598 So.2d 65 (Fla. 1992), 77555, Fridovich v. Fridovich

Docket Nº:77555.
Citation:598 So.2d 65, 17 Fla. L. Weekly S 210
Opinion Judge:Author: Barkett
Party Name:Anthony Steven FRIDOVICH, Petitioner, v. Edward FRIDOVICH, Respondent.
Attorney:Jeffrey D. Fisher, Palm Beach, Florida; and Scott Trell, Co-counsel, Miami, Florida, for Petitioner.
Case Date:April 02, 1992
Court:Supreme Court of Florida

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598 So.2d 65 (Fla. 1992)

17 Fla. L. Weekly S 210

Anthony Steven FRIDOVICH, Petitioner,

v.

Edward FRIDOVICH, Respondent.

No. 77555.

Supreme Court of Florida.

April 2, 1992

Rehearing Denied June 9, 1992.

Jeffrey D. Fisher, Palm Beach, and Scott Trell, Miami, for petitioner.

Ronald J. Russo and Linda Julin McNamara, Glenn, Rasmussen, Fogarty, Merryday & Russo, Tampa, for respondent.

BARKETT, Justice.

We have for review Fridovich v. Fridovich, 573 So.2d 65, 72 (Fla. 4th DCA 1990), in which the district court certified the

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following question of great public importance: 1

Are statements made by a private individual to an investigating officer or a prosecutor preliminary to the filing of a criminal charge absolutely privileged so as to avoid liability for defamation even when the statements are false and made with actual malice?

We answer the certified question in the negative for the reasons stated below.

On December 4, 1981, Martin Fridovich was shot and killed by his eighteen-year-old son, Edward Fridovich. After an extensive investigation, law enforcement authorities concluded that the shooting was accidental. No charges were filed and the investigation was closed.

Thereafter, according to the allegations of the complaint, Anthony Fridovich, Edward's brother, became dissatisfied with Edward's status as personal representative of their father's multi-million-dollar estate, and initiated a conspiracy among family members to have Edward charged for the intentional killing of Martin Fridovich. The complaint further alleges that Anthony purchased a stress analyzer to determine which of the conspirators could lie most convincingly. Erica Fridovich, Edward's sister, and her former husband, Michael Giannoutsos, were chosen to encourage the authorities to reopen the investigation by making false statements to investigators for the Plantation Police Department and members of the Broward County State Attorney's Office.

As a result of these actions, the investigation was reopened and Edward was indicted for first-degree murder in the death of his father. A jury found him guilty of the lesser-included offense of manslaughter. After the trial, Erica Fridovich and Michael Giannoutsos recanted and admitted that their in-court testimony had been false. After a reversal on other grounds, Edward was retried for manslaughter and convicted again without Erica and Michael's testimony.

Edward sued Anthony and the other conspirators for defamation, intentional infliction of mental distress, and malicious prosecution. The trial court dismissed the complaint and the district court affirmed the dismissal of the counts for defamation and malicious prosecution, but reversed the dismissal of the intentional infliction of emotional distress claim. 2

The law in Florida has long been that defamatory statements made in the course of judicial proceedings are absolutely privileged, and no cause of action for damages will lie, regardless of how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry. Myers v. Hodges, 53 Fla. 197, 209, 44 So. 357, 361 (1907). The primary question we must answer in this case is whether defamatory statements made to the authorities prior to the initiation of criminal proceedings are absolutely privileged as within the course of judicial proceedings.

The scope of the privilege was outlined by this Court's opinion in Ange v. State:

This rule of privilege as applied to statements made in the course of judicial proceedings is not restricted to trials of actions, but includes proceedings before a competent court or magistrate in the due course of law or the administration of justice which is to result in any determination or action by such court or officer. This privilege extends to the protection of the judge, parties, counsel and witnesses, and arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.

98 Fla. 538, 540-41, 123 So. 916, 917 (1929) (emphasis added).

The same rule is found in the Restatement (Second) of Torts section 587 (1977):

A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning

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another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.

(Emphasis added).

The plain wording of the rule as stated in Ange and in the Restatement suggests an easy resolution of this question. Indeed, in Ange the Court found that an absolute privilege barred an action for defamation based on statements made in the office of the county judge to whom the defendant had gone to obtain a warrant. 98 Fla. 538, 540, 123 So. 916, 917. An analogous case is Robertson v. Industrial Insurance Company, 75 So.2d 198, 199 (Fla.1954), in which the Court held that an absolute privilege applied to defamatory statements made in a letter to the insurance commissioner used to institute license revocation proceedings.

Two of our district courts of appeal, however, have summarily found a qualified privilege on facts similar to the case at bar. Anderson v. Shands, 570 So.2d 1121, 1122 (Fla. 1st DCA 1990); Ridge v. Rademacher, 402 So.2d 1312, 1312 (Fla. 3d DCA 1981) ("We hold that an unsworn statement to a municipal police officer in regard to an alleged crime is not accorded an absolute privilege which will bar, as a matter of law, a subsequent action for slander based on such a statement, particularly when it is alleged to have been maliciously made." (footnote omitted)). 3

Thus, although there are no recent Supreme Court decisions on this issue, it appears from these cases that the district courts are dissatisfied with the results of the absolute privilege as set forth in Ange and Robertson.

Turning to other jurisdictions, it appears that a majority of states that have addressed this issue have embraced a qualified privilege. 4 See Kahermanes v. Marchese, 361 F.Supp. 168, 172 (E.D.Pa.1973); Marsh v. Commercial & Sav. Bank, 265 F.Supp. 614, 621 (W.D.Va.1967); Miller v. Nuckolls, 77 Ark. 64, 91 S.W. 759, 761-62 (1905); Flanagan v. McLane, 87 Conn. 220, 87 A. 727, 728 (1913); Newark Trust Co. v. Bruwer, 51 Del. (1 Storey) 188, 141 A.2d 615, 617 (1958); Hardaway v. Sherman Enterprises, 133 Ga.App. 181, 210 S.E.2d 363, 364 (1974) (construing statute), cert. denied, 421 U.S. 1003, 95 S.Ct. 2405, 44 L.Ed.2d 672 (1975); Indiana Nat'l Bank v. Chapman, 482 N.E.2d 474, 479 (Ind.Ct.App.1985); Cormier v. Blake, 198 So.2d 139, 144 (La.Ct.App.1967); Robinson v. Van Auken, 190 Mass. 161, 76 N.E. 601, 602 (1906); Packard v. Central Me. Power Co., 477 A.2d 264, 268 (Me.1984); Arnold v. Quillian, 262 So.2d 414, 415 (Miss.1972); Hancock v. Blackwell, 139 Mo. 440, 41 S.W. 205, 207 (1897); Pierce v. Oard, 23 Neb. 828, 37 N.W. 677, 679 (1888); Dijkstra v. Westerink, 168 N.J.Super. 128, 401 A.2d 1118, 1120-21, certification denied, 81 N.J. 329, 407 A.2d 1203 (1979); Grossman v. Fieland, 107 A.D.2d 659, 483 N.Y.S.2d 735, 736 (1985); Paramount Supply Co. v. Sherlin Corp., 16 Ohio App.3d 176, 475 N.E.2d 197, 202-03 (1984); Magness

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v. Pledger, 334 P.2d 792, 795 (Okla.1959); Sylvester v. D'Ambra, 73 R.I. 203, 54 A.2d 418, 420 (1947); Moore v. Bailey, 628 S.W.2d 431, 436 (Tenn.Ct.App.1981); Story v. Shelter Bay Co., 52 Wash.App. 334, 760 P.2d 368, 372-73 (1988); Otten v. Schutt, 15 Wis.2d 497, 113 N.W.2d 152, 156 (1962). See generally 50 Am.Jur.2d Libel and Slander Sec. 214 (1970 & Supp.1991) (stating that "a communication to a law enforcement officer is generally held to be qualifiedly privileged"); Annotation, Libel and Slander: Privilege Regarding Communications to Police or Other Officer Respecting Commission of Crime, 140 A.L.R. 1466-78 (1942) ("[T]he majority of cases expressly dealing with [communications to the police] hold that the privilege is qualified or conditional, not absolute.").

Nevertheless, a number of commentators take the position that an informal complaint to investigating authorities is to be regarded as the "initial step" in a judicial proceeding and thus is absolutely privileged. W. Page Keeton et al., Prosser and Keeton on the Law of Torts Sec. 114, at 819-20 (5th ed. 1984); see Laurence H. Elldredge, The Law of Defamation Sec. 73, at 356 (1978); 1 Arthur B. Hanson, Libel and Related Torts 87 (1969); Rodney A. Smolla, Law of Defamation Sec. 8.03[c], at 8-12 (1991).

In deciding this issue we recognize the need to balance two important and competing interests, described by one scholar as "the right of the individual, on one hand, to enjoy [a] reputation unimpaired by defamatory attacks, and, on the other hand, the necessity, in the public interest, of a free and full disclosure of facts in the conduct of the legislative, executive, and judicial departments of government." Van Vechten Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 464 (1909).

The fundamental public policy underlying the judicial proceedings privilege as it applies to preliminary investigations is the...

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