DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN M. ZUCCARELLI III,

Appellant,

v.

MARILYN BARFIELD,

Appellee.

No. 4D13-3031

[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.

Marilyn Barfield, Jupiter Inlet Colony, pro se.

LEVINE, 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 counts 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 to 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 Marilyn Barfield and her husband for 

defamation and conspiracy to defame. Zuccarelli is the mayor of Jupiter 
2

Inlet Colony, and Barfield and her husband are residents of the town.

1 

Zuccarelli alleged that Barfield published false and defamatory 

statements in an affidavit filed in support of 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 mayor.” 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 made 

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 the pending judicial proceeding. The trial court granted 

summary judgment as to the counts against Barfield because “[t]hese 

Counts rely on affidavits filed 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 

the 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 motion 

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. DelMonico, 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 bear 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, the 

cause in hand or subject of inquiry”). The rationale 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 effect 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 connected 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 judicial 

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 proceedings “need not be strictly relevant to any 

issue involved in” those proceedings for the absolute privilege 

to apply). 

116 So. 3d at 1219. 

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

decision in DelMonico. In DelMonico, 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 were made in the course of a 

judicial proceeding. The supreme court found that the absolute privilege 

did not apply. 

The supreme court recognized that “[i]n cases where this Court has 
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applied the absolute privilege to issues involving defamation, the 

defamatory 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-ofcourt questioning of a potential, nonparty 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 

support an extension of the absolute privilege.” Id. at 1218. The supreme 

court was concerned that there were no protections of judicial oversight 

like those that exist during deposition. The court explained: 

During depositions, a protection against abuse exists 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 

offending party in an expeditious way, with the transcript of 

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 DelMonico where the statements were made during an out-ofcourt, 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 malicious 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 

envisioned in DelMonico, 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 where the harmed party did not 

have an opportunity to object such as in DelMonico, 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 Beach 
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Polo, Inc. v. TJ Palm Beach Assocs., L.P., 21 So. 3d 183, 184 (Fla. 4th DCA 

2009). 

Affirmed. 

MAY and CIKLIN, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.