Ball v. D'lites Enterprises Inc.

• Decision Date: 27 July 2011
• Docket Number: No. 4D09–4859.,4D09–4859.
• Citation: 65 So.3d 637
• Parties: Karen BALL, Michael Ball, Doug Coffey, Stacy Coffey, Danny Rosenblum, and Elyse Rosenblum, Appellants,v.D'LITES ENTERPRISES, INC., a Florida Profit Corporation, and Gerald S. Corsover, an individual, Appellees.
• Court: Florida District Court of Appeals

65 So.3d 637

Karen BALL, Michael Ball, Doug Coffey, Stacy Coffey, Danny Rosenblum, and Elyse Rosenblum, Appellants,

v.D'LITES ENTERPRISES, INC., a Florida Profit Corporation, and Gerald S. Corsover, an individual, Appellees.

No. 4D09–4859.

District Court of Appeal of Florida, Fourth District.

July 27, 2011.

John B. Agnetti of Hoffman, Larin & Agnetti, P.A., Miami, for appellant.

David L. Ferguson of The Kopelowitz Ostrow Firm, Fort Lauderdale, and Jason T. Corsover of Law Office of Jason Corsover, P.A., Plantation, for appellee.WARNER, J.

The appellants, who are licensees pursuant to a franchise agreement, appeal the dismissal of their claims for defamation. They alleged that the licensor made defamatory statements regarding them on the licensor's website. The court found that the statements were made in connection with a pending lawsuit and protected by the litigation privilege. We hold that statements made on a party's website are not protected by the litigation privilege. We reverse.

The plaintiffs (the Balls, the Coffeys and the Rosenblums) executed license agreements with the defendants, D'Lites Enterprises and Gerald Corsover, to sell frozen dietary ice cream products. According to the plaintiffs, they were induced to enter into these agreements by representations about the nutritional content, and low caloric values of the ice cream, and were told these “light” products could be sold to diabetics. D'Lites supplied the product for the ice cream, but the plaintiffs found that it was virtually impossible for them to meet the nutritional requirements promised to them using D'Lites goods. They requested that the defendants modify the formula but the defendants declined to do so. Without a product as promised, the plaintiffs sued the defendants for various causes of action over their agreement, including claims for breach of contract and fraud in the inducement.¹

After the plaintiffs filed suit against the defendants, the defendants placed warnings to the public on their website stating that plaintiffs had violated certain trademarks. A memorandum on the defendants' website stated that the plaintiffs were selling products and labeling them as D'Lites when they actually were not. The defendants' website stated that “you need to know the product they are passing off as D'Lites Emporium ice cream is in fact a hoax.” The plaintiffs filed a motion for injunctive relief seeking to compel the removal of the comments on the website. The trial court denied the injunctive relief.

The plaintiffs then filed an amended complaint alleging defamation by the defendants. The defendants moved to dismiss, claiming that the statements were protected by the litigation privilege which provides absolute immunity regarding any act in the course of a judicial proceeding, regardless of whether the act involved a defamatory statement or other tortious behavior, so long as the act had some relation to the proceeding, citing Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994). The court found that the statements on the website were directly related to the litigation and thus were absolutely immune. The court dismissed the defamation cause of action, prompting this appeal.

A ruling on a motion to dismiss for failure to state a cause of action is an issue of law, reviewed de novo. See Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005). Whether allegedly defamatory statements are covered under absolute privilege is a question of law to be decided by the court. See Resha v. Tucker, 670 So.2d 56, 59 (Fla.1996); Cassell v. India, 964 So.2d 190, 193 (Fla. 4th DCA 2007).

Immunity for statements made during a judicial proceeding has a long legal history, as noted in Levin. There, the court reviewed the origins of the doctrine.

Traditionally, defamatory statements made in the course of judicial proceedings are absolutely privileged, no matter how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry. Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992). Consequently, the torts of perjury, libel, slander, defamation, and similar proceedings that are based on statements made in connection with a judicial proceeding are not actionable. Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well. Fridovich; Cox v. Klein, 546 So.2d 120 (Fla. 1st DCA 1989); Wright.

This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings. Fridovich. In determining that the public interest of disclosure outweighs an individual's right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Id.; Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977). Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided. Wright.

Levin, 639 So.2d at 607–08. The issue presented in this case is whether the statements by a party on its commercial website constituted a statement made in connection with judicial proceedings. We hold that it does not.

Recently, we confronted the scope of the Levin ruling in DelMonico v. Traynor, 50 So.3d 4 (Fla. 4th DCA 2010), rev. granted 47 So.3d 1287 (Fla.2010). There, a defense attorney interviewing a witness made allegedly defamatory statements regarding the plaintiff. The interview was outside of a court proceeding. The majority held that the attorney was entitled to absolute immunity because he was acting as defense counsel in the underlying litigation when interviewing a witness in the dispute. While the majority and dissent split on the scope of the immunity, even the majority limited immunity to statements made in connection with the judicial process itself, such as interviewing witnesses, obtaining discovery, settlement negotiations, and the like.

We analogize the publication of statements on the internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media. Other courts have considered the issue of whether statements to a newspaper or other media are made in connection with a judicial proceeding. In Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the Supreme Court held that a prosecutor was not entitled to absolute judicial immunity for making defamatory statements at a press conference regarding a criminal prosecution, because comments to the press do not have any functional tie to a judicial proceeding. A footnote further explained the limits of absolute immunity:

“[Absolute immunity] does not apply to or include any publication of defamatory matter before the commencement, or after the termination of the judicial proceeding (unless such publication is an act incidental to the proper initiation thereof, or giving legal effect thereto); nor does it apply to or include any publication of defamatory matter to any person other than those to whom, or in any place other than that in which, such publication is required or authorized by law to be made for the proper conduct of the judicial proceedings.” Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum. L. Rev. 463, 489 (1909) (footnotes omitted). See, e.g., Viosca v. Landfried, 140 La. 610, 615, 73 So. 698, 700 (1916); Youmans v. Smith, 153 N.Y. 214, 220–223, 47 N.E. 265, 267–268 (1897). See also G. Bower, Law of Actionable Defamation 103, n. h, 104–105 (1908).

Buckley, 509 U.S. at 277 n. 8, 113 S.Ct. 2606 (emphasis supplied). The prosecutor was entitled only to qualified immunity.

In Pratt v. Nelson, 164 P.3d 366 (Utah 2007), the Utah Supreme Court similarly held that statements to newspapers regarding pending litigation were not subject to protection under the judicial proceeding privilege. The court agreed with similar statements of both the Arizona Supreme Court in Green Acres Trust v. London, 141 Ariz. 609, 688 P.2d 617 (1984) and the Eighth Circuit in Asay v. Hallmark Cards, Inc., 594 F.2d 692 (8th Cir.1979). The court also cited Prosser & Keeton on Torts § 114, 816–20 (5th ed. 1984) for the propositions that “[a]bsolute immunity has been confined to very few situations where there is an obvious policy in favor of permitting complete freedom of expression” such as a judicial proceeding and that, although a judicial proceeding “has not been defined very exactly,” it “is clear ... that statements...