       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

               MELISSA McCULLOUGH, individually, and
                  McCULLOUGH LAW GROUP, P.A.,
                           Appellants,

                                     v.

                    KELLY KUBIAK, individually, and
                      MERLIN LAW GROUP, P.A.,
                             Appellees.

                              No. 4D13-4048

                           [February 18, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Eileen M. O’Connor, Judge; L.T. Case No. 13001660 04.

  Melissa K. McCullough of McCullough Law Group, P.A., South
Daytona, for appellants.

   Michael J. McGirney and Bruce Bellingham of Spector Gadon & Rosen
P.C., St. Petersburg, for appellees.

GERBER, J.

   The plaintiffs appeal from the circuit court’s order dismissing with
prejudice their actions for defamation, negligent supervision, and
negligent retention, and granting the defendants’ motion for sanctions
under section 57.105, Florida Statutes (2013). The plaintiffs argue that
the court primarily erred in three respects: (1) finding that the absolute
privilege extending to statements published in the course of judicial
proceedings barred the plaintiffs’ defamation actions; (2) dismissing the
plaintiffs’ negligence actions based on the dismissal of the plaintiffs’
defamation actions; and (3) finding that the plaintiffs should be sanctioned
under section 57.105. We conclude that only the plaintiffs’ third argument
has merit. Therefore, we affirm the order dismissing with prejudice the
plaintiffs’ actions for defamation, negligent supervision, and negligent
retention, and we reverse the order granting the defendants’ motion for
sanctions under section 57.105.
    On the plaintiffs’ first argument, we agree with the circuit court that
the absolute privilege extending to statements published in the course of
judicial proceedings barred the plaintiffs’ defamation actions. According
to the complaint, defendant Kubiak, during a deposition of a non-party
witness, and as part of an attempt to “scar[e] the insurance company into
settlement,” allegedly made various statements disparaging the plaintiffs’
litigation practices in similar cases. Because such alleged statements were
made during the course of a judicial proceeding and allegedly bore some
relation to settlement negotiations in that proceeding, the statements were
absolutely privileged. See Levin, Middlebrooks, Mabie, Thomas, Mayes &
Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)
(“[A]bsolute immunity must be afforded to any act occurring during the
course of a judicial proceeding, regardless of whether the act involves a
defamatory statement or other tortious behavior . . . , so long as the act
has some relation to the proceeding.”); Sussman v. Damian, 355 So. 2d
809, 811 (Fla. 3d DCA 1977) (“This privilege extends to the taking of a
deposition or to conversations between opposing counsel in a pending civil
action in which the attorney represents one of the parties involved.”)
(citations omitted); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1276
(11th Cir. 2004) (“[E]vents taking place outside the courtroom during
discovery or settlement discussions are no less an integral part of the
judicial process, and thus deserving of the protection of the [litigation]
privilege, than in-court proceedings.”) (citation omitted).

   We distinguish this case from DelMonico v. Traynor, 116 So. 3d 1205
(Fla. 2013), in which our supreme court held that the absolute privilege
for alleged defamatory statements made in the course of a judicial
proceeding does not extend to the “narrow scenario” where statements are
made by an attorney during ex-parte, out-of-court questioning of a
potential, nonparty witness while investigating matters connected to a
pending lawsuit. Id. at 1208. The court reasoned:

      [T]he purpose of absolute immunity is not advanced by
      protecting a lawyer who is defaming a party to a witness
      outside of a proceeding at a time when both parties are not
      present and do not have an opportunity to be heard.

Id. at 1208-09 (citation and internal quotation marks omitted). That
“narrow scenario” and the concern which it presents do not exist here.

   On the plaintiffs’ second argument, we conclude that the circuit court’s
proper dismissal of the plaintiffs’ defamation actions based on absolute
privilege also bars the plaintiffs’ negligence actions for the same reason.
See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d

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380, 384 (Fla. 2007) (“The litigation privilege applies across the board to
actions in Florida, both to common-law causes of action, those initiated
pursuant to a statute, or of some other origin.”).

    On the plaintiffs’ third argument, we conclude the circuit court erred
in finding that the plaintiffs should be sanctioned under section 57.105.
We recognize the circuit court found, pursuant to section 57.105(1)(b), that
the plaintiffs knew or should have known that their claims when presented
to the court were “not supported by the application of then-existing law,”
namely Levin. However, the circuit court did not address section
57.105(3)(a), Florida Statutes (2013), which provides:

      Notwithstanding subsections (1) and (2), monetary sanctions
      may not be awarded:

      (a) Under paragraph (1)(b) if the court determines that the
      claim or defense was initially presented to the court as a good
      faith argument for the extension, modification, or reversal of
      existing law or the establishment of new law, as it applied to
      the material facts, with a reasonable expectation of success.

§ 57.105(3)(a), Fla. Stat. (2013) (emphasis added).

    Here, we conclude that the plaintiffs’ claim was presented as a good
faith argument for the establishment of new law, with a reasonable
expectation of success. We reach this conclusion because, only one month
after the plaintiffs filed their actions, our supreme court issued DelMonico.
In DelMonico, the plaintiffs’ defamation action, when initially filed, also was
“not supported by the application of then-existing law,” namely Levin.
However, the plaintiffs’ defamation action in DelMonico ultimately
established new law by recognizing a “narrow scenario” to which the
absolute privilege did not apply. We view the plaintiffs’ action here as
merely another case in which allegedly defamed parties sought to establish
a “narrow scenario” to which the absolute privilege did not apply.

   Based on the foregoing, we affirm the order dismissing with prejudice
the plaintiffs’ actions for defamation, negligent supervision, and negligent
retention, and we reverse the order granting the defendants’ motion for
sanctions under section 57.105.

   Affirmed in part, reversed in part.

WARNER and CIKLIN, JJ., concur.


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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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