Carnegie v. Tedder, 97-02887

• Decision Date: 05 September 1997
• Docket Number: No. 97-02887,97-02887
• Citation: 698 So.2d 1310
• Parties: 22 Fla. L. Weekly D2110 Roxanne CARNEGIE, Petitioner, v. Jeffrey Lee TEDDER, Respondent.
• Court: Florida District Court of Appeals

Page 1310

698 So.2d 1310

22 Fla. L. Weekly D2110

Roxanne CARNEGIE, Petitioner, v. Jeffrey Lee TEDDER, Respondent.

No. 97-02887.

District Court of Appeal of Florida Second District.

Sept. 5, 1997.

Jacob J. Munch of Munch and Munch, P.A., Tampa, for Petitioner.

John P. Harllee, III, of Harllee, Porges, Hamlin, Knowles, Bald & Prouty, P.A., Bradenton, for Respondent.

PARKER, Chief Judge.

Roxanne Carnegie, who is the defendant and counterclaimant in this civil action, files a petition for writ of certiorari challenging the trial court's order granting the plaintiff's, Jeffrey Lee Tedder's, motion to close the trial court file from inspection except to the attorneys of record, the trial court, and the members of the clerk's office. We grant the petition and quash that order.

In December 1996, Tedder filed a complaint against Carnegie alleging malicious prosecution and extortion. Carnegie answered the complaint and filed a counterclaim against Tedder alleging assault, battery, false imprisonment, violation of civil rights of women, and intentional infliction of emotional distress. Thereafter, Tedder filed a motion for closure of the court file, alleging that Carnegie's pleadings and other documents in the court file contained defamatory statements, that the parties are not public figures as defined by law, and that Tedder, and possibly other private citizens, would suffer irreparable damage. At the hearing on the motion, Tedder provided the court a sworn affidavit in support of the motion for closure which detailed his professional status and how his personal and professional reputation would suffer irreparable injury if the court file remained open. The trial court granted the motion for closure. The trial court expressed that the contents of the court file cast the parties in such an unfavorable light that both parties would benefit from the closure order. Nevertheless, Carnegie chose to challenge that order.

Carnegie's position is that Tedder's motion for closure was procedurally improper because Tedder failed to give a copy of the notice of hearing to a representative of the press. Carnegie cites Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla.1982), and this court's decision in Sarasota Herald-Tribune v. J.T.J., 502 So.2d 930 (Fla. 2d DCA 1987). Tedder responds that both Lewis and Sarasota Herald-Tribune were criminal cases, and that Barron v. Florida Freedom Newspapers, Inc., 531 So.2d 113 (Fla.1988), established the test for determining the propriety of closure in civil cases.

We recognize that Lewis does state that the news media must be given notice and an opportunity to be heard on the question of closure prior to a court's decision. However, in Times Publishing Co. v. Russell, 615 So.2d 158, 158 (Fla.), cert. denied, 510 U.S. 943, 114 S.Ct. 381, 126 L.Ed.2d 330 (1993), the Florida Supreme Court stated that the Lewis decision was limited to establishing a three-prong test for determining whether the trial court was justified in closing a "criminal" proceeding. Because this case involves a civil proceeding, we conclude that the elements in Barron, which are now found in Florida Rule of Judicial Administration 2.051(c)9, should be applied to this case. In Barron, the supreme court stated:

We conclude that the following factors must be considered to determine a request for closure of a civil proceeding.

First, a strong presumption of openness exists for all court proceedings. A trial is a public event, and the filed records of court proceedings are public records available for public examination.

Second, both the public and news media shall have standing to challenge any closure order. The burden of proof in these proceedings shall always be on the party seeking closure.

Third, closure of court proceedings or records should occur only when necessary (a) to comply with established public policy set forth in the constitution, statutes, rules, or case law; (b) to protect trade secrets; (c) to protect a compelling governmental interest [e.g., national security; confidential informants]; (d) to obtain evidence to properly determine legal issues in a case; (e) to avoid substantial injury to innocent third parties [e.g., to protect young witnesses from offensive testimony; to protect children in a divorce]; or (f) to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of civil proceeding sought to be closed. We find that, under appropriate circumstances, the constitutional right of privacy established in Florida by the adoption of article I, section 23, could form a constitutional basis for closure under (e) or (f).... Further, we note that it is generally the content of the subject matter rather than the status of the party that determines whether a privacy interest exists and closure should be permitted. However, a privacy claim may be negated if the content of the subject matter directly concerns a position of public...