        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
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

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

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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-of-
court 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-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 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.




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