### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JOHN M. ZUCCARELLI III
,

Appellant,

v.

MARILYN BARFIELD
, Appellee

.

No. 4D 13

- 3031

[June 3, 2015 ]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County ; Glenn D. Kelley , Judge; L.T. Case No.

502008CA035174XXXXMBAA

.

Gary K. Oldehoff of Lewis Stroud & Deutsch, P.L., Boca Raton, for appellant.

M arilyn Barfield, Jupiter Inlet Colony, pro se.

L EVINE
, J.

The issue presented for our review is whether an affidavit filed by appellee in a pending judicial proceeding was protected by absolute privilege from a claim of defamation . The trial court granted summary judgment in favor of appellee, finding that the c ounts against her relied on

an affidavit she filed in a court proceeding

. We find that the affidavit filed

in the court proceeding seeking injunctive relief related t o pending litigation, and as such

, we affirm the trial court’s granting of the motion for summary judgment.

This case is part of a larger story of disputes between the parties. What

is relevant to this case is that appellant John Zuccarelli filed an amended complaint against appellee Mar ilyn Barfield and her husband for defamation and conspiracy to defame. Zuccarelli is the mayor of Jupiter2

Inlet Colony

, and Barfield and her husband are resident s of the town

. 1

Zuccarelli allege d that Barfield published false and defamatory

statements in an affidavit filed in support o f a verified motion for temporary injunction

. Specifically, Zuccarelli complained that Barfield’s affidavit

stated that “my husband and I, as well as my brother, have been physically and verbally attacked by the Town’s m ayor.” Zuccarelli alleged that

Barfield published the statement to the court and the general public ; that the statement was not related to the purpose of the pending litigation

, i.e.,

Barfield’s electricity being turned off ; and that the statement was mad e with actual malice because Barfield knew it was false or acted with reckless disregard as to whether the statement was false.

Barfield filed an answer and affirmative defenses, including an affirmative defense asserting that the statement was privileged because the affidavit was filed in a pending judicial proceeding and the statement

was connected to th e pending judicial proceeding. The trial court granted summary judgment as to the count s against Barfield because “ [ t ] hese Counts rely on aff

idavits fil ed in a court proceeding. The affidavits were related to pending litigation and are privileged as a matter of law.” The trial court entered a final judgment in favor of Barfield.

Later in an amended motion for rehearing , Zuccarelli pointed out that

th e Florida Supreme Court in DelMonico v. Traynor

, 116 So. 3d 1205 (Fla.

2013 ) , quashed the Fourth District’s decision in DelMonico v. Traynor

, 50 So. 3d 4 (Fla. 4th DCA 2010 ) . The trial court denied the amended m otion for rehearing. This appeal ensues.

We review an order granting summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). Whether an absolute privilege applies is a pure question of law subject to

de novo review. DelM onico , 116 So. 3d at 1211.

Under the doctrine of absolute immunity, a party is “exempted from liability to an action for defamatory words published in the course of judicial proceedings, regardless of how false or malicious the statements may be, as long as the statements bea r some relation to or connection with the subject of inquiry.” Id. See also Myers v. Hodges , 44 So. 357, 361 (Fla. 1907) (stating that in order for defamatory words to be absolutely privileged, “they must be connected with, or relevant or material to, th e cause in hand or subject of inquiry”). The rational e for the privilege is

1 The causes of action against Barfield’s husband remain pending below and are not at issue in this appeal.3

based on two concerns: “(1) that the initial trial would needlessly devolve into another trial; and (2) that the potential exposure to a subsequent lawsuit would have a chilling e ffect on litigants seeking to redress their injuries.” DelMonico , 116 So. 3d at 1214. Where defamatory statements published in the course of a judicial proceeding are not pertinent to the cause at hand, a qualified privilege applies. Id. at 1213 (citing Myers , 44 So. at 363). A qualified privilege can be overcome by a showing of express malice. Id.

With respect to whether a statement relates to pending litigation, our supreme court in DelMonico stated:

The issue of whether a statement is co nnected with or related to the subject of inquiry is a threshold determination to be made by a judge, mindful that “much latitude must be allowed to the judgment and discretion of those who maintain a cause in court” when “determining what is pertinent.” Myers , 44 So. at 362; see also Hope v. Nat ’ l Alliance of Postal & Fed. Emps.,

Jacksonville Local No. 320 , 649 So. 2d 897, 901 (Fla. 1st DCA 1995) (noting that “courts have not imposed a strict relevancy test in determining whether a statement made in the j udicial process is entitled to immunity” in “recognition of the necessity of providing for the free flow of information”); Restatement (Second) of Torts § 586 cmt. c. (1977) (recognizing that attorney statements made during the course of judicial proceedin gs “need not be strictly relevant to any issue involved in” those proceedings for the absolute privilege to apply).

116 So. 3 d at 1219.

Zuccarelli presented the trial court with the Florida Supreme Court’s

decision in DelMonico

. In DelM onico , appellant sued business competitors alleging they defamed appellant by telling his clients that he used prostitutes to lure clients. While this litigation was pending, appellant filed a separate action against appellees’ attorney, alleging the attorney made false statements to appellant’s ex

- wives and business associates that appellant used prostitutes to get business and was being prosecuted for prostitution. The attorney moved for summary judgment based on absolute privilege because the statements wer e made in the course of a judicial proceeding. The supreme court found that the absolute privilege did not apply.

Th e supreme court recognized that “[i]n cases where this Court has4

applied the absolute privilege to issues involving defamation, the

defa matory statements at issue were made either in front of a judicial officer or in pleadings or documents filed with the court or quasi

- judicial body.” Id. at 1217. In contrast, DelMonico involved the “ex

- parte, out

- of

court questioning of a potential, non party witness in the course of investigating a pending lawsuit.” Id

. at 1220. The supreme court found

that “where an attorney steps outside of both the courtroom and the formal discovery process to investigate a claim, this Court’s precedent does not

sup port a n extension of the absolute privilege.” Id

. at 1218. The s upreme

c ourt was concerned that there were no prote ctions of judicial oversight

like those that exist during deposition. The court explained:

D uring depositions, a protection against abus e exist s simply because the proceeding is adversarial in nature and the opposing side has an opportunity to immediately object to any untrue statements. Moreover, if statements are falsely made, the harmed party may seek to impose sanctions against the

of fending party in an expeditious way, with the transcript o f the deposition providing a clear record of proof. Further, the trial court can thereafter strike the defamatory matter from

the record.

Id

. at 1217.

Unlike in DelM

onico where the statements were made during an out

- of

court, informal investigation, in the present case the statement at issue

was made in an affidavit filed in court. Thus, the present case involves “more formalized judicial settings” with the “presence of safeguards” to “facilitate[] and promote[] an unimpeded speaking environment while protecting an individual from false or malic ious statements .” Id. The harmed party could seek sanctions against the individual filing the affidavit with the objected to allegation. Further, the harmed party could move to strike the defamatory matter from the affidavit. In this case, like

envisio ned in Del

M onico , the fact that the offending statement was filed in a manner where the harmed party had an opportunity to object was the clear distinction between statements that had sufficient safeguards , on the one hand, and those made ex parte and wher e the harmed party did not

have an o pportunity to object such as in Del M onico , on the other hand

.

Zuccarelli also challenges the trial court’s award of attorney’s fees after an evidentiary hearing . Because Zuccarelli has not provided this court

with a transcript, we affirm on this issue as well

. See Applegate v. Barnett Bank of Tallahassee

, 377 So. 2d 1150 , 1152 (Fla. 1979) ; I

- 95 Motorsports, Inc. v. Goldberg , 155 So. 3d 449, 450 (Fla. 4th DCA 2015); Palm Beach5

Polo, Inc. v. TJ Palm Beach Assocs. , L. P. , 21 So. 3d 183, 184 (Fla. 4th DCA 2009).

Affirmed

.

M AY and C IKLIN
, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.