and we affirm.

The claim of defamation and tortious interference brought in this case emanates from another underlying case in which DelMonico, the appellant here, filed a complaint against Donovan Marine, Inc., and its employee, Tony Crespo. DelMonico alleged that Crespo told several people that DelMonico supplied prostitutes to the owner of a company previously doing business with Donovan Marine as their method to take away business from Donovan and bring it to DelMonico. Appellee Traynor, while acting as defense counsel for Donovan Marine, published to DelMonico's ex-spouses and business peers the same allegation that DelMonico hired prostitutes to get business and that DelMonico faced prosecution for prostitution. Appellants filed claims of action for defamation and tortious interference against the appellees as a result of these statements.

The complaint alleged that the appellee had contacted DelMonico's ex-wife and told her that DelMonico had taken a customer away from Donovan by enticing the purchasing agent with prostitutes. The appellee also contacted a former employee of DelMonico's company, MYD Marine Distributor, and stated to him that DelMonico's method to take an account was to supply a prostitute to the owner. The appellee encouraged the former employee to provide additional examples of DelMonico's " unethical business practices." The appellee contacted the former owner of a business and stated that DelMonico was " being prosecuted for prostitution." The appellee also contacted another ex-wife of the appellant and stated that DelMonico was being prosecuted for using prostitution to get business. The appellee also contacted principals of other marine services companies about the prosecution of DelMonico for procuring prostitutes and growing his business in this manner. The appellee stated that he was part of the prosecution of DelMonico for procuring prostitutes and illegal business dealings. Subsequently, New Nautical, a manufacturer with whom MYD Marine Distributor had an exclusive contract, received calls from companies stating they no longer wanted to purchase products from MYD Marine Distributor.

All of the above statements made by the appellee occurred during potential witness interviews, were performed by the appellee in his role as an attorney, and were made purportedly for the purpose of defending his client during pending and active litigation. The appellee's comments and statements were made in connection with, and during the course of, an existing judicial proceeding. The appellee was acting as defense counsel for Donovan Marine in litigation in which DelMonico asserted that Donovan's employee defamed DelMonico by making accusations " about prostitution." The appellee denied saying that DelMonico was being prosecuted for prostitution but did maintain that all communications he had with the ex-wives and employees were done in furtherance of and as part of his work as an attorney defending his client.

The trial court granted summary judgment based upon absolute immunity conferred by the litigation privilege. Our standard of review of this order granting summary judgment is de novo. Palm Beach Pain Mgmt., Inc. v. Carroll, 7 So.3d 1144, 1145 (Fla. 4th DCA 2009). Whether allegedly defamatory statements are covered under absolute privilege is a question of law to be decided by the court. Resha v. Tucker, 670 So.2d 56, 59 (Fla.1996);

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Cassell v. India, 964 So.2d 190 (Fla. 4th DCA 2007).

" [A]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior ... so long as the act has some relation to the proceeding." Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994); see also Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380 (Fla.2007). " The falsity or maliciousness of the alleged statements is irrelevant to this analysis." Ross v. Blank, 958 So.2d 437, 441 (Fla. 4th DCA 2007); see also Levin, 639 So.2d at 607.

Because the statements complained of were made by the appellee while he was acting as defense counsel in the underlying litigation, and the statements bore " some relation" to the proceeding, they were absolutely privileged as a matter of law. Levin, 639 So.2d at 608; see also Fernandez v. Haber & Ganguzza, LLP, 30 So.3d 644 (Fla. 3d DCA 2010) (concluding that the actions of the law firm in preparing and filing a notice of lis pendens were privileged because they occurred during the course of a judicial proceeding); Stucchio v. Tincher, 726 So.2d 372 (Fla. 5th DCA 1999) (concluding that statements made by lawyer during interview of potential witness in preparation for trial were absolutely privileged). Interviewing a witness in preparation for and connected to pending litigation is absolutely privileged. Stucchio, 726 So.2d at 373.

The rule of absolute immunity extends to the parties, judges, witnesses, and counsel involved and related to the judicial proceedings. Levin, 639 So.2d at 608. The reason for the rule of absolute immunity is that " the public interest of disclosure outweighs an individual's right to an unimpaired reputation" and " participants in judicial proceedings must be free...

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