Anderson v. Shands

• Decision Date: 10 December 1990
• Docket Number: No. 90-216,90-216
• Citation: 570 So.2d 1121
• Parties: 15 Fla. L. Weekly D2966 Hubert T. ANDERSON, Appellant, v. Deborah SHANDS, Appellee.
• Court: Florida District Court of Appeals

Page 1121

570 So.2d 1121

15 Fla. L. Weekly D2966

Hubert T. ANDERSON, Appellant, v. Deborah SHANDS, Appellee.

No. 90-216.

District Court of Appeal of Florida First District.

Dec. 10, 1990.

Stewart P. Strickland, Green Cove Springs, for appellant.

Scott W. Clemons of Bryant, Higby & Williams, Panama City, for appellee.

PER CURIAM.

Appellant was convicted of an unspecified offense and has been imprisoned at Lawtey Correctional Institution. Following his conviction, appellant by his next friend brought a civil suit against a woman who was apparently a prosecution witness at appellant's criminal trial. The suit was dismissed with prejudice. We affirm in part and reverse in part.

In Count I of the complaint, appellant alleged that appellee maliciously interfered, with the intent to commit perjury, in a police investigation by accusing appellant of having fondled her and by claiming to have formerly worked as a "narc" for appellant when he was the police chief in Callaway, Florida. In Count II, appellant alleged appellee maliciously interfered, with the intent to commit perjury, in pretrial proceedings by stating in deposition that appellant had fondled her. In Count III, appellant alleged appellee maliciously interfered, with the intent to commit perjury, in appellant's criminal trial by testifying that appellant had fondled her. As a result of appellee's conduct, appellant alleged in all three counts that he has suffered irreparable damage to his character [reputation] and has suffered a loss of earnings and liberty. Appellee filed a motion to dismiss, which was granted with prejudice.

The complaint is vague as to what statements were made by appellee and as to appellant's cause of action. We construe appellant's claim to be one of defamation, and because the statements are in regard to appellee's relationship with appellant and describe apparent criminal conduct, we assume the statements were relevant to the proceedings in which they were made. We affirm the dismissal of Counts II and III because the causes of action are based upon testimony given during a judicial procedure. Relevant testimony given in the due course of a judicial procedure is absolutely privileged and cannot form the basis of liability for defamation. Campbell v. LoPucki, 345 So.2d 860 (Fla. 1st DCA 1977), Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977), and Ponzoli & Wassenberg, P.A. v. Zuckerman, 545 So.2d 309 (Fla. 3d DCA), review denied, 554 So.2d 1170 (Fla.1989). For the purpose of applying an absolute privilege against civil liability, the taking of a deposition is considered part of a judicial procedure. Sussman, 355 So.2d at 811. ¹ Other jurisdictions likewise provide for an absolute privilege against defamation for testimony given during a deposition which is material to the subject matter of the litigation. See, 50 Am.Jur.2d, Libel and Slander § 249.

As for the statements made during the police investigation which formed the basis of Count I, they are subject to a qualified rather than an absolute privilege. Liability,...