Nicholas A. James v. Daniel K. Leigh, and Kenny Leigh, P.A.
145 So. 3d 1006
| Fla. Dist. Ct. App. | 2014Background
- Petitioner (former law partner) filed pleadings in his divorce (Objection to Entry of Final Judgment; Husband’s Brief) alleging misconduct by his former partner; those filings were attached to respondents’ complaint.
- Respondents (former partner and firm) sued petitioner for defamation and breach of a non‑disparagement agreement based on statements in the divorce pleadings.
- Petitioner moved to dismiss those claims, asserting the absolute litigation privilege bars civil liability for statements made in judicial proceedings.
- The trial court denied the motion, finding the privilege’s applicability was not clear on the face of the complaint; petitioner sought certiorari review.
- The appellate court reviewed whether the privilege was shown on the face of the complaint/exhibits and whether the non‑disparagement agreement waived the privilege.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statements made in petitioner’s divorce pleadings are protected by the absolute litigation privilege | Respondents argued some statements were not sufficiently related to the divorce and thus not privileged | Petitioner argued the statements were part of his justification for setting aside the marital settlement and therefore related to the proceeding | Court held the statements had “some relation” to the divorce proceeding and are absolutely privileged |
| Whether the absolute privilege must be analyzed statement‑by‑statement for relevance | Respondents urged a sentence‑by‑sentence relevancy inquiry to determine privilege coverage | Petitioner argued a lenient “some relation” test applies and covers the pleadings here | Court rejected a strict sentence‑by‑sentence test; applied the “some relation” standard requiring minimal pertinence |
| Whether falsity or malice defeats the absolute litigation privilege | Respondents suggested malice/falsity could negate protection | Petitioner contended falsity/malice irrelevant to absolute immunity | Court held falsity or malice is irrelevant for the absolute privilege |
| Whether a non‑disparagement agreement can waive the absolute litigation privilege | Respondents contended petitioner waived the privilege by contract | Petitioner argued the privilege is unwaivable because it protects public interest in judicial candor | Court held the privilege cannot be waived by private agreement and the non‑disparagement clause does not defeat it |
Key Cases Cited
- Fridovich v. Fridovich, 598 So.2d 65 (Fla. 1992) (establishing absolute privilege for statements in judicial proceedings)
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 689 So.2d 606 (Fla. 1994) (discussing balance between reputational interests and public interest in full disclosure)
- Hope v. Nat’l Alliance of Postal & Fed. Emps., Jacksonville Local No. 320, 649 So.2d 897 (Fla. 1st DCA 1995) (adopting lenient “some relation” test for privilege)
- DelMonico v. Traynor, 116 So.3d 1205 (Fla. 2013) (affirming relation standard for litigation privilege)
- Chames v. DeMayo, 972 So.2d 850 (Fla. 2007) (private waiver cannot defeat rights designed to protect public interests)
- Dadic v. Schneider, 722 So.2d 921 (Fla. 4th DCA 1998) (statements made to inform the court of reasons for a motion are privileged)
- Ross v. Blank, 958 So.2d 437 (Fla. 4th DCA 2007) (falsity/malice does not affect absolute privilege)
- Fariello v. Gavin, 873 So.2d 1243 (Fla. 5th DCA 2004) (privilege may be raised in a motion to dismiss if apparent on complaint face)